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SUPREME COURT OF INDIA
R.S. SARKARIA AND D.A. DESAI, JJ.
Biswabani Pvt. Ltd., Appellant
Versus
Santosh Kumar Dutta and others, Respondents.
Civil Appeal No. 2450 of 1969
Decided on 14-9-1979.
Advocates appeared
Mr. L. N. Sinha, Sr. Advocate (M/s. A. N. Sinha and Rathin Das, Advocates with him), for Appellant; Mr. A. K. Sen, Sr. Advocate (M/s. D. N. Mukherjee and N. R. Chaudhary, Advocates with him) (for Nos. 1, 2-7 & 9) and Mr. D. Mookerjee, Sr. Advocate (Mr. P. K. Mukherjee, Advocate with him) (for No. 3), for Respondents.
– On the expiry of the period the solemn implied promise or assurance is to return possession. If such a promise is to be enforced overlooking or ignoring Rent Control Restriction Act is would make a mockery of protection extended by Restriction Act. It was held in the case of Biswabani (P) Ltd. v. Santosh Kumar Dutta, AIR 1980 SC 226 = 1980(1) SCC 185 = 1980(2) SCJ 1 = 1979(2) Rent LR 470, that Section 53A of the Act is not at all attracted. Even if it is assumed that the appellant was put in possession for the first time under a lease which turns out to be void, the appellant came into possession of the premises with the consent of the landlords and paid rent month to month. As the lease was to be for a period of five years, for want of registration no operative lease came into existence. In almost identical circumstances in Ram Kumar Das v. Jagdish Chandra Deb Bhabal Deb, AIR 1952 SC 23 = 1952 SCR 269 an inference of tenancy was made and the duration of the tenancy in such circumstances was held to be from month to month.
– A second lease never came into existence for want of registration and more particularly the appellant was not put in possession under the purported second lease which turns out to be void. The paradoxical approach manifested in the approach is that if a valid lease had come into existence on the expiry of it the appellant tenant would have continued in possession under the protection of the relevant Rent Restriction Act. However, if such an attempt at creating a fresh lease was ineffective or infructous, how can such an inchoate exercise destroy the existing rights.
– Thus held that the appellant was a tenant and continued to be a tenant and was entitled to protect its possession by appropriate proceeding unless evicted in due course of time and the provisions of Section 53A would not be attracted.
JUDGMENT
DESAI, J.:—Kalpana Theatre with its furnishings and fixtures situated at 61, Chintamoni Dey Road, Howrah, belonging to respondents 1 and 2 is the subject-matter of dispute between its landlords and tenant awaiting resolution for the last two decades. Under a registered lease deed dated 11th Sept. 1948, respondent 3 Kanti Bhusan Bose, took this Theatre on lease for a period of 5 years with effect from 1st September 1948. Respondent 3 is the Managing Director of the appellant Biswabani Pvt. Ltd. (company for short). It appears that during the period of lease respondents 1 and 2, the owners of the Theatre, accepted the appellant company as their tenant and in token of it accepted rent from the company at the rate of Rs.2,000 p.m. On the expiry of the period of 5 years disputes arose between the lessors and the lessee whereupon respondents 1 and 2 lessors commenced an action in ejectment against the company on 5th October 1953 in the Court of the First Subordinate Judge, Howrah. In August 1953 appellant company as lessee filed an application before the Rent Controller under the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950, for fixation of standard rent of the demised premises. Ultimately the parties arrived at a compromise and the consent terms were filed in T. S. No. 68 of 1953 instituted by the lessors respondents 1 and 2 for eviction of the company and the Court was invited to pass a decree in terms thereof. The consent decree, inter alia, provided that the company would be the tenant of Kalpana Theatre on a monthly rent of Rs.1,000 from 1st March, 1955 for a period of 5 years and that the third respondent Kanti Bhusan Bose had to offer security by deposit of G. F. Notes on the face value of Rupees 20,000 with the lessors. The lease was to be for a period of 5 years commencing from 1st March, 1955. An indenture of lease was to be drawn up and executed by both the parties in terms of the consent decree. The company was given permission to sublet the premises with prior approval of the lessors. There is a furious controversy about one of the terms of the consent decree which reads as under :
"After the period of five years there shall be no renewal of the lease, the lessee shall be treated as trespasser".
On the expiry of the term of five years on 29th February 1960 it appears that respondents 1 and 2 lessors locked up a portion of the demised premises whereupon the company filed a suit on 14th March 1960 against respondents 1 and 2 lessors and the pro forma respondent 3 for a declaration that the company was the tenant of the premises, and for a permanent injunction restraining respondents 1 and 2 from interfering with its tenancy rights. There was also a prayer for a mandatory injunction directing respondents 1 and 2 to remove the locks put by them on some portion of the demised premises and for reliefs incidential and ancillary thereto.
2. The suit was, inter alia, contested on a contention that as the consent decree provided for a fresh lease of five years such a lease can only be valid if it is registered and as the consent decree or the document incorporating the terms of compromise was not registered, the company continued in possession under a void lease and, therefore, on the expiry of the period of five years the company was a trespasser and respondents 1 and 2 were entitled to take over possession from such a trespasser. It was also contended that on the expiry of the period of five years on 29th February 1960 the company handed over peaceful and vacant possession to respondents 1 and 2 in terms of the consent decree.
3. The trial court held that as the consent decree provided for a lease for a period of five years in the absence of registration the lease for a period of five years did not come into existence but if the tenant entered into possession under an invalid lease and the landlord accepted rent a tenancy from month to month came into existence between the lessors and the lessee and t
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