# Anil Jaiswal Revisionist v. Smt. Khalida Fazli Opp. Party

- **Citation:** (2021) 6 ILRA 413
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-06-03
- **Case number:** Civil Revision No. 101 of 2012
- **Bench:** Jaspreet Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/anil-jaiswal-revisionist-v-smt-khalida-fazli-opp-party-47116
- **Pages:** 13

## Headnote

414 INDIAN LAW REPORTS ALLAHABAD SERIES
S.W. Zaman, Awadhesh Kumar, Sanjay Kumar
Srivastava

Suit for seeking arrears of rent and
ejectment preferred by the Plaintiff been
decreed-Revisionist tennant challenged
the order-relationship of lessor and lessee
not disputed-ter of lease as agreed has
expired-notice terminating tenancy not
disputed.

Revision dismissed.(E-8)

List of Cases cited:

## Text

_Characters 0–39,983 of 43,257. This is a partial read: ask again with offset=39983 for what follows._

6 All. Anil Jaiswal Vs. Smt. Khalida Fazli
413
शशकायर्कर्ात के मौहल्ला सूयत, नगर पंर्ायर्
हररहरपचर, िाना महोली, श्जला संर् कबीर
नगर में प्रवेश नहीं करेगा और अतर् आववयक
हो र्ो प्रवेश के पूवत िाना प्रभारी महोली को पूवत
में शलखखर् में सूर्ना देगा र्िा प्रवेश का
कारण बर्ायेगा र्िा सक्षम िाना प्रभारी प्रवेश
की अनचमतर् देने या न देने का अधधकारी
होगा।

(v) आवेदक/ प्रािी की ओर से इस
जमानर् आदेश की प्रतर्शलवप इलाहाबाद उच्र्
न्यायालय की अधधकृर् वेबसाइर् से अधोभरण
(डाउनलोड) कर के भी सक्षम न्यायालय के
सम्मचख प्रथर्चर् की जावेगी।

(vi) सक्षम न्यायालय/अधधकारी आदेश
की कम्प्यूर्र जतनर्(जनरेर्ेड) प्रतर्शलवप का
सम्यक परीक्षण इलाहाबाद उच्र् न्यायालय
की अधधकृर् वेबसाइर् से करने के उपरान्र् ही
शलखखर् रूप में आवेदक/प्रािी को जेल से
छोड़ने का आदेश पाररर् करेगा।

14. उपरोक्र् शर्ों का उल्लंघन करने की
दशा में प्रािी/आवेदक की जमानर् तनरथर् की
जा सकेगी।

15. इस आदेश में उल्लेखखर् कोई भी
हर्प्पणी ववर्ारण की प्रक्रिया व आदेश को
क्रकसी भी र्रह से प्रभाववर् नहीं करेगी।

16. वर्तमान जमानर् याधर्का उपरोक्र्
आदेशानचसार थवीकर की जार्ी है।

17. इस उच्र् न्यायालय के महाप्रबन्धक
को तनदेशशर् क्रकया जार्ा है क्रक वो इस तनणतय
की एक प्रतर् अतर्शीघ्र उिर प्रदेश शासन के
मचख्य सधर्व व पचशलस महातनदेशक को इस
आशय से प्रेवषर् करे की इस तनणतय के प्रथर्र
11 में "साक्षी सचरक्षा योजना 2018" को राज्य
में ववधध के रूप में साक्षर, अनचपालन संबधी
तनदेशो को अतर्शीघ्र कायातश्न्वर् करें।

18. उिर प्रदेश शासन के मचख्य सधर्व व
पचशलस महातनदेशक को यह भी तनदेश हदया जार्ा
है क्रक इस तनणतय के प्रथर्र 11 में हदये गये तनदेशों
के पररपालन संबंधी प्रगतर् ररपोर्त, व्यश्क्र्गर्
शपि पत्र के साि इस न्यायालय के समक्ष आज
से र्ार सप्र्ाह के भीर्र दाखखल करें।

19. इस जमानर् याधर्का को इस तनणतय के
केवल प्रथर्र 11, 17 व 18 में पाररर् तनदेशों की
प्रगतर् के अवलोकनाित व अगामी उधर्र् आदेश के
शलए 5/07/2021 को इस पीठ के समक्ष नवीन वाद
सूर्ी में िम संख्या एक पर सूर्ीबद्ध क्रकया जाये।
----------
(2021)06ILR A413
REVISIONAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 03.06.2021

BEFORE

THE HON'BLE JASPREET SINGH, J.

Civil Revision No. 101 of 2012

Anil Jaiswal ...Revisionist
Versus
Smt. Khalida Fazli ...Opp. Party

Counsel for the Revisionist:
N.N. Jaiswal, Deepak Seth, Prashant Jaiswal,
Ratnesh Chandra, Ravindra Pratap Singh

Counsel for the Opp. Party:
414 INDIAN LAW REPORTS ALLAHABAD SERIES
S.W. Zaman, Awadhesh Kumar, Sanjay Kumar
Srivastava

Suit for seeking arrears of rent and
ejectment preferred by the Plaintiff been
decreed-Revisionist tennant challenged
the order-relationship of lessor and lessee
not disputed-ter of lease as agreed has
expired-notice terminating tenancy not
disputed.

Revision dismissed.(E-8)

List of Cases cited:

1. M/s Kedarnath Baijnath & ors. Vs Sri Ram
Chandra Ji, Sri Jankiji, Sri Lakshman Ji,
Virajman Mandir & ors., 1991 ARC page 420

2. C.Albert Morris Vs K. Chandrasekaran &
ors., 2006 (1) SCC 228

3. Santosh Kumari Anand Vs U.P. Power
Corporation
Vidyut
Transmission
Khand
Thru. Exe. Engg. reported in 2012 (2) ARC
420

4. Smt. Mehroon Nisha Vs Allah Tala Waqf No.
232
Masjid
Akhoon
Zada
Shahib,
Bareilly,2009, ACJ, 183

5. Govardhan Goyal & ors. Vs Rishi Raj
Singhal reported in 2013 (9) ADJ 138.

6. Trilok Singh Chauhan Vs Ram Lal & ors.
reported in 2018 (2) SCC 566

7. State of Uttar Pradesh Vs Lalji Tandon,
2004 (1) SCC 1

8. Syed Jaleel Zane Vs P. Venkata Murlidhar
AIR 1981 AP 328

9.A.H. Forbes Vs Hanuman Bhagat & ors.,AIR
1924 Patna 88

10. Society of State Vs Itwari, AIR 1937 Alld.
572

11. Savitri Devi & ors. Vs First Additional
District and Sessions Judge reported in 1994
(24) ALR 181
(Delivered by Hon'ble Jaspreet Singh, J.)

1. The instant revision has been
preferred
under
Section
25
of
the
Provincial Small Causes Court Act, 1887
against the judgment and order dated
03.09.2012 passed by the Additional
District Judge, Court No. 1, Barabanki in
SCC Suit No. 3 of 2007 by means of which
the SCC Suit No. 3 of 2007 seeking arrears
of rent and ejectment preferred by the
plaintiff-respondents has been decreed and
the defendant-revisionist has been directed
to handover the possession of the property
in question within three months to the
plaintiff/landlord.

2. The revisionist-tenant has assailed
the judgment dated 03.09.2012 primarily
on two grounds.

(i) It has been urged by Sri Ratnesh
Chandra, learned counsel for the revisionist
that the lease which was granted was of a
permanent nature and it was not open for
the landlord/respondent to terminate the
said tenancy. The lease being permanent
was not capable of termination and this
aspect of the matter has not been
considered in the correct perspective and
has been decided against the weight of the
material on record.

(ii) The other submission of Sri
Chandra is that the landlord had leased out
an open piece of land. That being so in
view of Section 15 of the Act of 1887 read
with Article 4 as appended to the Second
Schedule of the Provincial Small Causes
Court Act, the suit was not maintainable
before the Judge, Small Causes and the
decree passed by the Court being wholly
without jurisdiction is liable to be set aside.

3. Per contra, Sri Sanjay Kumar,
learned counsel for the landlord/respondent
6 All. Anil Jaiswal Vs. Smt. Khalida Fazli
415
submits that the lease was though of an
open piece of land but the covenants of the
lease clearly provided that the tenant could
only raise temporary constructions and
upon termination of the lease or upon
expiry of its term the tenant would have 3
month's time to remove the same, in case if
he fails to do so, the said constructions
would vest with the landlord and in such a
case where the landlord seeks eviction from
the land and building, hence, such a suit
would be cognizable by the Judge, Small
Causes.

4. It is further urged that the lease
which
was
executed
on
13.04.2000
comprised of both land and temporary
construction and thus when the lease
expired, even at the time of issue of notice
and as also at the time of filing of the suit
the eviction was sought from both land and
building, hence, the suit was filed before
Judge Small Cause and this has been
adequately considered by the court below.

5. It has also been urged that the lease
was not permanent and the submission to
the contrary is misconceived, inasmuch as,
the lease deed clearly indicated the term to
be 5 years and upon the expiry of the
aforesaid term, the tenant was required to
vacate. There is no covenant nor there is
any material to indicate either by intention
or by any deed that the parties ever
contemplated creating a perpetual lease.
This aspect of the matter has also been
considered by the Trial Court and has been
negatived, consequently, only to harass the
landlord, the instant revision has been
preferred which deserves to be dismissed.

6. The learned counsel for the
respondents has relied upon a decision of
this Court in the case of (i) M/s Kedarnath
Baijnath and Others Vs. Sri Ram Chandra
Ji, Sri Jankiji, Sri Lakshman Ji, Virajman
Mandir and Others reported 1991 ARC
page 420 (ii) C.Albert Morris Vs. K.
Chandrasekaran and Others reported in
2006 (1) SCC 228, (iii) Santosh Kumari
Anand Vs. U.P. Power Corporation Vidyut
Transmission Khand Thru. Exe. Engg.
reported in 2012 (2) ARC 420, (iv) Smt.
Mehroon Nisha Vs. Allah Tala Waqf No.
232 Masjid Akhoon Zada Shahib, Bareilly
reported in 2009, ACJ, 183 and (v)
Govardhan Goyal and Others Vs. Rishi
Raj Singhal reported in 2013 (9) ADJ
138..

7. In order to appreciate the rival
contentions, certain facts giving rise to the
instant revision are being noticed first:-

8. That the landlord-respondent
instituted a suit bearing SCC Suit No. 3 of
2007 before the Court of Civil Judge,
Senior Division, Court No. 20, District
Barabanki acting as Judge, Small Causes.
In the plaint, it was specifically pleaded
that the land bearing No. 805M, 645M,
646M situated in Gram Paisar, Pargana and
Tehsil Nawabganj, District Barabanki was
leased out to the father of the revisionist
namely Bharion Prasad. The boundaries of
the leased land was also mentioned in
paragraph 1.

9. It was specifically pleaded that a
lease deed was executed by the landlord in
favour of Sri Bharion Prasad and Sri Anil
Jaiswal on 13.04.2000. The said lease was
for a period of 5 years. The lease provided
that the lease would commence from the
year 1997 and for the first 5 years, the rate
of rent would be Rs. 4,000/-, in case if after
the first 5 years, the lease is renewed then
the rate of rent would be Rs. 5,000/- for the
next 5 years. It was further pleaded that
upon the expiry of the first five years, with
416 INDIAN LAW REPORTS ALLAHABAD SERIES
consent, the lease was extended on the
existing terms except that the rate of rent
stood enhanced to Rs. 5,000/-. Since
Bharion Prasad, the father of the revisionist
expired,
hence,
the
revisionist
alone
succeeded to the lease hold rights. The said
lease came an end on 31.12.2006. since the
tenant had stopped paying the rent, hence, a
notice determining the tenancy was issued
on 30.11.2006 which was served on the
revisionist and as the tenant did not comply
or vacate the premises, hence, the suit was
instituted.

10. The tenant-revisionist filed his
written statement wherein he admitted the
plaintiff-respondent to be the landlord. He
also admitted the execution of the lease
deed dated 13.04.2000. However, took the
defence that the lease was of a permanent
nature and the plaintiff-respondent did not
have the right to evict the tenantrevisionist. In the additional plea, it was
stated that the tenant had raised permanent
constructions which was in the knowledge
and with consent of the landlord. The
defendant had spent more than Rs. 75 lakhs
on the said constructions and the same
continued since long.

11. It was also pleaded that initially
the father of the respondent namely
Chaudhary Mohd. Azimuddin Asharaf had
executed a lease in favour of the father of
the revisionist namely Bharion Prasad on
01.09.1967. In pursuance thereof, the father
of the revisionist had raised constructions
and erected sheds for the purposes of
opening a Service Station and a workshop.
Initially the rent was Rs. 160/- per month
for the period of 10 years.

12. After the said lease expired in the
month of September, 1977, Chaudhary
Mohd. Azimuddin Asharaf instituted SCC
Suit No. 22 of 1977 wherein a compromise
was arrived at and in terms of the said
compromise decree, the lease was extended
till 01.09.1987 with an enhanced rate of Rs.
300/- per month. It was also pleaded that
the father of the revisionist had not only
established a service station but had also
taken an agency for tractors and also raised
10 shops with slab and other permanent
constructions and as the lease was renewed
from time to time but on an enhanced rate
of rent which was continued to be paid by
the revisionist.

13. It was also pleaded that after the
lease expired in the year 1987, the same
was further extended for a period of 5 years
on enhanced rate of rent of Rs. 1,000/- per
month. After the death of Chaudhary
Mohd. Azimuddin Asharaf, a fresh lease
was executed on 13.04.2000 which was for
a period of 5 years w.e.f. 1997. The rate of
rent was again enhanced to Rs. 5,000/- for
the first 5 years and Rs. 10,000/- for the
next term and that the lease would continue
till the time the constructions remained.
These pleadings related to the plea
regarding the lease being of permanent
nature.

14. Another defence taken by the
revisionist in paragraph 29 of the written
statement was that the Court did not have
the jurisdiction to try the suit.

15. The parties led the evidence and
the SCC Court after considering the
material
evidence
as
well
as
the
submissions of the learned counsel for the
parties while writing its judgment framed 5
points for determination to effectively
answer the controversy.

16. The SCC Court first dealt with the
point of jurisdiction and found that in terms
6 All. Anil Jaiswal Vs. Smt. Khalida Fazli
417
of Clause 11 of the lease deed which
provided that in case if the tenant did not
remove the said constructions within three
months, the same would vest with the
landlord and as the said condition was
breached and the eviction was from the
building, hence, the suit was cognizable by
the Judge, Small Causes. The court below
also relied upon a decision of this Court in
the case of M/s Kedar Nath Baijnath
(Supra).

17. While considering the plea of
permanent lease, the SCC Court found that
the lease was for a fixed term with no option
of renewal or extension, hence, it decided the
same against the tenant. It further found that
since the relationship of the landlord and
tenant was admitted and also the rate of rent
as well as the fact that the term of the lease
stood expired and the notice was duly served,
hence, the suit was decreed by means of
judgment and decree dated 03.09.2012.

18. It is in the aforesaid backdrop that
the said judgment has been assailed on the
twin issues as raised by the learned counsel
for the revisionist.

19. The Court has heard the learned
counsel for the parties and also perused the
record.

20. At the outset it will be apposite to
notice that this Court is exercising revisional
powers under Section 25 of the Provincial
Small Cause Court Act.

21. The power under Section 25 of the
Provincial Small Cause Court Act though is
wider than Section 115 C.P.C. but the very
nature of the revisional power is that it is
truncated. The Apex Court in the case of
Trilok Singh Chauhan Vs. Ram Lal and
Others reported in 2018 (2) SCC 566 had
the occasion to consider the scope of the
revisional powers under Section 25 of the
Provincial Small Cause Court Act and by
relying upon an earlier decision of the
Apex Court in the case of Hari Shanker Vs.
Rao Girdhari Lal Chaudhary reported in
AIR 1963 SC 698 and a subsequent
decision of Mundrilal Vs. Sushila Rani
reported in 2007 (8) SCC 609, in
paragraphs 15 and 16 has held as under:-

15. The scope of Section 25 of the
1887 Act, came for consideration before
this Court on several occasions. In Hari
Shankar v. Rao Girdhari Lal Chowdhury
[Hari Shankar v. Rao Girdhari Lal
Chowdhury, AIR 1963 SC 698] , in paras 9
and 10, this Court laid down the following:
(AIR p. 701)

"9. The section we are dealing with, is
almost the same as Section 25 of the
Provincial Small Cause Courts Act. That
section has been considered by the High
Courts in numerous cases and diverse
interpretations have been given. The
powers that it is said to confer would make
a broad spectrum commencing, at one end,
with the view that only substantial errors of
law can be corrected under it, and ending,
at the other, with a power of interference a
little better than what an appeal gives. It is
useless to discuss those cases in some of
which the observations were probably
made under compulsion of certain unusual
facts. It is sufficient to say that we consider
that the most accurate exposition of the
meaning of such sections is that of
Beaumont, C.J. (as he then was) in Bell &
Co. Ltd. v. Waman Hemraj [Bell & Co. Ltd.
v. Waman Hemraj, 1937 SCC OnLine Bom
99 : (1938) 40 Bom LR 125 : AIR 1938
Bom 223] , where the learned Chief
Justice, dealing with Section 25 of the
Provincial
Small
Cause
Courts
Act,
observed: (SCC OnLine Bom paras 3-4)
418 INDIAN LAW REPORTS ALLAHABAD SERIES

''3. ... The object of Section 25 is to
enable the High Court to see that there has
been no miscarriage of justice, that the
decision was given according to law.

4. The section does not enumerate the
cases in which the Court may interfere in
revision, as does, Section 115 of the Code
of Civil Procedure, and I certainly do not
propose to attempt an exhaustive definition
of the circumstances which may justify such
interference; but instances which readily
occur to the mind are cases in which the
Court which made the order had no
jurisdiction, or in which the Court has
based its decision on evidence which
should not have been admitted, or cases
where the unsuccessful party has not been
given a proper opportunity of being heard,
or the burden of proof has been placed on
the wrong shoulders. Wherever the Court
comes
to
the
conclusion
that
the
unsuccessful party has not had a proper
trial according to law, then the Court can
interfere. But, in my opinion, the Court
ought not to interfere merely because it
thinks that possibly the Judge who heard
the case may have arrived at a conclusion
which the High Court would not have
arrived at.'

This
observation
has
our
full
concurrence.

10. What the learned Chief Justice has
said applies to Section 35 of the Act, with
which we are concerned. Judged from this
point of view, the learned Single Judge was
not justified in interfering with a plain
finding of fact and more so, because he
himself proceeded on a wrong assumption."

16. Another judgment which needs to
be noted is judgment of this Court in
Mundri Lal v. Sushila Rani [Mundri Lal v.
Sushila Rani, (2007) 8 SCC 609] . This
Court held that jurisdiction under Section
25 of the 1887 Act, is wider than the
revisional jurisdiction under Section 115
CPC. But pure finding of fact based on
appreciation of evidence may not be
interfered with, in exercise of jurisdiction
under Section 25 of the 1887 Act. The
Court also explained the circumstances
under which, findings can be interfered
with in exercise of jurisdiction under
Section 25. There are very limited grounds
on which there can be interference in
exercise of jurisdiction under Section 25;
they are, when (i) findings are perverse or
(ii) based on no material or (iii) findings
have been arrived at upon taking into
consideration the inadmissible evidence or
(iv) findings have been arrived at without
consideration of relevant evidence.

22. Now in the aforesaid backdrop,
the Court shall examine the submissions of
the learned counsel for the parties. In order
to finally determine the two submissions, it
will be necessary to notice the relevant
clauses of the lease deed.

23. The lease was executed on
13.04.2000. A term of 5 years was
specifically provided in the deed and the
tenant was permitted to raise temporary
structure according to the plan annexed
with the said lease and the specifications
attached with it.

24. The lease specifically provided
that the tenant shall not raise any
permanent structures. The lease rent was
agreed at Rs. 4,000/ per month for a period
of 5 years from 01.01.1997.

25. Clause 2 of the said lease
provided that upon the commencement of
the lease, the lessee with all possible
expedition
raise
suitable
temporary
structure in confirmity with the map and
plan annexed so that the same is completed
within a period of 6 months. It further
6 All. Anil Jaiswal Vs. Smt. Khalida Fazli
419
provided that such constructions shall
remain the property of the tenant during
the term of the tenancy but immediately
on expiry of such term or its sooner
determination the tenant shall remove
the same from the said land otherwise
the same shall become the absolute
property of the landlord who shall be
entitled to enter upon and to take
possession of the same.

26. In Clause 6 of the lease deed it
was specifically provided that the tenant
shall carry on his business but shall not
make any construction of permanent
nature.

27. Clause 11 of the lease deed
provided that the tenant shall have the
option to extend the lease of the said land
and structure erected thereon for a further
period of 5 years on the expiry of the lease
period provided the lessee gives a notice in
writing by registered post to the lessor of
his intention to do so at least 3 calender
months before the termination of the
present lease provided that such notice
shall be accompanied with a deposit of Rs.
5,000/- as security for regular payment of
rent during the extended term. It further
provided that the lease rent for the extended
term would be Rs. 5,000/- and after the
expiry of the said fixed term of 5 years, the
lessor shall not be entitled to exercise a
further option of renewal of the tenancy
and shall hand over and deliver the land
and structure (if not removed within
three months) to the landlord/lessor in
good condition as hereinbefore provided.

28. Clause 18 of the lease deed further
provided that the lessee within 30 days
before expiry of the period of this lease will
intimate the lessor of his intention in
writing to continue for a fresh term on the
terms and conditions setforth by the lessor
and the lessee to be finalized before the
term of 5 years expiring on 31.12.2006 and
no payment of rent will be withheld beyond
a period of 90 days failing which the lessor
shall be entitled to claim the interest at the
rate of 18% per annum on the amount so
withheld.

29. Clause 19 of the lease deed further
provided that if the lessee continues even
after the expiry of 10 years as mentioned
above, the lessor will be entitled to claim
the rent of Rs. 10,000/- per month and the
second party i.e. the lessee would have no
objection to pay the enhanced rent.

30. In the aforesaid backdrop,
considering the covenants contained in the
lease deed as well as the defence raised by
the revisionist, it is to be ascertained
whether the parties intended to create a
permanent lease.

31. At this juncture, it will be relevant
to notice that in India a lease may be in
perpetuity as neither the Transfer of
Property Act, 1882 nor the general law
prohibits a lease in perpetuity. However,
there are certain conditions as well as
principles which have to be noticed in order
to arrive at a conclusion whether a lease in
question is in perpetuity. It will be also
relevant to notice the difference between an
extension of a lease as well as its renewal
and what implications does it entail.

32. The Apex Court in the case of
State of Uttar Pradesh Vs. Lalji Tandon
reported in 2004 (1) SCC 1 had the
occasion to consider the aforesaid aspect of
the matter wherein it quoted with approval
the proposition laid down by a Division
Bench of the Andhra Pradesh High Court in
the case Syed Jaleel Zane v. P. Venkata
420 INDIAN LAW REPORTS ALLAHABAD SERIES
Murlidhar AIR 1981 AP 328. The Apex
Court also approved a decision of the
Division Bench of Calcutta High Court in
the case of Secretary of State of India in
Council Vs. A.H. Forbes. The relevant
proposition quoted with approval by the
Apex Court and as mentioned in paragraph
15, 16 and 17 of the case of Lal Ji Tandon
(supra) is being reproduced hereinafter:-

15. A Division Bench decision of the
Andhra Pradesh High Court in Syed Jaleel
Zane v. P. Venkata Murlidhar [AIR 1981 AP
328] wherein Jeevan Reddy, J., as His
Lordship then was, spoke for the Division
Bench makes almost an exhaustive discussion
of the relevant English and Indian law
available on the point and we express our
respectful agreement with the exposition of
law as made therein. We note with approval
the following proposition of law laid down
therein: (AIR pp. 332 & 334, paras 14 & 19)

(i) In India, the law does not prohibit a
perpetual lease; clear and unambiguous
language would be required to infer such a
lease. If the language is ambiguous the court
would opt for an interpretation negating the
plea of the perpetual lease;

(ii) To find an answer to the question
whether a covenant for renewal contained in
the lease deed construed properly and in its
real context, entitles the tenant to continue as
long as he chooses by exercising the option of
renewal at the end of each successive period
of 5 years subject to the same terms and
conditions depends on the deed of lease being
read as a whole and an effort made to
ascertain the intention of the parties while
entering into the contract. No single clause or
term should be read in isolation so as to
defeat other clauses. The interpretation must
be reasonable, harmonious and be deduced
from the language of the document;

(iii) The court always leans against a
perpetual renewal and hence where there is
a clause for renewal subject to the same
terms and conditions, it would be construed
as giving a right to renewal for the same
period as the period of the original lease,
but not a right to second or third renewal
and so on unless, of course, the language is
clear and unambiguous.

16. Another illuminating decision on the
point is by Sir Ashutosh Mookerjee, J.,
speaking for the Division Bench of the
Calcutta High Court in Secy. of State for
India in Council v. A.H. Forbes [(1912) 17
IC 180 : 16 CLJ 217 (Cal)] . The Division
Bench on a review of several English
decisions held:

"(1) A lease, which creates a tenancy for
a term of years, may yet confer on the lessee
an option of renewal.

(2) If the lease does not state by whom
the option is exercisable, it is exercisable (as
between the lessor and lessee) by the lessee
only, that is to say, a covenant for renewal, if
informally expressed, is enforced only in
favour of the lessee.

(3) The option is exercisable not merely
by the lessee personally but also by his
representative-in-interest.

(4) If the option does not state the terms
of renewal, the new lease will be for the same
period and on the same terms as the original
lease, in respect of all the essential conditions
thereof, except as to the covenant for renewal
itself.

(5) There is no sort of legal presumption
against a right of perpetual renewal. The
burden of strict proof is imposed upon a
person claiming such a right. It should not be
inferred from any equivocal expressions
which may fairly be capable of being
otherwise interpreted. The intention in that
behalf should be clearly shown; otherwise,
the agreement is satisfied and exhausted by a
single renewal.

(6) A covenant for renewal runs with
the land.
6 All. Anil Jaiswal Vs. Smt. Khalida Fazli
421

(7) The position of a lessee, who has
been always ready and willing to accept a
renewal on proper terms, is the same in
equity as if a proper lease had been
granted. Where the covenant for renewal
was still specifically enforceable at the
commencement of a suit for ejectment
against the lessee, the position of the lessee
in equity is the same as if it had been
specifically enforced."

17.Green v. Palmer [(1944) 1 All ER
670 : 1944 Ch 328 : 113 LJ Ch 223 : 171
LT 49 (ChD)] bears a close resemblance
with the facts of the present case. There the
parties had entered into a lease agreement
for six months. One of the covenants in the
lease read so: (All ER p. 670 G-H)

"The tenant is hereby granted the
option of continuing the tenancy for a
further period of six months on the same
terms and conditions including this clause,
provided the tenant gives to the landlord in
writing four weeks' notice of his intention
to exercise his option."

The plea raised on behalf of the tenant
was that the clause gave him a perpetual
right of renewal. Uthwatt, J. of the
Chancery Division held: (All ER p. 671 EG)

"[T]he first thing one observes is that,
in terms, there is granted to the tenant a
single option exercisable only once upon
the named event, and the subject-matter of
that option is an option ''of continuing the
tenancy for a further period of six months
on the same terms and conditions including
this clause'. To my mind, what that means
is this: the tenant is to be allowed once,
and
once
only,
the
opportunity
of
continuing the tenancy -- continuing it for a
further six months. Then we come to the
critical words ''on the same terms and
conditions including this clause'. As I read
it, that means there is included in the new
tenancy agreement a right in the tenant, if
he thinks fit, to go on for one further six
months, and when you have got to that
stage you have finished with the whole
matter. In other words, it comes to this:
''Here is your present lease. You may
continue that, but I tell you, if you continue
it, you continue it on the same terms as you
were granted the original lease. You may
continue it for a further 6 months with the
right to go on for another 6 months.'

Upon that footing, in the events which
have happened, all the landlord was bound
to do under this arrangement was to permit
the tenant to occupy for a period not
exceeding 18 months in the whole from the
time when the original lease was granted."

33. As far as the difference between
renewal and extension of a lease is
concerned, it will be noticed that where a
covenant for renewal exists, it is exercised
of course as a unilateral act by the lessee
and
the
consent
of
the
lessor
is
unnecessary. However, where the principal
lease executed between the parties contains
a renewal clause then the renewal has to
take place in accordance with the said
covenants and it must give rise to a fresh
deed. However, in the case of extension, it
is not necessary to have a fresh deed of
lease executed as the extension of lease for
the term agreed upon shall be a necessary
consequence of the clause of extension but
the option for renewal consistently with the
covenant for the renewal has to be
exercised in terms of the clause itself and
failing the execution of a fresh deed,
another lease for a fix term shall not come
in existence, though, the principal lease
inspite of the expiry of the term may
continue by holding over. This aspect of
the matter has been succinctly held by the
Apex Court in paragraph 13 and 14 of the
report in the case of Lal Ji Tandon (supra)
which reads as under:-
422 INDIAN LAW REPORTS ALLAHABAD SERIES

"13. In India, a lease may be in
perpetuity. Neither the Transfer of Property
Act nor the general law abhors a lease in
perpetuity. (Mulla on the Transfer of
Property Act, 9th Edn., 1999, p. 1011.)
Where a covenant for renewal exists, its
exercise is, of course, a unilateral act of the
lessee, and the consent of the lessor is
unnecessary. (Baker v. Merckel [(1960) 1 All
ER 668 : (1960) 1 QB 657 : (1960) 2 WLR
492 (CA)] , also Mulla, ibid., p. 1204.) Where
the principal lease executed between the
parties containing a covenant for renewal, is
renewed in accordance with the said
covenant, whether the renewed lease shall
also contain similar clause for renewal
depends on the facts and circumstances of
each case, regard being had to the intention
of the parties as displayed in the original
covenant for renewal and the surrounding
circumstances. There is a difference between
an extension of lease in accordance with the
covenant in that regard contained in the
principal lease and renewal of lease, again in
accordance with the covenant for renewal
contained in the original lease. In the case of
extension it is not necessary to have a fresh
deed of lease executed, as the extension of
lease for the term agreed upon shall be a
necessary consequence of the clause for
extension. However, option for renewal
consistently with the covenant for renewal
has to be exercised consistently with the
terms thereof and, if exercised, a fresh deed
of lease shall have to be executed between the
parties. Failing the execution of a fresh deed
of lease, another lease for a fixed term shall
not come into existence though the principal
lease in spite of the expiry of the term thereof
may continue by holding over for year by
year or month by month, as the case may be.

14. The issue whether a right to a new
lease consequent upon the option for
renewal having been successfully exercised
should again contain the covenant for
renewal, is not free from difficulty and has
been the subject-matter of much debate
both in England and in India. It would all
depend on the wordings of the covenant for
renewal contained in the principal lease,
the intention of the parties as reflected
therein and as determinable in the light of
the surrounding relevant circumstances."

34. Applying the principles as
extracted above and from the perusal of the
material on record, it would indicate that
the parties are not at variance in so far as
the execution of the lease deed dated
13.04.2000 is concerned. It would indicate
that the lease clearly provided for extension
only for the period of 5 years on the same
terms and conditions except that the lease
rent would stand enhanced from Rs. 4,000/-
to 5,000/- per month. The lease in Clause-II
also contained a negative stipulation that
after the expiry of the term which came to
an end on 31.12.2006. The lessee shall not
be entitled to exercise a further option of
renewal of the tenancy and shall handover
and deliver the land and structure to the
lessor.

35. Once the execution of the lease is
admitted and there is no material on record
to indicate that the parties intended
otherwise, while from the earlier lease
onwards the term was always specified and
no clause granted any right to the lessee to
raise any permanent construction or that the
lease was for a sufficiently long period to
infer creation of a permanent lease.
Moreover, as per the admitted case of the
defendant in his written statement, that the
lessor had instituted a SCC suit in 1977
wherein a compromise had been arrived at
and as a consequence the lease was
extended only till 1987. Thus, the material
on record does not suggest any creation of
lease of a permanent nature. There is no
6 All. Anil Jaiswal Vs. Smt. Khalida Fazli
423
case made out by the revisionist that the
lease was in the nature of perpetual lease.
The principles as noted in the decision of
the Lal Ji Tandon (supra) are clearly
attracted in the present case and the deed
dated 13.04.2000 itself created a lease for a
specific term with a negative stipulation
disentitling the revisionist to seek a further
option of renewal. In the aforesaid
circumstances, it cannot be said that the
lease was in perpetuity.

36. The learned counsel for the
revisionist has relied upon a decision of the
Patna High Court reported in (i) AIR 1924
Patna 88 in the case of A.H. Forbes Vs.
Hanuman Bhagat and Others, (ii) Society
of State Vs. Itwari reported in AIR 1937
Alld. 572 and (iii) Savitri Devi and Others
Vs. First Additional District and Sessions
Judge reported in 1994 (24) ALR 181 to
buttress his submissions on the point of
permanent lease.

37. In the case of A.H. Forbes (supra)
the lease in question was open ended i.e.
without any fix term. It is in view of the
aforesaid matter that the Division Bench of
the Patna High Court found that the
surrounding circumstances and intention
indicated that the lease was of a permanent
nature. However, the said decision can
clearly be distinguished, inasmuch as, in
the present case the lease as noticed above
was for a particular period and also it
contained
a
negative
stipulation
not
entitling the revisionist for any further
extension.

38. In the case of Itwari (Supra), the
Court considered the principle of estoppel
and noticed that the plaintiffs had failed to
deny or rebutt that the defendant was
allowed to erect pakka construction, but in
the instant case there is a lease between the
parties with specific stipulation, nor there
are any pleadings or evidence to invoke the
doctrine of estoppel, hence, the said case
cannot be pressed into service in the
present case.

39. The case of Savitri Devi is also not
applicable as it relates to the applicability of
Order 41 Rule 27 C.P.C. in respect of
revision under Section 25 of the Provincial
Small Cause Court Act and hence the
aforesaid decisions also does not come to the
rescue of the revisionist and moreover in
view of the law settled by the Apex Court in
the case of Lal Ji Tandon (supra) as noticed
above, the first submission of the learned
counsel for the revisionist fails.

40. The other submission of the learned
counsel for the revisionist as to whether the
SCC Court had the jurisdiction to hear and
try the suit is concerned, it would be seen that
it is pleaded in the plaint as well as as per the
covenants of the lease deed that land was
leased out to the defendant-revisionist who
was
permitted
to
raise
temporary
constructions. It was also agreed that upon
the expiry of the term or upon determination
of the lease, the lessee would remove the said
constructions in case if he failed to do so
within a period of three months then the same
would vest with the lessor.

41. In this view of the matter where
upon the expiry of the term of the lease in the
year 2006, the defendant-revisionist refused
to remove the said constructions then as per
the covenants of the lease, the same vested
with the landlord. Clause 11 of the lease
contains the specific stipulation which is
being reproduced for ready reference:-

"That the second party will have the
option to extend the lease of the said land
and structure erected thereon for a further
424 INDIAN LAW REPORTS ALLAHABAD SERIES
period of five years on the expiry of the
lease period, provided the second party
gives a notice in writing by registered post
to the first party of his intention to do so as
at least three calender months before the
termination of the present lease provided,
as that with such notice the second party
shall deposit with the First party the sum of
Rs. 5,000/- as security for regular payment
of rent during such extended term as
hereinafter
mentioned
and
for
due
performance of the term of tenancy.
Provided further that the rent payable by
the second party to the first party during
the extended period of the lease shall be Rs.
5,000/- per month which will be the rent of
the land under tenancy. After the expiry of
the said fresh terms of Five years the
second party shall not be entitled to
exercise a further option of renewal of the
tenancy and shall handover and deliver
the land and structure (if not removed
within three months) to the first party in a
good
condition
as
herein-before
provided."

...... .[Emphasis supplied by the Court]

42. From the perusal of the aforesaid
clause, it would indicate that it was
incumbent on the lessee to hand over and
deliver the land and structure (if not
removed within three months) to the lessor.
This clearly indicates the intention of the
parties which is manifested in the lease
deed that in case if the lessee failed to
remove the same, he was bound to
handover both the land and the structures to
the lessor.

43. Section 108 (q) of the Transfer of
the Property Act also casts an obligation on
the
lessee
to
handover
the
vacant
possession to the lessor. Whereas Section
108 (d) also indicates that any accession
made to the property leased would vest
with the lessor. The relevant portion of the
aforesaid Section reads as under:-

108. Rights and liabilities of lessor
and lessee.--In the absence of a contract or
local usage to the contrary, the lessor and
the lessee of immoveable property, as
against one another, respectively, possess
the rights and are subject to the liabilities
mentioned in the rules next following, or
such of them as are applicable to the
property leased:--

-------****------****----

(A) Rights and Liabilities of the Lessor

(a) The lessor is bound to disclose to
the lessee any material defect in the
property, with reference to its intended use,
of which the former is and the latter is not
aware, and which the latter could not with
ordinary care discover;

(b) the lessor is bound on the lessee's
request to put him in possession of the
property;

(c) the lessor shall be deemed to
contract with the lessee that, if the latter
pays the rent reserved by the lease and
performs the contracts binding on the
lessee, he may hold the property during the
time
limited
by
the
lease
without
interruption.

The benefit of such contract shall be
annexed to and go with the lessee's interest
as such, and may be enforced by every
person in whom that interest is for the
whole or any part thereof from time to time
vested.

(B) Rights and Liabilities of the Lessee

------*****----****-------