PROVASH CHANDRA DALUI & ANR. v. BISWANATH BANERJEE & ANR

Citation: [1989] 2 S.C.R. 401

Court: Supreme Court of India

Bench: G.L. OZA, K.N. SAIKIA

Case summary

74 of 1958 filed by the second respondent under Section 5of the Act as there could be no question of giving a status under the Act when in the facts of the case such a status was not availa~le....

Judgment text

The Judgment of the Court was delivered by y· K. N. SAIKIA, J. This defendants' appeal by special leave is from the judgment and order of the High Court of Calcutta dated 18th February, 1982 in S. A. T. No. 87 of 1981 summarily dismissing the Second Appeal against the appellate order in T. A. No. 381 of 1'180 which affirmed the judgment and decree in title suit No. 56 of 1966. ~~ The instant second respondent Narendra Nath Mukherjee leased out the land measuring 6 cottas 5 chittaks 30 sq. ft. at 5/2/A Russa Road, now known as 34/A Shyama Prasad Mukherjee Road, Calcutta, by a registered lease deed dated 26th September, 1946, hereinafter • referred to as 'the lease', at the first instance for a period of 10 years from 1st April, 1946 but if the lessee did not fail to pay the rent to the lessor and rates and taxes to the municipality during . th f the Act is that the application >( for ejectment of the thika tenant has to be made to the Controller.

We have, therefore, to ascertain the duration of the lease. Admittedly clauses 9, 11, 12 and 13 of the lease read as follows: "(9). If the second party lessee keeps the rent for two months. in arrear at a time or if contravenes or commits any breach in respect of any provision of this deed or daes not comply with his duties within 7 days in spite of service of warning notice or does not refrain from doing improper '/. act, or if he is declared insolvent then in spite of the tenure of this lease having not expired, this lease, that is the tenancy of the second party Lessee will be cancelled or extinguished and the first party Lessor will be entitled to --,, ' take khas possession of the said property. No plea or objection of the second party Lessee will be entertained. --·-~iii 11. The tenure of this lease will be for a period of ten years firstly from the l&t April, 1946 A. O. But if the second party Lessee, performs acts regularly according to provisions .... ...

within this stipulated period and pays fixed rent to the first ' party Lessor regularly and pays rates and taxes to the Municipality and does not default in doing his duties, then the period will be extended under all the aforesaid terms "'( for a further period of five years, i. e. upto the 31st March, 1961, by fixing the monthly rent of Rs. 250 two hundred fifty rupees in place of Rs. 200 two hundred rupees and the •·' ;~ second party Lessee shall be bound absolutely by the aforesaid provisions in paragraphs 1 to 10 during the said enhanced period and all the said terms will remain in force, ' [1989) 2 S. C. R. __. _ only the rent of Rs. 250 two hundred fifty in place of Rs. 200 "' two hundred will be fixed. 12. If the second party Lessee performs his acts regularly according to the aforesaid terms within last five years and is abide by the rules and pays the fixed monthly rent of Rs.

250 two hundred fifty rupees to the first party Lessor \month by month and pays the rates and tax to the Munici- · pality then on the expiry of the said tenure offive years, the • tenure of this lease will be enhanced for a further period of five years, i. e; upto 31st March, 1966 having fixed the monthly rent of Rs. 300 three hundred rupees in place of Rs. 250 two hundred fifty rupees under all the aforesaid terms in paragraphs 1 to 10 and the second party Lessee ) ( stipulated period does not give khas possession to the first party Lessor on the Demised land according to the afore- . said manner, or if he neglects to do so or is unable then the first party Lessor shall not be bound to give up his claim in respect of the houses etc. constructed by the said second party Lessee. Moreover, by treating the houses etc.

constructed on the demised land to be a portion of the said '--i land, shall be entitled to take khas possession of the said ~ Demised land and besides the same, the first party Lessor shall also be entitled to get any other remedy or damage or compensation according to law. " . ... 'Ex praecedentibus et consequentibus optima fit interpretatio. ' The best interpretation is made from the context. Every contract is to be construed with reference to its object and the whole of its terms. If:. ~- The whole context must be considered to ascertain the intention of the ... _ parties. It is an accepted principle of construction that the sense and meaning of the parties in any particular part of instrument may be . _.... collected 'ex antecedentibus . et consequentibus;' every part of it may be brought into action in order to collect from the whole one uniform and consistent sense, if that is possible. As Lord Davey said in N. E. -" Railway v. Hastings, (1900] A. C.

260 (267), "The deed must be read as '--,> _, a whole in order'to ascertain the true meaning of its several clauses, and the words of each clause should be so interpreted as to bring them ~H into harmony with the other provisions of the deed if that interpretaf tion does no violence to the meaning of which they are naturally · susceptible. " In construing a contract the Court must look at the words used in the contract unless they are such that one may suspect that they do nofconvey the intention correctly. If the words are clear, there is ( _. __,," [1989] 2 S. C. R. very little the Court can do about it. In the construction of a written instrument it is legitimate in order to ascertain the true meaning of the words used and if that be doubtful it is legitimate to have regard to the circumstances surrounding their creation and the subject matter to which it was designed and intended they should apply. ·, "The habendum in the lease states:.

"Upon the prayer of ~ the second party Lessee to take the said land in arrange- • ment and settlement for a stipulated period for starting factories, Lathe works, manufacturing and repairing of Motor Car parts, manufacturing and repairing Electric Fans and various manufacturing business, constructing pucca buildings on the said land or in portion thereof or subletting hou•es etc. and for constructing shop rooms etc. y. under the following terms and provisions, to which he agreed and upon\iving possession of the said land to the second party Lessee, the second party Lessee hereby admit and promise that," • Particulars and four boundaries of the property in Schedule Ka are given as: "In the District of 24 Parganas, within the Police Station Y ~·-- Bhowanipore, in Mouza Bhowanipore Village, within the jurisdiction of the Sub-Registry Alipore, In Government Khas Mahal, in Division 6, Sub Division "E" (E) relating to Dihi 55 gram, in holding No. 224 within the surplus land of scheme No.

4 of the Calcutta Improvement Trust, a portion of the plot No. 62 of the said scheme, the rent free land measuring more or less 0-6-5-30 six kathas, five chittaks, thirty square feet together with foundation of the wall together with all fittings and fixtures and easement and other rights etc. with all rights and entire right is the property whose current Municipal premises No. 5/2A, Russa Road and the second party Lessee have taken the said property on lease for a stipulated period oftwenty years". (underlined by us) In clause 9 of the lease it would be seen how and when the rent is to be paid and when the foase would be liable to be cancelled have been stated. Clause 11 stipulates that at the first instance the period of lease was made 10 years and in case the Lessee acted in accordance I-I with what was expected of him under clause 9, the period of the lease would be extended for a further period of 5 years upto 31st March, 1961 at enhanced rent of Rs.

250 per month, and if the Lessee continued to act in accordance with what was expected of him under clause 9 during this period of 5 years the period of the lease would be extended for a further period of. S years, that is, upto 31st March, 1966 at a monthly rent of Rs. 300 and in case the Lessee continued to act during this period as expected of him under clause 9 till the end of the period of 20 years he would be entitled by serving a notice to obtain an ·• extension for a further maximum period of one year at enhanced rent of Rs. 500 per month. It is pertinent to note that the word used is 'extension' and not 'renewal'. To extend means to enlarge, expand, lengthen, prolong to carry out further than its original limit. Extension, according to Black's La Dictionary, means enlargement of the main body; addition of something smaller than that to which it is attached; to lengthen or prolong. Thus extension ordinarily implies the continued existence of something to be extended.

The distinction between 'extension' and 'renewal' is chiefly that in the case of renewal, a new lease is required, while in the case of extension the same lease continues in force during additional period by the performance of the stipulated act. In other words, the word 'extension' when used in its proper and usual sense in connection with a lease means a prolongation of the lease. Construction of this stipulation in the lease in the above manner will also be consistent when the lease is taken as a whole. The purposes of the lease were not expected to last for only 10 years and as Mr. A. K. Sen rightly pointed out the Schedule specifically mentioned the lease as "for a stipulated period of twenty years. " As these words are very clear, there is very little for the Court to do about it. The learned counsel for the appellants in support of his contention that the appellants were thika tenants refers' us to AIR 1957 SC 907 = 1958 SCR 360; AIR 1960 SC 936 = 1960 3 SCR 578; 66 C. W. N.

338; 69C. W. N. 842; AIR 1965 SC 1839 = 1965 3 SCR 364. ,, · In Kanai Lal v. Paramnidhi, [1958] SCR 360, the status of the !! :... ~t. \ ,appellants as thika tenant was not in question. The question therein D' was whether under Section 5(1) of the Act as amended by the Amend- . r . ing Act of 1953 execution proceedings taken out by the decree holder against the appellant could be entertained only by the Controller and not by the civil Courts. This Court held that Section 5(1) did not apply to a case where the landlord had already obtained a decree for ejectment against his thika tenant and consequently the civil Court had ~.. jurisdiction to entertain the application. It was noted that until 1948 the rights and liabilities of the landlords and their thika tenants were governed by the provisions of the Transfer of Property Act.

On October 26, 1948, the Calcutta Tbika Tenancy Ordinance XI of 1948 was promulgated because it was thought expedient, pending the enactment of appropriate legislation to provide for the temporary stay of the execution of certain decrees and orders of ejectment of thika \tenants in Calcutta. The object of the Ordinance was to give protection • to the thika tenants in Calcutta and to afford them interim relief by staying execution of certain decrees and orders as mentioned in Section 3 until an appropriate Act was passed by the Legislature in that behalf. · The facts of the instant case are entirely different inasmuch as the lease was dated 26th September, 1946 and no question of eviction by executing any decree arose until the Act was passed. The only point to be noted is that the tenancy under the lease on the relevant date of cn;ation was governed by the Transfer of Property Act. In Mahadeo/al Kanodia v.

Administrator General of West Bengal, [1960] 3 SCR 578 = AIR 1960 SC 936, the question for decision was whether the appellant against whom proceedings for exec\1tion of a decree for ejectment was pending, who had applied for relief under Section 28 and when that section was in force, was entitled to R have his application disposed of in accordance with the provisions of Section 28, which had ceased to exist retrospectively though it remained undisposed on the date the Amendment Act, 1953 which omitted Section 28 of the Act, came into force. This case is therefore of no assistance to the appellants. In Annapurna v. Tincowrie Dutt, 66 C. W. N. 338, it was held on the facts of the case that what was let out was land with structures and it could never come under the operation of the Act inasmuch as the property in suit had a history of 24 years under the registered lease before that claim to become a thika tenant would arise u11der the Act.

It was also held that where there was a covenant for renewal in a lease ,and the option did not state the terms of the renewal, the new lease, if created would 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 covemmt for renewal itself. This case therefore is hardly relevant. In Shaffiuddin & Ors. v. G. C. Banerjee, 69 C. W. N. 842, it was ... held that the status already acquired by the tenants in Tollygunje under the West Bengal Non-Agriculiural Tenancy Act, 1949, could not be prejudiced and affected by the Act and the landlords were therefore not entitled to any order of ejectment under the Act. This case has; therefore, no bearing. In Sheikh Gufan v. S. K. Ganguli, [1965] 3 SCR 364, the question -1 was whether Section 30(c) of the Act was applicable to land in respect ~ of which betterment fee was levied. It is therefore not relevant for us. We.

do not find any reason in the above decisions to enable us to hold that the lease in the instant case was for a period of less than 12 years and not for a period of not less than 12 years, The High Court correctly held the lease to be for the less than 12 years. . ). ( The next question is that of waiver, estoppel and res judicata. The appellants urged that there were two previous proceedings namely Misc. Execution case No. 126 of 1953 (Thika) and Misc. Judicial case ,. No. 74 of 1958 (Thika) under the Act before the Controller. Except " the implication that the proceedings having been before the Controller the respondents treated the appellants a thika tenants, no particular order finally conferring that status has been shown to us. By the order of this Court dated 10th March, 1980 in Special Leave Petition (Civil) "-{ 1363 of 1980 which was from the judgment and order dated 16. 9. 1979 of the High Court of Calcutta in F . A. No.

458 of 1978 the petition was dismissed "without going into the question whether the Thika Tenancy · Act was applicable or not. " Misc. (J) case No. 74 of 1958 wherein the first respondent prayed for being added as petitioner No. 2 ended in a compromise. No status could, however, be said to have been determined. ~ The essential element of waiver is that there must be a voluntary and intentional relinquishment of a known right or such conduct as warrants the infererice of the relinquishment of such right. It means ·~ the forsaking the assertion of a right at the proper opportunity. The first respondent fi)ed Sl\it at the proper opportunity after the land was transferred to him, and no covenant to treat the appellants as Thika ~ tenants could be shown to have run with the land. Waiver is distinct from estoppel in that in waiver the essential element is actual intent to abandon or surrender right, while in estoppel such intent is immaterial.

The neoessary condition is the detriment of the other party by the conduc. t of the one estopped. An estoppel may result though the party estQPped did not intend to lose any existing right. Thus voluntary choice is the essence of waiver for which there must have existed an ~, opportunity for a choice between the relinquishment and the conferment of the right in question. Nothing of the kind could be proved in this case to estopp the first respondent. In Shanti Devi v. A. K. Banerjee, [1981] 2 SCC 199, it was held that parties could not by their pleadings alter the intrinsic character of the lease or bring about a change of the rights and obligations flowing therefrom. The Court would only look into the terms of the lease Jr irrespective of the averments in the pleadings. In the instant case as we have already held the lease to have been for twenty years, its character could not have been changed by the pleadings, if any, in the above cases.

Nor could the respondents be held to have waived their rights under the lease. We do not find any infirmity in the impugned High Court order on this count also. In the result, this appeal fails and is dismissed, but without any order as to costs. Stay order, if any, stands vacated. 0 R. S. S. Appeal dismissed.