Indian Oil Corporation Limited through Senior Manager Retail Sales v. Raj Kumar
2019-08-30
Sharad Kumar Sharma
body2019
DailyLaw.ai
JUDGMENT : Sharad Kumar Sharma, J. The learned counsel for the respondent Mr. Ishtiyaq Khan seeks leave of the Court to place his authority on record; but, considering the procedural aspects, being followed by the Registry of this Court, his authority cannot be accepted by this Court during the Court proceedings. It has to be filed before the Registry of this Court itself. Hence, while proceeding with the dictation of judgement, simultaneously, the Registry is also directed to accept the vakalatnama of Mr. Ishtiyaq Khan as counsel for the plaintiff/respondent. 2. The present Second Appeal has been preferred by the defendants/appellants, wherein they have challenged the judgement and decree dated 29 th March 2017, as rendered by the Civil Judge (Junior Division), Rudrapur, District Udham Singh Nagar, as rendered in Original Suit No. 46 of 2013, Raj Kumar v. Indian Oil Corporation, as well as, the judgement dated 26 th September 2018, as rendered by the First Additional District Judge, Udham Singh Nagar in Civil Appeal No. 63 of 2017, Indian Oil Corporation v. Raj Kumar, whereby the judgement of the learned trial Court has been concurrently confirmed by the learned Appellate Court, with the dismissal of the First Appeal of the defendant/appellant. Ultimately, the suit of plaintiff/respondent for ejectment and recovery of possession and damages stood decreed for the nature of relief claimed therein it the Suit. 3. The present Second Appeal came up for consideration before this Court at an admission stage and the same was agreed by the counsel, for the parties to be argued finally at an admission stage itself. In order to deal with the intricacies of the matter, it becomes essential for this Court to precisely deal with the respective case of the parties to the Second Appeal, as it was agitated and pleaded by them before the Courts below. 4. The fact of the matter as involved in the case are that on 6 th April 2013, the plaintiff (respondent herein) had instituted a Suit, wherein he has sought a decree in the nature of a decree of ejectment and recovery of possession of the property, more particularly described in para 1 of the plaint, which was constituting to be a land measuring 110 x 115 square ft.
situated in Village Haldia, Tehsil Kichha, now in District Udham Singh Nagar, which was let out to the defendants/appellants by the plaintiff/respondent by virtue of a registered Lease Deed, as executed on 25 th August 1973. The relief as modulated in the plaint by the plaintiff/respondent was to the following effect:- “14. That the plaintiff therefore prays:- (a) That passing a decree for ejectment and recovery of possession of the below bounded land in question measuring 110x150ft. situated at Village – Bandia, Tehsil-Kichcha, District Udham Singh Nagar in favour of the plaintiff and against the defendant, the defendant be directed to restore actual peaceful possession over the same land in question in an absolutely vacant state after removing their entire installations, fittings, fixtures and structures from over and under neith, the land in question within the time to be specified by this Hon’ble Court and on the defendant’s failure to comply therewith, the plaintiff be got restored over the vacant land in question through the process of the Court by executing the same decree according to law. Valued at Rs. 3,000/- at one year rent and Court fee of Rs. 417.50 is being paid on the same according to law. (b) That a decree for a sum of Rs. 36,000/- with interest thereon @ 18% per annum may kindly be passed in favour of the plaintiff and against the defendant directing the defendant to pay the same to the plaintiff. Valued at Rs. 336,000/- and Court Fee of Rs. 3415.50 is being paid on the same according to law. (c) That a decree for Rs. 2791/- being the mesne profits from 1.5.2012 to 5.4.2013 i.e. till the date of filing of the present suit @ Rs. 250/- per month with interest thereon @ 18% may kindly be passed in favour of the plaintiff and against the defendant directing the defendant to pay the same to the plaintiff. Valued at Rs. 2791/- and Court Fee of Rs. 393.50 is being paid on the same according to law. (d) That a decree for future and pendentilite mesne profits @ Rs. 5000/- from the date of filing of the present suit till the date of actual delivery of possession over the same land in question to the plaintiff may kindly be passed in favour of the plaintiff and against the defendant. At present valued at Rs.
(d) That a decree for future and pendentilite mesne profits @ Rs. 5000/- from the date of filing of the present suit till the date of actual delivery of possession over the same land in question to the plaintiff may kindly be passed in favour of the plaintiff and against the defendant. At present valued at Rs. 5000/- i.e. on the mesne profits of one day and Court Fee of Rs. 657.50 is being paid according to law for the present and rest of the Court Fee shall be paid on it’s being due. (e) That the cost of the suit be awarded to the plaintiff against the defendant. (f) That any other relief for which the plaintiff be found entitled may also please be awarded to the plaintiff against the defendant.” 5. The lease, thus executed by the plaintiff/respondent on 25.08.1973, which was made effective w.e.f. 1 st May 1972, it was executed in favour of a statutory Corporation, that is, the defendants/appellants herein, which is the creation of a statute by virtue of Central legislation, as having their existence and got its legal existence under the provisions contained under the Companies Act of 1956 and their activities are being governed and regulated under the Article and Memorandum of Association, as applicable to the said company of defendant/appellant. 6. What is relevant to be considered in the instant Second Appeal is that in pursuance to the lease deed dated 25 th August 1973, which was executed in relation to the aforesaid property, the defendants/appellants were inducted as a lessee over the property in question the possession of which was handed over, and was given a right to enjoy the same by the lessor plaintiff/respondent, but specifically, it restricted its utilization strictly as per and within the settled terms or the covenants of the lease deed dated 25 th August 1973, initially it was for a limited period of 40 years which was made effective w.e.f. 1 st May, 1972. 7.
7. As per the decipher, which was made in the said lease deed, the parties to the lease documents had voluntarily agreed for the settlement of the rent payable towards the user of the said property by the defendants/appellants in accordance to the modalities, which were settled as per the covenants of the lease deed itself it was to the effect, that for the initial period of 10 years, the rent was agreed to be fixed and made payable it was to be paid @ Rs. 100/- per month and thereafter w.e.f. 11 th year to 20 th years, the rent was agreed to be made payable which was to be paid at the enhanced rate i.e. @ Rs. 150/- per month and for the 21 st Year to 30 th Year, the rent was made payable @ Rs. 200/- per month and lastly for the slab of period from 31 st Year to 40 th year, the rent was settled to be paid @ Rs. 250/- per month as per the terms of the lease deed. 8. During the period of the subsistence of the lease, it was the case of plaintiff/respondent, which was pleaded by the plaintiff/respondent in the Suit in question, that the defendants-lessor (appellants herein) had committed a default in remittance of rent as settled above, and consequently, the period of default in payment of lease rent was detailed in para 6 of the plaint in question, which reads as under:- “6. That the defendant had illegally breached and violated the terms of the lease by not paying rent to the plaintiff from 1.5.1992 to 30.4.2002 @ Rs. 200/- per month and from 1.5.2002 to 30.4.2012 (till the expiration of lease) @ Rs. 250/- per month but had paid only @ Rs. 150/- upto 30.04.2002 and since thereafter no amount is paid by the defendant to the plaintiff according to the terms of the lease. It may be reiterated here that in terms of the lease deed, it was incumbent upon the defendant to pay regularly rent @ 200/- per month from 1.5.1992 to 30.4.2002 while the defendant in violation to the terms of the lease paid only @ 150/- till 30.04.2002 and no rent is paid thereafter despite plaintiff’s repeated demands and despite service of the plaintiff’s three months’ remedification notice dated 5.4.2010. As such Rs.
As such Rs. 6000/- as different of the amount of rent from 1.5.1992 to 30.4.2002 and Rs. 30,000/- as rent for the last 10 th year i.e. from 1.5.2002 to 30.4.2012 total Rs. 36000/- stands due against the defendant which too is not paid by the defendant to the plaintiff despite plaintiff’s final notice dated 20.12.2012 demanding the arrears of rent and also determining and terminating the defendant’s tenancy in respect of the land in question calling upon the defendant to pay the arrears of rent and also to deliver vacant possession over the land in question to the plaintiff immediately on the expiry of 30 days from the date of service of the same notice.” 9. The details of the default period are not being considered and discussed at this stage of the judgement for the reason being that ultimately the decision of this Second Appeal would be foundationed around the interpretation of the renewal clause which was one of the covenants contained in the lease deed executed on 25 th August 1973, by plaintiff/respondent in favour of defendant/appellant (i.e. Paper No. 6x), which laid down the parameters and preconditions which were to be satisfied for its renewal for any subsequent term. Debate would be on the issue as to whether its, “renewal”, as per terms of lease or its an “extension” as this Court is of the view that both terms i.e. renewal and extension would have different impact and require for satisfying for different conditions. 10. Admittedly, that when there was a default committed by defendant/appellant, in remittance of lease rent, timely as per terms of lease deed, and it was the case of the plaintiff/respondent in the plaint specifically pleaded that he has served the defendants/appellants with the notice dated 20 th December 2012, whereby the right of continuance of occupancy over the land leased under the terms of lease executed to them on 25 th August 1973, it was sought to be determined in pursuance to the aforesaid notice, which on it's receipt, the defendants/appellants had sought to deny, its contents by filing a reply to it through their advocate on 31 st January 2013. 11.
11. The controversy, which germinates for consideration before this Court is emanating from the reply which was given by the defendants/appellants on 31 st January 2013, in reply to the notice dated 20.12.2012, particularly, so far it relates to the reference to paras 14 and 16, of the reply to the notice of plaintiff/respondent dated 20 th December 2012, which dealt with the impact of the renewal clause, which was contained in the lease, which was executed by the plaintiff/respondent as lessor on 25 th August 1973. As per the case which has been built up and arrayed by the defendants/appellants in their reply, it was to the effect that since the clause, which was contained in the lease deed which was dealing with the renewal clause, it has been interpreted by the defendants/appellants, as if that with the cessation of the agreed period of 40 years, which was initially settled by the lease, the initial term of the lease would “automatically” stand renewed for a further period of next 10 years, which was further made renewable for yet another term of 10 years as per the terms of the lease deed in question. 12. The interpretation given to the renewal clause by the defendants/appellants is that since the renewal clause when it utilizes the word “automatic”, it would be inferred that renewal would be flowing and it be without undergoing without any processes as contemplated as a precondition to be adhered to under the term of the lease, the lease would be deemed to be renewed for a further period of 10 years. This contention pertaining to the impact of automatic renewal of the lease as sought to be pressed in the argument by the learned counsel for the defendants/appellants is being denied by the learned counsel for the plaintiff/respondent from the following viewpoints. (i) That the lease dated 25.08.1973, which creates a right in relation to the use of an immovable property, has had to be mandatorily registered in terms of the provisions, contained under Section 107 of the Transfer of Property Act, 1882, which is quoted hereunder. “107. A lease of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent, can be made only by a registered instrument.
“107. A lease of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent, can be made only by a registered instrument. All other leases of immovable property may be made either by a registered instrument or by oral agreement accompanied by delivery of possession. Where a lease of immovable property is made by a registered instrument, such instrument or, where there are more instruments than one, each such instrument shall be executed by both the lessor and the lessee: Provided that the State Government may, from time to time, by notification in the Official Gazette, direct that leases of immovable property, other than leases from year to year, or for any term exceeding one year, or reserving a yearly rent, or any class of such leases, may be made by unregistered instrument or by oral agreement without delivery of possession.” (ii) The implication of automatic extension, as it has been contemplated under clause ‘j’ of the lease deed, the argument, which has been extended by the learned counsel for the plaintiff/respondent is that it will not be having an overriding effect with regard to the fulfilment of the other pre-conditions, which have been contemplated to be adhered to under clause ‘j’, which is quoted hereunder:- “j). The Lessee shall at the expiration or sooner determination of the said term yield up and deliver peaceful and vacant possession of the demised premises and in the event of any installation, erection, alteration or substitution having been made thereon or underneath the surface restore the same to their original state and condition in which the same have been demised. All buildings, structures, installations fittings, fixtures and erections of whatsoever kind and nature whether in upon or underneath the demised premises shall during the said terms and at the expiry thereof entirely been belong to and revert to the Lessee who shall be entitled to take away the same provided that the demised premises are restored in their original state and condition. The Lessee will not have any right title or interest therein nor shall they be entitled to appropriate or retain the same or any part thereof.
The Lessee will not have any right title or interest therein nor shall they be entitled to appropriate or retain the same or any part thereof. PROVIDED ALWAYS AND IT IS NEARBY AGREED AND DECLARED that if the rest hereby reserved or any part thereof shall be in arrears for a period of three months after becoming payable and after being demanded or if the lessee shall commit breach or fail or neglect to performa or observe any of the covenants, conditions or agreements herein contained and on the part of the Lessee to be observed and performed or if the Lessee shall go into liquidation whether voluntarily or compulsorily than in any of the above cases it shall be lawful for the Lessors at any time thereafter to re-enter upon the said premises or any part thereof in the name of the whole and to take action to repossess and enjoy as in all their former estate and interest PROVIDED ALWAYS AND IT IS AGREED AND DECLARED that the power of re-entry hereinbefore contained shall not be exercised unless and until the Lessors shall have given to the Lessee a notice in writing of their intention to re-enter and of the specific breach or breaches of the covenants in respect of which the re-entry is intended to be made and default shall have been made by the Lessee is remedying such breach or breaches within a reasonable time being however not less than three months after the giving of such notice PROVIDED ALWAYS AND IT IS AGREED AND DECLARED that at the expiration of the said term of 40 (forty) years this lease will be automatically and without any further act of any of the parties hereto be renewed for a further term of 10 x 2 years from the expiration of the said terms hereby granted unless the lessee shall prior to the expiration of the last mentioned term give to the Lessors one calendar month’s previous notice in writing of their intention not to take any renewed lease. The renewed lease will be on the same monthly rent and under and subject to the same covenants, conditions and agreement as are herein contained including the present covenant for renewal.” 13.
The renewed lease will be on the same monthly rent and under and subject to the same covenants, conditions and agreement as are herein contained including the present covenant for renewal.” 13. As per the argument extended by the learned counsel for the plaintiff/respondent, he submits that the clause of ‘renewal’, which is being sought to be pressed into question is not automatic the said argument is from the viewpoint that the right of re-entry over the land in question shall “not” be exercised by the lessor, until and unless the lessee gives a reasonable notice to the lessor of his intension of choice of renewal, which should under no condition be less than three months prior notice, expressing his positive intention to renew the lease under clause ‘f’ as provided under the lease deed in question i.e. of 25 th August 1973. 14. In other words, the plaintiff/respondent’s counsel wants to submit that when a terms of a lease itself contained certain preconditions, which are required to be satisfied for the purposes of invoking of the renewal clause ‘j’, in that eventuality, the word “automatic”, even if it is being utilised in terms of the deed, will not override the preconditions, which are required to be fulfilled by the lessee for the purposes of continuance of the lease deed for further period, in terms of lease deed itself, because its covenants would be applicable in its totality not in piecemeal. 15. Admittedly, herein, in the present case in terms of the reply extended to the notice, particularly, as contained in para 14, or even as per the plaint averments, it is not the case of the defendants/appellants that they had ever expressed their prior intention of renewal by giving a three months prior notice for renewal of the lease for a further period of 10 years prior to expiry of period of 10 years, which could be renewed thereafter upto the maximum period of yet another term of 10 years as per the terms of the lease.
Hence, what he wants to convey by virtue of an argument is that until and unless there happens to be an intention to renew the lease was expressed specifically by giving a three months prior notice, the implications of automatic extension of the lease will not come into picture at all until and unless the lessee complies with the pre condition of renewal. 16. The second limb of argument, as extended by the learned counsel for the plaintiff/respondent is that in view of the provisions contained under Section 107 of the Transfer of Property Act, 1882, it provides that even besides above terms of lease whenever a right or an interest is created in relation to an immovable property by execution of a lease, in that eventuality, the lease deed thus to be entered has had to be only by virtue of a registered document as contemplated under Section 107 of the Transfer of Property Act, 1882, as quoted above. 17. In such an eventuality, where the law contemplates a renewal of a lease in terms of the conditions of existing lease for a further period and where as per statute the registration of which is mandatory, this provision in itself will dilute the implications of the term “automatic renewal”, which is being sought to be pressed into by the learned counsel for the defendants/ appellants of the terms of lease deed dated 25 th August 1973, because in the absence of there being a registration of a renewed lease, an automatic extension is not contemplated in violation to the provisions contained under Section 107 of the Transfer of Property Act, 1882, because statute will prevail over the personnel Agreement’s intention and impact of conditions of renewal. 18. In regards thereto, the learned counsel for the plaintiff/ respondent had made reference to judicial pronouncements, as rendered by the Hon’ble Apex Court reported in AIR 1988 SC 1470 , Burmah Shell Oil Distributing v. Khaja Midhat Noor and others . Particularly, the learned counsel for the plaintiff/respondent has drawn the attention of this Court to the judicial proposition, which has been recorded in paras 5 and 7 of the said judgement which is quoted hereunder:- “5.
Particularly, the learned counsel for the plaintiff/respondent has drawn the attention of this Court to the judicial proposition, which has been recorded in paras 5 and 7 of the said judgement which is quoted hereunder:- “5. In view of the paragraph 1 of section 107 of the Act, since the lease was for a period exceeding one year, it could only have been extended by a registered instrument executed by both the lessor and the lessee. In the absence of registered instrument, the lease shall be deemed to be "lease from month to month". It is clear from the very language of section 107 of the Act which postulates that a lease of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent, can be made only by a registered instrument. In the absence of registered instrument, it must be a monthly lease. The lessee and the sub-lessee in the facts of this case continued to remain in possession of the property on payment of rent as a tenant from month to month. The High Court so found. We are of the opinion that the High Court was right. 7. It was submitted before the High Court that this was not a case of continuing of old tenancy for a period of five years but in view of the clear provisions of section 107 which we have noted hereinbefore and in the absence of a registered instrument, it must be held that it was holding over and not continuation of old tenancy for a further period of five years. That would be the harmonious construction of section 107 read with section 116 in the facts of this case. We are of the opinion that the High Court was right that the tenancy was automatically determined on the expiry of ten years which was stipulated in Ext. 4. Thereafter the lessee continued to hold the property and the lessor accepted the rent. The lease was, therefore, renewed from month to month because it was not the case of any party that it was for agricultural purposes.” 19.
4. Thereafter the lessee continued to hold the property and the lessor accepted the rent. The lease was, therefore, renewed from month to month because it was not the case of any party that it was for agricultural purposes.” 19. The findings recorded therein are in league with the observations, which have already been dealt with by this Court in the above paras, that for the purposes of exercising a right of renewal or either for an extension of a lease on the termination of its term settled under a document, when the law itself mandates a compulsory registration, it would not be deemed to be automatically extended and hence compliance of the provisions contained under Section 107 to be read with Section 116 of the Transfer of Property Act, 1882, becomes mandatory and in absence of the same, the implications of an automatic extension cannot be pressed into in the instant Second Appeal by the defendant/appellant. 20. Even otherwise also this controversy can also be visualised from the viewpoint of the provisions contained under Section 17 of the Registration Act. The Registration Act too contemplates that whenever a right or an interest is created in relation to an immovable property even when it is confined to its user by virtue of execution of a lease deed, in that eventuality too it has to be mandatorily registered under section 17 of the Act, and in the absence of its mandatory registration any right which is being claimed to be flowing by way of an implication of automatic extension will not come into picture for the reason that until and unless in the absence of registration, there cannot be a renewal of a lease by implication allegedly claimed to be flowing from the lease deed, and that to de hors to the provisions of law. 21.
21. The controversy in question has also to be visualised from the aspect that the implications flowing from the provisions contained under section 107 with regards to the fulfilment of the pre-conditions for the purposes of renewal of a pre existing lease the compliance of the provisions of sub section 107 has been held to be mandatory and as it has already considered that the provisions of section 107 of Transfer of Property Act will have an overriding effect of any of the terms of the settlement which has been entered into between the lesser or the lessee with regards to governing the covenants of the extension of a registered deeds which was executed between the parties as back as on 25th August 1973. 22. On a simplicitor reading of the provisions contained under Section 107 of the Transfer of Properties Act, it perhaps provides that where the renewal has to be made in relation to a pre existing lease in relation to an immovable property, whose settled terms is about to expire. It contemplates that it has had to be done by virtue of a registered instrument. Meaning thereby, under land in order to give an existence of a legally sustainable lease, there has had to be a compulsory compliance of the conditions as provided under section 107 of the Transfer of Property Act that the lease if it is a renewal lease of a pre existing lease then it has had to be registered which is not the case at hand, because as per the appellant he has came up with the case that in accordance with the implications of clause ‘j’ of the registered lease deed executed in favour of defendant/appellant in 1973, they would be beneficiary of the term included therein in the lease deed to the effect that it was amounting to be an automatic renewal hence the adherence to the provisions of section 107 is not necessary at all in the instant case. 23.
23. This Court is not in agreement with the argument as extended by the learned counsel for the appellant for the reason that, in statement as recorded, admittedly the lease deed of 1973, it was creating a right of user of the property, which was immovable in nature and in such an eventuality, the implications of Section 107 is bound to flow irrespective of the conditions of automatic renewal, which is contended to be pleaded by the defendant/appellant on the pretext of the conditions of automatic renewal of the lease deed itself. Hence in view of the judicial pronouncements of the Hon’ble Apex Court as rendered in Burmah Shell (Supra), as already dealt with above that for the purposes of extension of a lease, the precondition of compliance of the provisions contained under Section 107 becomes mandatory in order to give a legal authenticity to lease deed thus executed by way of renewal, in relation to an immovable property, by virtue of which a right of user is created. 24. This aspect has also to be considered in view of the implications, which would be flowing from the provisions contained under Section 17 of the Registration Act, which is quoted hereunder.
24. This aspect has also to be considered in view of the implications, which would be flowing from the provisions contained under Section 17 of the Registration Act, which is quoted hereunder. “ Section 17 - Documents of which registration is compulsory (1) The following documents shall be registered, if the property to which they relate is situate in a district in which, and if they have been executed on or after the date on which, Act No. XVI of 1864, or the Indian Registration Act, 1866, or the Indian Registration Act, 1871, or the Indian Registration Act, 1877, or this Act came or comes into force, namely:-- (a) instruments of gift of immovable property; (b) other non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property; (c) non-testamentary instruments which acknowledge the receipt or payment of any consideration on account of the creation, declaration, assignment, limitation or extinction of any such right, title or interest; and (d) leases of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent; [(e) non-testamentary instruments transferring or assigning any decree or order of a Court or any award when such decree or order or award purports or operates to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property:] Provided that the [State Government] may, by order published in the [Official Gazette], exempt from the operation of this sub-section any lease executed in any district, or part of a district, the terms granted by which do not exceed five years and the annual rents reserved by which do not exceed fifty rupees. 25. On a simpliciter interpretation of Section 17 of the Registration Act, it makes it mandatory that if any right or interest is created in relation to an immovable property by any instrument, which is executed between the parties, which entails in itself to declare, assign, limit or extinguish, any of the right in relation to an immovable property which is having a value of above Rs.
100/-, it is required to be mandatorily registered under the Section 17 of the Registration Act and in the absence of there being any registration to such instrument, as such, under Section 17 (1) of the Registration Act, no valuable right could be derived or claimed by the person under the said document, who seeks to enjoy the right of extension under a lease deed by invoking the provisions by the extension clause referred in the lease deed executed prior to in favour of the lessee. Admittedly, herein the so-called theory of extension was neither fulfilling the conditions of Section 107 nor the condition of provisions of Section 17 of the Registration Act and in such an eventuality, the defence taken by the defendant/appellant with regards to the right of continuance under the pretext of an extension of the lease executed in their favour is not sustainable, since being voilative of the statute i.e. provisions contained under Section 107 of Transfer of Property Act to be read with Section 17 of the Registration Act. 26. For a moment, even if it is presumed that the argument of the learned counsel for the appellant, under the guise of the renewal clause of lease deed is accepted, which according to the appellant it contemplated an automatic renewal of the lease, the said concept is yet again not accepted by this Court for the reason that if the extension clause of the deed of 25.08.1973, even itself is taken into consideration, its not that the extension by way of renewal of the lease would automatically flow on expiry of the specified period as provided in the lease, because the lease deed itself contemplates a fulfilment of certain preconditions as agreed and as provided therein i.e three months prior notice which has to be given by the lessee to show his prior intention to renew the lease for a further period of 10 years. 27. There is nothing on record brought by the defendant/appellant in the proceedings before the Court below or even before the Second Appellate Court to the effect that, they have ever exercised their option by giving prior notice of expressing their intentions to renew the lease for a further period of 10 years under the terms of the lease by way of giving a 3 months prior notice about their intention of the renewal.
Hence in these circumstances also if the principle of automatic renewal of the lease under the lease clause ‘j’ of the agreement is taken into consideration, that too required a fulfilment of the prior conditions for the renewal of the lease. Hence in the absence of there being any fulfilment of the preconditions specified in terms of the clause ‘j’ of the lease deed executed interse between the parties on 25.08.1973, creating a right over the property in question, which is immovable in nature, there cannot be any concept of an automatic renewal under the terms of the lease deed, overriding a statutory provision which will have a binding precedent. 28. The aforesaid contention has also to be considered in the light of the ratio which was sought to be argued by the learned counsel for the plaintiff/respondent when he placed reliance to a judgement as reported in 2007 (5) SCC 614 , Hardesh Ores Pvt. Ltd. v. M/s Hede and Company, wherein the Hon’ble Apex Court in the said judgement particularly as per the findings which has been recorded in paras 24 and 25 of the said judgement, which are quoted hereunder:- “24. The next averment in the plaint which is relevant is paragraph 23 thereof wherein the appellant-plaintiff stated that since the original period of 5 years was to end on 31.12.2001 in terms of Clause 2.2 of the agreement, the appellant-plaintiff exercised its option to renew the said agreement for further period of 5 years which was conveyed to the respondent vide its letter dated 4.12.2001 and which was received by the respondent-defendant on 7.12.2001. In the same paragraph it is stated that the extraction agreement entered into between the plaintiff- appellant and the defendant-respondent was operative and stood renewed upto 31.12.2006. A copy of the letter dated 4.12.2001 has been annexed to the plaint and marked as Exh. 41. The plaintiff- appellant further goes on to say that it received the reply from the defendant-respondent dated 29.12.2001 alleging that the plaintiff- appellant was not entitled to exercise the option of renewal. The said letter has been annexed to the plaint and marked as Exh. 43.
41. The plaintiff- appellant further goes on to say that it received the reply from the defendant-respondent dated 29.12.2001 alleging that the plaintiff- appellant was not entitled to exercise the option of renewal. The said letter has been annexed to the plaint and marked as Exh. 43. A mere perusal of the letter dated 4.12.2001 addressed by the appellant to the respondent is enough to satisfy the Court that in terms of Clause 2.2 of the agreement the appellant exercised its option to renew the captioned agreement for a further period of 5 years commencing from 1.1.2002 on the same terms and conditions as contained in the original agreement. The letter clearly states that after 31.12.2001 the captioned agreement will stand renewed for the period 1.1.2002 to 31.12.2006. To this the respondent-defendant replied by its letter dated 29.12.2001, the relevant part whereof reads as follows: We do not agree with your contention in your letter dated 4/12/1997 that the Agreement in reference stands renewed as alleged from 1/1/2001 to 31/12/2006 or for any other period whatsoever. It is thus apparent that the appellant-plaintiff exercised its right under the agreement to claim a renewal of the term of the lease and the respondent- defendant refuted that claim and denied the assertion that the agreement stood renewed as alleged from 1.1.2001 to 31.12.2006 or for any other period whatsoever. In view of the correspondence exchanged between the parties, clearly a cause of action accrued to the appellant-plaintiff since its right of renewal as a matter of course claimed by it was denied by the respondent- defendant. Whether the denial was justified or not is another matter. In the facts and circumstances of the case, a right accrued to the appellant-plaintiff to sue the respondent-defendant and to get a declaration that the agreement stood automatically renewed for a further period of 5 years. It is the admitted position that the appellant-plaintiff did not pursue the matter further and never sought relief from any court of law of competent jurisdiction for a declaration that the lease stood renewed automatically upon the appellant-plaintiff exercising its option under the agreement. It was contended on behalf of the respondent- defendant that there is no question of automatic renewal of an agreement or lease by mere exercise of the option which the appellant-plaintiff may claim under the agreement.
It was contended on behalf of the respondent- defendant that there is no question of automatic renewal of an agreement or lease by mere exercise of the option which the appellant-plaintiff may claim under the agreement. The respondent contends that renewal of an agreement or lease requires execution of another document evidencing such renewal and, in its absence, it cannot be argued that the agreement or lease stood automatically renewed. It was also urged relying upon the decision of this Court in the case of Ambika Queries v. State of Gujarat: AIR1986SC1620 that the grant of renewal is a fresh grant and must be consistent with law. The respondents relied on the decision of this Court in Provash Chandra Dalui and Anr. v. Biswanath Banerjee and Anr. [1989]2SCR401 wherein this Court considered the difference between "extension" and "renewal" of a lease. This Court observed thus: 14. 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 Law Dictionary, means enlargement of the main body; addition to 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. The same view was reiterated by this Court in the case of State of U.P. and Ors. v. Lalji Tandon (Dead) through Lrs. AIR2004SC32 wherein it was observed as under: 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.
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. 25. Having regard to these decisions we must hold that in order to give effect to the renewal of a lease, a document has to be executed evidencing the renewal of the agreement or lease, as the case may be, and there is no concept of automatic renewal of lease by mere exercise of option by the lessee. It is, therefore, not possible to accept the submission urged on behalf of the appellants-plaintiffs that by mere exercise of option claiming renewal, the lease stood renewed automatically and there was no need for executing a document evidencing renewal of the lease.” 29. On scrutiny of the said judgement it has laid down that the renewal of a lease under the terms of the pre existing agreement could only be by virtue of an execution of a registered document in the light of the provisions contained under Section 106 to be read with Section 107 of the Transfer of Property Act, which reads as under:- “ 106. Duration of certain leases in absence of written contract or local usage (1) In the absence of a contract or local law or usage to the contrary, a lease of immovable property for agricultural or manufacturing purposes shall be deemed to be a lease from year to year, terminable, on the part of either lessor or lessee, by six months' notice; and a lease of immovable property for any other purpose shall be deemed to be a lease from month to month, terminable, on the part of either less or or lessee, by fifteen days' notice. (2)Notwithstanding anything contained in any other law for the time being in force, the period mentioned in sub-section (1) shall commence from the date of receipt of notice.
(2)Notwithstanding anything contained in any other law for the time being in force, the period mentioned in sub-section (1) shall commence from the date of receipt of notice. (3)A notice under sub-section (1) shall not be deemed to be invalid merely because the period mentioned therein falls short of the period specified under that sub- section, where a suit or proceeding is filed after the expiry of the period mentioned in that sub-section. (4)Every notice under sub-section (1) must be in writing, signed by or on behalf of the person giving it, and either be sent by post to the party who is intended to be bound by it or be tendered or delivered personally to such party, or to one of his family or servants at his residence, or (if such tender or delivery is not practicable) affixed to a conspicuous part of the property.] 107. Leases how made - A lease of immoveable property from year to year, or for any term exceeding one year or reserving a yearly rent, can be made only by a registered instrument. [All other leases of immoveable property may be made either by a registered instrument or by oral agreement accompanied by delivery of possession. [Where a lease of immoveable property is made by a registered instrument, such instrument or, where there are more instruments than one, each such instrument shall be executed by both the less or and the lessee:] Provided that the State Government may, [* * *] from time to time, by notification in the Official Gazette, direct that leases of immoveable property, other than leases from year to year, or for any term exceeding one year, or reserving a yearly rent, or any class of such leases, may be made by unregistered instrument or by oral agreement without delivery of possession.]” 30. Hence, as per the said judgement even a renewal under the terms of a contract which requires a mandatory registration for deriving the benefit out of the said document.
Hence, as per the said judgement even a renewal under the terms of a contract which requires a mandatory registration for deriving the benefit out of the said document. Even this aspect with regards to the effect of leases, as defined under Section 105 of the Transfer of Property Act, particularly, the impact of its renewal clause, it has been held that when it depends upon, that the renewal could only be conditioned as per the terms of the lease itself and if it contemplates a provision for renewal or extension by way of renewal, it would always be in the light of the provisions contained under the Transfer of Property Act. The said ratio has been propounded in paras 13, 14 and 15 of Hardesh Ores Pvt. Ltd’s case (supra), which read as under:- “13. On the other hand the appellants contended that the case was squarely covered by the ratio laid down by this Court in the case of N.V. Srinivasa Murthy and Ors. v. Mariyamma (Dead) by Proposed Lrs. and Ors. AIR2005SC2897 . By the device of clever drafting of the plaint the question of limitation was sought to be got over by camouflaging the real issue in the suit and making it appear as if it was merely a suit for perpetual injunction. 14. The High Court after appreciating the averments contained in the plaint observed that this was not merely a suit for perpetual injunction insisting upon performance of the negative covenants as contained in Clauses 15 and 20 of the agreement. The plaint clearly showed that the plaintiff's suit was in effect a suit for specific performance of the renewal of the agreement dated 23.10.1996. The cause of action for such a suit arose on 29.12.2001 when the respondent by its letter refuted the claim of the appellants for renewal w.e.f. 1.1.2001 for a period of 5 years. After considering the judgment of this Court in Srinivasa Murthy's case (supra) the High Court concluded that the ratio laid down therein was squarely applicable to the instant case. It recorded a finding that the suit for injunction simplicitor was nothing but a camouflage to get over the bar of limitation, which, in fact, showed that specific performance was implicit in the pleadings contained in the plaint itself.
It recorded a finding that the suit for injunction simplicitor was nothing but a camouflage to get over the bar of limitation, which, in fact, showed that specific performance was implicit in the pleadings contained in the plaint itself. The suit though styled as 'suit for injunction' was, in fact, a suit for specific performance for the renewal of the agreement dated 23.10.1996 for which the cause of action had arisen on 29.12.2001. It negatived the contention urged on behalf of the appellants relying on the judgment of this Court in AIR2006SC3672 Ramesh B. Desai holding that in the instant case without going to the pleadings and the documents filed on behalf of the defence, the plaint itself and the documents annexed therewith showed that in fact it was a suit for specific performance of the agreement between the parties which appeared to be barred by the law of limitation. Accordingly it dismissed the appeals preferred by the appellants. 15. Mr. Soli J. Sorabjee, learned senior counsel appearing on behalf of the appellants in Civil Appeal arising out of SLP(C) No. 106/2007 submitted that in dealing with an application under Order VII Rule 11 the court must go by the averments in the plaint. The plaint must be read as a whole. The mere use of words like "readiness" and "willingness" to perform the agreement by themselves do not make it a case of specific performance of agreement. Those averments in the instant case were necessary for enforcing the negative covenants contained in Clauses 15 and 20 of the agreement. He, therefore, submitted that the trial court was entirely wrong in construing the instant suit as a suit for specific performance of the agreement, whereas it was essentially a suit for perpetual injunction seeking enforcement of the negative covenants contained in the agreement in Clauses 15 and 20 thereof. He further submitted that the question of limitation was a mixed question of law and fact and could be decided only in the suit.” 31.
He further submitted that the question of limitation was a mixed question of law and fact and could be decided only in the suit.” 31. There is another judgement, on which the reliance has been placed by the learned counsel for the respondent/plaintiff, it is to the effect that even the lease deed which contains a clause of an automatic renewal than too, the termination of the lease after issuance of the notice under Section 106 of the Act has been held to be a proper action taken for fixation of a right or determination of right of user of the lessee or to continue to occupy the property. Particularly, it has laid down that the protection as contemplated under Section 29A of the Rent Control Act would not be attracted in the present case and particularly under those circumstances where a creation of lease hold rights is done on the basis of a settlement i.e. by way of consensus which has been entered into between the parties in relation to a property, which was exclusively the subject matter of lease. 32. The said ratio has been propounded by the co-ordinate Bench of the Allahabad High Court in a judgement rendered in the case of M/s Bharat Petroleum Corpn. Ltd., New Delhi v. Smt. Phoolwati and Others , as reported in 2008 (5) All. LJ 436, as per the findings which has been recorded in paras 23, 25 and 27 which is quoted hereunder. “23. It has also been argued on behalf of the appellant that in the property in dispute the permanent construction is existing and constructions were raised in the property in dispute with the consent of the appellant, hence the appellant is entitled for benefit of Section 29- A of U.P. Act No. 13 of 1972. It has also been provided in clause 1 of the lease deed dated 15-7-1957 that the piece of land and premises shall be used solely and exclusively as a depot for storage and sale of petroleum products, motor accessories, as well as service stations and for filling stations etc. and it has also been provided that the lessees shall have full liberty to make excavation therein for tanks and construct and erect thereon any buildings pumping plant and accessories as may be requisite.
and it has also been provided that the lessees shall have full liberty to make excavation therein for tanks and construct and erect thereon any buildings pumping plant and accessories as may be requisite. Learned counsel for the appellant stated that the constructions were raised with the consent of the respondent and these constructions are permanent in nature and in these circumstances the appellant is entitled for the protection of Section 29-A of Act No. 13 of 1972. In view of Section 29-A protection has been given to the tenant from eviction from the land on which the building is existing. It has been provided in sub-section (2) of this Section that this provision shall be applicable in the circumstances when the tenant with the landlord's consent has erected any permanent structure and incurred expenses thereof. It is not a disputed fact that at the time of this amendment and addition of Section 29-A, the appellant was in possession of the property in dispute as tenant and it is also undisputed fact that the property in dispute was let out for using the same as depot for storage and sale of petroleum products and liberty was also given to the tenant to erect the buildings, pumping plant and accessories as may be requisite. It is also a fact that storage tank and building which is required for pumping plant is existing on the property. It is also material to be seen that whether any structure in permanent nature is existing. It is undisputed fact that the property in dispute is used as a depot of oil under ground tank were laid down in the property. It is not the case that any residential building was constructed permanently but the construction which is required for running depot for storage and sale of petroleum products, motor accessories was constructed. Moreover, the fulfilment of other condition is also essential. It is also provided in sub-section (4) of Section 29-A of U.P. Act No. 13 of 1971 that: “The tenant of any land to which this section applies shall be liable to pay to the landlord such rent as may be mutually agreed upon between the parties, and in the absence of agreement, the rent determined in accordance with sub-section (5)”. 25.
25. Hence in view of this judgment of the full Bench of this Court, it is essential that rent must be enhanced mutually or determined by the D.M. as provided in sub-section (5) of Section 29-A of the Act. And in the present case the rent has not been mutually agreed and not determined by the D.M. Hence the protection of Section 29-A is not available to the appellant. 27. In view of these judgments of this Court the benefit of Section 29- A cannot be claimed by the tenant unless he enhanced the rent on the basis of mutual agreement or apply to the D.M. for determination of rent. And these judgments are also in accordance with Section 29-A of the Act. Moreover the Hon’ble Apex Court also considered the judgment of Full Bench of Trilok Chand’s case in (1990) 4 SCC 246 : AIR 1990 Supreme Court 2171 : (1990 All LJ 768) (Vinaya Kumar Shukla v. Lakhpat Ram) and the Hon’ble Apex Court held that the opinion of the Full Bench of this Court is correct hence on the basis of the above reasons I am of the opinion that the appellant is not entitled for the benefit of or protection of Section 29-A of Act No. 13 of 1972. And the substantial questions of law are also answered accordingly against the appellant.” 33. The said judgement has laid down that, the protection against an eviction of a tenant who has raised a permanent structure over the property which was a vacant land after the grant of the lease, the lessee will not derive any immunity from eviction as contemplated under Section 29A for the reason that if the construction has been raised as per the terms of the agreement, in such an eventuality, their interse rights with regards to the continuance of occupation of lease to occupy structure thus constructed would also be governed by the terms and conditions of the lease itself and the protection under Section 29A will not be made available to the lessee. 34.
34. Almost an identical situation has been dealt with by the Allahabad High Court by a judgement as reported in 2002 (47) ALR 91, Bank of Baroda v. Sardar Arvinder Singh and another, wherein the Allahabad High Court in paras 6 to 12 of the said judgement has dealt with the situation, where there was a premature cessation of lease by issuance of notices of terminating the lease though despite of the fact that it did contained the clause for right of renewal reserved for further period of five years as provided under the lease itself. “6. Learned counsel has referred to the Section 107 of Transfer of Property Act, which provides that the lease of immovable properly from year to year, or for any term exceeding one year, or reserving a yearly rent can be made only by a registered instrument. 7. It has been argued that no registered instrument was executed and therefore, the tenancy is not renewed for five years. On the other hand, the tenancy became month to month tenancy terminable by a notice under Section 106 of Transfer of Property Act. 8. Learned counsel for the opposite parties in support of the argument has referred to few cases. The first case referred to is Bharat Petroleum Corporation Limited v. Khaja Midhat Noor and Ors. 1988 (1) RCR 613. In this case, the premises was given on lease for ten years with a right of renewal for five years. Lessee continued after ten years but no instrument was executed by the parties. It was held that in the absence of any instrument the lease shall be deemed from month to month after expiry of period of ten years. The perusal of the judgment of the Apex Court show that in that case according to the agreement, the lease was for a period of ten years with a right of renewal for a further period of five years. After expiry of ten years, no instrument was executed by the parties and the lessee continued in possession of the leased property. The facts of the present case are identical. The para 5 of lease deed shows that there was an agreement to grant to the lessee a renewal of the lease of the demised premises for a further period of five years. Therefore.
The facts of the present case are identical. The para 5 of lease deed shows that there was an agreement to grant to the lessee a renewal of the lease of the demised premises for a further period of five years. Therefore. In view of the above decision of the Apex Court, the interpretation of the Clause 5 is that a fresh agreement of lease should have been executed for the renewal of the lease for a further period of five years. Admittedly, no such agreement was executed. Therefore, the lease became from month to month. 9. The other case referred to is of Division Bench decision of Delhi High Court in Uptron Powertronics Limited v. G. L. Rawal. 1999 RCR 442. In this case in the lease deed, there was a stipulation (hat the lease shall be of continuous nature till revoked by mutual consent and there will be automatic increase of 15% in rent after expiry of every three years. The original lease deed was registered. It was held that the lease deed is required to be registered after the expiry of every three years ; that in the absence of the registered lease deed, it will be deemed to be monthly lease and terminable under Section 106 of Transfer of Property Act. 10. On the strength of the above authorities, it has been argued that since after the expiry of period of ten years, no lease deed agreement was executed. Therefore, revisionist became lessee from month to month and the lease could be terminated by a notice under Section 106 of Transfer of Property Act. 11. As against this, learned counsel for the revisionist has referred to Sardar Singh v. Krishna Devi and Anr., 1994 (4) SCC 18 . It was held in this case that if any document does not create any right, title or interest in presenti in immovable property of value of Rs. 100 or above, its registration is not necessary. On the basis of this observation of the Apex Court, it has been argued that the right was granted by the lease deed dated 20.12.1983 and no right was recreated in the presenti and therefore, no registered deed is required. The argument cannot be accepted. The observation of the Apex Court was made in a different context and has no application in (he present case.
The argument cannot be accepted. The observation of the Apex Court was made in a different context and has no application in (he present case. The question in the present case is regarding the renewal of the lease after the expiry of period of ten years for a further period of five years. No right was granted to lessee to continue the lease for five years more after the expiry of ten years by registered agreement. Therefore, the revisionist shall be considered to be the lessee from month to month. 12. In the circumstances, the lease could have been terminated by a notice under Section 106 of Transfer of Property Act. It was validly terminated. The suit is not premature.” 35. The argument was extended that when after the expiry of the said period if the lessor accepts the rent thereafter despite the fact that the lease contained a clause for its further renewal for a period of 5 years, what would be its impact due to acceptance of rent after expiry of period of lease, and as to whether the said lease still could be terminated by issuance of notices under Section 106. The coordinate Bench of Allahabad High Court has held that if as per the terms of the lease, which contains a renewable clause and any specified document as per Section 107, has been executed and even after the expiry of the period of lease, if the landlord accepts the rent, in such an eventuality, it will not grant an automatic extension, for the further period of 5 years, as contemplated under the lease deed. But rather the said act of acceptance of rent by the lessor after the expiry of the principal term of the lease would only be giving the shape of lease hold rights being to be that of month to month tenancy basis and if that be the situation, it could be terminated by the lessor by issuance of notice under Section 106 of the Transfer of Property Act.
The said ratio becomes necessary to be considered and made up applicable in the instant case also for the reason that if the lease was not renewed and that too, after satisfying the precondition of clause ‘f’ and precondition of Section 107 even if it is presumed for a moment that for the extended period beyond the period as specified in the lease if the occupancy of the premises in question is continued and the lessor has accepted the rent, than in such an eventuality, the notices which was issued by the lesser herein in the said case on 20th February 2012 terminating the tenancy or lease itself in the absence of the extended lease could still be held to be validly issued because after the expiry of the period and without there being any legally and validly extended renewal deed, the tenancy for all practical purposes would be treated as to be month to month tenancy basis in the light of aforesaid ratio and same can be terminated by issuances of notices under Section 106 of the Transfer of Property Act, determining the tenancy created by the term or period of which has expired, which has, in fact, in the present case has been done by the plaintiff in the instant case by issuing notices dated 20.12.2012, which was responded by the lessee on 31st January 2012. 36. In view of the reasoning, which has been assigned in the body of the judgement that admittedly, as per the admitted case of the appellant himself either under clause ‘f’ of the principal deed of 25th August 1973, or as per the provisions contained under Section 107 of Transfer of Property Act, there had been no written testament executed and registered under Section 17 of the Registration Act, hence the defendant/appellant cannot take the excuse of continuance of occupation of the property under the pretext of the deed itself containing an automatic renewal clause and hence under that pretext he has got the right to continue to occupy the said premises even expiry of its terms.
The said argument cannot be accepted by this Court for the reason that the proposition with regards to mandatory conditions of executing a deed which has to be done only by a document, which is registered in accordance with law of registration, no right could legally be created by attracting the principles of automatic renewal of lease to as if it would be created in favour of the defendants/appellants herein. 37. Lastly, it has been argued by the learned counsel for the plaintiff/respondent that in the suit which was instituted on 6th April 2013, after expiry of the lease on 1st May 2012, and as per the covenants of the principal lease deed dated 25th August 1973, which was for the initial period of 40 years and since after the notice issued by the lessor, the same was not vacated by the principal lessee, nor it was ever legally extended thereafter in such an eventuality, the lessor has claimed that they may be awarded with mesne profits for the period of use of property, beyond the period stipulated in the lease deed i.e. for the period from 1 st May 2012 to 5 th April 2013, that is, the date of Institution of the suit they have claimed damages @ Rs. 250/- per month, which was on the basis of last settled rent for the last 10 years slab of the lease hold rights which was created in favour of the defendant/appellant herein. 38. Admittedly, after 1st May 2012, and during the pendency of the Suit, during the pendency of the First Appeal and even thereafter during the pendency of the Second Appeal, where a challenge has been given to the judgement dated 26th September 2018, it is not in dispute that the decree which has been rendered in favour of the plaintiff/respondent on 29th March 2017, at any point of time after institution of the Suit or till today, when the Second Appeal is being considered to be heard finally, the defendant/appellant has not remitted any damages or the rent towards the user of the property which was admittedly continued to be occupied by them under the strength of the lease deed dated 25th August 1973 itself. But since the claim itself was raised by way of pleadings in the Suit itself for claiming damages @ Rs.
But since the claim itself was raised by way of pleadings in the Suit itself for claiming damages @ Rs. 250/- per month along with an interest of 18%, and the said aspect was considered by the learned trial Court and by a decree as granted on 29th March 2017, the damages was settled to be paid @ Rs. 250/- per month till the date of the decree of the Suit and thereafter till the actual handing over of possession. 39. The said judgement of 29.03.2017 of the learned Trial Court has been affirmed by the Appellate Court vide its judgement 26th September 2018, whereby yet again the principle of imposing damages for user of property, during judicial proceedings, the damages @ Rs. 250/- per month has been directed to be remitted till the date of the decree and subsequently, the said imposition of damages for the user of the property has been affirmed by the learned Appellate Court, while deciding Issue No. 7 and thereby imposed a damage @ Rs. 250/- along with an interest @ 6%. The same is directed to be maintained and accordingly while dismissing the Second Appeal, the defendant/appellant is directed to pay the damages @ Rs. 250/- along with an interest @ of 6% from the date of the institution of the Suit till the date of actual vacation of the premises and handing over of possession in pursuance of today's judgement. The amount, if any, remitted by the appellant in pursuance to the judgement impugned in the Second Appeal that would be duly adjusted while determining the principal amount of liability for damages of user of property. 40. Consequently, for the reasons given above, this Court does not find any merit in the Second Appeal, and the same is hereby dismissed. As it does not involved a consideration of substantial question of law, which is to be answered by this Court. 41. Consequently, Second Appeal is concluded by concurrent findings of facts, it lacks merits, hence the same is accordingly dismissed, however, there would be no order as to cost.