IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.PADMANABHAN NAIR MONDAY, THE 24TH MARCH 2008 / 4TH CHAITHRA 1930 AS.No. 437 of 2002() -------------------- OS.451/1994 of SUB COURT, MAVELIKKARA .................... APPELLANTS: PLAINTIFFS: --------------------- CHANDA PILLAI CHACKO (DIED), THANKAMMA CHACKO (DIED), 1. CHACKO ALEXANDER, KANDATHIL PARAMBIL HOUSE, MAVELIKARA. 2. CHACKO JOHN, KANDATHIL PARAMBIL HOUSE, MAVELIKARA. 3. SUSAN MATHEW, KANDATHIL PARAMBIL HOUSE, MAVELIKARA. 4. SARAMMA THOMAS, KANDATHIL PARAMBIL HOUSE, MAVELIKARA. 5. MARIAMMA CHERIAN, KANDATHIL PARAMBIL HOUSE, MAVELIKARA. BY ADV. SRI.T.M.ABDUL LATHEEF RESPONDENTS: DEFENDANTS: ------------------------ 1. M/S. BHARAT PETROLEUM CORPORATION LTD., 7, KODAMBAKKAM HIGH ROAD, P.B.NO.1277, MADRAS-600 034. 2. THOMAS MATHEW, KADAVIL HOUSE, THAZHAKKARA MURI, MAVELIKARA. R1 BY ADV. SRI.N.N.SUGUNAPALAN (SR.) THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 24/03/2008, ALONG WITH WPC NO. 20205 OF 2006 THE COURT ONTHE SAME DAY DELIVERED THE FOLLOWING: K. PADMANABHAN NAIR ,J. ------------------------------------------------- A.S.No.437 of 2002 & W.P.(C) No.20205 of 2006 E ------------------------------------------------- Dated, this the 24th day of March, 2008 JUDGMENT A.S.No.437/2002: The additional plaintiffs 3 to 7 in O.S.No.451/1994 have fioled this appeal challenging the judgment and decree passed by the court below dismissing the suit. The suit was for recovery of plaint schedule property from the defendants after removing the structures existing in or on the property and also for past and future damages for use and occupation. The parties will be referred to as arrayed in the plaint. 2. The suit properties originally belonged to plaintiffs 1 and 2 who died pending the suit. On 23.8.1957 the deceased first plaintiff let out the suit property to Burmah Shell Oil Storage and Distributing Company of India Ltd for a period of 25 years with effect from 25.7.1956 for a monthly ground rent of Rs.105/-. In the meanwhile Burmah Shell (Acquisition of Undertaking in India) Act, 1976 ( Act 2 of 1976) ('Act' for short) came into force. The Central Government took over the property as per Section 5(1) of Act 2 of 1976 of the Act and issued a notification AS No.437/2002 & WP(C)No.20205/2006 2 vesting the property with the Bharat Petroleum Corporation Ltd. which is a Government company. 3. The deceased plaintiffs 1 and 2 filed the suit for eviction with arrears of ground rent. In the plaint it was averred that the term of lease expired on 25.7.1981 and immediately on the expiry of the term of lease first plaintiff wrote a letter to the first defendant to enhance the rent if the Corporation wanted to renew the lease. First defendant was not prepared to enhance the rent or to take any action to renew the lease agreement in accordance with the provisions of Section 5(2) of Act 2 of 1976. According to the appellants the lease was determined with effect from 25.7.1981 and thereafter defendants are holding the property unauthorisedly. The right to get renewal was lost on account of inaction of the lessee. A notice was issued on 27.9.1994 through the Advocate of the plaintiffs demanding vacant possession of property and terminating the lease with effect from 23.11.1994. Since the lease was determined the appellants were entitled to get possession of the property. It was further averred that second defendant was acting as an agent/dealer of the first defendant. It was also averred that plaintiffs want to put up a residential building in the suit property. Hence the suit for recovery and past and AS No.437/2002 & WP(C)No.20205/2006 3 future damages. 4. Defendants filed a common written statement contending that suit was not maintainable. It was admitted that the first plaintiff executed a lease on 23.8.1957 in respect of the suit property in favour of Burmah Shell Oil Storage and Distributing Company of India Ltd. for a period of 25 years with effect from 25.7.1956 for a monthly ground rent of Rs.105/-. The lessee had taken possession of the land and errected a petrol pump and other accessories. Taking over of the land by the Government of India under Section 5 of Act 2 of 1976 was also admitted. It was also contended that after the commencement of Act 2 of 1976 the rights of the landlord are regulated by Sections 5(2) and 7(3) of the Act 2 of 1976. It was contended that the rights and liabilities of Burmah Shell Oil Storage and Distributing Company of India Ltd vested in Burma Shell Refineries Ltd. With effect from 24.1.1976. Thereafter the name was changed as Bharat Refineries Ltd which is subsequently changed as Bharat Pertoleum Corporation Ltd.. It was contended that the change of name will not in any way affect the rights or obligation of the Company. It was admitted that the original lease expired on 25.7.1981. It is further contended that on the expiry of the term of lease the Company exercised the option as provided under Section 5(2) AS No.437/2002 & WP(C)No.20205/2006 4 of Act 2 of 1976 for a similar term by sending a letter to the landlord/first plaintiff intimating that it had already exercised the option under Sections 5 (2) and 7(3) of Act 2 of 1976. So the lease was renewed for a further period of 25 years with effect from 25.7.1981 on the same terms and conditions. The averment that defendants did not take any steps to renew the lease which expired on 25.7.1981 was denied. First plaintiff received rent upto June, 1986 and thereafter without any valid reason he refused to accept rent. It was also contended that the suit was not maintainable as per Section 11 of Civil Procedure Code. It was contended that first plaintiff filed O.S.No.172/1982 before the Munsiff's Court, Mavelikkara in which the first defendant herein was defendant No.3 and second defendant was defendant No.2. Similar contentions were raised in that suit and the trial court found that lease did not expire on 25.7.1981. It was further contended that after taking evidence the trial court found that first plaintiff was not entitled to get recovery of possession of the suit property and dismissed the suit. A.S.No.116/1987 filed against that decree before the District Court was also dismissed. It was also contended that in O.S.No.172/1982 it was found that in view of the provisions of Section 5 of Act 2 of 1976 the lease in favour of the company was extended for a further AS No.437/2002 & WP(C)No.20205/2006 5 period of 25 years and as such the company was not bound to handover the property to the landlord/first plaintiff. The receipt of lawyer's notice was admitted. It was contended that the plaintiffs were not entitled to terminate the lease with effect from 23.11.1994 and the lease will expire only on 25.7.2006. It was also contended that since the lease was subsisting the plaintiffs were not entitled to get any relief. It was further contended that the plaintiffs have no cause of action to file suit against the defendants. It was contended that the suit was premature and vexatious. Hence they prayed for dismissal of the suit. 5. During the pendency of the suit defendants filed I.A.No.2023/1999 seeking permission to amend the written statement. Trial Court as per order dated 24.11.2000 dismissed that application. Challenging that order defendants filed C.R.P.No.395/2001 before this Court. This Court allowed the Civil Revision Petition and allowed the petition for amendment vide order dated 19.11.2001. Thereafter the defendants filed amended written statement in the suit in which an additional contention claiming the benefit of Section 106 of the Kerala Land Reforms Act was incorporated. After filing the additional written statement the defendants filed I.A.No.639/2002 under Order XIV Rule 5 and Section AS No.437/2002 & WP(C)No.20205/2006 6 151 of CPC to raise an additional issue as to whether the suit is barred by res judicata in view of the decision in O.S.No.172/1982. The trial court heard the additional issue as a preliminary issue. Trial court found that in view of the dismissal of O.S.No.172/1982 the present suit is barred by res judicata. The suit was dismissed. Challenging that decree and judgment and also the preliminary finding the additional plaintiffs have filed this appeal. W.P.(C) No.20205/2006: 6. The petitioners are the legal heirs of late Shri Chandapilla Chacko and late Mrs.Thankamma Chacko. The averments in the Writ Petition are as follows: For the purpose of establishing a retail petrol pump a lease deed was executed between late Chandapilla Chacko and respondents 2 and 3 on 17.1.1951 to be effective from 5.12.1949. After taking into possession of the lease hold premises and establishing the retail petrol pump by fixing all such equipments and machineries for running the pump the original lease was surrendered and thereafter a fresh lease deed was executed on 23.8.1957 for a period of 25 years with effect from 25.7.1956. Late Chandapilla Chacko filed O.S.No.172/1982 before the Munsiff's Court, Mavelikkara for eviction by making the company and AS No.437/2002 & WP(C)No.20205/2006 7 dealer parties. That suit was dismissed by the trial court holding that the respondents are entitled to hold the property for another period of 25 years on the expiry of the period of first lease. Appeal filed by late Chandapilla Chacko as A.S.No.116/1987 was also dismissed. Subsequently late Chandapilla Chacko and his wife through their power of attorney holder filed O.S.No.451/1994 before the Sub Court, Mavelikkara for recovery of possession of suit property and for past and future damages. The trial court dismissed the suit finding that it was barred by res judicata. Challenging that decree and judgment plaintiffs filed A.S.No.437/2002 before this Court and the same is pending. The period of 25 years will expire on 25.7.2006 and on the expiry of the period the petitioners are entitled to get vacant possession of the land. Respondents 2 and 3 cannot make any claim under the Kerala Land Reforms Act especially under Section 106 of the Act. First of all the equipments were installed and constructions were effected on the basis of the original lease and later the same was surrendered and subsequently another lease was executed. So, there is no question of lessee constructing any structures subsequent to the lease. Second respondent being a public limited company cannot be allowed to raise a contention that it is entitled to get the benefits of Section AS No.437/2002 & WP(C)No.20205/2006 8 106 of the Land Reforms Act as it can be invoked only when there is utter necessity. After the expiry of the extended period of lease the position of the respondents is that of rank trespassers and petitioners are entitled to get vacant possession of the land in this proceedings itself. 7. Third respondent filed a counter affidavit for and on behalf of second respondent contending that the property was taken on lease on 25.7.1956 from the predecessor-in-interest of the petitioners for a period of 25 years on a monthly ground rent of Rs.105/- and on the expiry of that period the same was extended in accordance with the provisions of Act 2 of 1976. It was also contended that respondents 2 and 3 are entitled to get protection available under Section 106 of the Kerala Land Reforms Act. It was further contended that O.S.No.172/1982 filed by late Chandapilla Chacko and his wife was dismissed and the appeal filed against that decree and judgment as A.S.No.116/1987 was also dismissed. So the petitioners are not entitled to get recovery of property. It was also contended that thereafter late Chandapilla Chacko filed O.S.No.451/1994 before the Sub Court, Mavelikkara. That suit also was dismissed. Challenging that decree and judgment the petitioners have filed A.S.No.437/2002 and the same is pending before this Court. It was contended that in view of the dismissal of AS No.437/2002 & WP(C)No.20205/2006 9 that suit also the petitioners are not entitled to get any relief. The petitioners are not entitled to get any reliefs. It was contended that interpretation given to Section 106 of the Land Reforms Act will have no application to the facts and circumstances of the present case. Hence they prayed for dismissal of the Writ Petition. 8. Petitioners filed a reply affidavit reiterating the contentions raised in the Writ Petition as well as in the plaint filed in O.S.No.451/1994. It was contended that respondents 2 and 3 are not entitled to get protection under Section 106 of the Land Reforms Act. A.S.No.437/2002: 9. I shall first consider whether the finding of the trial court that the suit is barred by res judicata is correct. There are certain admitted or proved facts. The suit property originally belonged to petitioners' father late Chandapilla Chacko. He entered into an agreement with the Burmah Shell Oil Storage and Distributing Company of India Ltd. with effect from 17.1.1951. Lease deed took effect from 5.12.1949. That lease was for a period of 12 years from 5.12.1949. Subsequently the deceased first plaintiff entered into a lease with the Burmah Shell Oil Storage and Distributing Company of India Ltd. with effect from 25.7.1956 for a period of 25 years. AS No.437/2002 & WP(C)No.20205/2006 10 The monthly ground rent was fixed as Rs.105/-. Rent is to be paid on or before 10th day of the month succeeding that to which it becomes payable. Normally that period would have expired on 25.7.1981. But, in the meanwhile the Parliament passed Burmah Shell (Acquisition of Undertakings in India) Act, 1976 (Act 2 of 1976). Section 5 of the Act provides that Central Government to be lessee or tenant under certain circumstances. Section 7 of the Act deals with the power of the Central Government to direct vesting of the undertakings of Burmah Shell with any Government company. When the period of original lease expired, late Shri Chandapilla Chacko filed O.S.NO.172/1982 before the Munsiff's Court, Mavelikkara for eviction of the company. In that suit defendants raised a contention that Central Government had exercised the powers under Section 5(2) of Act 2 of 1976 and the property had vested with the Bharat Petroleum Corporation Ltd. It was also contended that in view of the provisions contained in Section 5(2) of Act 2 of 1976 the lessee had exercised its option to renew the lease for another period of 25 years and the term of the lease had already been extended for another 25 years which will expire only on 25.7.2006. Trial court found that the property was taken possession by the Central Government and the Central Government AS No.437/2002 & WP(C)No.20205/2006 11 became a lessee under Section 5 of Act 2 of 1976 and it extended the period of lease for another 25 years from the date on which it was due to expire. It was also found that the Central Government had already exercised the powers under Section 7 of Act 2 of 1976. That finding has become final and conclusive. In the meanwhile Chandapillai Chacko along with his wife filed the present suit from which the appeal arises. In the suit also it was contended that there was no renewal of the lease under Section 5(2) of the Act and term of the lease expired on 25.7.1981 and the lessor had determined the lease by issuing a notice and as such the plaintiffs are entitled to get recovery of possession. The defendants contended that in view of dismissal of O.S.No.172/1982, the subsequent suit is barred by res judicata. That contention was accepted by the trial court and dismissed the suit. 10. The original lease was in favour of Burmah shell Oil Storage and Distributing Company of India Ltd. and that undertaking was taken over by the Central Government as per the provisions under Act 2 of 1976. So the Central Government became the lessee of the plaintiffs under Section 5 of Act 2 of 1976 which was subsequently transferred to Bharat Petroleum Corporation Ltd. In O.S.No.172/1982 it was found that the lessee had AS No.437/2002 & WP(C)No.20205/2006 12 exercised its option under Section 5(2) of Act 2 of 1976 and lease was renewed for a further period of 25 years from 25.7.1981, i.e., the date on which the original lease was expired. That finding has become final and conclusive. On the date on which O.S.No.451/1994 was filed plaintiffs had no cause of action and it was premature and not maintainable. In O.S.No.172/1982 the trial court found that Ext.B1took effect and the plaintiffs were not recover possession of the property. Challenging that decree and judgment plaintiffs filed A.S.No.116/1987 before the Additional District Court, Mavelikkara. Lower appellate court found that lease in favour of first defendant was not terminable on that date and plaintiffs were not entitled to recover possession of the property. Since the suit was premature it was totally unnecessary to consider the other issues raised in the suit. There was no finding in O.S.No.172/1982 to the effect that the lessor is not entitled to evict the tenant even after the expiry of the extended term of lease. The term of lease would expire only on July, 2006. The present suit was filed on 1.12.1994. On that day the plaintiffs had no cause of action and the suit was premature. The plaintiffs cannot be allowed to raise a contention that term of lease expired in the year 1981. The trial court ought to have dismissed the suit on the ground that it was premature AS No.437/2002 & WP(C)No.20205/2006 13 and lease was subsisting and not on the ground of res judicata. 11. During the pendency of this appeal the extended period of lease is also over. Plaintiffs/appellants have filed a Writ Petition seeking recovery of the property. I am of the considered opinion that it is not just and proper to consider the complicated questions of fact and law in a proceedings under Article 226 of the Constitution of India. But, instead of dragging the plaintiffs to another suit they can be allowed to raise all contentions in this suit itself. For that purpose the pleadings will have to be amended. So the proper course open to me is to remand the suit with liberty to the parties to amend the pleadings and adduce further evidence. 12. In the result, the decree and judgment passed by the court below in O.S.No.451/1994 are hereby set aside. Suit is remanded. Both sides will be given an opportunity to amend the pleadings and adduce further evidence. The trial court shall decide the suit as per the amended pleadings and additional evidence if any to be adduced in the case. It is open to both sides to request the court below to raise additional issues, if necessary. Counsel for the appellants submits that appellants are entitled to get rent at the enhanced rate. It is open to the appellants to move the trial court for such reliefs also. The parties shall appear before the court below AS No.437/2002 & WP(C)No.20205/2006 14 on 28.5.2008. Being an old suit the trial court shall make every endeavour to try and dispose of the suit as expeditiously as possible. 13. I.A.No.933/2008 in A.S.No.437/2002 will stand dismissed. W.P.(C)No.20205/2006: 14. Since I have already set aside the decree and judgment passed by the trial court in O.S.No.451/1994 and remanded the case back to trial court for fresh disposal, I do not find any reason to consider the questions arising for consideration in this Writ Petition. Those questions are to be considered by the trial court in the suit on its merits. So, without prejudice to the right of petitioners to raise all the contentions raised in this Writ Petition in the suit at appropriate stage, this Writ Petition is closed. 15. Learned counsel for the petitioners submits that second defendant who is only a dealer is attempting to put up new constructions so as to delay the execution of the decree that may be passed by the trial court. In fact, the appellants have filed injunction applications in the Writ Petition. I make it clear that in case the dealer makes any construction he will be doing so at his risk and will not be entitled to claim any protection on the basis of the constructions hereafter put up and also the value of the improvements. I also make it clear that in any case the defendants also are AS No.437/2002 & WP(C)No.20205/2006 15 attempting to make any construction, it is open to the petitioners to move the trial court for appropriate orders. I.A.Nos.513, 13572 and 16134/2007 in W.P.(C) No.20205/2007 will stand dismissed. K. PADMANABHAN NAIR, JUDGE. cks AS No.437/2002 & WP(C)No.20205/2006 16 K.PADMANABHAN NAIR, J. A.S.No.437 of 2002 & W.P.(C) No.20205 of 2006 E JUDGMENT 24th March, 2008.