Rashee da v. Bharat Petroleum Corporation Ltd.

**THE HONOURABLE MR. JUSTICE SHAJI P.CHALY FRIDAY, THE 9TH DAY OF FEBRUARY 2018 / 20TH MAGHA, 1939 WP(C).No. 2539 of 2012** **PETITIONER(S) ------------** **RASHEEDA, D/O. V.K. KOCHU MOHAMMED AND W/O. K.A.ABDUL RAHIM, AGED 60 NEW BUILDING AT RAHIM MANZIL OPPOSITE K.T.C. MARKET ROAD, ERNAKULAM ,KOCHI 35.** **BY ADVS.SRI.K.C.CHARLES SRI.P.CHELLAPPAN SRI.M.POLY MATHAI SRI.VIMAL K.CHARLES** **RESPONDENT(S): -------------** **M/S. BHARAT PETROLEUM CORPORATION LTD., E.R.G.ROAD, ERNKUALM, KOCHI 31, ELAMKULAM VILLAGE, KANAYANNUR TALUK REPRESENTED BY ITS DIVISIONAL MANAGER.** **BY ADVS. SRI.N.N.SUGUNAPALAN (SR.) SRI.S.SUJIN SRI.AMAL GEORGE** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06-02-2018, THE COURT ON 09-02-2018 DELIVERED THE FOLLOWING:** **TS** ## **WP(C).No. 2539 of 2012** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **-----------------------** **EXHIBIT P1:- A TRUE COPY OF LEASE DEED NO.2349/1964 DATED 13/07/1964** - **EXHIBIT P2:- TRUE COPY OF THE JUDGMENT DATED 9/4/1992 IN O.S.697/1987 OF THE MUNSIFF'S COURT, ERNAKULAM.** - **EXHIBIT P3:- TRUE COPY OF THE APPELLATE COURT'S JUDGMENT IN A.S123/1993 OF THE DISTRICT COURT, ERNAKULAM DATED 16/09/1995.** - **EXHIBIT P4:- TRUE COPY OF THE JUDGMENT DATED 15/11/2006 OF THIS HON'BLE COURT IN S.A 411/1996 FILED BY THE RESPONDENT AGAINST EXHIBITS P2 AND P3 JUDGMENT.** - **EXHIBIT P5:- TRUE COPY OF JUDGMENT IN O.S.667/1996 OF THE MUNSIFF'S COURT DATED 5/6/2009.** - **EXHIBIT P6:- TRUE COPY OF THE JUDGMENT IN A.S.186/2009 OF THE DISTRICT COURT, ERNAKULAM, DATED 16/1/2010.** - **EXHIBIT P7:- TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN R.S.A 299/2010 DATED 08/2/2011.** - **EXHIBIT P8:- TRUE COPY OF THE ORDER OF THE HON'BLE SUPREME COURT OF INDIA IN S.L.P 11348/2011 DATED 07/7/2011.** ## **ADVOCATE COMMISSIONER'S ANNEXURES** **----------------------------------** ## **ANNEXURE A :- COPY OF NOTICE SERVED ON COUNSEL ON EITHER SIDE.** ## **RESPONDENT(S)' EXHIBITS -** ## **--------------------------** **EXHIBIT R1(A):- TRUE COPY OF THE EXPLOSIVES LICENSE GRANTED TO THE RESPONDENT COMPANY, DATED 3.4.2012.** ## **/TRUE COPY/** **PS TO JUDGE** **TS** ## **SHAJI P. CHALY, J.** ----------------------------------------------- ## **W.P.(C) No.2539 of 2012** ## **----------------------------------------------Dated this the 9[th] day of February, 2018** ## **J U D G M E N T** This writ petition is filed by the petitioner seeking direction to the respondent to quit the petitioner's land covered by Ext.P1 and surrender vacant possession of the same to the petitioner within a time frame fixed by this court and seeking a writ of mandamus directing the respondent to pay to the petitioner a sum of Rs.2,00,000/- per month as damages for the wrongful user of the petitioner's land covered by Ext.P1 from the date of filing of the writ petition till the respondent actually surrenders possession of the property to the petitioner. 2. Material facts for the disposal of the writ petition are as follows; petitioner and her sister, Suhara together owned 45.700 cents of dry land comprised in Sy.No.1182/11 of Thrikkakkara North Village, Kanayannur Taluk, secured as W.P.(C) No. 2539 of 2012 2 per document No.1661/1960 of SRO, Ernakulam. While petitioner and her sister were minors, their father, V.K.Kochu Mohammed let out the said property in favour of M/s.Burmah Shell Oil Storage and Distributing Company India Limited, hereinafter called “the Burmah Shell Company” for the purposes connected with the storage, sale and distribution of petrol, high speed oil etc. etc. as per Ext.P1 registered lease deed dated 13.7.1964 of SRO, Edappally. Among other things, Ext.P1 stipulates that, on the expiry of the lease period, the lessee shall surrender vacant possession of the premises. The period of lease initially fixed as per Ext.P1 was 20 years commencing from 1.5.1964 with a quarterly rent of Rs.1,575/-. A further covenant is entered to the effect that, quarterly rent for the next 10 years will be Rs.1,950/-. Ext.P1 lease deed contained a provision to exercise option for renewal of the lease for a further period of 10 years on the expiry of first 20 years. Subsequently Burmah Shell Company was taken W.P.(C) No. 2539 of 2012 3 over by the Central Government on 24.1.1976 as per Burmah Shell (Acquisition of Undertakings in India) Act, 1976 and thereupon, the name of the lessee company was changed to Bharat Refineries Limited and again to Bharat Petroleum Corporation Limited. Thus respondent is the successor-in-interest of the original lessee under Ext.P1 and the respondent had been in possession of the premises from August, 1977 onwards. The original period of 20 years as per Ext.P1 lease deed expired on 30.4.1984. In the meanwhile, entire properties which petitioner and her sister jointly owned including Ext.P1 leasehold premises having 45.700 cents in extent were partitioned as per partition deed No.1966 of 1977 of the SRO, Ernakulam, whereby 'A' schedule item No.1 in the said deed having an extent of 30.875 cents was set apart to the share of the petitioner's sister, Suhara and the balance 14.825 cents together with the adjacent property was set apart to the share of the petitioner. Subsequent to the partition deed, respondent W.P.(C) No. 2539 of 2012 4 attorned to the petitioner and Suhara and started paying rent to them separately. Thereupon, petitioner was entitled to get Rs.348/- per quarter and according to the petitioner, the same has not been paid for the last several years. It is also stated that, taking into account the prevailing rate in the locality identical property is securing an amount of Rs.2,00,000/- per month. 3. Consequent to the expiry of 20 years period prescribed under Ext.P1 lease deed expired on 1.5.1984, respondent filed O.S.No.697/1987 in the Munsiff Court, Ernakulam seeking a decree for specific performance for extension of Ext.P1 lease deed for another 10 years. The said suit was dismissed, holding that, the respondent is entitled to the protection of section 106 of the Kerala Land Reforms Act. Even though appeal and second appeal was preferred as A.S.No.123/1993 and S.A.No.411/1996 before the District Court, Ernakulam and this court respectively, the same were dismissed affirming the order of the W.P.(C) No. 2539 of 2012 5 Munsiff's Court. But the District Court, Ernakulam held that, the respondent is not entitled to the protection of section 106 of the KLR Act in respect of Ext.P1 property. The second appeal preferred by the respondent was dismissed by this court. The respective judgments are produced as Exts.P2 and P4. It is evident from Ext.P3 judgment of the District Court in appeal that, the issue with respect to the claim of the petitioner under section 106 of the KLR Act was dealt with elaborately and held that, the respondent is not entitled to claim the status of a tenant falling under section 106 of the KLR Act. Therefore, the suit was dismissed by the appellate court holding that, the appeal is devoid of any merit as well as on the ground of limitation. During the pendency of O.S.No.697/1987, petitioner's sister, Suhara filed O.S.No.667/1996 for eviction of the respondent from her 30.875 cents forming part of Ext.P1 property and it was accordingly decreed, evident from Ext.P5 judgment. Even though respondents preferred W.P.(C) No. 2539 of 2012 6 appeal before the District Court, same was dismissed affirming the decree of the trial court, evident from Ext.P6. Even though RSA No.299/2010 was filed before this court, it was also dismissed, evident from Ext.P7. Thereafter, respondent preferred a Special Leave Petition before the Apex Court, it was also dismissed as per Ext.P8 order granting six months' time to the respondent for vacating Suhara's land covered by Ext.P1 and in accordance with the partition deed executed by and between the petitioner and Suhara. Pursuant to the same, respondent was evicted on 16.1.2012 and the petrol refilling station was stopped by the respondent on 7.12.2012. Though Ext.P1 lease deed expired in 1984 or at least in 1994 in accordance with the extended period under the Act, 1976, the respondent is even now unauthorizedly and arbitrarily holding petitioner's 14.825 cents of land forming part of Ext.P1 lease deed and refusing to vacate the premises. According to the petitioner, the said premises is situated in the heart of W.P.(C) No. 2539 of 2012 7 Kalamassery Municipality and on the western side of NH47. The respondent being a company owned by the Government of India, and an instrumentality of State should have reasonably and fairly, on the expiry of Ext.P1 lease period or the extended period, surrendered the premises. According to the petitioner, in identical circumstances, the Apex Court had rendered a judgment vis-a-vis, ESSO (Acquisition of Undertaking in India) Act , 1974 and Caltex (Acquisition of Shares of Caltex Oil Refining (India) Ltd. and Undertaking in India of Caltex (India) Ltd. Act, 1977, reported in **Hindustan Petroleum Limited and another v. Dolly Das** [(1999) 4 SCC 450] to canvass the proposition that, a writ petition is perfectly maintainable seeking ejection, and therefore, the relief sought for by the petitioner can be granted by this court. 4. Respondent has filed a detailed counter affidavit basically contending that, the writ petition is not maintainable under law since the subject matter of the writ W.P.(C) No. 2539 of 2012 8 petition is based on various factual circumstances which is under dispute. Among other contentions it is stated that, on the basis of lease granted for commercial purpose, the then lessee rejected the necessary plea and erected necessary building and installed other dispensing units, tank etc. etc. for conducting the commercial activity in that property. The lease was originally granted for 20 years. But in the meanwhile Kerala Land Reforms Act, 1964 with section 106 was enforced. By the said provision, if a lease is granted for commercial purpose and lessee has constructed building on the basis of that lease arrangement before 20[th] May, 1967, the lessee is entitled to fixity of tenure, subject to the revision of rent once in 12 years. Therefore, the respondent is entitled to fixity of tenure in respect of the land let out to it. It is also stated that, the Apex Court has rendered the judgement holding that, commercial purposes will come under section 106 and lessee will get fixity of tenure of the lands. It is also stated that, after partition of the property W.P.(C) No. 2539 of 2012 9 by the petitioner and her sister, the rent was separately paid to the petitioner and her sister and even though severance was effected by virtue of the partition deed, respondent continued their activities using the entire area let out to it. That apart it is contended that, in O.S No.697/1987 preferred by the petitioner seeking specific performance, it was held that, the respondent is entitled for the benefit of section 106 of the KLR Act and therefore, there was no necessity to seek a decree of specific performance. 5. In that view of the matter, even though the suit was dismissed, respondent was granted the benefit of fixity of tenure as provided under section 106 of KLR Act. The dismissal of the appeal by the District Court and setting aside the finding with respect to section 106 of the KLR Act are all admitted. It is also stated that, even though RSA No.411/1995 came up for hearing in the year 2000, the cause of action of the suit had lapsed by efflux of time, i.e., the extended period as per the Acquisition Act, 1977 has W.P.(C) No. 2539 of 2012 10 come to an end. It was thereupon that, the appeal was dismissed as infructuous as per Ext.P4 judgment. It is also admitted that, in the suit filed by the petitioner's sister viz., O.S.No.667/1996, the issue with respect to fixity of tenure was raised. It was held that, consequent to the application of principles of constructive res judicata, the claim cannot be re-agitated. Any how other aspects of the suit filed by the petitioner's sister are all admitted. According to the respondent, the question of claim under section 106 of the KLR Act was not an issue in the earlier proceedings by and between the petitioner and the respondent. Therefore, there is neither res judicata, as petitioner is not a party in those proceedings, nor the respondent precluded from raising the plea of section 106 in these proceedings, which according to the respondent means, the cause of action is entirely different. It is also contended that, petitioner is not entitled to get any benefit with respect to the findings rendered by the trial court in the suit filed by the sister of W.P.(C) No. 2539 of 2012 11 the petitioner. Therefore, respondent seeks dismissal of the writ petition. 6. On 22.2.2012, this court had appointed an Advocate Commissioner to report various aspects sought at the instance of the petitioner. The Commission has filed his report explaining the importance of locality wherein the property is situated close proximity of National Highway – 47, frontage of the road etc. etc. It is also reported thereunder that, on a perusal of the retail outlet sales register of Bharat Petroleum, it is found that, the sale was stopped on 7.1.2012 and sale was re-started on 9.2.2012. Other documents are perused by the Advocate Commissioner and reported that, the sale was re-started on 9.2.2012. However, it is stated in the report that, the Municipal licence was not produced for the purpose of conducting fuel dispensing unit in the said property. But it was informed to the Advocate Commissioner that, licence is being secured from the Municipality. W.P.(C) No. 2539 of 2012 12 7. I have heard learned counsel for petitioner and counsel appearing for the respondent and perused the pleadings and documents on record. 8. The question to be decided in this writ petition is whether petitioner is entitled to get the relief sought for in a proceeding under Article 226 of the Constitution of India. The thrust of the contention advanced by learned counsel for petitioner is relying upon the judgment of the Apex Court in **Hindustan Petroleum Limited and another v. Dolly Das** [(1999)4 SCC 450]. Paragraph 9 and 12 of the said judgment is relevant, which read thus: “9. We may now advert to the contention that the writ remedy is not appropriate in this case. Where interpretation of a contract arises in relation to immovable property and in working such contract or relief thereof or any other fall out thereto may have the effect of giving rise to an action in tort or for damages, the appropriate remedy would be a civil suit. But if the facts pleaded before the court are of such nature which do not involve any complicated questions of fact W.P.(C) No. 2539 of 2012 13 needing elaborate investigation of the same, the High Court could also exercise writ jurisdiction under Article 226 of the Constitution in such matters. There can be no hard and fast rule in such matters. When the High Court has chosen to exercise its powers under Article 226 of the Constitution we cannot say that the discretion exercised in entertaining the petition is wrong. 12. The lease had been granted with effect from October 1, 1969 in favour of M/s.Caltex (India) Ltd. and on coming into force of the Act on April 23, 1977 the appellant has stepped into its shoes and from that day onwards the appellant has been in possession of the same till now. The crucial question whether option for renewal either in terms of the lease deed or in terms of the Act had been availed of or not is the controversy between the parties now. Litigation between the parties has been going on from 1993 onwards. On expiry of the term the deed provides for renewal for two terms of 10 years each on the same terms and conditions except for the enhancement of rent and execution of fresh deed modifying the clause relating to renewal. The appellant gave notice of renewal in terms of the provisions of (i) the deed in letter dated May 23, 1979, and (ii) the Act in the W.P.(C) No. 2539 of 2012 14 letter dated September 13, 1979. Now it is not necessary to examine the effect of renewal for the earlier period as even on appellant's own showing it is invoking the statute in the latter notice and not the terms of the deed. If that is so, the appellant could seek for renewal only in terms of Section 7 of the Act which enabled it to renew the deed for a period of one term as originally granted. Covenant for renewal is not treated as part of terms prescribing the period of lease but only entitles a lessee to obtain a fresh lease. Renewal of lease could only be for one term and no more, but nevertheless it could be contended that the covenant for renewal was also part of the lease and therefore, stood incorporated in the renewed lease arising under the Act. However, in the peculiar facts of this case, we think that it is not necessary to enter upon the merits of the controversy regarding the effect of Clause 3(g) of the lease deed or the rights available under the Act for renewal of the lease period.” 9. Even though the subject matter of consideration thereunder is in respect of section 7 of Caltex (Acquisition of Shares of Caltex Oil Refining (India) Ltd. and Undertaking in India of Caltex (India) Ltd. Act, 1977, in my W.P.(C) No. 2539 of 2012 15 considered opinion, the issue raised by the petitioner in this writ petition is similar in nature and the sole difference is in respect of the Act under which the property is held by the respondent viz., Burmash Shell(Acquisition of Undertakings in India) Act, 1977. Instead of section 7, the Apex Court had considered the issue with respect to the tenancy dealt with under section 5 of Act, 1977 referred to supra, which read thus: “5. Central Government to be lessee or tenant under certain circumstances.-- (1) Where any property is held in India by Burmah Shell under any lease or under any right of tenancy, the Central Government shall, on and from the appointed day, be deemed to have become the lessee or tenant, as the case may be, in respect of such property as if the lease or tenancy in relation to such property had been granted to the Central Government, and there upon all the rights under such lease or tenancy shall be deemed to have been transferred to, and vested in, the Central Government. (2) On the expiry of the term of any lease or tenancy referred to in sub-section (1), such W.P.(C) No. 2539 of 2012 16 lease or tenancy shall, if so desired by the Central Government, be renewed on the same terms and conditions on which the lease or tenancy was held by Burmah Shell immediately before the appointed day.” 10. According to the learned counsel for petitioner, as per the terms of Ext.P1 lease deed, on expiry of the initial period of 20 years, the lease can be renewed for a further period of 10 years by hiking the financial commitments. Therefore, the submission made by the learned counsel for petitioner is that, after the expiry of 10 years extended period, if co-related to section 5 of Act, 1976, respondent is not entitled to the extension of lease any further. This is exactly what is held by the Apex Court in **Bharat Petroleum Corporation Ltd. v. Ramachandarasekhar Vaidya and Another** [(2014) 1 SCC 657]. It is also submitted by the learned counsel for petitioner that, respondent is not entitled to make any claim in respect of section 106 of the KLR Act since the petitioner did not W.P.(C) No. 2539 of 2012 17 make any claim in the suit originally instituted against the petitioner and Suhara seeking specific performance of Ext.P1 agreement, since constructive res judicata as per section 11 of CPC will clearly operate. 11. So far as the second relief sought for by the petitioner is concerned, it is with respect to the payment of an amount of Rs.2,00,000/- per month as damages for the wrongful user of the petitioner's land covered by Ext.P1. During the course of argument, learned counsel for petitioner submitted that, for the time being petitioner would be satisfied, if the amounts are paid in accordance with Ext.P1 agreement and the rest of the claim may be left open to seek appropriate relief before the appropriate court of law. 12. On the other hand, learned counsel for respondent submitted that, respondent is entitled to make a claim under section 106 of the KLR Act since the said issue was not raised in the suit instituted by the respondent seeking W.P.(C) No. 2539 of 2012 18 specific performance of the agreement and even though the benefit was granted in the suit, the same was interfered with by the District Court in the appeal preferred against the judgment and decree in the suit. Therefore, according to the counsel, the question with respect to the claim of the respondent under section 106 of the KLR Act is still open for consideration. It is also submitted that, the remedy of the petitioner is to approach the civil court under the disputed questions of facts and law and in that event respondent has every right to raise a claim under section 106 of the KLR Act. Learned counsel for respondent has also invited my attention to the judgment rendered by a Division Bench of this Court in **Hindusthan Petroleum Corporation Ltd. v. John** [2000(2) KLT 116] and specifically referred to paragraph 8 of the said judgement which read thus: 8. In Sankaranarayanan Nambiar v. Union of India (1989 (2) KLT 635) this Court had occasion to consider the validity of the present Act. This Court W.P.(C) No. 2539 of 2012 19 upheld the validity. This Court followed the decision of the Madhya Pradesh High Court in Manoharsingh’s case on the construction of S. 5(2) of the Act. In Hindustan Petroleum Corporation Ltd. v. Dolly Das ((1999) 4 SCC 450) the Supreme Court dealt with the Caltex (Acquisition of Shares of Caltex Oil Refining (India) Ltd. and of the Undertakings in India of Caltex (India) Ltd.) Act. Their Lordships observed that the “crucial question whether the option for renewal either in terms of the lease deed or in terms of the Act had been availed of or not, is the controversy between the parties now”. Their Lordships noticed that on the expiry of the term, the deed in that case provided for renewal for two terms of ten years each on the same terms and conditions except for enhancement of rent and execution of fresh deed modifying the clause relating to renewal. The company gave notice of renewal in terms of the option available under the contract by letter dated 23.5.1979 and the right to continue by exercising the option under the Act by letter dated 13.9.1989. Their Lordships stated that it was not necessary to examine the effect of renewal for the earlier period as even on the company’s own showing it had invoked the statute in the latter notice and not the terms of the W.P.(C) No. 2539 of 2012 20 deed. Therefore their Lordships held that the Company could seek for renewal only in terms of S. 7 of the Act which enabled it to renew the deed for a period of one term as originally granted. Then the following observations were made:- “A covenant for renewal is not treated as a part of the terms prescribing the period of lease but only entitles a lessee to obtain a fresh lease. Renewal of lease could only be for one term and no more, but nevertheless it could be contended that the covenant for renewal was also part of the lease and, therefore, stood incorporated in the renewed lease arising under the Act”. On the peculiar facts of that case, their Lordships thought that it was not necessary to enter upon the merits of the controversy in that regard. Going by the said decision, as we understand it, the company could exercise the option both in terms of the contract and in terms of the statute but that renewal can only be for the term originally fixed. Here we have already noticed that by Ext. B1 dated 18.3.1980 the company had exercised its option to continue under the lease and not under the statute. But thereafter on 27.2.1990 by Ext. A4, the company had exercised its option to continue in terms of W.P.(C) No. 2539 of 2012 21 the statute. Even though the company has claimed that it can continue for a term of twenty years on the basis that the term of the lease was twenty years and not ten years, in view of the right of option available to the company under the lease, that position could not be accepted since the term of the lease is only ten years and on the expiry of the term of the contractual option, the company would be entitled to an option to continue the lease only for one more term as provided in the contract. That term is clearly for a period of ten years and if so, by exercising the statutory option the company would be entitled to be in possession as a lessee for a further period of ten years from 1.6.1990, that is till 31.5.2000.” 13. It is also the contention of the learned counsel that, even though, the appellate court as per Ext.P3 judgment interfered with the findings of the trial court in respect of section 106 of the KLR Act, for want of pleading to that effect the issue was not considered on merits of the matter. 14. I have evaluated the respective submissions advanced by the learned counsel on either side and W.P.(C) No. 2539 of 2012 22 extensively perused the documents produced. My endeavour is to find out whether there is any disputed questions of fact and law remaining disabling this court to consider the issue raised in this writ petition, and arrive at a definite conclusion with respect to the relief sought for by the petitioner. The first question to be considered is whether the respondent is entitled to make any claim under section 106 of the KLR Act ? 15. Going by the findings rendered by the appellate court in Ext.P3 judgment, the issue with respect to the claim of the petitioner under section 106 of the KLR Act is dealt with in detail wherein it is stated that, it is nowhere pleaded in the claim that, the respondent is enjoying the status of a tenant falling under section 106 of the KLR Act, 1963 and even assuming that, there was such a plea a tenant answering the description under section 106 of the KLR Act is bound to pay rent under the contract of tenancy and such rent is liable to be varied every 12 years. But the W.P.(C) No. 2539 of 2012 23 lessee, who compels the landlord to renew the lease is not prepared to pay the enhanced rent to the landlord. It is also stated thereunder that, as held by this court in **Mariamma Thomas v. Bharat Refineries Limited** [1985 KLT 1081], the intervention of the Act,1976 has not in any way altered the liability of the lessee to pay the enhanced rent for enjoying the renewal of the original lease. It is also held thereunder that, there is not even a whisper in the plaint that the plaintiff is a lessee entitled to the protection of section 106 of the KLR Act and there was no issue in that behalf. Further it is held that, even the question regarding status of a tenant falling under section 106 of the KLR Act is a dispute which has to be referred to the competent land tribunal under section 123 of the KLR Act. It is further held that, that question did not arise for want of plea and learned Munsiff was not at all justified in deciding that the plaintiff is entitled to the status of a tenant falling under section 106 of the Act. It was also held that, even in a case where such W.P.(C) No. 2539 of 2012 24 a question arises, and it is the civil court which decides that question without a reference to the competent land tribunal, the decision of the civil court will be without jurisdiction. That apart it is held, equally misconceived is the application filed in the appeal by the plaintiff seeking a reference of the matter to the competent Land Tribunal. But even in the application, the plaintiff has no case that, it enjoys the status of a lessee falling under section 106 of the KLR Act. It is also held that, a tenant who is not even prepared to pay enhanced rent cannot claim the status of a tenant under section 106 of the KLR Act. It was also held that, plaintiff is not entitled to seek any renewal of the lease. 16. For the foregoing reasons assigned by the District Court, the judgment in **Dolly Das** (supra) squarely applies, since there is no disputed question of facts and law involved and there is no inhibition standing in the way of considering the question similar in nature under Article 226 of the Constitution of India. I am of the considered opinion that, W.P.(C) No. 2539 of 2012 25 the issue with respect to the claim of the petitioner under section 106 of the KLR Act is concluded as per Ext.P3 judgment rendered by the District Court and affirmed in the judgment rendered by this court as per Ext.P4 in second appeal. So also the issue was considered extensively in Ext.P5 judgment rendered by the Munsiff Court in the suit filed by the petitioner's sister seeking recovery of possession of the property. Therein it is held that, the respondent is not entitled to raise the plea of section 106 of the KLR Act in view of the res judicata occurred consequent to the earlier proceedings. Which thus means, the issue is concluded as per Ext.P3 judgment rendered by the District Court. Even though the respondent has preferred appeal and Special Leave Petition, the decree and judgment of the trial court was affirmed. In that view of the matter also, it cannot be said that, there is any disputed questions of fact involved disabling this court to consider the relief sought for under Article 226 of the Constitution of India. Moreover, W.P.(C) No. 2539 of 2012 26 in my considered opinion, since the plea was not made by the respondent in its first suit seeking specific performance of the contract, the same is hit by res judicata as per explanation IV to section 11 of the Code of Civil Procedure, which read thus; “any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.” 17. Therefore, in that eventuality the principles of res judicata encompassed under section 11 of CPC will come into play. So also, there is a clear bar constituted under Order II Rule 2 CPC, dealing with frame of suit and other consequences, which read thus: ## **2. Suit to include the whole claim** -(1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action, but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court. (2) Relinquishment of part of claim-- Where W.P.(C) No. 2539 of 2012 27 a plaintiff omits to sue in respect of or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished. (3) Omission to sue for one of several reliefsA person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, except with the leave of this Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted. **Explanation.** - For the purpose of this rule as obligation and a collateral security for its performance and successive claims arising under the same obligation shall be deemed respectively to constitute but one cause of action.” 18. For making plea in a subsequent suit, which ought to have been taken in the previous suit instituted, respondent ought to have sought leave of the court. It is clear from the facts and circumstances discussed above that, the respondent did not have any such plea in the first suit instituted against the petitioner and sister of the petitioner. The said issue was clearly dealt with by the W.P.(C) No. 2539 of 2012 28 appellate court in Ext.P3 judgment and Ext.P5 judgment by the Principal Munsiff's Court in O.S.No.667/1996. Therefore, reckoning the factual circumstances and the law discussed above, the contention put forth by the respondent with respect to the maintainability of the disputed facts cannot be sustained under law, especially for the reason that, even if a suit is filed, respondent is not entitled to make any claim in view of the clear bar contained under section 11 CPC r/w. Order II Rule 2 CPC. 19. Now the sole question to be considered is whether any legal inhibition is standing in the way of directing the respondent to vacate the premises ? As I have pointed out earlier, the said question was considered by the Apex Court in **Dolly Das** supra and held that, there is no bar in granting the relief under Article 226 of the Constitution of India, under similar situation. There is also no complicated questions of fact remaining for consideration in any suit proceedings. Even though, learned counsel for respondent W.P.(C) No. 2539 of 2012 29 invited my attention to the judgment of this court in **Hindustan Petroleum Limited** supra, the same may not have much bearing to the facts and circumstances of the case since the issue considered therein was in respect of a lease of the year 1970 and extension of the same in terms of the agreement executed, and further more the judgement in **Dolly Das** supra is a binding precedent on this court, to the extent specified thereunder. 20. Taking into account the respective submissions and the factual and legal situations, petitioner is entitled to succeed in the writ petition. However in order to wind up the business the respondent needs to be provided with reasonable time. Accordingly, there will be a direction to the respondent to vacate the premises in question on or before 31.12.2018. The rent due to the petitioner in terms of Ext.P1 agreement shall be paid to the petitioner, within three months from the date of receipt of copy of this judgment. All the questions of facts and law raised with W.P.(C) No. 2539 of 2012 30 respect to the damages claimed in the writ petition are left open to be considered before any appropriate forum in accordance with law. Writ petition is disposed of accordingly. Sd/- **SHAJI P. CHALY JUDGE** smv 5.2.2018