A F FERGUSON AND CO Vs. LALITA KHANNA

JUDGEMENT

(1.) This is an appeal against the order of the learned single Judge dated September 29,1995. whereby the applications filed by the defendants for recall of the order dated September 28,1994 by virtue of which IA 8012 of 1992 for setting aside the ex parte decree dated March 4, 1992 and IA 10593 of 1992 seeking stay of the execution proceedings, were dismissed for want of prosecution. The facts necessary for the disposal of the appeal are as follows:

(2.) . The respondent is an owner of Flat No.6H on the 6th floor of a building known as "Hansalaya" situated on 15, Barakhamba Road, New Delhi. The premises were taken on lease by the appellant, a partnership firm, at a monthly rental of Rs.7782.50, with effect from May 16,1977 for five years. However, the lease deed was executed between the parties on February 13, 1981. According to the lease deed the lease was renewable for a further term of five years. This was as per sub clause (b) of clause 4 of the lease deed. The said clause reads as under:

(3.) . On February 3, 1990 the respondent through its solicitors gave a notice to the appellant terminating the lease with effect from the expiry of the month of the tenancy viz March 15,1990. By this notice the appellant was called upon to hand over the vacant possession of the premises to the respondent on March 15, 1990. The notice also stated that should the appellant consider its month of tenancy to be different it may consider the notice as terminating on the expiry of such month of tenancy next commencing after the tender of the notice to it. The appellant through its attorney replied to the notice on February 14,1990, stating that as per the agreement the tenancy was for a period of five years with effect from May 16,1987. Accordingly it declined to vacate the premises. Thereafter, on May 14,1990 the respondent filed a suit inter alia, for ejectment of the appellant from the premises in question and for mesne profits.The stand of the respondent as disclosed from the plaint was that the premises were leased to the appellant for a period of five years commencing from May 16,1977 and the lease stood expired on the close of May 16,1982 by efflux of time. From that date, the tenancy was from month to month commencing from 17th of each calender month and ending on the close of 16th of each succeeding English calender month. It was contended that, assuming that the lease was deemed to have been renewed in terms of clause 4(b) of the lease deed, even then the lease stood determined on the close of May 16,1987 and accordingly since May 16,1987 the appellant was a monthly tenant. It was further stated that the tenancy having been terminated by a notice dated February 3, 1990 with effect from March 15, 1990, the respondent was entitled to a decree of ejectment and to compensation for use and occupation of the premises by the appellant. In answer to the plaint, the appellant filed its written statement claiming, inter alia, that the tenancy was not from month to month. It was further asserted that the period of lease stood extended upto May 15, 1992. In view of the stand taken by the appellant in its written statement, the respondent moved an application under Order 12 Rule 6 Civil Procedure Code (IA No.11857 of 1991) on November 16,1991. The application was listed before the court on November 18,1991, when notice was directed to the defendant and was made returnable on January 7,1992 though matter was shown in the cause list for that date. On January 7,1992 no one appeared on behalf of the respondent despite service. The matter was however renotified for March 4, 1992. Again on March 4, 1992 no body appeared on behalf of the defendant and the application was heard and diposed of in absence of the appellant in the following manner:.