CALTEX INDIA LTD Vs. MESSRS KEJRIWAL AND SONS

JUDGEMENT

(1.) THIS is a plaintiffs ap peal against the judgment dated 7 -12 -1971 of the 2nd Additional Civil Judge, Varanasi, dismissing the plaintiff's appeal and confirm ing the judgment and decree of the trial court dismissing the plaintiff's suit with costs.

(2.) THE relevant facts are that defendant -respondent No. 2 Bishwa Nath Kejri wal executed the lease (Ex. 1) in favour of the plaintiff, Caltex (India) Ltd., in respect of Plot No. 101/2 situate in village Shujavad, Pargana Ralhupur, Tehsfl Chandauli, Dist rict Varanasi and buildings standing thereon for a period of ten years on a monthly rent of Rs. 220.00 with an option to have the leaso renewed for a further period of ten years for setting up a service station to deal in petrol, diesel and petroleum products manu factured by the plaintiff -company. The plaintiff spent money on the land and instal led petrol and diesel pumps etc. The plain tiff subsequently on 15 -5 -1965 entered into an agreement with the partnership firm Kejriwal and Sons, of which the partners were defendant No. 2 Bishwa Nath Kejriwal and his two sons, defendants Nos. 3 and 4, Krishna Kumar Kejriwal and MohanLal Kejriwal. Under this agreement the firm de fendant No. 1 of defendants Nos. 2 to 4 was given a licence by the plaintiff to carry on business on the premises leased out to the plaintiff by defendant No. 1. The licenses under the agreement was to use the service station set up by the plaintiff and deal in petrol, diesel and petroleum products market ed by the plaintiff and pay Rs. 378.00 per month. Under the terms of the licence the defendant - firm could not deal in products of any company other than the plaintiff. The plaintiff received from defendant No. 2, the landlord, the notice dated 14 -3 -1970 stating that the plaintiff had not paid rent from De cember, 1969, to February, 1970 and, there fore, under the terms of the lease, the lease had come to an end by forfeiture and de fendant No. 2 had entered into possession of the demised premises on the 10th ot March, 1970. The plaintiff thereupon wrote back stating that cheques were duly sent each month as usual and as they do not appear to have reached defendant -respondent No. 2, they were enclosing a cheque for Rs. 660.00to clear off the arrears. Defendant -respon dent No. 2 accepted payment for the months of December, January and February but re fused to accept the rent for March, 1970.

(3.) IT may also be mentioned that the lower court has found that the constructions standing on the land leased out to the plain tiff were made in the year 1955 and therefore though the property is situate within two miles of the Nagar Mahapalika limits of Varanasi, U. P. Act No. HI of 1947 will not apply to this case as the constructions in question were not made before 1951.