PROVASH CHANDRA DALUI & ANR. versus BISWANATH BANERJEE & ANR.

Citation: [1989] 2 S.C.R. 401 · Decided: 03-04-1989 · Supreme Court of India · Bench: G.L. OZA · Disposal: Dismissed

Cited by 3 judgment(s) · cites 2 · see the full citation network in Lexace

Judgment (excerpt)

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PROV ASH CHANDRA DALUI & ANR. 
v. 
BISWANATII BANERJEE & ANR. 
APRIL 3, 1989 
[G.L. OZA AND K.N. SAIKIA, JJ.l 
Calcutta Thika Tenancy Act, 1949: Section 2(5)(b), Thika tenant: 
if stated period of tenancy less than 12 years and not otherwise. 
Indian Contract Act, 1872-Contract-To be construed with 
)I( reference to object and whole of its terms-'Ex antecedentibus et conse-
quentibus' circumstances surrounding creation and subject matter which 
it was designed to apply to should be taken into account. 
Indian Evidence Act, 1872: Section 115-Estoppel and waiver-
Distinction between-Voluntary choice essence of waiver. 
Words 
and 
Phrases: 
'extension'-'Renewal'-Distinction 
between. 
A 
B 
c 
D 
E 
The second respondent" who is the predecessor in interest of the 
first respondent, had on. 2'6th September, 1946 leased out the land in 
dispnte to the appellant at the first instance for a period of 10 years. The 
lease however provided to the lessee/appellants option of extention at 
enhanced rent, twice for successive periods of 5 years, and a third 
option of extension for a further maximum period of one year. The 
appellants are stated to have exercised their option of extension for two 
successive periods of live years, but failed to exercise the option of 
F 
extension for one year thereafter. On that ground, the first respondent 
instituted a suit for ejectment khas, possession and mesne profits. Tbe 
appellants, as defendants, contested the Jmit stating, inter alia, that they 
did not exercise the option for renewal after the expiry of the original 
term of 10 years as they became thika tenants from 28th February, 1949 
i.e. the date of commencement of the Calcutta Thika Tenancy Act, 1949 
as admitted by the second respondent in two judicial proceedings before 
G 
the Controller under the Calcutta Thika Tenancy Act, 1949. It was· 
further stated that they never paid any enhanced rent; and that the first 
respondent's claini for the differential rent was rejected in the first 
respondent's suit, and ultimately the special leave petition filed in the 
Supreme Court in that matter was also dismissed, 
H 
A 
B 
c 
' 
402 
SUPREME COURT REPORTS 
{1989) 2 S.C.R. 
The suit for ejectment in the present suit was decreed by the Trial 
Court. The Appellate Court, while dismissing the appellants appeal, 
held that ( 1) the lease was for a period of 20 years and not for a period of 
less than 12 years, and hence sub-section S(b) of Section 2 of the Act had 
no ai>plication; and (2) the respondent were not barred by waiver, 
estoppel, res judicata or principles analogous thereto because of the 
earlier judicial proceedings tiled by the second respondent as there 
could be no question of giving a status under the Act when in the facts of .• 
the case such a status was not available. The High Court dismissed the 
appellants' second appeal. 
Before this Court it was urged on behalf of the appellants that ( 1) 
there could be no controversy about the appellants' status of thika 
tenants inview of the fact that the lease was at the first instance for 10 
years only and its first and subsequent extensions were contingent on 
the appeilants regular payment of rents, rates and taxes and e11hance-
ment. of rent, which conti11gency did not happen as they did not pay any 
enhanced rent, but simply were holding over; (2) the second respondent 
D admitted the Thika Tenants status of the appellants in the earlier pro-
ceedings before the Controller and were therefore estopped from ques-
tioning that status. 
On the other hand, it was urged on behalf of the respondent that 
the lease having clearly been for a period of 20 years, the appellants 
B have rightly been held not to be thika tenants under the Act; and that 
there could be no estoppel against a statute. 
y 
Dismissing the appeal, it was, 
HELD: (1) Every contract is to be consh"Ued with reference to its 
p 
object and the whole of its terms. The best interpretation is made from 
the context_ The whole context must he considered to ascertain the 
intention of the parties. It is an accepted principle of construction that 
the sense and meaning of the parties in any particular part of instru-
ment may be collected 'ex antecedentibus et consequentibus'; every 
part of it may be brought into action in order to collect from the whole 
O one uniform and consistent sense, if that is possible. [409E-G) 
N.E. Railway v. Hastings, [1900] A.C. 260 (267), referred to. 
(2) In the constr

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