"extension" and "renewal" must be remembered. Normally the term
'extend' means to enlarge, lengthen, prolong, etc. Settled law is that
renewal of a lease denotes the creation of a new lease for all practical
purposes. Supreme Court in Provash Chandra Dalui's case (supra) re-
stated the principles thus:
"It is pertinent to note that the word used is
'extension' and not 'renewal'. To extend means to
enlarge, expand, lengthen, prolong, to carry out
further than its original limit. Extension, according to
Black's Law Dictionary, means enlargement of the
main body; addition of something smaller than that
to which it is attached; to lengthen or prolong. Thus
extension ordinarily implies the continued existence
of something to be extended. The distinction
between 'extension and 'renewal' is chiefly that in
the case of renewal, a new lease is required, while
in the case of extension the same lease continues
in force during additional period by the performance
of the stipulated act. In other words, the word
'extension' when used in its proper and usual sense
in connection with a lease means a prolongation of
the lease........"
IN THE HIGH COURT OF KERALAAT ERNAKULAM
PRESENT:
MR. JUSTICE A.HARIPRASAD
WEDNESDAY, THE 7TH DAY OF OCTOBER 2015
RSA.No. 282 of 2015 ()
M/S. INDIRA MOTOR SERVICE
Vs
PANAKKAT NAZARUDDIN
This second appeal raises the following substantial questions
of law:
"(i) When the renewal clause in a lease deed
expressly incorporates the renewal clause also as one
of the terms of renewal, does the term of the lease
expire with one renewal or only on expiry of two
consecutive terms?
(ii) Whether the terms of Ext.A1 lease deed
have been correctly interpreted by the lower courts in
limiting the term of renewal to twenty years alone?
(iii) Whether a finding not required for the
determination of the lis will operate as res judicata in a
subsequent suit?"
2. Relevant facts, shortly stated, are thus: Defendants 1 to 3 in a
suit for recovery of vacant possession of the plaint schedule property and
also for realisation of money are the appellants. Plaintiff is the contesting
respondent. For the sake of convenience, the parties are referred to as the
plaintiff and defendants.
3. Property described in the plaint schedule belonged to
deceased Panakkad Abdul Khader. He had created the commercial lease
in question in favour of the first defendant firm represented by its then
managing partner, deceased Balakrishnan. Ext.A1 document, styled as an
indenture of lease, is dated 29.12.1971. The purpose of lease was for
erecting/installing and maintaining a petrol/high speed diesel pump,
storage tank, service and lubricating station, etc. Original term fixed in
Ext.A1 was 20 years commencing from 01.01.1972. Rent agreed to
between the parties was `400/- per month for the first ten years and at the
rate of `450/- per month for the remaining ten years. After granting the
lease, the first defendant firm erected a petrol pump with all accessories in
the plaint schedule land. Even now the business is continuing. The
managing partner of the firm later died and the firm is at present
represented by the contesting defendants. Panakkad Abdul Khader also
died. His legal heirs effected a partition of larger properties belonged to
him, including the property in dispute, as per a partition deed dated
11.05.1982. Item No.2 in that partition deed is described in the plaint
schedule. It was allotted to the share of one Ahamed with absolute right of
disposition. After the death of Ahamed, all his legal heirs, except one son
by name Mohammed Sajin, assigned their rights over the plaint schedule
property to the plaintiff as per a registered document dated 12.12.2000.
Subsequently, Mohammed Sajin also released his share in the property in
favour of the plaintiff by another registered document dated 17.12.2000.
Thus, the plaintiff became absolute owner of the plaint schedule property.
4. Aforementioned Ahamed had filed a suit, viz.,O.S.No.49 of
1996, against the first defendant for recovery of possession of the plaint
schedule property and for damages for use and occupation. Pending the
suit, he died. His legal heirs were impleaded in the proceedings. While so,
the disputes between the plaintiffs and defendants therein were settled out
of court. Thus the suit was compromised. Ext.A2 is the certified copy of
the judgment and decree in O.S.No.49 of 1996, which contains the
compromise petition also. As per the terms of compromise, the first
defendant agreed to pay rent at the rate of `2,000/- per month. Other
contentions available to the parties were left open in the compromise.
5. The plaintiff after obtaining ownership over the plaint schedule
property, informed the first defendant of the change of ownership and
thereupon, the firm attorned to the plaintiff. Rent upto and inclusive of
31.03.2004 was paid. Then the plaintiff instituted O.S.No.1 of 2005 against
the defendants before the Munsiff's Court, Kannur for recovery of
possession and arrears of rent. The defendants appeared and contested
the suit. The defendants inter alia contended that the lease created as per
Ext.A1 is a permanent lease and it could not be terminated. The trial court
decreed the suit in part allowing the plaintiff to recover certain amounts
towards arrears of rent. Although the defendants were allowed to continue
as per the terms in Ext.A1, their claim for permanent tenancy was
disallowed. Against the judgment and decree in the above suit, the fifth
defendant filed an appeal, viz., A.S.No.217 of 2006 before the Additional
District Court, Thalassery. The plaintiff also filed an appeal challenging the
judgment and decree as A.S.No.204 of 2006. Both these appeals were
considered together and the appellate court dismissed both the appeals
confirming the judgment and decree of the trial court. The contesting
defendants took up the matter in second appeal to this Court, viz.,
R.S.A.No.725 of 2011. Learned Single Judge disposed the appeal, at the
stage of admission itself finding that there was no substantial question of
law involved. The said judgment is Ext.A7. According to the plaintiff, a true
interpretation of Ext.A1 would show that the defendants are not entitled to
continue in possession after the renewed period of 20 years stipulated
therein.
6. The contesting defendants strongly opposed the suit.
According to them, Ext.A1 created a permanent lease. The lessor is not
given any option to terminate the lease on attaining a period of 20 years
initially fixed. Lease will be automatically renewed as per the terms in
Ext.A1. That means, the agreement will be automatically renewed in every
20 years. There is nothing wrong in law in creating a perpetual lease.
From the lease agreement, it can be seen that the property leased out was
a barren land. The lessee had invested huge amounts for reclaiming the
land and for erecting a petrol bunk in the property. It is the contention that
the land was lying more than 15 feet lower than the ground level of the
neighbouring properties. The land was not fit for any purpose. Considering
the expenses that would be incurred by the lessee in reclaiming the land,
the parties intended to create a lease for a long period. The parties never
intended to confine the term of lease for 20 years. In this background,
Ext.A1 will have to be interpreted. The views taken by the trial court and
lower appellate court are legally incorrect. Crux of the matter lies in the
interpretation of Ext.A1 document.
7. Heard Shri B.G.Bhasker, learned counsel for the
appellants/defendants and Shri P.B.Krishnan, learned counsel for the
contesting respondent/plaintiff.
8. Pivot of the controversy lies in the interpretation to be given to
the relevant clause in Ext.A1. As mentioned above, the lease deed is dated
29.12.1971. The tenancy created thereunder commenced from 01.01.1972.
Purpose of the lease was to erect and establish an outlet for storage and
sale of petroleum products. Instead of narrating about the terms in the
indenture of lease in my words, I would prefer to extract the words used by
the parties in Ext.A1. The following excerption from page No.3 of Ext.A1
will throw light on the nature of jural relationship intended to be established
between the parties:
"................whatsoever to the said piece or
parcel of land belonging or therewith held or
enjoyed and together also with the right for the
Lessee to install, erect and maintain in upon and
underneath the said piece of land petrol and/or
High Speed Diesel Oil Pumps, storage tanks,
service and lubricating stations, weigh bridges,
roads, culverts and erections, ancillary thereto and
together also with the right for the lessee, its
agents, customers and representatives of INDIAN
OIL CORPORATON Ltd. and other authorised
persons to use the premises hereby demised at all
times and for all purposes whatsoever TO HOLD
UNTO THE Lessee for a term of twenty years
commencing from the 1st day of January, 1972 but
renewable and determinable as hereinafter
provided yielding and paying therefore during the
said term a monthly rent of Rs.400/= (Rupees Four
hundred only) for the first ten years and Rs.450/-
(Rupees Four hundred and fifty only) for the next
ten years payable by regular monthly payments
and also on the determination of the said term
during any month, then paying the proportionate
part of the month's rent in respect of the portion of
the month elapsed at the time of determination and
upon the conditions of the performance and
observance of the covenant and conditions
hereinafter contained..................."
9. Most important clause in Ext.A1 is the one contained in I(h). In
fact, the proviso therein is the most relevant part for our purpose. Clause I
(h) and the proviso in Ext.A1 is re-produced hereunder:
"(h) The Lessee shall at the expiration or
sooner determination of the said term yield up and
deliver peaceful and vacant possession of the
demised premises. All buildings, structures,
installations, fittings, fixtures, and erections of
whatsoever kind, and nature whether in, upon or
underneath the demised premises shall during the
said term and at the expiry thereof entirely belong to
and revert to the Lessee who shall be entitled to take
away the same. The Lessor will not have any right,
title or interest therein nor shall they be entitled to
appropriate or retain the same or any part thereof.
PROVIDED ALWAYS AND IT IS AGREED
AND DECLARED that at the expiration of the said
term of twenty years this lease will be automatically
and without any further act of any of the parties
hereto be renewed for a further term of twenty years
from the expiration of the said term hereby granted
unless the Lessee shall prior to the expiration of the
first mentioned term give to the Lessor one calender
month's previous notice in writing of their intention
not to take any renewed lease. The renewed lease
will be under and subject to the same covenants and
conditions and agreements as are herein contained
including the present covenant for renewal."
(underline supplied by me)
10. Based on the above clause in Ext.A1, learned counsel for the
defendants/appellants contended that even if the contention of a perpetual
lease is found against in the previous round of litigation, the lessee under
Ext.A1 is entitled to get renewal of the lease atleast for another term as
provided therein. According to him, the expressions "lease will be
automatically and without any further act of any of the parties hereto be
renewed for a further term of twenty years" is an indication that the lessor
has no power or authority to limit the term of lease according to his choice.
Still more, Shri B.G.Bhasker, the learned counsel for the defendants,
contended that the expression in Ext.A1, that "the renewed lease will be
under and subject to the same covenants and conditions and agreements
as are herein contained, including the present covenant for renewal" gives
the lessee a right atleast to claim renewal for the second time, if not more.
11. Per contra, learned counsel for the plaintiff Shri P.B.Krishnan
contended that the recitals in clause I(h) of Ext.A1 will have to be construed
limiting them to 20 years only. Since the original term of lease has expired
and the lessee continues in possession of the property at present, it can
only be assumed that he had availed a right of one time renewal for
another term of 20 years. As that period is also over, the plaintiff/lessor has
every right to recover possession of the property with compensation for use
and occupation from the defendants. No question of renewing the lease for
a second time arises as that is not the intention of the parties deducible
from clause I(h) of Ext.A1.
12. Before I venture to discuss the precedential law cited at the
Bar, I would like to recount and restate certain basic principles regarding
the interpretation of deeds. First and foremost principle is that whenever a
document is couched in a language which is clear and definite and no
doubt arises in its application to the facts, there is no need to resort to the
rules of interpretation. Rules of interpretation of deeds are intended to
ascertain, to the extent possible, the exact meaning of a document which is
not clear and definite. Many a time, language proved to be an imperfect
vehicle for expressing thought and intention. The rules of interpretation or
canons of constructions are the products of real life experiences of Judges
and Jurists. Prime purpose of interpretation of a document is to ascertain
the intention of the parties manifested at the time when the document was
executed. To ascertain the intention of the parties, the document must be
considered as a whole. It is from the whole of the document, coupled with
the surrounding circumstances, that the general intention of the party or
parties is to be ascertained. Attempt must be made to gather the intention
of the parties from the exact words used in the deed. When the words
used in a deed are in their literal meaning unambiguous and when such
meaning is not excluded from the context and is sensible with respect to
the parties at the time of executing the deed, such literal meaning must be
taken. Where, the words used in a deed, if taken in its literal sense lead to
absurdity and inconsistency, then an interpretation to avoid that absurdity
and inconsistency should be made. It is also a settled principle that when
the intention of the maker or makers of a deed cannot be given effect to in
its full extent, effect is to be given to it as far as possible. Where the
intentions are sufficiently clear from the deed itself, mis-recital in some part
of the deed cannot vitiate it. Anything expressly mentioned in the deed
excludes another view impliedly possible.
13. As far as possible, effect is to be given to all words used in a
document. This is yet another important principle in the interpretation of
deeds. A document should be construed in its entirety. Further, if possible,
it should be construed so as to give effect to every word employed therein.
The court is not at liberty to discard a word, if some meaning can be
ascribed to it. Normally, the words employed in a deed should be taken in
its ordinary sense, unless there are indications to do otherwise. It is also
an important rule that plain words should be given plain meaning.
14. The Supreme Court in Sant Ram v. Rajinder Lal (AIR 1978
SC 1601) enunciated certain principles regarding the interpretation of a
lease deed. His Lordship V.R.Krishna Iyer, J., speaking for the three
Judges bench, quoting with approval from " Lux Gentium Lex - Then and
Now, 1799" held as follows:
"Two rules must be remembered while
interpreting deeds and statutes. The first one is:
"in drafting it is not enough to gain a degree of
precision which a person reading in good faith can
understand, but it is necessary to attain if possible to
a degree to precision which a person reading in bad
faith cannot misunderstand." The second one is more
important for the Third World countries. Statutory
construction, so long as law is at the service of life,
cannot be divorced from the social setting................"
Apex Court in Provash Chandra Dalui v. Biswanath Banerjee (1989
Supp (1) SCC 487) laid down the following proposition:
"'Ex praecedentibus et consequentibus
optima fit interpretatio'. The best interpretation is
made from the context. Every contract is to be
construed with reference to its object and the whole
of its terms. The whole context must be 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
instrument may be collected 'ex antecedentibus et
consequentibus;' every part of it may be brought
into action in order to collect from the whole one
uniform and consistent sense, if that is possible. As
Lord Davey said in N. E. Railway Co. v. Hastings:
"......the deed must be read as a whole in order to
ascertain the true meaning of its several clauses,
and ....... the words of each clause should be so
interpreted as to bring them into harmony with the
other provisions of the deed if that interpretation
does no violence to the meaning of which they are
naturally susceptible......"
In construing a contract the court must look at the
words used in the contract unless they are such
that one may suspect that they do not convey the
intention correctly. If the words are clear, there is
very little the court can do about it. In the
construction of a written instrument it is legitimate in
order to ascertain the true meaning of the words
used and if that be doubtful it is legitimate to have
regard to the circumstances surrounding their
creation and the subject matter to which it was
designed and intended they should apply."
With these principles in mind, I shall venture to interpret Ext.A1 indenture of
lease.
15. The first two substantial questions of law formulated above
can be considered together. Shri B.G.Bhasker vehmentally contended that
the courts below failed to appreciate the relevant clause in Ext.A1 in the
light of the principles in Green v. Palmer ((1944) 1 All.E.R. 668), which
was approved by the Supreme Court in State of U.P. and others v. Lalji
Tandon and others (AIR 2004 SC 32). I shall start with Green v. Palmer.
16. Uthwatt, J. sitting in Chancery Division decided Green v.
Palmer in the following factual settings. By a tenancy agreement made on
1st July, 1940 between the plaintiff Green and the defendant Palmer,it was
agreed that the landlord would let and the tenant would take a house
together with furniture, fixtures and effects therein at a weekly rent of three
guineas. The term of tenancy was to commence on 9th July, 1940 and to
end on 7th January, 1941. It was for six months. Then there were certain
other provisions. The first of which was to pay the rent on particular dates.
The next was to make good, repair and restore all articles of furniture or
fixtures which might have been damaged or destroyed by the tenant, his
servants, etc. during the said term. The most important clause which gave
rise to the litigation read as follows:
"The tenant is hereby granted the option of
continuing the tenancy for a further period of six
months on the same terms and conditions including
this clause, provided the tenant gives to the landlord
in writing four weeks' notice of his intention to
exercise his option".
The question that came up for decision of the court was about proper
construction of this clause giving the tenant an option of continuing the
tenancy. Learned Judge after considering various aspects ruled as
follows:
"Turning to the actual language of the clause,
the first thing one observes is that, in terms, there is
granted to the tenant a single option exercisable only
once upon the named event, and the subject-matter
of that option is an option "of continuing the tenancy
for a further period of six months on the same terms
and conditions including this clause." To my mind,
what that means is this: the tenant is to be allowed
once, and once only, the opportunity of continuing the
tenancy-continuing it for a further six months. Then
we come to the critical words "on the same terms and
conditions including this clause." As I read it, that
means there is included in the new tenancy
agreement a right in the tenant, if he thinks fit, to go
on for one further six months, and when you have got
to that stage you have finished with the whole matter.
In other words, it comes to this: "Here is your present
lease. You may continue that, but I tell you, if you
continue it, you continue it on the same terms as you
were granted the original lease. You may continue it
for a further 6 months with the right to go on for
another 6 months."
Upon that footing, in the events which have
happened, all the landlord was bound to do under
this arrangement was to permit the tenant to occupy
for a period not exceeding 18 months in the whole
from the time when the original lease was granted."
In Yohannan v. Vasudevan Chakkiyar (1954 KLT 671), a Division Bench
of this Court considered the ratio in Green v. Palmer and quoted it with
approval. Later the Supreme Court in Lalji Tandon's case considered the
principles in Green v. Palmer, inter alia, decisions rendered by Indian High
Courts. Summary of the facts in Lalji Tandon's case is thus: The property
in question was a plot of land in Allahabad District over which a bunglow
had been built. Ownership of the land vested in the State. The
superstructure seemed to have been brought up by the lessee or his
transferee, as the facts were not very clearly presented before the
Supreme court. The suit property was given on 50 years lease to one
J.W.Walsh. The lease contained a clause for renewal which, as far as
ascertainable from the materials placed before the Supreme Court and
also from the findings of the High Court, conferred an option on the lessee
to seek renewal of the lease for another term of 50 years and on such
option being exercised before the expiry of the term of 50 years of the
existing lease, the lessor shall "act upon forthwith and execute and deliver
to the lessee upon his duly executing a counter part or renew the lease for
the said premises for a further term of 50 years and with and subject to the
same covenants, conditions and provisions as are herein contained." The
Supreme Court observed that the original deed of lease, though very
material for ascertaining the covenants thereof, including the one for
renewal, had not been placed on record by either party. From a reading of
the decision rendered by the Apex Court, it is evident that the court had no
occasion to go through the original lease deed and with the materials
available on record, the case was decided. The High Court as well as the
Supreme Court expressed the view that the State ought to have produced
the lease deed or its copy to assist the court in arriving at a just decision.
But the same was not done in spite of several opportunities having been
allowed. The High Court had even chosen to draw an adverse inference
against the State, without expressly stating so, for the non-production of
the original lease deed. Facts showed that original lessee Walsh alienated
his interest in the suit property to Lalji Tandon, the respondent-plaintiff, who
later died and his legal representatives were brought on record. Lalji
Tandon having stepped into the shoes of Walsh sought for renewal of the
lease consistently with convenant for renewal as contained in the original
lease. State Government agreed for renewal and the renewed lease deed
came to be executed on 20th February, 1945. Although the State
Government was agreeable to renew the lease for a term of 50 years, by
20th February, 1945, the day on which the renewed lease came to be
executed, a period of 42 years, two months and 20 days had remained
available out of the 50 years of the second term. Therefore, the term of the
renewed lease was confined to the said period of 42 years, two months
and 20 days. This lease deed was produced on record and that is marked
as Covenant 2. The relevant clause therein read as follows:
"It is hereby mutually covenanted and agreed
by and between the lessor and the lessee that the
obligations hereunder shall continue throughout the
term hereby created and shall be binding on their
respective successors-in-interest in the demised
premises that they will perform and observe the
several covenants, provisos and stipulations in the
aforesaid lease expressed as fully as if the same
covenants, provisos and stipulations had been
herein repeated in full with such modifications only
as are necessary to make them applicable to this
demise and as if the name of the parties hereto had
been substituted for those in the aforesaid lease
provided always that the building referred to in the
aforesaid lease having been erected the lessee
shall not be under any obligation to erect another."
17. Proceeding on the assumption that the renewed lease
incorporated all the covenants of the original lease, including the covenant
for renewal, the plaintiff (Lalji Tandon) sought for renewal of the lease for
yet another term of 50 years. The District Collector recommended the
renewal. Board of Revenue also directed renewal to be expedited.
However, the State Government did not renew it as recommended, which
resulted in his filing a writ petition before the High Court. The High Court
dismissed the writ petition summarily with certain observations. The High
Court expressed hope that the State would renew the lease at the earliest.
But, those observations did not bring in any result. Therefore, Lalji Tandon
had to file another writ petition which led to the passing of the order
impugned before the Supreme Court. The grievance raised by Lalji
Tandon, as writ petitioner before the High Court, was that he was entitled
for a renewal of lease for yet another term of 50 years and since the State
failed to do so, he requested the Court to issue a writ of mandamus
directing the State Government to renew the lease. The High Court held
that the State Government was bound to renew the lease held by the legal
representatives of deceased Lalji Tandon in accordance with the covenant
for renewal. That was challenged before the Supreme Court.
18. The Supreme Court after considering various statutory
principles and the decision of the Andra Pradesh High Court in Syed
Jaleel Zane v. P.Venkata Murlidhar and others (AIR 1981 A.P. 328), that
of the Calcutta High Court in Secretary of State for India in Council v.
A.H.Forbes ((1912) 17 IC 180) and also the principles in Green v. Palmer
(supra), approved the principles in those decisions and held as follows:
"18. We find ourselves in full agreement with
the view of the law taken in the decisions cited
hereinabove. It is pertinent to note that the
respondent is not claiming a lease in perpetuity or
right to successive renewals under the covenant for
renewal contained in the 1887 lease. The term of
50 years under the 1887 lease came to an end in
the year 1937 and the option for renewal was
exercised by the respondent as assignee of the
original lessee which exercise was honoured by the
lessor State executing a fresh deed of lease
belatedly on February 20, 1945. This lease deed
does not set out any fresh covenants, mutually
agreed upon between the parties for the purpose of
renewal. Rather it incorporates, without any
reservation, all the covenants, provisos and
stipulations as contained in the principal lease as if
they had been herein repeated in full. Not only was
a fresh deed of lease executed but the conduct of
the parties also shows that at the end of the term
appointed by the 1945 lease, i.e. in or around the
year 1987, the lessor did not exercise its right of re-
entry. On the other hand, the respondent exercised
his option for renewal. The officials of the appellant
State, i.e. the Collector and the Board of Revenue,
all recommended renewal and advised the State
Government to expedite the renewal. The State
Government was generally renewing such like
leases by issuing general orders/instructions to its
officers. At no point of time prior to the filing of the
counter-affidavit, on the present litigation having
been initiated, the State or any of its officers took a
stand that the right of renewal, as contained in the
principal deed of lease, having been exhausted by
exercise of one option for renewal, was not available
to be exercised again.
19. Now that the covenant for renewal has
been referentially incorporated without any
reservation in the lease deed of 1945 the exercise of
option for renewal cannot be denied to the
respondent. However, in the lease deed to be
executed for a period of 50 years commencing May
20, 1987, the covenant for renewal need not be
incorporated and, therefore, the term of the lease
would come to an end on expiry of 50 years
calculated from May 20, 1987. This view also
accords with the view of the law taken in Green v.
Palmer (supra)."
With these observations, the Apex Court dismissed the appeal preferred by
the State.
19. Glaring differences in the facts to be noticed between Green v.
Palmer and the case on hand is that in Green v. Palmer, the tenant was
bound to issue a notice in writing four weeks prior to the expiry of the lease
revealing his intention to exercise the option to renew. But in the present
case, the fact situation is just the reverse. The words employed in the
proviso to clause I(h) in Ext.A1 is that after the term of 20 years the lease
will be automatically and without any further act of any of the parties hereto
be renewed for a further term of twenty years. Again it says that automatic
renewal will take effect unless the lessee, prior to the expiration of the first
mentioned term, give to the lessor one calender month's previous notice in
writing of their intention not to take any renewed lease. In Lalji Tandon's
case, the lessor was bound to execute a lease deed after the original term
of 50 years for renewal of the lease. Such a condition is not incorporated in
Ext.A1. Relevant clause in Ext.A1 shows that automatic renewal would
take place if the lessee did not issue one month's prior notice before
expiration of the term evincing an intention not to take a renewed lease.
Meaning of the expression "renewal" shall be considered below.
20. Before proceeding further, an important development
happened to the legal principle in Green v. Palmer will have to be taken
cognizance of. Another Chancery Division judgment rendered by Harman,
J. in re Greenwood's Agreement (Parkus v. Greenwood - 1949 G.886)
distinguished the principle enunciated in Green v. Palmer. Facts involved
in the said case are that by an agreement made between the defendant as
landlord and the plaintiff's predecessors-in-title as tenants, the defendant
agreed to let certain premises for a term of three years, and the agreement
contained a provision that "the landlord will on the written request of the
tenants made three calendar months before the expiration of the
term ...........grant to them a tenancy of the said premises for a further term
of three years from the expiration of the said term at the same rent and
containing the like agreements and provisions as are herein contained
including the present covenant for renewal." The plaintiff took out a
summons for determination of the question whether this provision created
a lease for 2000 years by virtue of the Law of Property Act, 1922. After
considering the matter, the learned Judge ruled that the Act only operated
where the lease was on the face of it perpetually renewable, and contained
an express covenant for perpetual renewal; and, there being no such
covenant in the agreement in suit, a lease for 2000 years was not created.
Regarding the ratio in Green v. Palmer, the following observations were
made:
"I ought to mention that there was also cited
to me a decision of Uthwatt J., as he then was, of
Green v. Palmer, where he held, without regard to
this present point, that words in somewhat similar
form as these created a right to renew twice and no
more. That was an instance of a six monthly
furnished tenancy and the improbability that the
parties had thought of creating a 2000 years term
was very high. The learned Judge stated that he
was entitled to take into account and into
consideration all the surrounding circumstances.
How he came to the conclusion that he did I find
difficult to follow, but I say no more about it because
it does not seem to me that it touches the point
which I have to decide here."
21. Single Judge's decision in Parkus was taken to the Court of
Appeal. Three learned Judges heard and decided the matter. (see -
Parkus v. Greenwood ((1950) Ch. 644). Correctness of the decision in
Green v. Palmer was also questioned. Ultimately the Bench ruled that the
provisions in that particular lease were to be taken as an expression of
intention that the right of renewal was to be perpetual and that the
agreement therefore came within the definition of a perpetually renewable
lease contained in Section 190 of the Law of Property Act, 1922 which
lease was converted into a demise for a term of 2000. With that
reasoning, the decision by Harman, J. was reversed. Following
observations of the Bench are profitable in the context of this case:
"Green v. Palmer was a case in which
perhaps any Judge would feel even stronger
inclination than in the present to avoid a result
which on the face of it would appear unlikely to
have been contemplated by the parties, for it was a
furnished tenancy for a six-month period only. The
material passage which the court had to construe
was: "The tenant is hereby granted the option of
continuing the tenancy for a further period of six
months on the same terms and conditions,
including this clause, provided the tenant gives to
the landlord in writing four weeks' notice of his
intention to exercise his option." Uthwatt J., having
regard to the circumstances of the case, read this
qualification, as I understand his judgment, into the
provision which I have just quoted: that "the same
terms and conditions including this clause" must be
read as meaning "including this clause on the first
occasion; but that, when the clause came to be
operated again, there was no ground for once more
reproducing the whole formula, including the right
or option to renew. I share with Harman J.
considerable difficulty in following the logic of the
argument, but it may well be a circumstance which
has to be borne in mind that this was a six-month
tenancy of furnished premises. The report does not
contain a full statement of all the terms of the lease.
It may have contained covenants or obligations with
regard to specific furniture which might have forced
a court to give a strained or artificial construction to
a formula which otherwise in essentials I should
have thought hardly possible to distinguish from
that of the present case."
Learned Judges were of unanimous opinion that if Green v. Palmer were
to be followed in another case, it would have to be shown that the facts in
Green v. Palmer were very special and that those of the case which
sought to follow it were for practical purposes identical with them. On the
facts of the case in Parkus, the learned Judges did not think that Green v.
Palmer should be followed.
22. Fact that the principles in Green v. Palmer was deviated by a
Bench of Chancery Division was not noticed either by this Court in
Yohannan's case (supra) or by the Supreme Court in Lalji Tandon's case.
Upshot of the present discussion is that the legal principles in Green v.
Palmer cannot be said to be absolute and it cannot be blindfoldedly
applied to all fact situations. As rightly argued by Shri P.B.Krishnan, the
principles in Green v. Palmer should be considered in the background of
the special facts and circumstances revealed in that case, especially in the
context of the facts that the lease was for a period of six months only and
the subject matter of the lease was a furnished building. I am of definite
view that the principles in Green v. Palmer can never be boldly lifted and
applied to the facts in this case.
23. Despite the fact that non-approval of the principles in Green v.
Palmer by a larger bench of Chancery Division went unnoticed by this
Court and the Supreme Court, those decisions are still binding on this
Court for obvious reasons. In Lalji Tandon's case, the Supreme Court
placed reliance on the principles in a Division Bench decision of the
Calcutta High Court in A.H.Forbes (supra). There a dispute relating to
renewal of a lease granted by the Collector to the original grantee for a
period of 27 years came up for consideration. It was held that although the
agreement in question contained a covenant for renewal, such a clause in
a lease does not necessarily import permanency. A lease which creates a
tenancy for a term of years may yet confer on the lessee an option of
renewal. If the lease does not state by whom the option is exercisable, it is
exercisable by the lessee only. The option is exercisable not merely by the
lessee personally but also by his representative-in-interest. If the option
does not state the terms of renewal, the new lease will be for the same
period and on the same terms as the original lease in respect of all the
essential conditions thereof except as to the covenant for renewal itself.
The decision further laid down that there is no sort of legal presumption
against a right of perpetual renewal. The burden of strict proof is imposed
upon a person claiming such a right. It should not be inferred from any
equivocal expressions which may fairly be capable of being otherwise
interpreted. The intention in that behalf should be clearly shown; otherwise
the agreement is satisfied and exhausted by a single renewal. A covenant
for renewal runs with the land. All these principles in A.H.Forbes were
approved by the Supreme Court in Lalji Tandon's case.
24. In Lalji Tandon's case, the legal principle in Syed Jaleel
Zane's case (supra) was also approved. In that case, a lease was
executed in favour of the tenant for a period of five years from 01.01.1964.
The lease contained a clause for renewal also. The landlord brought a suit
for eviction on the ground of waste and damage on 10.01.1969. The suit
was dismissed on 16.02.1973. An appeal was preferred. By the time the
appeal came up for hearing more than three years had elapsed after the
renewal period and still the tenant was continuing in the premises on the
same terms and conditions. The appellate court held that the tenant was
not guilty of waste and damage but allowed the appeal on 24.03.1977
observing that the lease was not perpetual. Thereafter a suit for eviction
was filed on the basis of the observations and the tenant preferred a
letters patent appeal against the appellate judgment. Considering the
entire issues, the court held that it was unjust to allow the tenant to
continue in the premises on the same terms and conditions agreed to in
1963. Indeed, the tenant was trying to reap an unfair advantage over the
landlords by insisting upon and by continuing in possession of the
premises even after the second term of five years. The tenant was clearly
taking an unreasonable and unjust stand which could not be allowed and
there should be a decree for eviction of the tenant. Since Lalji Tandon's
case considered various decisions touching on the subject, it cannot be
said that dilution of the principles in Green v. Palmer by a larger bench of
the Chancery Division, although it went unnoticed in Lalji Tandon's case,
will diminish its binding force.
25. It will be apposite to note that the Court of Appeal in Parkus
had observed that tenancy agreements with an option for successive
renewals were in accordance with the old conveyancing practice whereby
the words "including" or "excluding this present covenant"were used to
confer or exclude a perpetual right of renewal.
26. Reverting to the contentions in this case, I have to notice that
the claim of permanent tenancy raised by the defendants was found
against in the earlier round of litigation as well as in the present one.
There can never be any doubt as to the proposition that the claim of
perpetual lease or permanent tenancy is now barred by res judicata.
Shri.B.G.Bhasker contended for the defendants that neither in the first
round nor in this round of litigation, the question of renewal of lease
created by Ext.A1 for a second time was considered by any of the courts.
It is, therefore, contended that the defendants are entitled to get at least a
third term of lease as per clause I(h) in Ext.A1. The phraseology employed
in clause I(h) proviso to Ext.A1 that "at the expiration of the said term of
twenty years this lease will be automatically and without any further act of
any of the parties hereto be renewed for a further term of twenty years"
and "the renewed lease will be under and subject to the same covenants
and conditions and agreements as are herein contained including the
present covenant for renewal" clearly indicate the right of the defendants to
get a third term and it is an automatic event. Therefore, the defendants
would contend that the suit for eviction is not maintainable.
27. Per contra, Shri P.B.Krishnan argued for the plaintiff that even
the first renewal enjoyed by the defendants was without any legal basis
and a true interpretation of Ext.A1 will indicate that the stipulations therein
did not confer any right on the defendants.
28. As mentioned earlier, the theory propounded by the
defendants with regard to perpetual lease or permanent tenancy can no
longer be reckoned in the light of the fact that it is barred by res judicata.
The real question surviving for consideration is whether they are entitled to
get a third term of twenty years as per the recitals in Ext.A1? Ancillary
question arising is whether the defendants' plea for a third term is also
barred by res judicata? I shall consider it in the succeeding paragraphs
elaborately. For the time being, I shall proceed on the assumption that the
said contention of the defendants is not hit by res judicata.
29. Ext.A1 lease deed was executed on 29.12.1971 for the
purpose of establishing and running a petroleum outlet. Considering the
nature of the business, the expenses that might have been incurred for
making up land for running a petrol bunk, erecting machinery for the sale of
petroleum products, constructing other structures necessary for conducting
the business, making underground storage facility, etc., it can only be
assumed that the parties must have intended to keep the lease for a
sufficiently long period. Excerption from page 3 of Ext.A1 quoted above
clearly shows the foresight of the parties. It is an admitted fact that
besides the original term of 20 years, the lessee had enjoyed another term
of 20 years as provided in clause I(h) of Ext.A1. The question that falls for
decision is whether the lessee is entitled to get a second renewal, ie., a
third term of 20 years in succession.
30. Shri P.B.Krishnan contended that original term of lease itself
was for considerably a long period. That apart, the lessee had already
enjoyed another term of 20 years by virtue of the aforementioned clause.
According to the plaintiff, there was no legal reason to interpret the said
clause in Ext.A1 enabling the defendants to claim renewal at the first
instance itself. Second renewal is legally impossible, according to the
plaintiff. Shri P.B.Krishnan pointed out an anomaly, which may cause great
prejudice to the plaintiff, if the interpretation advanced by the defendants is
accepted. As per the terms in Ext.A1, monthly rent for the premises was
`400/- for the first ten years. Then, for the next ten years, monthly rent
was to be enhanced to `450/-. It is contended on behalf of the plaintiff that
consequent to the renewal of the lease, as provided in clause 1(h) in
Ext.A1, the parties would arrive at a precarious position wherein after 20
years the monthly rent would revert back to `400/- per mensem and again
after ten years it will be enhanced only to `450/- per mensem. This single
factor itself is sufficient to show that the parties never intended to confer
any right on the lessee to claim an automatic renewal of the lease. This is
one of the strongest points of the plaintiff. According to the learned
counsel for the plaintiff, no sensible land owner would have agreed to
accept a lesser rent for a renewed lease, that too, after a long term of 20
years and after it was enhanced once. Further, long duration of lease itself
is an indication against the right of renewal as it would be idle to think that
the parties might have been oblivious of the possible decline in money
value and appreciation of the land value. The location of the disputed land
is in Kannur town. All these factors are pointers to think that the defendants
had no right of first renewal. However, the facts that it had been renewed
once and that the term is over are now unchallengeable. The right of
defendants to get the first renewal was decided in the earlier round of
litigation. In this context, the plaintiff would contend that the second
renewal shall never be permitted.
31. Clause 1(h) in Ext.A1 quoted above is positioned after the
specific provisions wherein the parties have decided to give and take the
property on lease. In otherwords, the clause showing the vestiture of
leasehold right preceded clause I(h). For a proper and complete
interpretation of Ext.A1, I have gone through the deposition of DW1. In the
affidavit filed in lieu of the chief examination, he has asserted that they had
spent lot of amounts for reclaiming the land and for erecting the structures
and fixtures for starting a petrol bunk. Considering the age of the witness
at the time of deposition, it goes without saying that he is incompetent to
prove the actual amount that might have been spent by the original lessee
to make up the land suitable for petroleum business. No other evidence
was adduced to establish this case of the defendants. Therefore, there is
no extraneous evidence available in this case to find that the stipulations in
clause I(h) of Ext.A1 regarding renewals were made considering the cost
that would have been incurred by the lessee for making the land suitable
for a petroleum outlet. Even though in the proviso to clause I(h) of Ext.A1
it is mentioned that the lease will be under the same covenants and
conditions including the covenant for renewal, the clause which created the
demise shows that the lease was for a term of 20 years commencing from
01.01.1972. It is specifically mentioned that the lease is renewable and
determinable as provided therein.
32. In this context, the cardinal distinction between the terms
"extension" and "renewal" must be remembered. Normally the term
'extend' means to enlarge, lengthen, prolong, etc. Settled law is that
renewal of a lease denotes the creation of a new lease for all practical
purposes. Supreme Court in Provash Chandra Dalui's case (supra) re-
stated the principles thus:
"It is pertinent to note that the word used is
'extension' and not 'renewal'. To extend means to
enlarge, expand, lengthen, prolong, to carry out
further than its original limit. Extension, according to
Black's Law Dictionary, means enlargement of the
main body; addition of something smaller than that
to which it is attached; to lengthen or prolong. Thus
extension ordinarily implies the continued existence
of something to be extended. The distinction
between 'extension and 'renewal' is chiefly that in
the case of renewal, a new lease is required, while
in the case of extension the same lease continues
in force during additional period by the performance
of the stipulated act. In other words, the word
'extension' when used in its proper and usual sense
in connection with a lease means a prolongation of
the lease........"
33. If we read the entire terms and conditions in the document
conjointly, it can only be seen that the parties did not intend to create a
perpetual lease or a right of renewal for more than one time. As rightly
pointed out by the learned counsel for the plaintiff, the ratio in Green v.
Palmer cannot be applied to this case disregarding the facts herein. Even
the judgment of the Court of Appeal in Parkus (supra) would show that the
special features attached to the terms and conditions of lease must have
prompted the learned Judge in Green v. Palmer to allow a second
renewal. The lease in Green v. Palmer was for a short term of six months
and it was in respect of a furnished building. A.H.Forbes's case and Syed
Jaleel Zane's case approved by the Supreme Court in Lalji Tandon's case
show that even though the law does not abhor a perpetual lease, there
must be clear indications emanating from the lease deed itself to think that
the parties intended a perpetual lease. In this case, a stipulation regarding
the determination of the lease has been specifically provided. If all those
conditions in Ext.A1 are harmoniously read with clause I(h) and proviso, it
can be seen that the parties must have intended at the most one renewal
after the original term of 20 years. As mentioned above, the stipulations in
the proviso to clause I(h) is only in accordance with an old conveyancing
practice. Ext.A1 cannot be interpreted only on the basis of clause I(h) and
proviso, completely negating other provisions therein.
34. As stated above, the principles in Green v. Palmer were later
deviated by English Courts. They cannot be straight away applied
discounting the facts of this case. Startling differences in facts in both the
cases cannot be ignored. Although the contention raised by the plaintiff
that as in the case of Lalji Tandon, a separate deed is required for
renewal of the lease may not hold good in this case because in Lalji
Tandon's case that was a stipulation borne out from the materials placed
before the Supreme Court. And in this case, no such stipulation could be
seen from Ext.A1. Having regard to the entire facts and circumstances
under which the lease was made, purpose of the lease, original term of the
lease agreed to by the parties, rate of rent, stipulations regarding the
manner in which rent was agreed to be paid, etc., I am of the view that
theory of automatic renewal of lease beyond a term of first renewal for 20
years cannot be read into the terms in Ext.A1. In otherwords, second
renewal of the lease cannot be said to be an automatic event and the
concept of automatic renewal in the said clause can only be made
applicable to the first renewal. Recalling the principles of interpretation of
deeds discussed above, all the clauses in the document must be given
effect to and they should be harmoniously construed. Notwithstanding that
law does not frown upon a permanent lease, there must be clear
indications arising from the terms in the document to hold that the lease in
question was intended to be a permanent one. Applying the relevant
principles mentioned above to the facts of this case, I am of the definite
view that the lessee cannot claim a right to get a second renewal for
another term of 20 years and clause I(h) conferred only a legal right on the
lessee for one renewal after the expiry of the original term. Viewing from
this angle, the courts below are legally justified in dismissing the claim of
the defendants.
35. I shall answer the third substantial question of law now.
Learned counsel for the plaintiff heavily relied on the doctrine of res
judicata to contend that the defendants cannot be heard to say that they
are entitled to renew the lease for a second term. According to the learned
counsel, the defendants's plea based on the theory of permanent lease
was negatived by all the courts in the earlier round of litigation. So much
so, they are precluded from raising a contention that they are entitled to get
another term of 20 years from the date of expiry of the renewed lease. Per
contra, learned counsel for the defendants contended that the cumulative
effect of clause I(h) and its proviso is that the defendants are entitled to get
at least a second renewal. I have already seen that clause I(h) in Ext.A1
does not confer any right on the defendants to claim a second renewal.
However, the question of res judicata having forcefully raised by the parties
will have to be examined.
36. It is well settled that the doctrine of res judicata is founded on
the principles of justice, equity and good conscience. (see Lal Chand v.
Radha Kishan - AIR 1977 SC 789). It is equally settled that the doctrine
applies to all judicial proceedings and to all quasi judicial proceedings
before the Tribunals. Section 11 of the Code of Civil Procedure, 1908 (in
short, "CPC") operates against both the parties to the suit and not against
the defendant alone. The principle of res judicata is an inhibition against
the court, barring the courts from trying any suit in which the matter has
been directly and substantially in issue in a former suit between the same
parties or between the parties under whom they or any of them claim,
litigating under the same title in a court of competent jurisdiction to try such
subsequent suit. Another important condition is that the former suit must
have been heard and finally decided by such court. It is also axiomatic that
res judicata is a mixed question of fact and law and has to be specifically
pleaded.
37. Conditions for attracting res judicata can be generally divided
into five heads. They are:
(i) the matter directly and substantially in issue in the
subsequent suit must be the same matter which was directly and
substantially in issue either actually (Explanation III) or constructively
(Explanation IV) in the former suit. Explanation I is also relevant in this
context.
(ii) the former suit must have been a suit between the same
parties or between the parties under whom they or any of them claim.
Explanation VI is to be read with this condition.
(iii) the parties as aforesaid must have litigated under the
same title in the former suit.
(iv) the court which decided the former suit must have been
a court competent to try the subsequent suit or the suit in which such issue
is subsequently raised. Explanation II is also to be read with this condition
as also Explanation VIII.
(v) the matter directly and substantially in issue in the
subsequent suit must have been heard and finally decided by the court in
the first suit. Explanation V must be read with this condition.
38. Learned counsel for the defendants contended that the
doctrine of res judicata is not applicable in this case as in the former round
of litigation what was claimed by the defendants was only a permanent
lease. The right to get a second renewal was not raised by the defendants
in the previous suit and therefore, there was no occasion for the court to
embark on an enquiry in that matter. Ext.A5 is the certified copy of the
judgment in O.S.No.1 of 2005 between the same parties. Learned counsel
for the defendants drew my attention to issue No.4 in that suit where the
question of permanent lease alone was raised. An additional issue was
raised in that suit touching on the clause in Ext.A1 deed regarding the
enforceability of the clause for renewal. It is, therefore, contended by the
learned counsel that the plea now raised by the defendants for getting one
more renewal was not raised in the previous suit and therefore, was not
heard and finally decided. Per contra, learned counsel for the plaintiff
contended that the entire case was examined by the trial court, the lower
appellate court and this Court in second appeal in the first round of
litigation and no claim thereafter can be raised by the defendants regarding
the right of renewal as it is barred by res judicata. In Ext.A5 judgment, the
court below while answering issue Nos. 2 and 4 together, observed that
the case of permanent lease set up by the defendants was not acceptable
and after a renewal for one time, the defendants could not claim a further
term. This was taken in appeal by the plaintiff as well as the defendants.
Ext.A6 is the common judgment in the appeals. There also the whole
issue was examined under points 1 and 2. The lower appellate court
clearly found that the relevant clause in Ext.A1 could be interpreted only
against the theory of a perpetual lease. The lower appellate court further
observed that as the renewed lease would end only on 29.12.2011 the suit
was premature. Second appeal filed before this Court was also dismissed
finding that there was no substantial question of law. We have to analyse
the contention regarding res judicata in this backdrop.
39. The principle of constructive res judicata enunciated in
Explanation IV to Section 11 CPC is directly applicable to the facts of this
case. The principle of constructive res judicata, stated shortly, is that any
matter which might and ought to have been made a ground of defence or
attack in a former suit shall be deemed to have been a matter directly and
substantially in issue in such suit. In otherwords, though it has not been
actually in issue directly and substantially, it will be regarded as having
been constructively in issue directly and substantially (see P.K.Vijayan v.
Kamalakshi Amma - AIR 1994 SC 2145). Where a matter has been
actually in issue, then, in order to constitute the matter of res judicata, it is
necessary that it should have been heard and finally decided. But, where
a matter has been constructively in issue, it could not, from the very nature
of the case, be heard and decided and it will be deemed to have been
heard and decided against the party omitting to allege it except when an
admission by the defendant obviates a decision. It is clear from the
pleadings and findings entered by the courts in the first round of litigation
that the defendants, although did not specifically raise a right for a second
renewal based on clause I(h) in Ext.A1, might and ought to have raised
that contention and the matter can only be deemed to have been heard
and decided against the defendants by operation of the rule of constructive
res judicata in Explanation IV to Section 11 CPC.
40. Learned counsel for the plaintiff strongly relied on the decision
in Pawan Kumar Gupta v. Rochiram Nagdeo ((1999) 4 SCC 243). It is
contended by the plaintiff that merely because the defendants had no right
of appeal as the plea for eviction raised by the plaintiff was turned down in
the first round of litigation, there are clear negative findings on the issues
raised by the defendants regarding the right of renewal. Therefore, it is
vehementally contended that the principle in Pawan Kumar Gupta's case
will squarely apply to this case. Paragraphs 16 and 19 of the said decision
are relied on by the plaintiff, which are quoted hereunder:
"16. The rule of res judicata incorporated in
Section 11 of the Code of Civil Procedure (CPC)
prohibits the court from trying an issue which "has
been directly and substantially in issue in a former
suit between the same parties," and has been
heard and finally decided by that Court. It is the
decision on an issue, and not a mere finding on any
incidental question to reach such decision, which
operates as res judicata. It is not correct to say that
the party has no right of appeal against such a
decision on an issue though the suit was ultimately
recorded as dismissed. The decree was not in fact
against the plaintiff in that first suit, but was in his
favour as shown above. There was no hurdle in law
for the defendant to file an appeal against the
judgment and decree in that first suit as he still
disputed those decisions on such contested issues.
xxxxxxx
19.Thus the second legal position is this: if
dismissal of the prior suit was on a ground affecting
the maintainability of the suit any finding in the
judgment adverse to the defendant would not
operate as res judicata in a subsequent suit. But if
dismissal of the suit was on account of
extinguishment of the cause of action or any other
similar cause a decision made in the suit on a vital
issue involved therein would operate as res judicata
in a subsequent suit between the same parties. It is
for the defendant in such a suit to choose whether
the judgment should be appealed against or not. If
he does not choose to file the appeal he cannot
thereby avert the bar of res judicata in the
subsequent suit."
41. Learned counsel for the plaintiff, to strengthen his argument
that the claim of the defendants is barred by constructive res judicata,
relied on a decision of the Apex Court in Ramadhar Shrivas v.
Bhagwandas ((2005) 13 SCC 1). Following quotation is relevant for our
purpose:
"........ The expression "matter in issue" under
Section 11 of the Code of Civil Procedure, 1908
connotes the matter directly and substantially in
issue actually or constructively. A matter is actually
in issue when it is in issue directly and substantially
and a competent court decides it on merits. A
matter is constructively in issue when it "might and
ought" to have been made a ground of defence or
attack in the former suit. Explanation IV to Section
11 of the Code by a deeming provision lays down
that any matter which "might and ought" to have
been made a ground of defence or attack in the
former suit, but which has not been made a ground
of defence or attack, shall be deemed to have been
a matter directly and substantially in issue in such
suit.
The principle underlying Explanation IV is that
where the parties have had an opportunity of
controverting a matter, that should be taken to be
the same thing as if the matter had been actually
controverted and decided. The object of
Explanation IV is to compel the plaintiff or the
defendant to take all the grounds of attack or
defence in one and the same suit. ............"
42. To sum up the discussion on this point, I have no hesitation to
hold that the defendants' claim for second renewal is barred by the
doctrine of constructive res judicata embodied in Section 11, Explanation
IV, CPC. Therefore, on this count also, the appeal has to fail.
In the result, the appeal is dismissed confirming the judgments
and decrees passed by the courts below. Considering the facts and
circumstances, there is no order as to costs.
A. HARIPRASAD, JUDGE.
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