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K. Ramachandran Chettiar Vs. G. Lakshminarayanaswami Chettiar - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai High Court
Decided On
Reported in(1976)2MLJ107
AppellantK. Ramachandran Chettiar
RespondentG. Lakshminarayanaswami Chettiar
Cases ReferredIn Manindra Chandra v. Rangalal A.I.R.
Excerpt:
- n.s. ramaswami, j.1. a.s. no. 126 of 1975 is against the decree and judgment in o.s. no. 980 of 1966 and a.s. no. 774 of 1970 is against the decree and judgment in o.s. no. 5594 of 1967 on the file of the city civil court, madras. the appellant in both the matters is one and the same, he being the solo defendant in both the suits. the respondent in both the appeals is also one and the same jderson, being the plaintiff in the two suits, which were tried jointly.2. the plaintiff (respondent) is no other than the father-in-law of the defendant (appellant). they entered into a registered lease agreement as per the original of exhibit a-1, dated 9th november, 1959 under which the defendant became a lessee under the plintiff cf the building bearing door no. 1-a, ponnappa. chetti lane,.....
Judgment:

N.S. Ramaswami, J.

1. A.S. No. 126 of 1975 is against the decree and judgment in O.S. No. 980 of 1966 and A.S. No. 774 of 1970 is against the decree and judgment in O.S. No. 5594 of 1967 on the file of the City Civil Court, Madras. The appellant in both the matters is one and the same, he being the solo defendant in both the suits. The respondent in both the appeals is also one and the same jDerson, being the plaintiff in the two suits, which were tried jointly.

2. The plaintiff (respondent) is no other than the father-in-law of the defendant (appellant). They entered into a registered lease agreement as per the original of Exhibit A-1, dated 9th November, 1959 under which the defendant became a lessee under the plintiff cf the building bearing Door No. 1-A, Ponnappa. Chetti Lane, Triplicate, Madras, with running an oil mill. The document describes the building in one schedule and. under the heading schedule relating to 1 machinery gives the details of the items 1 of machinery etc., given possession of by the plaintiff to the defendant. According to the terms of the document, the defendant was to be a lessee for a period of five years from 9th November, 1959 to 8th November, 1964 and pay in all a monthly sum of Rs. 150 made up of Rs. 25 aj rent for the building and Rs. 125 towards the hire charges of the machinery etc.

3. O.S. No. 980 of 1966 (out of which A.S. No. 126 of 1975 arises) is a suit in ejectment but it relates only to the ground floor of the'building with the machinery etc. According to the plaintiff there was a separate oral lease agreement between the parties in respsct of the first floor, the monthly rent payable for the said first floor being Rs. 150. On the basis of that and on the allegation that the defendant had committed wilful default in payment of rent (for the first floor) the plaintiff had successfully obtained an order of eviction in the Rent Control Court and that order has not only become final but has also been executed aud the defendant has already been evicted from the first floor of the building. O.S. No. 5594 of 1967 (out of which A.S. No. 774 of 1970 arises) is a suit for recovery of arrears of rent in respect of only the first floor. The plaintiff has averred in the pla.int that upto 15th July, 1963, the defendant had paid the monthly rent of Rs. 150 for the first floor and thereafter defaulted to pay the same. The suit for arrears of rent came to be filed in 1967 and the plaintiff stated that he is restricting his claim for arrears of rent in respect of the first floor for a period of three years prior to the presentation of the plaint in O.S. No. 5594 of 1967.

4. The defendant inter alia coKtended that the original of Exhibit A-1 covered the entire building and that there was no question of any oral agreement for paying tbe monthly rent of Rs. 150 separately for tre first floor. This suit had been decreed by the Court below on the sole ground that the decision of the Rent Controller ordering eviction of the defendant from the first floor, incidentally finding that the monthly rent for the first floor was Rs. 150, is res judicata against the defendant now contending that no separate rent was payable in respect of the first floor. The lower Court did not even consider the terms of Exhibit A-1 in order to find out whether what was demised uiader that document was only the ground floor with the machinery as contended by the plaintiff or whether the entire building inclusive of the first floor had been demised, because, in its view, the decision of the Rent Controller Is res judicata.

5. As for the other suit (O.S. No. 980 of 1966) which is one in ejectment of the ground-floor with the machinery therein, the defendant inter alia contended that the provisions of Act XVIII of 1960 apply to the lease in so far as it related to the building, that in respect of the machinery the suit is time-barred regarding certaili items inasmuch as those items were claimed only by way of amendment, the application for which, was filed only on 18th March, 1970 and the time having begun to run from 31st May, 1965, the date of terminatior of lease, and that, In any event, the suit should fail for want of proper notice to quit. The Court below rejected all these contentions and has decreed the suit.

6. First of all, I would deal with the question as to whether the decision in the Rent Control proceedings initiated by the plain tiffin order to evict the defendant from the first floor of tbe building is res judicata regarding the question whether the defendant was bound to pay separate rent of Rs. 150 per month in respect of the first floor. I am quite clear that the said decision in the Rent Control proceedings is not res judicata against the defendant raising the plea in the present suit. There can be no dispute that the question that arose for determination by ithe Reat Controller and the Appellate authority as well as the Revisimal Court was only whether there were grounds as contemplated under Act (XVIII of I960) for evicting the tenant. The question whether separate rent for the first floor was payable and if so whether the rent was Rs. 150 a month might have been considered incidentally, but it cannot be contended that those are matters which fall within the jurisdiction of the Rent Control Court. There are two decisions of this Court which are clearly applicable to the present case. In Venkatachala v. Ramackandra : AIR1961Mad423 the Revenue Court under Act XXV of 1955, had held that the tenants were not in arrears of rent and that therefore they were not liable to be evicted, and when the landlord filed a suit in Civil Court for recovery of arrears of rent, the above decision of the Revenue Court was pleaded as resjudicata against the landlord. A Division Bench of this Court held that the landlord is not so barred. It was pointed out that the decision of the Revenue Court that there were no arrears of rent was only incidental to the exercise of the jurisdiction to grant eviction, that the Act nowhere clothes the Revenue Officer with jurisdiction to grant rslief to the landlord for recovery of arrears of rent, that the landlord could recover arrears of rent only through the medium of the civil Court and that therefore the decision of the Revenue Court as to whether a cultivating tenant was in arrears of rent or not would not operate as res judicata in a subsequent civil suit between the parties to recover arrears of rent.

7. In Rajaiah Odayar v. Panckapakesa Iyer : AIR1964Mad513 Ramachandra Iyer, C.J., held that the determination of the question whether a cultivating tenant is in arrears of rent or rot for the purpose of ordering his eviction by the Revenue Court, under the provisions of Section 3 of the Madras Cultivating Tenants Protection Act (XXV of 1955), will not operate as res judicata in a subsequent civil suit filed by the landlord against the tenant for recovery of arrears of rent. The learned Judge pointed out that the determination in an eviction petiticn filed by the landlord on the ground of default in payment of rent on the part of the cultivating tenant, whether there were arrears of rent or not, is purely incidental and can be regarded as made only for the limited purpose of exercising jurisdiction under Section 3(3) or 3(4) of Act XXV of 1955. These decisions would squarely apply to the present case.

8. Mr. V.N. Srinivasa Rao, laarned counsel for the plaintiff (respondent) drew my attention to Daryao and Ors. v. The State of Uttar Pradesh and Ors. : [1962]1SCR574 where it has been observed that it is doubtful if the technical requirements prescribed by Section 11, Code of Civil Procedure, as to the competence of the first Court to try the subsequent suit is an essential part of the general Rule of res judicata. It is true that in the present case only the principles of res judicata are sought to be applied and not Section 11, Code of Civil Procedure. Even so, as has been pointed out by this Court in the two decisions referred above, decisions by special tribunals not on matters which directly arise bifore them but in respect of incidental questions would nevar be res judicata against the parties agitating the questions in a Civil Court. The observation of the Supreme Court does not in any waygocom.tertothe above two decisions, for, in those cases (as well as in the present case) it is not on the incompetence of the Court to try the subsequent suit, but on the ground that the question did not directly arise in the earlier proceeding (though incidentally it had been considered), it was held that the incidental finding did not act as res judicata.

9. On merits it is impossible to believe the case of the plaintiff that there was an oral agreement between the parties by which the defendant was bound to pay a sum of Rs. 150 a month separately for the first floor. This plea of the plaitiff is directly against the terms of Exhibit A-1, the lease deed. A perusal of that document undoubtedly goes to show that what was demised was the entire building (with the machinery; and not merely the ground floor (with the machinery). Even in the schedule to the document, the entire building is described and the description is not only of the ground floor. In the face of this document, I really do not see how it is open to the plaintiff to put forward a case that there was an oral agreement by which the defendant was bound to pay a separate rent of Rs. 150 per month for the first floor.

10. From the evidence on record, it is seen that the building originally belonged to the defendant's father but it had been purchased by the plaintiff, from him. Whatever that be, it is fairly clear that considering the close relationship of the parties, the defendant had been occupying the building with the permission of his father-in-law, the plaintiff, even prior to the execution of the original of Exhibit A-1. The plaintiff as P.W. 1 would say that the defendant had been occupying (the first floor) even from 1953-54 on a monthly rent of Rs. 150; There is absolutely nothing except the interested statement of the plaintiff to show that the defendant ever paid any rent for any part of the building prior to the execution of Exhibit A-1. The plaintiff who wants the Court to believe that after the execution of the original of Exhibit A-1, the defendant had been paying the monthly rent of Rs. 150 separately for the first floor, had to admit that there is no record to show such payments. Admittedly the plaintiff had never issued any receipt to the defendant for payment of the alleged rent of Rs. 150for the first floor. The explanation for not issuing any receipt for payment of the abovesaid rent is, that as the parties are close relations, the defendant didnotinsist upon any such receipt. But the fact remains that after the execution of Exhibit A-1, the plaintiff has issued receipts to the defendant and as a matter of fact the plaintiff himself has produced the counterfoils of the receipts. Exhibits A-8 and A-9 are such counter foils both dated 31st March, 1961. While Exhibit A-8 shows a payment of a total sum of Rs. 2093.75 as the hire charges for the machinery from the date of Exhibit A-1 up to the date of receipt, Exhibit A-9 shows that a sum of Rs. 418.75 was paid by the defendant to the plaintiff as rent for the building, also for the same period, namely from the date of Exhibit A-1 upto the date of payment. It is also clear that the defendant had not been payingthe rent mentioned in the document Exhibit A-1 regularly. It had been collected in a lump sum on 31st March, 1961. When the plaintift had issued receipts retaining counterfoils thereof, his glib statement that he had not issued any receipt in respect of rent for the first floor due to close relationship of the parties is certainly not worthy of credence.

11. Further the plaintiff has no consistent case as to whether separate rent for the first floor had been paid upto 15th July, 1963, though there is such a plea in the plaint. As the plaintiff, had not only produced the counter foils for issuing receipts to the defendant for the rent provided under Exhibit A-1, but also had produced his account books to show the abovesaid collection, he was questioned as to why he had not produced any accounts to show that he had collected a sum of Rs. 150 a month separately for the first floor. Then the plaintiff had to concede that as he had not collected rents for the first floor he did not write accounts and file the same in Court.

12. The defendant has given evidence denying the case of the plaintiff that there was any arrangement between the parties by which the defendant had to pay the sum of Rs. 150 a month separately for the first floor. He has also spoken to the fact that he had never paid any such rent. He has put forward several other contentions including a claim of Rs. 30,000 due from the plaintiff to him. Such tall claims have no doubt not been made out but I am not now concerned with those claims made by the defendant. The question as far as O.S. No. 5594 of 1967 is concerned, is whether there was an arrangement by which the defendant had to pay a monthly rent of Rs. 150 separately for the first floor. I have already pointed out that this plea on the part of the plaintiff goes counter to the terms of Exhibit A-1. The evidence and the other circumstances in the case also indicate that the defendant had never paid any rent separately for the first floor and that there could not have been an arrangement as pleaded by the plaintiff. A.S. No. 774 of 1970 has to be allowed and O.S. No 5594 of 1967 has to be dismissed.

13. Coming to the other appeal, three points were raised before me. The first is that the Civil Court had no jurisdictio to entertain the suit in ejectment inasmuch as Act XVIIJ of 1960 is applicable The contention is that the lease is of a building, though in addition there was also the hiring of the machinery. The second contention is one of limitation and that arises this way. At the time of the execution of Exhibit A-1, the defendant was given possession of (i) electric motor, (ii) electric transformer and starter (iii) certain switches and wire fittingsj (iv) three numbers of Rotary oil checkus, (v) counter-shaft bearing pulleys, beltetc. apart from tables, benches, scales and weights. It is common ground that after the defendant started to run the oil mill, the Rotary oil checkus had beem removed and Pinto oil checkus (four in number) came to be substituted. In the plaint, originally the claim was for the Pinto oil checkus (apart from the' other items of machinery etc.;. Then on 18th March, 1970 the plaintiff filed and application for amendment of the plaint; by which he claimed the Rotary oil checkus three in number; or their value. The lease had been terminated with effect from 31st May, 1965. As the date of application for amendment by which the Rotary oil checkus were claimed for the first time is beyond three years of the date of termination of the lease, the contention on behalf of the defendant is that the claim regarding the same is barred by limitation. The tiiird contention is that in any event the suit should fail for want of proper notice to quit.

14. I shall take up the third contention first. As seen earlier, Exhibit A-1 provides for a lease for five years from 9th November, 1959 to 8th November, 1964. But admittedly the defendant continued to be a tenant even after 8th November, 1964, even though it is not: anybody's case that after that date, the defendant paid any rent and that the plaintiff accepted the same with an intention to renew the lease. The plaintiff has categorically averred in the plaint th at after the expiry of the le ase by efflux of time, the defendant cortinued to be a. tenantholding over.

15. The notice to quit is as per the original of Exhibit A-3 dated 11th May, 1965 terminating the lease with the midnight of 31st May, 1965. Whether this notice is a proper notice to quit as contemplated under Sections 106 and 116 of the Transfer of Property Act is the question. It is common ground that the lease under Exhibit A-1 is for running the oil mill, even though admittedly the defendant was also residing in a portion of the building. Running an oil mill is undoubtedly manufacturing purpose as contemplated under Section 106 of the Transfer of Property Act and I am unable to agree with the contention of the learned Counsel for the plaintiff to the contrary. Therefore, unless there is a contract or local law or usage to the contrary the lease under Exhibit AJ1 must be held to be a lease from year to year terminable by six months notice expiring with the end of the year of tenancy. It is contended on the strength of an observation in Ram Kumar Das v. Jagadish Chandra Deb Dkabal Deb and Anr. : [1952]1SCR269 that in the present case monthly rent having been reserved, the tenancy should be presumed to be one from month to month and not year to year. But such a presumption has no place in the present case because of the provisions contained in Section 116 of the Transfer of Property Act. That Section is certainly attracted because, as already seen, the plaintiff has categorically averred that the defendant is a tenant holding over. It is no good saying that admittedly after the determination of the lease under Exhibit A-1 , by efflux of time, there was no payment of rent and that there is nothing to show that the plaintiff had assented to the defendant continuing in possession of the demised property. It is true that there is no evidence regarding such assent on the part of the landlord as contemplated under Section 116. But when there is a clear admission on the part of the plaintiff himself that the defendant is a tenant holding over, I fail to see how the question of want of evidence about the landlord continuing in possession arises. It is quite obvious that because of the close relationship between the parties, the plaintiff as landlord had assented to the defendant continuing in possession. and that is why the plaintiff himself had stated in the pleadings that the defendant is a tenant holding over.

16. Under Section 116 in the absence of an agreement to the contrary, in respect of a tenant holding over, the lease is 'renewed from year to year or from month to month according to the purpose for which the property is leased as specified in Section 106'. I have already held that the purpose for which the property is leased is 'manufacture'. Therefore as per Section 116 read with Section 106 of the Transfer of Property Act, six months notice is necessary. The presumption that arises by reserving a monthly rent under Exhibit A-1 that the tenancy was from month to month has no relevance when Section 116 applies. It has been rightly pointed out, if I may say so with respect, in Ram Prasad Panday v. Debt Prasad Deb (1919) 49 IND.CAS. 974 that whatever the terms which govern the original lease, in a case coming under Section 116, in the absence of any agreement to the contrary, therenewal of the lease must be regarded as from year to year or from month to month according to the purposes for which the property is leased. It was held that where the lease is for agricultural or manufacturing purposes, it is to be regarded as a lease, from year to year and in the case of a lease for other periods, it is to be regarded as renewed from month to month.

17. Ever, if the defendant is not entitled to six months notice and he is entitled to only 15 days' notice, undoubtedly the notice in this case is not proper under Section 106 of the Transfer of Property Act. If the tenancy is a monthly one, there can be no doubt the month of tenancy is from 9th of a particular month and ending with the 8th of the succeeding month as per the English calendar. The lease deed, as already seen is dated 9th November, 1959 and it says that the monthly rent is payable by the 10th of the succeeding month. The contention on behalf of the plaintiff isthat there is an avermen t in the plaint that the defendant was paying the rent according to the calendar month and there is no denial of such averment and that therefore it must be held that the month of tenancy is from the first of the calendar month. It is clear that in spite of the abovesaid assertion in the plaint admittedly the defendant had never paid rent according to calendar month. The only payment he made was on 31st March, 1961 for the accrued rents from the date of the lease deed upto the date of payment. How ever, as the plaintiff has averred that the defendant had been paying rent a.ccording to calendar month and such averment 'has not been traversed by the written statement, I may take for the present purpose that rent was being paid according to the calendar month. But that fact would not in aaay way alter the month of tenancy. The ihonth of tenancy is from 'the 9th of a particular month to the 8th of the succeeding moath. The mere fact that the rent was being paid not AdcdrtHng to the month of tenancy hut according to the calendar month would' adfealter the month of tenancy itself as one from the first of the calendar mouth.

18. B. P. Bhagwandin v. D.B. Prabhu Prasad : [1963]3SCR312 is a ease where the month of tenancy was according to Hindu calendar but the rent was being paid according to the British calendar,. The Gujarat High CJourt which heard the case earlier held that as rent is payable according English calendar, the tenancy must be deemed to be one according to the said calendar from the first of the month to the erad'; of the month. The Supreme Court painted out that that view of the, Gujarat High Court is wrong. At page 447, the Supreme Court observed:

The tenancy can be from month to month and the recoverability of the tent may not be from month to month, and may, under the contract, be based on any period says a quarter or helf year or a year. There is nothing in law to make the momh for the period of recovering rent, synchronising with the pciiod of the month of the tenancy. The tenancy must start by a particular date and consequently its month would be the montl from that date, according to the calendar followed.

Therefore, assuming that the defendant had been paying rent according to calendar month, the month of tenancy is certainly not from the first of the calendar month till the end of the said month, but it is only as provided in the document itself. There can be no doubt that the lease commenced on the 9th of a particular month and therefore the month of tenancy would be from the 9th of a particular month till the 8th of the succeeding month. The notice in this case terminated the tenancy by the midnight of 31st May, 1965. That is certainly not in accordance with Section 106 of the Transfer of Property Act as 15 days notice ending with the month of tenancy has not been given.

19. It is contended on behalf of the plaintiff that the defendant has not specifically stated in the written statement that even if 15 days' notice is sufficient, the notice is not proper. The plea that the notice to quit is not proper has been specifically taken. The defendant has pleaded that he is entitled to six months' notice. Ever, if it is to be held that he is not entitled to such notice one has to find whether 15 days' notice has been given in accordance with Section 106. Certainly it is not a case where the defendant has not taken the plea that the notice to quit is not proper.

20. Goming to the o ther two cou tentions, the first point raised is that the lease is of a building coupled with hiring of the machinery and that therefore the provisions of Act XVIII of 1960 are applicable. The contention on behalf of the plaintiff is that the lease is a composite one inasmuch as a running business as such was leased. It is clear from Raja Gketty v. Jaganiiatka Das Govindas : (1949)2MLJ694 . Uttamchand v. S.M. Lalwani : AIR1965SC716 and Pals Theatres v.Abdul Gaffoor Sahib : (1972)2MLJ554 that if a business as a going concern is the subject-matter of the lease it cannot be con tended that the Rent Control Act would be applicable. In the case before the Supreme Court what was leased was a Dal Mill as a going concern. In the other two decisions which are by Division Benches of this Court what was demised were cinema houses as going concerns. It has been pointed out in Raja Ghetty v. Jagannatha Das Govindas : (1949)2MLJ694 that what was leased was not merely building and furniture but a talkie house (as a going concern; and to split up such lease into separate contracts of lease of the building and hire of furniture etc. is to destroy it altogether. As I said, a cinema house as a going concern was the subject matter of the lease in that case. In filanda Rao v. Laksktnanaswami Mudaliar : (1969)1MLJ153 which was a case of lease of a cinema theatre, Natesan, J., held that it was a lease of a building and Act XVIII of 1960 applied, as it was not a lease of a running cinema business with all its accessories. At page 162 the learned Juge observes that the Act controls and regulates letting of buildings and not transfer of business concerns and running business with building. As the lease in that case was not cf a running business it was held that the Act applied. Similarly in the present case the document itself goes to show that what was leased was not a going concern as such. It is true that it was contemplated that the defendant would run an oil mill in the premises. It is also true that certain machinery for the above purpose had been given possession of with the building. But there is nothing to show that all that was required 1 for running an oil mill were the items I given possession of by the plaintiff to the defendant. Further from the very fact that the document states that the lessee has to obtain the necessary Corporation licence, though in the name of the lessor, goes to show that till the date of the document no such licence had been issued to the lessor (plaintiff) and that therefore what was demised was not a going concern as such. The fact that separate rents for the building and separate hire charges for the building and separate hire charges for the machinery etc. making up a total of Rs. 150 are mentioned in the document is no doubt not conclusive to show that the lease was not a composite one. But as it is clear that what was demised wasjnot. a business as.such, there is no reason why the lease deed should not be construed as one for the building coupled with the hiring of certain items of machinery etc. mentioned in the document.

21. That means, the provisions of Act XVIII of 1960 would be applicable as far as the building is concerned. Of course on that score the suit in ejectment is not to be dismissed. The fact that the provisions of Act XVIII of I960 are applicable does not mean the jurisdiction of the Civil Court to entertain a suit in ejectment is ousted. However, the decree in ejectment cannot be executed unless the plaintiff obtains an order of eviction as per the provisions of the abovesaid Act. Anyway, because of my finding regarding the question of validity of the notice to quit, the plaintiff is not entitled to a. decree in ejectment.

22. The question of want of notice to quit would not arise in respect of movables. I have already held that under Exhibit A-1 there is a lease of the building, and hiring of the movaables, namely machinery etc. In respect of movables, there is no impediment to grant a decree in favour of the plaintiff subject to the question of limitation raised by the defendant. As far as the movables claimed in the original plaint are concerned, the claim is within time but in respect of the alternative claim made by way of amendment, there is no escaping the position that the same is barred. The Court below has held that the plaintiff is entitled to possession of the building (ground floor) and payment of the value of the machineries etc. given possession of by the plaintiff as per Exhibit A-1 at the time of the lease. (The value is to be ascertained in execution proceedings). The Court has not held that the plaintiff was entitled to the Pinto checkus (four in number) substituted by the defendant after the lease agreement. However, the decree has not been properly drafted. In the operative part of the decree it is simply stated that the defendant shall pay the cost of the machineries etc. without specifying whether the machineries are as described in the plaint originally, or as those as per the amendment. In the schedule of property, the machineries as in the original plaint (which includes four Pinto checkus) are described. The plaintiff is not entitled to the Pinto checkus asper the judgment, for they are not covered by Exhibit A-1 and the judgment says that the plaintiff is entitled to the machineries described in Exhibit A-1 (and not to Pinto checkusj. Rotary chackus (three in number; are covered by Exhibit A-1. They were claimed by way of amendmesit of the plaint. The question is whether this claim is within time. The Court below has held that it is not barred. But that is not correct.

23. Undoubtedly the Rotary Oil checkus claimed by the amendment are totally different from those described in the original schedule. What was asked for in the original plaint was Pinto Oil checkus, but by way of amendment Rotary Oil checkus (three in number} are sought to be substituted. The amendment application came to be filed only on 18th March, 1970: Because of the notice issued by the plaintiff he became entitled to the movables from 1st April, 1965. The period of limitation is only 3 years from 1st April, 1965 and as the Rotary Oil checkus were claimed for the first time in the application dated 18th March, 1970, that claim is barred by limitation. There can be no dispute that in respect of new properties claimed by way of amendment, the date of claim shall be taken to be the date on which the application for amendment was filed, and not the date of suit. The suit had been instituted within three years from 1st April, 1965 but the properties claimed by way of amendment have been claimed for the first time only on 18th March, 1970, the date of the application for amendment. In Manindra Chandra v. Rangalal A.I.R. 1918 Cal. 443 a similar view had been taktn and it is stated that in respect of new properties added by way of amendment, the date of application for amendment should be taken to be the date on which the claim was made. The learned Counsel for the plaintiff is not right in his contention that Article 67 would be applicable, on the basis that the lease is a composite ore. I have already held that it is not a composite one and there was lease of the building plus hiring of the movables. Even assuming that there was a composite lease, Article 67 could have no application. Anyway that aspect need not be pursued, further as I have already held that it was not a composite lease.

24. Theresultis A.S. No. 126 of 1975 is allowed in part and O.S. No. 980 of 1966 shall stand dismissed as far as the relief for possession of the building as well as regarding the movables claimed by way of amendment of the plaint is concerned. The judgment of the lower Court in that suit is otherwise confirmed. The decree of the lower Court is corrected and modified as indicated above. That means the plaintiff is entitled to the value of only the machineries described as items 1 to 3 and 5 in the plaint B Schedule, as it originally stood. (Item 4 therein is Pinto Oil checkus to which the plaintiff is not entitled). A.S. No. 774 of 1970 is allowed and O.S. No. 5594 of 1967 shall stand dismissed. Considering the relationship of the parties and other circu instances of the case, I direct the parties to bear their respective costs throughout.


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