1. This is an appeal by the Defendants against the judgment of my learned brother Mr. Justice Pearson which is dated the 10th of January 1924.
2. The suit was brought for ejectment, mesne profits and damages.
3. The Defendants were the tenants and occupiers of the premises Nos. 171, 172 and 174, Dhurmtollah Street, in Calcutta. The premises were held under a lease for a term of ten years from the 1st of January 1911, which term expired on the 31st of December 1920.
4. The plaintiff is the lessor and Messrs. Breakwell and Co. were the lessees. In November 1918 the remainder of the term was assigned to Messrs. Hay and Porker, who are the Appellants in this ease: and, the rent for the whole of the premises was Rs. 1,050 per month;
5. At the end of the term there were negotiations between the parties with a view to the renewal of the lease. But these came to nothing and, on the 20th of April 1921, this suit was brought.
6. The Defendants remained in possession until the 31st of January 1923, when they delivered vacant possession to the Plaintiff'.
7. It is clear that the Defendants tendered the rent for the month of January 1921 on the 4th of February 1921. The rent for one month was payable on the 5th of the following month. That tender was refused by the Plaintiff: and, there is no doubt that from that time onward the Plaintiff refused to receive any rent from the Defendants. Accordingly, the rent was paid to the Rent Controller with the addition of 10 per cent in accordance with the provisions of the Calcutta Rent Act: and, with one exception the rent for each month was paid prior to the 15th of the following month. The exception to which I have referred, was with reference to the rent which was payable in respect of the month of September 1922.
8. It appears that the rent for September 1922 was actually paid on the 24th of October 1922 to the Rent Controller. The office of the Rent Controller was closed on account of certain holidays from some day before the 19th of October and the 23rd of October was the first day after the 19th October which was available for the deposit of rent with the Controller.
9. The learned Judge in his judgment stated as follows: ' Subsequent to the termination of their lease and during the period up to the time they vacated the premises, the Defendants deposited rent with the Bent Controller at the rate re-severed by the lease plus 10 per cent. This they did every month, payment being in every case prior to the 15th of the month.'
10. When the case was argued in this Court, it was alleged that that finding of the learned Judge was wrong, and our attention was drawn to two rent receipts, which went to show that the rent in respect of the month of September 1922 was in fact paid on the 24th of October, as I have already mentioned.
11. The learned Counsel for the Defendants stated that there was an explanation of that to the effect which I have already stated. The result was that we were of opinion that it was necessary for evidence to be given with regard to this matter and the hearing of the appeal was adjourned in order that the Defendants might produce that evidence. The evidence was given to-day by Krishna Lal Chatterjee, who was an accountant employed by Messrs. Breakwell & Co., and Atindra Nath Mukerjee, who was a clerk employed in that office and from their evidence it is clear that the explanation which was given by the learned Counsel for the Defendants was correct and was fully supported by the evidence.
12. The explanation shortly stated was that when the Defendants' clerk went to the Rent Controller's office on the 23rd of October, which was the first available date after the 19th of October, and presented a petition and obtained an order from the Rent Controller for the receipt of the money, he was not able to pay the money to the cashier because there were many others waiting to make payments on behalf of other people, and it appears that at or about 3 o'clock the cashier refused to receive any more money on that day and told the people, whose money had not been received, to come on the following day. The result was that Messrs. Breakwell & Co.'s clerk went to the Rent Controller's office on the 24th of October and paid the money. The receipt was dated the 24tb. These are the facts with regard to this part of the case.
13. The learned Judge was of opinion that the Defendants ought to have deposited the standard rent on or before the 5th day of every month and as they had not done that, Defendants were not entitled to the protection of the Rent Act.
14. The learned Counsel for the Defendants drew our attention to Section 11, Sub-sections (4) and (5) of the Calcutta Rent Act. I will read Sub-section (5), first: ' (5) No tenant shall be entitled to the benefit of this section in respect of any premises, unless within three months of the date of the commencement of this Act he has paid all arrears of rent due by him in respect of the said premises, and also unless he pays the rent due by him to the full extent allowable by this Act within the time fixed in the contract with his landlord, or in the absence of any such contract, by the fifteenth day of the month next following that for which the rent is payable.' Sub-8. (4) is as follows :-' (4) Where a landlord refuses to accept the rent referred to in Sub-section (i) offered by a tenant, the tenant may deposit it with the Controller within a fortnight of its becoming due.'
15. In this case the rent became due on the 5th of the month succeeding that for which it was payable. The landlord refused to accept the rent. Consequently, it was the duty of the tenant, under the provisions which I have just read, to deposit it within a fortnight from the 5th of the month: a fortnight from the 5th, the time when the rent became due in this case, would make the date by which the rent would be payable, the 19th of the month.
16. Having regard to this contention and the evidence which was given to-day Mr. Sircar, the learned Counsel for the Plaintiff, admitted that the ground upon which the learned Judge held that the Defendants were not entitled to the protection of the Rent Act could no longer be supported. But the learned Council argued that he could support the learned Judge's decision upon another ground: and, he relied on the first sub-section of Section 11 which runs as follows: -'(1) Notwithstanding anything contained in the Transfer of Property Act, 1882, the Presidency Small Cause Courts Act, 1882, or the Indian Contract Act, 1872, no order or decree for the recovery of possession of any premises shall be made so long as the tenant pays rent to the full extent allowable by this Act and performs the conditions of the tenancy.'
17. His argument was that the Defendants had not performed the conditions of the tenancy.
18. In the first place, he drew attention to a report which was made by a Mr. Johnstone as to the state of the premises in March 1922 and, he argued that that showed that the Defendants had not complied with the covenant of the lease to keep the premises in repair, and that consequently the Defendants had not fulfilled the conditions as required by Section 11 (1): and, even though they had paid rent to the full extent allowable by the Act they had not performed the conditions of the tenancy by keeping the premises in repair.
19. In my opinion, we ought not to give effect to this contention.
20. The learned Judge came to no conclusion that the Defendants, so long as they were in possession of the premises, had committed any breach of the covenant: and, I am not at all satisfied that the Plaintiff relied upon that as a reason which would entitle him to a decree for possession at the trial. With regard to the evidence, it seems to me that there is evidence each way; there is the evidence of Mr. Johnstone that the premises had not been kept in repair in accordance with the terms of the lease: on the other hand, there is evidence that the premises had been kept in repair: and, it is not possible, in my judgment, for this Court to come to any conclusion as to whether the defendants, while they were in possession, committed any breach of the terms of the lease.
21. The learned Counsel then urged that the learned Judge had found that the Defendants had committed a breach of one of the covenants in that, at the end of January 1923, they removed certain fixtures which they had no right to remove and when they gave up possession the premises were not in good and substantial repair and condition in accordance with the terms of the lease and that the learned Judge had assessed damages in respect of the breach of that covenant at Rs. 1,500.
22. There is no doubt that that is the finding of the learned Judge, but I am not prepared to accept the learned Counsel's contention that the fact that the Defendants had committed a breach of that covenant when they gave up possession of the premises, was sufficient to disentitle them to the protection of the Rent Act during the whole of the period during which they were holding over after the end of December 1920.
23. In my judgment on the facts of this case there is no sufficient proof that the Defendants failed to comply with the terms of the lease until the end of January 1923, and consequently the Plaintiff was not entitled to a decree for possession until the end of January 1923 when in fact the Plaintiff got possession.
24. Consequently, the Plaintiff is not entitled to any mesne profits in respect of the period for which he has claimed.
25. In my judgment the Plaintiff is only entitled to a decree for Rs. 1,500 with regard to the damages assessed by the learned Judge in respect of the breach of the covenant not to remove fixtures and to deliver up possession of the premises at the termination of the term in good and substantial repair.
26. The result therefore is that in my judgment this appeal should be allowed and the learned Judge's decree should be varied. In place of the decree passed by the learned Judge there will be a decree in favour of the Plaintiff for Rs. 1,500 as damages.
27. We give a direction that the four pieces of Government securities to which reference has been made be handed to the Defendants upon the Defendants producing a letter from the executors of Mr. Break-well authorising them to receive the securities. The plaintiff will be entitled to withdraw the money deposited by the Defendants with the Bent Controller.
28. As regards costs, we are of opinion that the Plaintiff should get the costs of the trial with the exception of the costs of Mr. Shorsbree, and that the Plaintiff should pay the Defendants the costs of the appeal (one set of costs to be set off against the other). These costs are to be ordinary costs which will carry two Counsel.
29. The war bonds deposited with the Registrar will be handed to the Defendants' attorney.
30. I agree.