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Bejoy Chandra Sinha Vs. Howrah Amta Light Railway Co. Ltd. by their Managing Agents, MartIn and Co. - Court Judgment

LegalCrystal Citation
Decided On
Reported inAIR1923Cal524,72Ind.Cas.98
AppellantBejoy Chandra Sinha
RespondentHowrah Amta Light Railway Co. Ltd. by their Managing Agents, MartIn and Co.
Cases ReferredGray v. Owen
lessor and lessee - repairi of leased premises--obligations of lessor and lessee--express obligation to make repairs on part of lessor--failure to carry out repairs--lessee, right of, to terminate tenancy--damages-+lease, premature termination of, ions sequences of--acceptance of surrender, if precluedessor from suing for damages--holding over, effect of--notice--transfer of property act (iv of 1882), sections 106, 108, 116. - .....was that after the expiry of the lease on the 31st october 1915 they were tenants from month to month. they held over upon payment of rent to the landlord. hence under section 116, transfer of property act, the lease was renewed from year to year or from month to month according to the purpose for which the property was leased as specified in section 106. thus, although the original term vas for three years, the defendant company became tenant from month to month under section 116 read with section 106; troilokya nath roy v. sarat chandra banerjee 32 c. 123 : 8 c.w.n. 901. that tenancy could be terminated by a notice to quit as pre-scribed in section 106. under that section a lease of immoveable property from month to month is terminable, on the part of either lessor or.....

1. This is an appeal by the plaintiff in a suit for specific performance of an agreement to lease and in the alternative for damages. The subject-matter of the litigation is a house on the Grand Trunk Road in Howrah. In 1912, the first defendant (The Howrah Anita Railway Co.) proposed to the plaintiff to hire this house as a residence for their staff, The plaintiff agreed and the final agreement was that the defendant should hold the house for a period of three years from the 1st November 1912 to the 31st October 1915 at a monthly rent of Rs. 190. No formal lease was executed. But after letters had been exchanged, the defendant entered into occupation of the house and continued in occupation till the end of the term of the lekse. In July 1914, long before the expiry of the term, the defendant informed the plaintiff by a letter that the electric light wiring of the house was in a bad condition and required repairing. The plaintiff took no notice of this request. The result was that the defendant again wrote to the plaintiff and intimated that if the plaintiff did not make the repairs, the defendant would do the needful and deduct the costs from the rent. This made the plaintiff alert and in reply he intimated to the defendant that he was willing to repair the electric light wiring, provided the defendant would continue the lease for three years more from the -expiry of the current term. The defendant agreed to this proposal by a letter dated the 8th December 1914 and the plaintiff executed the repairs in due course. After the expiry of the term the defendant continued in occupation, but no formal lease was executed. On the 30th June 1916 the defendant left the house. The Company had previously given notice to the plaintiff on the 9th June that they would vacate the house after the lapse of a month from that date. The plaintiff refused to accept the surrender and instituted this suit on the 26th January 1917. Messrs. Martin & Co., who were the Managing Agents of the Howrah Amta Railway Company, were also joined as defendants; but they contended that they had no liability in respect of the matter in dispute. The Courts below have dismissed the suit, but on different grounds. The Court of first instance, came to the conclusion that the letter of the 8th December 1914 constituted the lease, and that, as it was neither stamped nor registered, it was not admissible in evidence. Consequently, the plaintiff could not claim specific performance. On appeal the District Judge has affirmed the decree of the Subordinate Judge on an entirely different ground. He does not discuss the question of the effect of the letters from the plaintiff to the defendant dated the 3rd December 1914 and the letter from the defendant to the plaintiff dated the 8th December 1914. He proceeds on the ground that when, on the 8th April 1916, the defendant called upon the plaintiff to repair the house thoroughly and the plaintiff did not comply with the request, the defendant became entitled to vacate the premises.

2. On the present appeal we have been invited to consider, whether the view taken by the District Judge is correct and whether the decree of dismissal could be supported on the ground assigned by the District Judge. In our opinion it is plain that the decree of dismissal cannot be supported on either of the grounds mentioned in the Courts below.

3. As regards the view taken by the District Judge, it is plain that the plaintiff was under no obligation, contractual or statutory, to effect the repairs of the house. In this connection reference may be made to Clauses (e), (f) and (m) of Section 108 of the Transfer of Property Act. Clause (e) is in these terms :--'If by fire tempest or flood or violence of any army or of a mob or other irresistible force, any material part of the property be wholly destroyed or rendered substantially and permanently unfit for the purpose for which it was let, the lease shall, at the option of the lessee, be void; provided that, if the in jury be occasioned by the wrongful a t or default of the lessee, he shall not be entitled to avail himself of the benefit of this provision '. Clause (f) is in these terms:--'If the lessor neglects to make, within a reasonable time after notice, any repairs which he is bound to make to the property, the lessee may make the same himself, and deduct the expense of such repairs with interest from the rent, or otherwise recover it from the lessor '. Clause (m) is in these terms :--'The lessee is bound to keep, and on the termination of the lease to restore, the property in as good condition as it was at the time when he was put in possession in subject only to he changes caused by reasonable wear and tear or irresistible force.' It is plain that none of these clauses entitles the lessee to call upon the lessor to repair the property. In fact, unless there is a contract to the contrary, the lessor is not necessarily bound to make any repairs whatever. This is clear from a long series of decisions of great authority.

4. In the absence of a contract to do repairs t or of an obligation imposed by Statute, there is no obligation on the part of a landlord to put premises into habitable condition Chappell v. Gregory (1864) 34 Beav. 250 : 55 E.R. 631 : 145 R.R. 5014, or to do any repairs whatever upon them, Gott v. Gandy (1853) 2 El. & Bl. 845 : 2. C.L.R. 392 : 23 L.J.Q.B. 1 : 18 Jur. 310 : 2 W.R. 38 : 118 E.R. 984 : 22 L.T. (O.S.) 97 : 95 R.R. 848, though by neglecting to do so they become-uninhabitable Arden v. Pullen (1842) 10 M. & W. 321 : 11 L.J. Ex 359 : 152 E.R. 942 : 62 R.R. 627. In fact, as stated in Barker v. Barker (1828) 3 Car. & P. 557 the landlord has no right to go upon the premises, if he desire to make repairs, and, if he do so in the absence of an express power in the lease he will be guilty of a trespass and may be restrained by injunction, although the non-repair may cause a forfeiture of his own lease Stocker v. Planet Building Society (1879) 27 W.R. 877. On the other hand, the implied obligation of a tenant from year to year is to keep the premises wind and water-tight Anworth v. Johnson (1832) 5 Car. & P. 239 : 38 R.R. 821; Leach v. Thomas (1835) 7 Car. & P. 328 : 48 R.R.790; Wedd v. Porter (1916) 2 K.B. 91 at p. 100 : 85 L.J.K.B. 1298 : 115 L.T. 243, and to make fair and tenantable repairs Cheetham v. Rampson (1791) 4 T.R. 318 : 11 R.R. 397 : 100 E.R. 1041; Gregory v. Mighell (1811) 18 Ves. 328 : 11 R.R. 207 : 34 E.R. 341, as by putting fences in order or replacing windows or doors that are broken during his occupation, of cleansing drains and sewers, Russell v. Shenton (1842) 2 G. & D. 573 : 3 Q.B. 449 : 11 L.J.Q.B. 289 : 6 Jur. 1059 : 114 E.R. 579 : 61 R.R. 249.

5. In the case before us there was no covenant to repair and the lessor could not be called upon by the lessee to effect any repairs. But even if the lessor was under an obligation to effect the repairs and failed to comply with the request of the lessee, the lessee was not entitled to terminate the tenancy. Under Section 108 he could remedy the breach himself, after giving a reasonable notice to the lessor and to recover the amount expended by him together with interest either by deducting it from the rent or otherwise.? It is not suggested that if a tenant had taken a house which is out of repairs, he should put it in repairs when 1he lease comes to an end; but he is hound to maintain and restore the property in the condition in which it was when it was leased out to him. If the building, when demised, was an old one, and there was a covenant to repair it is not necessary that the old building should be delivered up in a renewed form: Lister v. Lane (1893) 2 Q.B. 21 : 62 L.J.Q.B. 583 : 4 R. 474 : 69 L.T. 176 : 41 W.R. 626 : 57 J.P. 725. The position is thus clear that the lessee was not entitled to terminate the lease on the ground assigned by; the District Judge.

6. We have next to consider the ground assigned by the Subordinate Judge. The Subordinate Judge has held that there was a completed contract for the lease and that consequently the letter of the 8th December 1914 should not be received in evidence, as it was neither stamped nor registered. In support of this proposition he has placed reliance upon the decisions in Boyd v. Kreig 17 C. 548 : 8 Ind. Dec. (N.S.) 905; Hemanta Kumari Debi v. Midnapur Zemindari Co. 28 Ind. Cas. 879 : 19 C.W.N. 347 : 22 C.L.J. 44 and Hemanta Kumari Debi v. Midnapore Zemindari Co. 53 Ind. Cas. 534 : 47 C. 485 : 37 M.L.J. 525 : 17 A.L.J. 1117 : 24 C.W.N. 177 : (1920) M.W.N. 66 : 27 M.L.T. 42 : 11 L.W. 301 : 46 I.A. 240 : 31 C.L.J. 298 : 22 Bom. L.R. 488 (P.C.). The letter of the 3rd December 1914 was in these terms: 'I beg to inform you that I shall be glad to do the necessary electric wiring on your assuring me that you will continue to be tenant for a further period of three years after the expiration of the lease. I require this assurance, as on the present terms of the lease, I have not to do any repairs or works in the building as long as the current agreement lasts.' The reply dated the 8th December was in these terms:' I am prepared to continue the lease for three years and would like sanction at once to start work on the' electric wiring, as at present it is unsafe.' Let us assume that the effect of this correspondence was to create a present demise, subject to the reservation that the commencement of the lease was postponed till the date of expiry of the term then current. Assume also that this document required registration. Still, that does not furnish an answer to the suit for specific performance. A suite for specific performance lies when the lease essential for the completion of the contract has not been executed, and if there is a valid enforceable contract, either party is entitled to call upon the other to complete the transaction by the execution and registration of the document of title; Puchha Lal v. Kunj Behary Lal 20 Ind. Cas. 803 : 19 C.L.J. 213 : 18 C.W.N. 445; Mahomed Musa v. Aghore Kumar Ganouli 28 Ind. Cas. 930 : 42 C. 801 : 21 C.L.J. 231 : 17 Bom.L.R. 420 : 28 M.L.J. 548 : 19 C.W.N. 250 : 13 A.L.J. 229 : 17 M.L.T. 143 : 2 L.W. 258 : (1915) M.W.N. 621 : 42 I.A. (P.C.); Maddison v. Alderson (1883) 8 App. Cas. 467 : 52 L.J.Q.B. 737 : 49 L.T. 303 : 31 W.R. 820 : 47 J.P. 821 and. Venkayyamma Rao v. Venkatanarasimha Appa Rao 34 Ind. Cas. 921 : 39 M. 509 at p. 525 : 20 C.W.N. 1054 : 14 A.L.J. 797 : 31 M.L.J.58 : (1916) 2 M.W.N. 23 : 20 M.L.T. 137 : 4 L.W. 58 : 18 Bom. L.R. 651 : 24 C.L.J. 279 : 43 I.A. 138 (P.C.). From this point of view, the conclusion of the Subordinate Judge cannot be supported.

7. But we are of opinion that, in the events that have happened, this is not a case in which we should make a decree for specific performance. The condition of the house in 1916 was such that no Court of Equity would force it upon the intending lessee. The evidence makes it abundantly clear that the roofs of some of the rooms came down during the rains of 1916. We have no information as to the present condition of the house, and it is impossible for us to decree specific performance of the agreement which forms the foundation of the claim. This, however, does not justify the conclusion that the plaintiff is not entitled to any relief. As the agreement cannot be specifically enforced, the defendant Company cannot claim the position which they would have occupied if the requisite document had been executed and registered. Their position in law, consequently, was that after the expiry of the lease on the 31st October 1915 they were tenants from month to month. They held over upon payment of rent to the landlord. Hence under Section 116, Transfer of Property Act, the lease was renewed from year to year or from month to month according to the purpose for which the property was leased as specified in Section 106. Thus, although the original term vas for three years, the defendant Company became tenant from month to month under Section 116 read with Section 106; Troilokya Nath Roy v. Sarat Chandra Banerjee 32 C. 123 : 8 C.W.N. 901. That tenancy could be terminated by a notice to quit as pre-scribed in Section 106. Under that section a lease of immoveable property from month to month is terminable, on the part of either lessor or lessee, by 15 days notice expiring with the end of a month of the tenancy. In the present case, the notice which was served was no doubt a notice of a longer duration than 15 days. But it did not expire with the end of a month of the tenancy. The notice was thus inoperative in law and the tenancy had not been legally terminated when the defendant Company vacated ' the premises. In these circumstances, the plaintiff is entitled, not to rent for the remainder of the term, but only to damages, as explained in the case of Jogendra Krishna Roy v. Kurpa Harshi & Co. 68 Ind. Cas. 993 : 49 C. 345 : 35 C.L.J. 175 : (1923) A.I.R. (C) 63. Where the term of a tenancy, under which rent is payable periodically, is brought to a, premature termination, the lessor is entitled to damages and not to rent for the unexpired term of the lease. Even the acceptance of surrender does not preclude the lessor from suing for damages for breach of the contract; it does not destroy the existing cause of action. This conclusion is in conformity with the decision in Gray v. Owen (1910) 1 K.B. 622 : 79 L.J.K.B. 389 : 102 L.T. 187 : 26 T.L.R. 297. The plaintiff was bound to let out the house after the defendant Company had vacated it, even though unlawfully, and thereby to minimise the damage. We are consequently of opinion that the plaintiff is entitled to damages inasmuch as the defendant Company vacated the premises before the lease had been lawfully terminated. We assess the damages at Rs. 400.

8. The result is that the decree of the District Judge is set aside and the suit is decreed for Rs. 400. Each party will pay his own costs in all the Courts. Costs, it already recovered, will be refunded.

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