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Gopiram Bhotica Vs. Bisseswar Dutt - Court Judgment

LegalCrystal Citation
Decided On
Reported inAIR1926Cal546,93Ind.Cas.81
AppellantGopiram Bhotica
RespondentBisseswar Dutt
Cases ReferredRamjoo Mahomed v. Haridas Mullick
registration act (xvi of 1908), section 17, 49 - letter of instruction to draw up lease unregistered--admissibility in evidence--landlord and tenant--eviction, meaning of--termination of lease by tenant on eviction--repairs, right of tenant to effect. - .....building itself in consequence of the wrongful acts of the defendant.2. the plaintiff sets up an agreement for lease on the 23rd march 1922, the agreement being made between the plaintiff on the one hand and the defendant's son, chunilal, on the other. under the terms of the agreement rs. 300 was paid in advance as a de-.posit to be set off against the last month's rent. the defendant, according to the plaintiff, went into possession on the 29th. march 1922, from which date three years was to commence, but he remained there only until the 3rd of march 1924, on which date admittedly he left the premises. subsequent to his leaving, the plaintiff says, he was unable to re-let the premises until some time in january 1925 when he obtained a tenant at the rate of rs. 211 : consequently after.....

Pearson, J.

1. In this suit the plaintiff claims certain rent in respect of premises No. 176. Harisson Road, together with a certain sum as compensation for wrongful repudiation of the lease and for damage to the building itself in consequence of the wrongful acts of the defendant.

2. The plaintiff sets up an agreement for lease on the 23rd March 1922, the agreement being made between the plaintiff on the one hand and the defendant's son, Chunilal, on the other. Under the terms of the agreement Rs. 300 was paid in advance as a de-.posit to be set off against the last month's rent. The defendant, according to the plaintiff, went into possession on the 29th. March 1922, from which date three years was to commence, but he remained there only until the 3rd of March 1924, on which date admittedly he left the premises. Subsequent to his leaving, the plaintiff says, he was unable to re-let the premises until some time in January 1925 when he obtained a tenant at the rate of Rs. 211 : consequently after that time he is only claiming damages for the difference between Rs. 300 and Rs. 211.

3. According to the plaintiff, the arrangement as regards the lease was arrived, at between himself and Chunilal some days before the defendant went into possession. The terms having been settled, they repaired to the office of Mr. N. C. Bose and asked Mr. A. C. Bose to draw up a lease. Mr. A. C. Bose sent them off to his assistant, Chandi Babu, who thereupon prepared the document which is Ex. A to the plaint and which contains the terms which had been, agreed upon between the parties. They then went back to Mr. A. C. Bose with the, papers, and he after explaining it added the, last two clauses, Nos. 6 and 7, and then took the signature of the defendant by the pen of Chunilal. On the same day, it is said, Chunilal deposited Rs. 300 : that is according to the plaintiff's story; the defendant, himself says that the deposit was made on the 21st.

4. The defence has taken the point that there was no concluded agreement; and if there was, he was justified in leaving the premises by reason of the plaintiff's action in not putting the house in proper repair and secondly by making it unfit for the purpose for which it was taken; and whether there was, a lease or not, he says by reason of that he was entitled to leave the premises as he did upon a short six days' or seven days' notice. The story set up by the defendant is that he entered the premises not under an agreement for lease at all, but that he was there as a monthly tenant, and entered into occupation as such after having paid the Rs. 300 which he says was paid on the 21st March 1922. Then he says that after entering into occupation, negotiations took place between him or rather Chunilal and the plaintiff with reference to this, three years' lease, and that the letter, to which I have already referred, was in the nature of an, offer made by Chunilal in the course of, these negotiations. He also says that the letter was never explained to him, and he further adds that the signature on the letter was put subject to the approval of the terms by the defendant himself, and it is not binding on the defendant because, Chunilal was never authorised to write such a letter. This part of the defence, as appearing in the written statement, has been abandoned, and I suppose it may be assumed that the defence is incapable of supporting it considering that Chunilal held, the defendant's power-of-attorney. At any rate, after having put it forward, it is in fact not supported by the defendant in this Court. Then the defendant goes on to say that he refused to take the lease because he required the premises for carrying on his business in piece-goods and not for residential purposes as stipulated by the plaintiff; also because the house was defective in sanitary arrangements, and repairs were not made satisfactorily. Consequently he refused to approve the terms and execute and register the lease. At the time when Ex. A to the plaint was tendered, objection was taken to it that it was not admissible in evidence' under Section 49 of the Registration Act inasmuch as it had not been registered. I was referred to a recent case on the subject, the judgment by my learned brother Mr. Justice Page reported as Ramjoo Mahomed v. Haridas Mullick 91 Ind. Cas. 320 : 52 C. 695 : A.I.R. 1925 Cal. 1987. where he considers various cases in which the question of such admissibility is raised in the various cases where there is or is not an immediate interest created by the document amounting to a present demise; These cases, in my judgment, do not really touch the present case because here the document with which I am concerned in this suit is not a demise at all but is merely in form and in substance a letter of instruction written by the defendant to the plaintiff's Solicitor asking him to draw up a lease containing certain terms which had been agreed between the parties and holding himself responsible for the costs; and I, therefore, admit the document in evidence.

5. The evidence given by the plaintiff in support of his case in regard to the circumstances surrounding the writing and signing of this document has been corroborated by Mr. Chandi Charan Dey and Mr. A. C. Bose himself. Taking the evidence of these gentlemen all together, it is, in my opinion, quite impossible to hold that there is any question of the defendant not understanding the document before signing it. I have no doubt, in fact, that it was fully explained to him and he perfectly understood what he was doing. The defendant is a man of mature age and quite capable of looking after himself in a matter of this kind and is a man of business. On that ground alone it is impossible to believe that he could have signed such a document without really satisfying himself of what the contents were. The case that he makes that it was not explained to him, he did not understand it, I cannot accept. The case he makes that at the time it was signed it was signed subject to the approval by the father of the defendant, has not been supported by him.

6. It is argued on behalf of the defendant that the plaintiff cannot succeed in the suit because there was never a concluded agreement between the parties inasmuch as the parties were never really agreed on the terms. The argument is mainly based upon the first clause appearing in the letter annexed to the plaint, the letter Ex. A. This contains the provision that the defendant was to use the premises for dwelling purposes only. It is common ground in the evidence that the defendant formerly had his guddi elsewhere and required the premises in suit for the purpose of his guddi an, well as for living in. He had a piece-goods challani business in the course of which he had to handle certain piece-goods by bringing them into the shop-room and making them up into bundles and despatching them again. I think it is quite clear from the evidence that has been given and the surrounding circumstances, that what is intended between the parties in so far as that term is concerned was that the defendant was to, be confined to using it for residential purposes or for purposes of the guddi; he was not to use it in any way as a store godown or a warehouse. That, I think, appears quite clearly from' the evidence and the surrounding circumstances in which the parties found themselves at the time. In point of fact, the defendant did go into occupation, did have his guddi there, did continue to handle goods there for the best part of two years and without any exception being taken to it by the plaintiff. Moreover, it appears that, in fact, the guddi itself was used by the defendant for dwelling purposes, in that Chunilal and the gamastas used to live there and sleep(sic)ed I, therefore, think there was and is no confusion as regards the' meaning of this clause. I think that both the parties, understood what was meant and have acted accordingly. There is no doubt in my view, that in this respect there was a concluded agreement between the parties.

7. So far as the correspondence goes, which has been put in, the letter of the 23rd August 1922 is a letter from the defendant's attorneys, which, certainly assumes that there is a lease existing between the parties which was approved by Chunilal; and reading that letter one would certainly assume that the defendant's attorneys understood that the only thing remaining with which they were concerned was that the agreement for lease having been made and the tenant having gone into possession, the formal lease should be drawn up, in which matter they were themselves to act. Then there is a certain amount of correspondence which took place in June 1923, beginning with a letter from the defendant's attorneys saying that he wants to leave the premises on account of the inconvenience that he feels firstly because of the foul smell and secondly because of the bad state of repairs. The reply to that is that the agreement is for three years. The defendant does not say that he is in possession as a monthly tenant, and that the question of the agreement only arose after that, and was never completed. What he does say is that the defendant is an old man of 80 years, living at Ranaghat, and, therefore, he cannot understand how he could ever have made an agreement. The last letter of that series is dated 21st June, in which the plaintiff's attorneys wrote saying that the lease was made verbally, that instructions were given in writing by Chunilal and that he is willing to allow inspection. No further steps were taken at that time by the defendant, and nothing further happens until the 27th February 1921 when a further letter is written by the defendant's attorneys complaining of inconveniences due to the execution of certain works in the premises, saying that the premises are in a dangerous state and in sanitary and no longer fit for habitation. The first of these referring to the execution of certain works related to the demolition of the south wall of the premises occupied by the defendant, with the result that the staircase had to be in some manner propped up, and as Mr. Johnstone, the defendant's Engineer, says there was indeed a certain amount of danger due to what had happened, because anybody carelessly carrying a bale or bundle past might have run into one of the props, and the prop being dislodged, the whole staircase might have fallen down. The evidence snows that this demolition and the work in connection with it had begun as early as the previous December, and if things were bad as the defendant will now have it, it seems to ma unlikely that he would have allowed so long a time to pass before taking any exception to what was going on. Indeed the plaintiff's story is that the work was undertaken, in fact, at the request of the defendant for his benefit. Whether that is so or not, I am not inclined to hold that the matter of the staircase gave the defendant any serious trouble in his business, or constituted a justification for the action that he took in giving, up the tenancy. As to the insanitary privy, that appears to have been insanitary in the same way at the time when the defendant entered upon the premises. If he put up with it for two years I do not see why he could not put up with it for another year. In connection with the staircase, I might point out that Mr. Johnstone in his report says that by reason of the work undertaken by the plaintiff, it would have been impossible to carry up bales of merchandise up the staircase; but the defendant in his evidence, said that that was not a matter which was ever necessary in the course of his business and that in point of fact bales of merchandise were not carried up the staircase.

8. Then various complaints have been made by the defendant as regards the repairs. He says that he stipulated at the beginning of his lease that the plaintiff should carry out certain repairs which he failed to do. He says the arches were cracked, the roofs were leaking and several defects existed of that nature. He admits that the plaintiff put on a coat of whitewash before he went into possession. He seems to have been satisfied with the coat of whitewash for months and months and in fact never took exception to the state of repairs in writing until the letter of the 8th June 1923 when he makes a general allegation of that kind.

9. So far as any complaint as regards repairs is concerned, it seems tome that that matter is really irrelevant to the matter in issue in this suit, because if they were necessary repairs which should have been carried out by the landlord, the tenant himself could have carried them out and deducted the amount from the rent. The only question is whether the circumstances of the case show to an eviction of the tenant by the landlord. If so, then the tenant may be justified in terminating the lease in the manner he did. It is perfectly true that to constitute an eviction the physical act may not be necessary; and that all that is necessary is some act which constitutes a substantial interference of a permanent nature with the legal right of the tenant to enjoyment of the premises during the term. In the circumstances of this case I do not think it can be said that the action of the landlord or the men of the landlord can be said to have constituted such a substantial interference as to entitle the tenant to terminate his tenancy in the way he did.

10. I hold that there was a concluded agreement between the parties and hold that the defendant was not justified in leaving the premises as he did. In the result, the plaintiff is entitled to a decree for the amount of his claim less the sum of Rs. 150 and Rs. 80 which he claims in para 5 and as to which he has given no evidence in the case. Decree accordingly for Rs. 3,822-8-0, costs on Scale No. 2, interest on judgment at 6 per cent.

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