KAMALA BANJAN ROY Vs. BAIJNATH BAJORIA

JUDGEMENT

(1.) This is an appeal by the defendant in a suit for specific performance against the judgment and decree of the High Court of Judicature at Fort William in Bengal (Sir Trevor Harries C. J. and Mukherjea J.) dated 30-5-1948, dismissing his appeal and confirming, with certain modifications, the judgment and decree for specific performance passed by Ormond J. on 24-1-1947. There is no substantial dispute as to the facts leading up to the suit out of which the present appeal has arisen and they may shortly be stated :

(2.) Maharaja Sris Chandra Nandy of Cossimbazar is the owner of premises No. 374, Upper Chitpur Road, in the town of Calcutta (hereinafter referred to as the "said premises"). By an indenture of lease made on 27-4-1931, the Maharaja as manager of the Cossimbazar Raj Wards Estate which was then under the management of the Court of Wards demised the said premises to one Madan Gopal Daga for a term of 51 years commencing from 1-5-1931, at and for the monthly rent of Rs.1,083-5-3 and upon terms and conditions contained therein. By sub-cl. (6) of cl. 2 of the said indenture the lessee covenanted, amongst other things

(3.) On 13-7-1945 the lessor's suit for ejectment was settled by the defendant consenting to a decree for Rs. 59-213-11-0 for arrears of rent which was paid up. There is no dispute that the forfeiture of the lease for non-payment of rent was waived and the lease was accordingly revived. Shortly after the settlement of the ejectment suit the defendant on 6-8-1945 applied to the lessor for his consent to the assignment of the lease and on the same day the lessor in reply declined to give his, consent without assigning any reason whatever. The suit for specific performance came up for disposal before Ormond J. in November 1946 when it was heard in part and was adjourned. It was eventually further heard in January 1947 and finally, disposed of on 24-1-1947 when Ormond J. passed a decree against the defendant for specific performance of the agreement. The decree provided that in the event of the defendant being unable within a fortnight from the date of the decree to obtain the written consent of the- lessor the assignment should be made without such consent. The defendant appealed. After two days' hearing, "in order to clear up the matter" the appeal Court gave the plaintiff "an opportunity to examine the Maharaja as a witness in this case so that all relevant facts might be brought out and placed before the Court for the purpose of enabling it to come to a proper decision on this point." The appeal was accordingly adjourned and the lessor was examined on commission and his evidence was fled in the proceedings. After further hearing the appeal Court dismissed the defendant's' appeal and confirmed the decree for specific performance of the agreement without the need for obtaining the consent of the lessor prior to the execution of the deed of assignment in favour of the plaintiff. This decree was subsequently amended by inserting therein a provision enabling the plaintiff to set off from the purchase price the amount of rent payable as and from 1-2-1945 until the date of conveyance less all outgoing and interest on the purchase price at 4 per cent. per annum from that date to the date of the conveyance. The defendant has now come up before us in appeal from the judgment and decree of the appeal Court.