ALANDURAIAPPAR KOIL CHITHAKKADU Vs. T S A HAMID

JUDGEMENT

(1.) THIS appeal is directed against the judgment and decree of the learned subordinate Judge, Mayuram, in O. S. No. 18 of 1956. The suit was filed for the recovery of Rs. 10,243-8-0 due as arrears of lease. The plaintiff is a temple, Sri alanduraiappar Koil, Chuhakkadu, represented by its present trustees, plaintiffs 1 to 5. The 2nd defendant is the minor son of the first defendant. The temple owned a property called Shandy tope inside Mayuram municipality where fairs are held every Monday and where there are also some shops for carrying on daily sales. The right of collecting dues from the stall-keepers in the market as well as in the shops used, to be leased out. In an auction held on 24-2-1952, the first defendant took this on lease for a term of five years from 1-4-1952 at an annual rental of Rs. 12,000. However, the registration of the lease deed took place only on 12-9-1953. The first defendant became a defaulter, and on 1-1-1956, the arrears of rent stood at Rs. 10,203-8-0. The plaintiff sent a notice demanding these arrears on 4-11956. The first defendant sent at reply on 9-1-1956 requesting for remission, and then he prayed for time till 31-3-1956 for payment of arrears. Since the first defendant became a defaulter, the plaintiff decided to determine the lease. That was done by notice dated 17-2-1956. The arrears upto the date of the determination of the lease came to the suit amount. The plea of the first defendant which was adopted by the 2nd defendant was this. The shandy tope originally fetched only a lease of Rs. 300 a year, and in 1946, the first defendant's brother took the lease at Rs. 4500 for five years from 1948 to 1952. The bid was pushed upto Rs. 12000 for the suit period on account of unhealthy competition. After the lease period commenced, there was an unexpected and unprecedented cyclone in November 1952 and it caused damage to the buildings in the tope. The trees fell down on the roofs, and the market became slushy and water logged. The defendant requested the plaintiff to attend to the repairs but he would not do so. The defendant had to spend a good amount of money for effecting the necessary repairs. As a result of the cyclone, the business in the shandy became poor, and the defendant sustained heavy loss. He wrote letters on 12-11-1953 and 24-11-1953 to the plaintiff referring to the loss, and requesting him to grant a proportionate reduction in the lease amount. But the executive officer of the plaintiff temple issued a notice on 30-11-1953 to the defendant demanding the arrears. According to the first defendant, on account of the cyclone, the fundamental basis for the contract became altered, and the contract became impossible of performance due to circumstances which the defendant could not prevent. The defendant also applied to the Deputy commissioner of the Hindu Religious and Charitable endowments board for remission, but no relief was given. There was a second cyclone on 30-11-1955, which caused damage to the goods, and the sandy did not resume its normal business thereafter. In view of the above circumstances, the claim for the arrears was denied. There was also another plea by the defendant that on account of an earlier notice by the plaintiff on 2-12-1953 stating that the lease was cancelled, the lease became determined on 2-12-195? itself.

(2.) THE trial court came to the conclusion that the plea last mentioned about the determination of the lease in 1953, was not sustainable, because even after that notice, the defendant continued to occupy the shandy on the same terms as under the original lease. This point is not now before us in this appeal. The lower court went at length into the claim of the defendant for remission on account of the cyclone. It came to the conclusion that the defendant did suffer loss on account of the two cyclones. It accepted the entries in the defendant's account books, which showed that the defendant had spent more than two thousand rupees in putting up the sheds and the mercury lamps immediately, after taking the shandy on lease, and that he had to spend more than five thousand rupees for putting up sheds immediately after the cyclone of 30-11-1952. The trial court considered this expenditure and also the loss which according to the accounts of the first defendant was sustained for a period of one year from the commencement of the lease, and came to the conclusion that Rs. 6000 should be granted to the first defendant by way of remission to the end of November, 1953. There was next the cyclone in 1955. It affected the supply of merchandise from outlying places to the shandy. The sale of tickets for the sale of such merchandise fell considerably in 1955-56. The trial court was inclined to grant one thousand to the defendant for the loss caused by the cyclone of 1955. The trial court considered that the defendant could claim these amounts because of the application of the principle of frustration under Section 56 of the Indian Contract Act; in the instant case, the promisor could not fulfil his promise on account of the two cyclones. Therefore a decree was passed reducing the suit claim by Rs. 7000 by way of remission. The plaintiffs have filed the appeal against the above decision.

(3.) THE learned counsel for the appellants urged that the terms of the lease should be strictly interpreted; they did not provide for remission in the event of loss or damage sustained by the defendants due to causes like cyclones. Further, the circumstances of the case did not justify the application of the principle of frustration under Section 56 of the Indian Contract Act. The points for consideration in this appeal are: