KHIVRAJ CHORDIA Vs. ESSO STANDARD EASTERN INC.

JUDGEMENT

(1.) THE plaintiffs in O.S. No. 2434 of 1969 and the defendants in O.S. No. 98 of 1970 on the file of the City Civil Court, Madras, are the appellants in both the appeals. The appellants shall be hereinafter referred to as Khivraj Chordia. The respondents in both the appeals are Esso Standard Eastern Inc. hereinafter referred to as Esso. They were the defendants in O.S. 2434 of 1969 and the plaintiffs in O.S. 98 of 1970, Khivraj filed a suit for recovery of vacant possession of the suit site from Esso on the foot that the period of lease granted to them under Ex. A. 1, dated 16 -1 -1959, has expired by efflux of time and that Esso was no longer entitled either under law or by contract to remain in possession of the suit site in the absence of a renewal of the lease as contemplated therein. The prior correspondence between the parties such as Exs. A.2 to A.7, discloses the mind of Khivraj Chordia to obtain vacant possession of the site, which Esso resisted on the ground that under the terms of the lease deed Ex. A. 1 and in particular under clause 3 (d) of the same, they were entitled to be in possession of the same, and that they were not liable to be evicted. In answer to the suit for possession, Esso filed a replicatory suit O.S. 98 of 1970 seeking for specific performance of the contract to renew the lease under the terms of Ex. A.1 for a further period of 10 years commencing from 1 -2 -1969. Esso's main contention is that clause 3 (d) of the lease reflects 'certain' terms, which would compel Khivraj Chordia to cause a renewal of the lease in accordance with the tenor of the terms therein and the mere circumstance that Khivraj and Esso would not mutually agree to a just rent to be paid by Esso during the extended period of the lease sought to be demised would not compel them to surrender vacant possession. Thus, Khivraj Chordia's suit for eviction was countered by a suit for specific performance by Esso. These two suits were tried together and a common judgment was rendered by the court below, who framed the following issues for trial: O.S. 2434 of 1969:

(2.) THE learned Judge after interpreting the particular recital and covenant in Ex. A. 1, came to the conclusion that the suit for possession filed by Khivraj Chordia deserved a dismissal and that therefore of the Esso for specific performance merited a decree. In the result, he dismissed O.S. No. 2434 of 1969 and decree O.S. 98 of 1970, declaring that a rent of Rs. 2000 per month is the fair and reasonable rent, which in the circumstances, Esso should pay to Khivraj Chordia " and directed the latter to specifically perform the contract of lease by entering into lease with Esso for a period of ten years commencing from 1 -2 -1969 in respect of the suit site and made it clear that the other terms and conditions, other than clause 3 (d) as contained in Ex. A. 1, should be incorporated in the new lease deed to be executed as between the parties. He decreed the suit for specific performance with costs, but dismissed the suit for eviction without costs. As against this, the present two appeals have been filed.

(3.) MR . V. Thiruvenkatachari, appearing for Khivraj Chordia, after referring to clause 3 (d) of Ex. A, 1, which is the only clause, which has to be interpreted in these appeals, contends that the covenant for renewal is conditioned by the fixation of a rent, which is to be mutually agreed to between the parties having due regard to the rents prevailing in the same locality and that such a condition is an uncertain one within the meaning of Section 29 of the Indian Contract Act and as all contracts, which are uncertain or whose terms cannot be made certain, are void in the eye of law, the decree for specific performance asked for by Esso ought not to be granted and the relief for eviction prayed by Khivraj ought to have been given by the court below. Mr. Dulipsing, appearing for Esso on the other hand, would say that clause 3 (d) is not so very ambiguous or ambulatory so as to make the covenant projected therein as an uncertain one or a condition which could not be made certain by exercise of a reasonable mind to find out the real intention between the parties. According to him the clause as to fixation of rent provides the yardstick by which a just rent could be agreed to between the Arties and as the means to achieve that end is also contained in the said clause, it could be made certain by an easy process and as Khivraj was avoiding the adoption of such an agreed process to arrive at the equitable rent, he was avoiding the performance of the contract and that, therefore, the Esso's suit for specific performance has rightly been decreed.