VASANT SAKHARAM SANAS Vs. CHABILDAS SOBHAGCHAND

JUDGEMENT

(1.) This is an appeal by the original defendant against the judgment and decree of the learned Extra Assistant Judge, Poona, in civil appeal No. 615 of 1966 confirming the decree passed by the 3rd Joint Civil Judge, Junior Division, Poona, in civil suit No. 207 of 1965 on the file of his Court, whereby the learned Civil Judge decreed the plaintiff -respondent's suit for specific performance of the suit agreement to lease and for possession.

(2.) BRIEFLY stated, the allegations on which the plaintiff -respondent's suit for specific performance of an agreement to lease and for possession was founded are these: It appears that in City Survey No. 122 of Bhavani Peth, Poona, there was a building which was originally owned by one Kamlabai Harilal Pandya. The entire structure being burnt down, the said property was purchased by the defendant. The defendant thereafter constructed a four storied building on the said open site. He secured the completion certificate from the Corporation of Poona on April 12, 1963 and let out some shops to other persons. On February 19, 1965, the plaintiff -respondent filed the suit giving rise to this appeal, for specific performance of an alleged agreement to lease two Galas from the said building and for possession. The plaintiff alleged that he was a tenant of one of the shops in the former building when it was owned by Kamalabai and was burnt down. He alleged that the defendant having purchased the property and asked him to vacate the burnt portion of the shop, he declined to do so. Thereafter he alleged that with the intervention of one Manikchand, he vacated the premises on the defendant having executed an agreement exh. 52P/1, dated July 26, 1960 to lease two Galas - to him. According to this agreement, after the reconstruction of a new building on the original site, the defendant was to lease to the plaintiff two Galas of his choice after securing the completion certificate of the Corporation, on a rent which might be mutually agreed upon between the parties.

(3.) ON the relevant issues settled for decision, the learned Civil Judge held that the suit agreement was proved and that the defendant has failed to prove that it was executed either as a result of any misrepresentation or coercion. He, therefore, held that the suit agreement was binding on the defendant. Dealing with the contention that the terms of the agreement are uncertain and incapable of being enforced, he held, that though the terms were wide and incomplete in certain respects, they did indicate a concluded agreement inasmuch as, although it was left to the lessor to lease the Galas of his choice, and the rent was not specified, the structure from which the two Galas were to be leased was specified, and in the absence of agreement, since the rent payable is the standard rent, the same could be fixed under Section 11 of the Act of 1947. On the question of jurisdiction he held that there was no substance in the contention of the defendant in view of the reported decisions in Shiavax Camhata v. Sunder das Ebji : AIR1950Bom343 and Baghuhir v. G.A. Fernandez : AIR1953Bom76 . He also repelled the contention of the defendant that the suit was barred by time. Consistently with these findings, he decreed the plaintiff's suit for specific performance of the suit agreement to lease and also for possession of two shop Galas.