MANICK LAL SEAL Vs. K P CHOWDHURY

JUDGEMENT

(1.) The defendants are the appellants before this Court. The plaintiff's suit was dismissed in the Court of the Munsif but in appeal in the Court of the Additional District Judge, 24-Parganas, the plaintiff K.P. Chowdhury was successful and his suit was decreed.

(2.) The plaintiff started the action against the two defendants, Maniklal Seal, the defendant No. 1 and his son Nemai Chand Seal, the defendant No. 2 for specific performance of an agreement for execution of a lease for 21 years by the defendant No. 2 in respect of the suit premises being a portion on the ground floor in the premises No. 2-B. Palit Street, Calcutta. To be very brief, the plaintiff's case in the plaint is that he was a sub-tenant under one Hemendra Nath Chowdhury, a tenant under the defendant No. 1, Manik and served a notice under Section 16 (2) of the West Bengal Premises Tenancy Act, 1956 upon Manik for being recorded as a direct tenant and that it was agreed by and between the parties that (i) the plaintiff would be a direct tenant under the defendant No. 2, (ii) the defendant No. 2 would execute a lease for 21 years relating to the suit premises with effect from 1st August, 1956 and (iii) the rent would be Rs. 125/-per month subject to enhancement of the same by Rs. 25/- every five years during the term of lease. The plaintiff also alleges in the plaint that in pursuance of the said agreement, he became a tenant from the 1st of August, 1956 on payment of Rs. 125/- per month. A draft of the lease was prepared and approved of by the defendant No. 2 with some additions and alterations and the same was returned to the plaintiff for finalising the same. According to the plaintiff, the deed was written on a stamp paper and sent to the defendant No. 2 for execution but the latter postponed the execution and registration on frivolous pretexts. The plaintiff asserts in his plaint that he has performed his part of the contract by payment of rent at the contractual rent of Rs. 125/- per month. The grievance of the plaintiff is that in spite of repeated requests, the defendant No. 2 failed to execute the lease but on the contrary the defendant No. 2 filed an ejectment suit against him and obtained a decree. The plaintiff filled an appeal but it was dismissed for non-payment of sufficient court-fees. The plaintiff started the present action after giving a letter to the defendant No. 2 on 25th August, 1961 for execution of the lease but the demand was unheeded. Briefly stated the case of the defendants is that there was a talk of lease but the proposal was abandoned as the plaintiff failed to pay Rupees 1000/- as selami. The plaintiff was, however, a monthly tenant at a rental of Rs 125/- according to English Calendar month from August, 1956. The defendant No. 2 filed a suit for eviction against the plaintiff for default in payment of rent and a decree was passed in Title Suit No. 15 of 1960. The plaintiff filed a petition under Sections 7 and 10 of the West Bengal Premises Tenancy Act for refund of excess rent and for fixation of standard rent before the Rent Controller. He also prayed for adjustment against rent paid in excess of Rs. 79/- in Title Suit No. 15 of 1960 in the Court of the 6th Munsif at Alipore. The contract for lease set up by the plaintiff has been denied the plaintiff's suit is described as frivolous meant to defeat the decree passed against him. Besides denying all material allegations of the plaint, the defendants have set up the ground of limitation. It has also been stated that the suit is barred by the principles of waiver, estoppel and acquiescence.

(3.) The trial court found on evidence that the talk of lease continued till December, 1956. It was also held that the plaintiff was an ordinary monthly tenant in the suit premises when he began possessing the suit property in August, 1956. On the point of limitation it was held that on the evidence of the plaintiff, the repudiation of the contract was clear from December, 1956 or in any view from early part of 1957 or soon thereafter when the defendant in spite of demand through the defendants' durwan, failed, neglected and refused to execute and register the lease. Moreover, the trial court was of the view that as discretion lay with the court to grant or not to grant decree for specific performance of contract, due to the conduct of the plaintiff, no decree could be passed. After the dismissal of the suit, the plaintiff appealed to the District Judge and the said appeal was allowed by an Additional District Judge. The learned Judge below was troubled by some delay in not getting the deed of lease executed. According to him, the date when the ejectment notice was served on the plaintiff before the institution of the suit by the landlord-defendant was the starting point of limitation. The learned Judge says in his judgment that if a suit is filed within the period of limitation as prescribed by Article 113 of old Limitation Act of 1908 as applicable in the present case, the plaintiff shall be entitled to have a decree for specific performance of contract. The suit is held to be within time. The learned Additional District Judge is of the opinion that the plaintiff was not guilty of any laches on his part and that he performed his part of the contract. In his view the prayer for specific performance of contract is not inequitable. In this view of the matter, the appeal was allowed and the plaintiff's suit was decreed.