BREUL AND CO Vs. HAJI SIDICK HAJI IBRAHIM

JUDGEMENT

(1.) Almost all the material facts in this case are either admitted or undisputed. The plaintiffs in this suit, Messrs. Breul & Co., a well-known firm of merchants carrying on business in Bombay, seek to recover from the defendant, who is a dealer in sugar in a very large way of business, the sum of Rs. 3,300, alleging that that sum is due to them either as rent or as compensation for use and occupation of a certain godown in Clive Road for the months of December 1908, and January a February, 1909 at the rate of Rs. 1100 per mensem.

(2.) The godown in question is built on land leased out originally by the Trustees of the Port of Bombay to one Mulji Jivraj in the year 1883. This lease with the godown on the land, was about five years ago acquired by Mr. Luckumsey Napoo. Mr. Luckumsey let this godown to the plaintiffs for twelve months certain from the I April, 1908 up to the 31 of March 1909 at a monthly rent of Rs. 1100. Messrs. Breul and Co. in their turn let the godown for the same rent from the I May, 1908 for the remaining period of their lease to the defendant. The defendant used the said godown for storing sugar bags in it and has paid to the plaintiff the rent of the godown up to the 30 of November 1908.

(3.) On the 5 of December following, there was a fire in the godown. The fire destroyed the roof and several doors and windows and the sugar stored in the godown was partly burnt and partly damaged by fire and water. At the same time the fire took place, there were in the godown 44,186 bags of sugar. The sugar seems to have been in bags that had three coverings, first, a gunney, over it, matting, and then over the matting, another gunney. It appears that immediately after the fire the salvage corps of the Insurance Company or Companys with whom the sugar had been insured, took possession of the godown and the goods in it. The insurers at first seem to have intended to deal with the sugar themselves but four days after the fire they changed their minds and sold the sugar in the godown to one Haji Gulam Mahomed Azam, who is also a large dealer in sugar. On the 9 of December 1908 all the sugar belonging to the defendant that was damaged by the fire of the 5th, was sold by the Insurance Companys to Mr. Gulam Mahomed Azam for Rs. 1,35,000. Gulam Mahomed paid Rs. 50,000 on the 10 of December and the balance of Rs. 85,000 on the 11 December, and possession of the godown with the sugar in it was given to him. On getting possession Gulam Mahomed commenced to sort the sugar according to the extent of damage d one and to put the same in new bags. There was no room in the beginning to do this work in the godown itself and therefore a neighbouring godown was engaged and the work of refilling bags was carried out there for about fifteen days. Afterwards there being room in this godown, the operation of sorting the sugar and putting it in new bags was carried on in this godown. Gulam Mahomed intended to export this sugar and claim refund of Town Duty from the Municipality, and, in order to avoid any possible question about the identity of the sugar, he asked the Municipality to send one of their men to supervise the refilling of the bags and to put proper Municipal marks on the new bags. Accordingly, one Narain Rukhmaji was deputed by the Municipality to attend to this work. He attended from the 15th of December up to the 15 of February. From the 16 of February till the 28 he did not attend because he says he was not called. On the first and second of March he attended again but that was in the other godown and not in the godown that was burnt. According to his book, Ex. No. 11 and his evidence, it appears that Gulam Mahomed refilled the damaged sugar in 26,040 bags and took them away to his own godown. After the fire, Messrs. Breul & Co. on the 10 of December 1908 wrote a letter to Mr. Luckumsey Nupoo asking him to note that the agreement between them had ceased owing to the fire. Luckumsey Napoo immediately replied stating that the godown was occupied by sugar bags and other kachra and gave notice to Messrs. Breul & Co. that he would hold them responsible for the rent of the godown till such time as the godown was cleared and possession of it given to him. See Exs. A and B. The defendant, however, appears to have done nothing till the 9 of January 1909 when he wrote a letter to the plaintiffs stating that as the godown was destroyed by fire he had exercised his option to terminate the tenancy and the same was at an end. This was written by him in reply to a demand for the payment of rent for the month of December. The defendant in his written statement set up a case in the first instance that he had given verbal intimation of the exercise of his option on the day following the fire. That was the case of the defendant at the first hearing on the 1 0 th of December. On the following day, however, Mr. Jinnah, on behalf of the defendant, abandoned his contention that his client gave notice on the day following the fire and said that he would proceed on the basis that the notice was first given on the 9 of January 1909. The plaint as originally filed confined the claim to one of rent under the sub-lease to the defendant. When the defendant's counsel on the second day raised another issue specifically, putting forward his contention that in any event the defendant was not liable on the agreement after his notice of the 9 of January 1909, the learned counsel for the plaintiff thought it safer to put his case in the alternative and based his claim on the use and occupation of the godown after fire. I gave permission to the plaintiff to amend his plaint and allowed the defendant to put in a supplemental written statement. Rule 17, Order VI of the Civil Procedure Code empowers the Court to allow either party to amend his pleadings, as may be necessary for the purpose of determining the real question in controversy between the parties. And the rea questions between the parties in this case seemed to me to be whether the defendant was liable to pay to the plaintiff any, and if so, what sum either by way of rent or as compensation for use and occupation of his godown, after the fire. After the plaint had been amended and supplemental written statement put in more issues were raised, but it seems to me the question that is before the Court is not one of much difficulty. Once the questions of fact are ascertained, the only question is one of law and of construction of certain clauses in Section 108 of the Transfer of Property Act. As to the facts, as I have said above, most of them have either been admitted or are undisputed. The only question on which the parties were at difference at the hearing was as to when Luckumsey Napootook possession of his godown. According to Mr. Luckumsey's evidence, clear possession of his godown was not given to him till about the beginning of March and he claims to recover from the plaintiffs rent of his godown up to the 10 of March. Now there is no doubt on the evidence that is before me that Mr. Luckumsey got admission into his godown somewhere about the middle of February. This Mr, Luckumsey himself admits but he says it took him twenty days to clean the godown and remove the kachra from it and he claims to be entitled to payment up to the period inclusive of the days which he says were occupied in cleaning the godown. On the 19 of February 1909 he himself wrote a letter, Ex. No. 2, wherein he informs the plaintiffs that their subtenants had removed the bags of sugar lying there but he complains that they had left kachra both in and outside the godown. In the course of his evidence he explained that that letter was written by him on information received from Gulam Mahomed Azam's man but that when he went to the godown he found that there were about a thousand bags of sugar still in the godown and that Gulam Mahomed's men were collecting the semi-liquid stuff on the floor. He admits however, that from the 30 of February he began removing the roof debris and the kachra from the godown. In the course of the hearing Mr. Inverarity for the defendant, laid great stress on the fact that some of the roof debris must necessarily have fallen into the godown itself and remained there. And he emphasized the fact that it was Luckumsey's duty to remove the debris and his argument, if I understood aright, was that while the debris was there Luckumsey must be taken to be in possession of the godown. From what has been proved, it seems to me that although there may have been some burnt debris in the godown itself, that did not in any way prevent the use of the godown to which it was put by the insurers and their purchaser Gulam Mahomed. Luckumsey seems to have been most anxious to get back early possession of his godown, as he wished to rebuild the same and let it out again. He said his godown had before the lease to Braul & Co. fetched Rs. 1250 a month as rent and as a matter of fact after he rebuilt it, he has succeeded in letting it at a rent higher than what was paid to him by the plaintiffs. At one time he threatened that he would claim Rs. 2000 a month as rent, if possession was not given to him immediately. He seems to have made many attempts to get into the godown and take possession but Gulam Mahomed's men would not let him come in while their operations were going on. It is established that the bulk of the sugar had been removed from this godown by the 16 of February and very little remained in the godown. I have no doubt that the godown was left in very unclean condition when Gulam Mahomed's men gave up possession. But that must be partly due to the burnt debris of the roof and partly due to the kachra consisting of old burnt matting and gunney of the original bags. It must also be remembered that Luckumsey required possession for the purposes of repairing his damaged walls, replacing the burnt windows and doors and rebuilding the roof on the premises. For these purposes it was not absolutely necessary that the godown should be in a perfectly clean condition, for the building operations would necessarily be accompanied by certain amount of dirt and uncleaniness.