NAVA KISHORE DAS Vs. MADAN MOHAN DAS GOSWAMI

JUDGEMENT

(1.) This appeal is preferred by the plaintiff and it arises out of a suit for specific performance of a contract for renewal of a lease executed by the predecessor-in-interest of the plaintiff, dated the 7 Jeistha 1318 B.S. The lease was to run for seven years from the first of Baisakh preceding. There was a clause in the lease of which the translation made by the Courts below fairly gives the terms. It is as follows : "If after the expiry of the term, I am desirous of keeping the land in my possession, you without settling the land with others should settle the land with me for the second time." The lease then provided that, at the time of the second settlement, the lessor would be at liberty to enhance the rent without any objection on the part of the lessee. The plaintiff is an assignee from the original lessee, and his assignment is dated the 28 of Falgun 1323 B.S. On the 24 of Magh 1324 B.S., the plaintiff served a notice on the defendant expressing his desire fore renewal of the lease, and it is stated that he asked for a renewal at the same rent for a period of ten years. The defendant, on the other hand, asked for rent at the rate of Rs. 12 per month. It follows, therefore, that the defendant did not grant a renewal as the plaintiff asked for, and hence the plaintiff commenced this action.

(2.) In his plaint, the plaintiff asked for a decree for specific performance of the contract for a renewal of the lease and his prayer runs thus: That a decree may be given against the defendants for a pattah in favour of the plaintiff for ten years from 1325 B.S., or for such other period as the Court thinks proper, at a fair and equitable rate of rent. The plaintiff states in paragraph 4 of his plaint that the proper rent for the land is Rs. 16 per year, and that he is willing to take the lease at that rent or at such other rent as the Court considers to be fair and just. Both the Courts below have dismissed the plaintiff's suit.

(3.) With regard to one suit, the matter may be disposed of shortly. The question is this : The plaintiff being an assignee from the original lessee, whether he is entitled to enforce the clause for renewal. It does not seem to me that the lower Appellate Court has expressed the opinion, as is contended for by the appellant, that he is not, although that Court mentions that this fact adds to the difficulty in the way of the Court acting in this case. The learned Judge says that it is difficult to understand exactly what prompted the terms of the original lease and so on. In this Court, it; is not at all disputed by the respondent. that the covenant for renewal being a covenant running with the land, the assignee of the lease hold is perfectly competent to enforce its terms. But the real question in controversy is, whether the contract for renewal is such that it cam be specifically enforced? Or, in other words, do the terms of the covenant for renewal constitute a complete contract? The appellant contends that it is so because where the terms embodied in the lease empower the landlord to enhance the rent without fixing any amount, it is competent to the Court to fix a fair and reasonable rent in case of dispute and, if that be so, the plaintiff is entitled to a renewal for the term of the original lease at a rent to be fixed by the Court as fair and equitable. The appellant relies in support of his proposition on the case of Jardine Skinner & Co. V/s. Rani Suresh Sundari Devi (1877) 5 I.A. 164. He particularly relies upon a passage in the judgment of the Judicial Committee to be found at page 145 where their Lordships say : If the rent at which the plaintiff offered to renew the lease were too high the defendants were not bound to accept it, but, in that case, it lay upon them to take measures to compel the plaintiff to renew at a proper rate, having regard to the stipulations of the lease. This they did not do at the time before the commencement of the suit otherwise than by stating in a letter of the 4 November, 1873, their readiness, to accept a renewal at the rent to be fixed in accordance with the terms stipulated." It seems to me, having regard to the terms of the lease in the case referred to above, as set out in the report, that there was some method of settling the rent, and, to my mind, that is a distinction between, that case and the present case. Where in the contract for renewal of the lease some method is stipulated for ascertaining the rent, it may be said that the contract with regard to the rent is not incomplete but where, as in this case, it is stated that the lessor would be at liberty to enhance the rent without any objection on the part of the lessee and no limit is imposed upon the lessor's claim, nor is any method stated as to how the rent is to be fixed, it appears to me that the contract with regard to rent is too vague and incomplete to be specifically enforced. It is not even stated in this case that fair rent should be imposed. Therefore, it seems to me that the covenant for renewal is vitiated by uncertainty with regard to the rent that the plaintiff would be liable to pay which is a material part of a contract for lease and therefore, it is not capable, of being enforced specifically against the landlord. It is also to be observed that the plaintiff asks for a lease for the period of ten years which he certainly cannot get under the terms of the pattah. If there had been no questions as regards the rate of rent, the plaintiff would be entitled to a renewal only for the period of the original lease on the same terms excepting the covenant for renewal. In my opinion, the decision of the Court of appeal below is right and the appeal is dismissed with costs.