SUNDERMULL Vs. LADHURAM KALURAM

JUDGEMENT

(1.) This suit raises interesting and important questions with regard to the principles in accordance with which damages are to be measured against a tenant who holds over after the determination of his lease. For some 6 years prior to 1919 the defendant had been in occupation of a room in 13, Noormol Lohia Lane in Calcutta as a monthly tenant of the plaintiffs. He paid rent at the rate of Rs. 50 a month. On the 19 September 1919 notice to quit on behalf of the plaintiffs was given to him, the notice determining the tenancy as from the 7 November 1919. The defendant did not act upon that notice. He did not give vacant possession, and he remained in occupation of the premises. On the 11 November 1919, therefore, the plaintiffs brought a suit in the Calcutta Court of Small Causes for ejectment, and in answer to that suit the defendant alleged that he was in occupation under a lease for 3 years at a rental of Rs. 100 a month; and he also alleged that he had paid a salami for the lease of Rs. 500. On the 5 January 1920 the defendant commenced proceedings in the High Court for a declaration that he was in occupation of the premises under this lease for 3 years, and he claimed an injunction to prevent the Court of Small Causes from acting further in the matter until the final determination of the proceedings in that suit. On the 23 August 1920, the plaintiffs through their solicitors wrote a letter to the defendant and three other tenants in the same building, No. 13, Noormal Lohia's Lane, in these terms: To Messrs. Ladhuram Kaluram,Jivan Bux & Co.Ahmedin and Mahomed <JGN>Page</JGN> 2 of 6 Ismail,Tilokechand Daimull.Re-Premises No. 13, NoormalLohia Lane. Sirs, Under instructions from and on behalf of our client Johurmull of 9, Chitpore Road, Calcutta, we beg to state that our clients who are the owners of the above premises have repeatedly asked you since July last to vacate the said house and premises by giving up possession of the respective portion of the house in the occupation of each of you, as my clients urgently wanted vacant possession of the house for the purpose of demolishing the existing structure and constructing a new building in its place, according to a plan in conformity with the building regulations of the Calcutta Corporation; but in spite of that, you have neglected to give up vacant possession as aforesaid, and have been wrongfully occupying the same, thereby preventing our said clients from commencing; the building operations in respect of I the proposed new building, which will yield reasonably and fairly a monthly income of Rs. 12,140 to our clients. You are therefore causing by your wrongful act a monthly loss; of the aforesaid sum to our clients. We are therefore instructed by our clients to call upon you, which we hereby do, to make good the damage to our said clients from 1 July 1920 up to date at aforesaid rate of Rs. 12,140 per month, and to deliver vacant possession of the respective portions of the house in the occupation of each of you within 3 days from date hereof failing which our clients will take legal action in the matter. Yours faithfully,(Sd.) Narendra Nath Sen & Co.

(2.) On the 9 August the plaint in this suit was filed, and on the 26 April 1921 the defendant's suit in the High Court was dismissed. On the 1 May 1922 the defendant gave up possession of the portion of the premises in his occupation to the plaintiffs. The plaintiffs claim as damages under item (i) mesne profits as defined in Section 2 of the Civil Procedure Code, Sub-section (12). Mesne prorits are described therein as "those profits which the person in wrongful possession of such property actually received or might with ordinary diligence have received therefor together with interest on such profits, but shall not include profits due to improvements made by the person in wrongful possession," and the plaintiffs claim under this head such a sum of money as they might reasonably have expected to receive as rent from the time when the defendant ought to have given up possession on the 7 November, 1919, until the 1 May 1922, and interest thereon. Under item (ii) they claim a further sum of Rs. 6,100,being the difference between Rs. 900 per month rent for the building, including the defendant's holding, which was received in 1919, and Rs. 7,000 a month which the plaintiffs allege that they would have received as rent for the building after reconstruction, which operation they were prevented, as they allege, from carrying out by reason of the refusal of the defendant to give up possession of the part of the premises of which he was in occupation. <JGN>Page</JGN> 3 of 6

(3.) The defendant admits his liability in respect of mesne profits under item (i) of the plaintiffs claim, but he alleges that the plaintiffs claim under item (ii) is ill-founded both in law and in fact. Counsel for the defendant relied on three contentions; firstly, that the plaintiffs claim to damages, if any, under item (ii) was founded upon breach of contract; secondly, that, having regard to the provisions of the Indian Contract Act (IX of 1872) and the Transfer of Property Act (IV of 1882), the only remedy open to the plaintiffs was under Section 73 of the Contract Act, and that the plaintiffs were not entitled to treat their claim under item (ii) as being founded in tort, and as damages for trespass; thirdly, that neither the failure to rebuild, nor the delay in reconstructing, the premises was caused by the failure of the defendant to give up possession of the part of the premises which he occupied.