JOGESH CHANDRA ROY Vs. ANNADA CHARAN CHAUDHURY

JUDGEMENT

(1.) This is an appeal by the plaintiff and it arises out of a. suit for ejectment of the defendants after service of notice to quit. The facts, shortly stated, are these: On the 10 April 1884, the. Collector of Chitagong representing the-Court of Wards granted a lease of the land in suit to one Mobarak Ali Mistri for six years---the estate to which the said land belonged having been in the possession of the Court of Wards. The estate was subsequently released in July 1897. It appears that Mobarak Ali and, after his death, his, heirs continued to be in possession of the land even after the expiry of the lease and they transferred the leasehold interest to one Pitamber who in his turn transferred it to the defendants Nos. 2 to 4 in 1913. The plaintiff served a notice on the defendants to quit in 1914 and the present suit wa9 brought on the 26 July 1915. The defendants answer was that no notice was served on them and that the notice purported to have been served was not satisfied. Next, it was said that the plaintiff was not entitled to eject the defendants as the defendants had a right to ask, under the terms of the lease granted by the Collector in 1894, for a renewal of the same for another six years, and, on the expiration of those six years, for another renewal upon similar terms. The case was originally tried by the Munsif and was decreed on the 21 September 1916. On appeal, that decree was set aside on the 18 June 1917 and the plaintiff's suit was dismissed. The plaintiff then filed a second appeal to this Court and on that, the judgment of the lower Appellate Court was affirmed on the 7 May 1919. Then, there was an appeal under the Letters Patent which was successful and the judgments of the lower Courts were set aside and the case was sent back for re-trial by the Munsif. This order was passed on the 21 April 1920. The Munsif on the 30 May 1921 again decreed the suit in favour of the plaintiff and, on appeal to the lower Appellate Court, that judgment and decree were set aside by the learned District Judge. Thereupon the plaintiff filed a second appeal to this Court, which was heard by my learned brother Mr. Justice Cuming and was dismissed on the 22 April, 1925. The present appeal is preferred by the plaintiff against this judgment of Mr. Justice Cuming.

(2.) The learned Advocate who appeared for the plaintiff-appellant contended, first, that the plaintiff was entitled to a decree on the finding that the notice to quit was served and that the notice was a valid one. The learned Advocate next contended that the tenancy of the defendants was merely a tenancy from year to year and was liable to be terminated on the service of a proper notice which, as a matter of fact, was served by the plaintiff. It was further contended that the defendants after the expiry of twelve years from the date of the lease, had no right to rely upon the clause for renewal of the lease and that, therefore, they had no answer to the suit for ejectment after the service of a proper notice on them to quit.

(3.) So far as the question of notice, was concerned, it appears that it was held to be valid and properly served and no question as regards this notice was raised before this Court in second appeal. On the question as to the right of the defendants for a renewal of the lease even after the expiration of twelve years from the date of the lease it was held that such a right did exist and that the plaintiff was not entitled to demand ejectment without giving the defendants an opportunity of asking for a renewal of the lease as provided for in the lease granted by the Collector in 1894. It appears that the case of Jurdine Skinner & Co. V/s. Rani Surut Soon-dari Debi 3 C. L. R. 140 : 51 A. 164 : 3 Sar. P. C. J. 847 : Bald. 168 (P. C.) was relied upon by the plaintiff-appellant in support of the contention that, assuming that the defendants had a right of renewal which they could exercise, they had no subsisting right based on the contract as the term of such a renewal after the termination of the original lease had expired. The learned Judge of this Court in dealing with that question says this: "The learned Vakil has referred to the case of Jardine Skinner & Co. V/s. Rani Surut Soondar Debi 3 C. L. R. 140 : 51 A. 164 : 3 Sar. P. C. J. 847 : Bald. 168 (P. C.) and he relies on that portion of the judgment where it is held that it is too late for them to rely upon their title to a renewal of the lease which, if it had been granted, would now, have expired." But the facts of that case are quite different from the facts of this case, because, as has been pointed out by Mr. Justice Newbould, the case rested on the fact that the plaintiff had issued notice on the defendant calling upon him to renew the lease at the rates mentioned in the notice and the defendant had not applied for renewal. Speaking with due respect to the learned Judge it appears to me that the judgment of the Judicial Committee in the case referred to above was not based upon that distinction. Their Lordships held there "that although the defendants were not bound to accept the renewal, if the rent at which the plaintiff offered it were too high, yet in that case it lay upon them to take measures to compel the plaintiff to renew at a proper rate; that the defendants could not compel a renewal of the lease for more than five years, the original term; and that it was too late to rely upon a right of renewal at a time when, if it had been granted, the renewed lease would have expired." I do not think that the fact that the plaintiff omitted to offer a renewal of the lease after the expiration of the original term of six years has any bearing on the question in issue in the present case. If the plaintiff had offered a renewal to the defendants , all that the defendants could obtain was, as is pointed out by their Lordships of the Judicial Committee a renewal for six years from the date of the expiry of the original lease. The defendants could not ask for a condition of renewal in the renewed lease. The utmost right that they had under the renewal clause was the right for a lease for an additional term of six years after the expiry of the original lease. When the landlord did not disturb the possession of the defendants for six years after the expiry of the lease, the defendants had no ground of complaint. They had got all that they were entitled to under the terms of the original lease. After the expiry thereof, the defendants were tenants from year to year with a right to renewal for six years from the date of the. expiry of the lease, if the plaintiff had sought to eject the defendants within six years from the date of the expiry of the lease, the defendants might have set up the defence that they were entitled to a renewal.) But, after the term of the possible renewal had expired, the defendants could not ask for a fresh renewal The learned Vakil for the respondents contended that, after the expiry of the lease and also after the expiry of six years from that date, the defendants were entitled to a renewal for another six years. This certainly was not the contract between the parties. The learned Vakil also relied upon certain English cases in support of his contention that this right of renewal can be exercised by the defendants at any time after the expiration of the lease even though the term for such renewal provided by the renewal clause has also expired. None of the cases which were placed before us bears out this contention. The question was raised before the expiration of the term of the renewal. I do not think it necessary to discuss them at any length. As has been pointed out by the Judicial Committee in the case of Watson & Co. V/s. Ramchund Dutt 18 C. 10; 17 I. A. 110; 5 Sar. P. C. J. 535 : 9 Ind. Dec. (N. S.) 7 (P. C). to quota-their Lordships own words "the Courts of Justice, in cases where no specific rule exists, are to act according to justice, equity and good conscience" etc. Now, there is no specific rule of law upon the present point. I think it would be unjust to allow the defendants to continue to hold the land after the expiration of twelve years---the utmost limit to which, the contract provided that the defendants could occupy the land. I think, therefore, that the plaintiff was entitled to the relief prayed for. The result, therefore, is that the decree of this Court dated the 22 April, 1925 as well as that of the lower Appellate Court are set aside and that of the Munsif, dated 30 May 1921 is restored with costs to the plaintiff-appellant in all Courts. Walmsley, J.