DOONGERSEY LAKHMIDAS Vs. KESHAVJI MEGHJI AND CO

JUDGEMENT

(1.) The facts of the present case are that the plaintiff is the lessor and the defendant the lessee of a godown in Baroda Street near Carnac Bunder. The godown was originally owned by one Mr. Pavri under a lease from the Port Trust commencing from the year 1883 which passed through various hands in the meantime. In 1910, Mr. Pavri leased this godown to the defendant for a term of five years, the said term beginning from the 1st of May 1911. The lease itself appears to be dated in 1910. In 1912, Pavri transferred his lease to the present plaintiff, Doongersey Lakhmidas. Under the rules governing all leases given by the Port Trust on the transfer of leasehold interest it is necessary to satisfy the Port Trust that any buildings on the land demised are in good and tenantable condition. Thus at the time of the transfer, in 1912, the godown, which is now the subject of this litigation, was examined by the Port Trust engineers, directions given and apparently obeyed and the transfer from Pavri to Doongersey Lakhmidas was sanctioned by the Port Trust. From this it must be inferred, I think, that, in 1912, that is to say, two years after Pavri had demised this godown to the defendant for a term of five years, the godown was substantially in geca repair. The godown had been leased to the defendant for the purpose of storing rice therein and its capacity is proved to have been some 40,000 bags. The defendant continued to store rice, much of which lay un-removed for years, in this godown up to the 19th of February 1915. On the night of the 19th the southern wall of the godown collapsed bringing with it the portion of the roof and some of the rice bags piled within. In its fall the southern wall of the godown damaged the adjacent godown of Bai Moghibai.

(2.) On these facts the plaintiff sues the defendant for damages on the ground of waste. He also seeks for a declaration that the defendant must indemnify him against any claims made and substantiated against him by Bai Moghibai. The defendant on, the other hand counter claims the damage done to 700 bags of rice through the godown being untenantable or in insufficient repair, the loss thus occasioned being due to the negligence of the plaintiff-landlord. There is nothing in the underlease of 1910 which has any material bearing upon the law to be applied to the facts of this case. It is true that under that lease the lessor agrees to maintain in good repair the doors, windows, shutters and such interior fixings of a like kind. We have no concern here with the terms of the lease granted by the Port Trust to the plaintiff s predecessor-in-title.

(3.) A great point was made at the trial of a notice alleged to have been given by the defendant-lessee to the plaintiff on the 24th of July 1914 complaining that the roof of the godown was leaking and that the goods stored therein were by reason of such leaking being damaged. I do not myself think that, whether such notice was in fact given or not, it has any material bearing upon the questions I am here to answer. The defendant very likely relied upon it in consequence of certain dicta to be found in the judgment delivered by the Court of Appeal in the case of Manchester Bonded Warehouse Company v. Carr (1880) 5 C. P. D. 507