RAJPAL Vs. MUNICIPAL COMMITTEE

JUDGEMENT

(1.) PRIDEAUX , A.J.C. 1. This case was brought to Court by the Municipal Committee, Arvi, through its Secretary against Rajpal Deosi Bhat and Govindrao Karmakar to recover Rs. 229 14-0 as damages under the following circumstances : On 13th March 1926, the shops in Craddock Market, Arvi, were put to auction and Rajpal took a shop for the year 1926-27 at Rs. 28 per mensem. This lease was subject to the conditions laid down by the plaintiff It commenced on 1st April 1926, on which date the defendant was to be put into the shop and the lease was to continue to the end of April 1927 On 4th April Rajpal gave notice to the plaintiff that as he was not given the shop on 1st April 1926, as it had not yet been vacated by defendant

(2.) GOVIND Rao, lessee for the previous year, he declined to be responsible for the rent of the shop for the year 1926-27 and asked, the plaintiff to make arrangements to lease the block to any other person. The plaintiff took action and got the block vacated on the same day Defendant.1 was informed and asked to occupy it, but he did not do so. The plaintiff had to re-let it at an auction held on 12th May 1925 to Tarachand on Rs. 10 a month and the Municipality was thus put to a loss of Rs. 229-14-0 which it is entitled to recover from either of the two defendants. The claim is denied. The suit resulted in a decree against defendant 1 for Rs. 225-140 with proportionate costs and for Rs. 4 only with proportionate costs against defendant 2. This revision is filed by Rajpal. As regards defendant 2 there has been no cross-revision filed by the plaintiff and, therefore, the decree against him stands whether the suit is or is not dismissed against defendant 1.

(3.) NOW it seems to me that Section 108 gives, rights and liabilities of the lessor and lessee; those rights and liabilities only arise in the absence of contract or local usage to the contrary, and that in a case like the present where time is distinctly of the essence of the contract it was within the power of the lessee to rescind it when the Municipality broke the contract themselves by not putting the present applicant in possession on 1st April. The Transfer of Property Act and the Contract Act have to be read together, and under Part 1, Section 55, Contract Act, the applicant in this case could rescind the contract. That being my opinion, it follows that I set aside the-decree made against the present applicant and dismiss the suit against him with costs. He will get his costs in both Courts. I fix pleader's fee at Rs. 15. Non Applicant 2 will bear his own costs.