EPASAN ALI Vs. RAM KUMAR DE

JUDGEMENT

(1.) THE appellant is the plaintiff. He brought a suit for specific performance of a contract for renewal of a sub-lease under the defendant. THE plaintiff originally took a lease for nine years running from the 15th of Bysakh 1268 M.E. On the expiry of that lease a question arose as to the renewal of the lease. THE Munsif held that the plaintiff was not entitled to specific performance, the plaintiff s claim being for renewal at the original rent. On appeal the Subordinate Judge decreed the plaintiff s suit for specific performance subject to certain conditions, but on terms which were not altogether to the liking of the plaintiff; and he has appealed against the decision of the Subordinate Judge. THE original lease took a form often to be found in old leases. It set out that the rental was to be 200 aris of paddy or Rs. 48, and as regards the renewal there was a clause that on the expiry of the term, the tenant would get a re-settlement of the land. Leases of this class have often been before this Court where questions have been raised as to the meaning of the lease, namely, whether the rent payable is the money value set out in the lease as the equivalent of the produce rent or whether the produce rent is the starting point and the money value is to be fixed from time to time according to the value of the produce at the time of the suit, and the views taken by the Court have not always been identical. What is the exact meaning of the lease in the present instance is not, however, material and I don t propose to offer any opinion upon it although the lower Appellate Court seems to have been led to do so, because in the present suit, in which the question simply is what are to be the terms on which the lease should be renewed, the question which arises is whether the terms of the original lease are to be introduced, and not what is the meaning of those terms when they are introduced. If there is any dispute as to whether the rent payable is to be 200 aris of paddy or Rs. 48 in the alternative, that is a matter which can only arise in some other suit, THE present question is merely what are the terms on which the lease is to be renewed. THE case has been somewhat complicated by the procedure followed in the course of it in the lower Courts. A question was raised before the Munsif as to there having been a contemporaneous oral agreement not inconsistent with the terms of the lease, by which it was agreed between the parties that on the expiry of the lease, the lease must be renewed at the rent prevailing as regards snob leases. THE Munsif found that such an agreement had been made by the parties. When the matter went in appeal before the Subordinate Judge, no reference appears to have been made to this contemporaneous agreement at all, but the learned Judge referred to an offer which the landlord made, namely, that be was prepared to renew the lease at the rate of 200 aris of paddy. THE tenant was apparently prepared to accept this, provided the alternative price of Rs. 48 was also added in the lease. That the landlord Would not agree to, and the learned Subordinate Judge remarked that it was inequitable that the original price of paddy in 1268 should be reproduced in the lease and he ordered a renewal of the lease on the terms of 200 aris without giving the value of the paddy in the alternative. THE practical result is that the learned Judge insisted in effect, though not in form, on the tenant s accepting the offer of the landlord which, in fact, he never did accept, because he only accepted 200 aris of paddy as rent subject to the value of Rs. 48 also being entered in the lease. This would have raised considerable difficulty and would probably have compelled a remand to the lower Appellate Court to express an opinion on the truth of the allegation that there was a contemporaneous oral agreement but for a certain ground of appeal raised in the lower Appellate Court, in which the plaintiff took up a line inconsistent with the line which he now follows. In the memorandum of appeal in the lower Appellate Court one of the grounds taken by him was that the Court ought to have fixed a proper rate and ordered a renewal of the lease. Now he takes a ground which is entirely different and says that the Court was bound to reproduce the whole of the terms of the lease as they originally stood in 1268. It is well known that in the absence of other facts if there is a stipulation for the renewal of a lease, the tenant is entitled to a renewal of the lease on the original condition, and, in ordinary circumstances, in the absence of other considerations, the tenant would have been entitled to a renewal of all the terms of the lease on that principle, but in view of the line which was taken in the grounds of appeal in the lower Appellate Court I do not think he can now be allowed to take a line which is quite inconsistent with the line then taken, when he suggested that the Court ought to have renewed the lease on reasonable terms. That being so, I think the order made by the learned Subordinate Judge must stand, for it cannot be said that it was unreasonable to fix the rent at the original paddy rate.

(2.) A point was raised by way of preliminary objection that the appellant bad not carried out certain conditions which were attached to the Court s decree and that a failure to observe those conditions resulted according to the Court s order in a dismissal of the claims and in giving khas possession to the respondent. The conditions imposed were that the rent up to the year 1279 M.E. was to be paid; and it is alleged that although the tenant-appellant has paid the rent of 1279, the rent for the previous years remains due. It seems to me that this preliminary objection must not be allowed to stand, whether it be a fact or not that the appellant has not paid the rent previous to 1279. The conditions are in these terms: "In case the appellant fails to make the deposit and to agree to take a sub-lease on the above terms, his claim for specific performance of the lease will stand dismissed and the respondent will get khas possession." The appellant had his right of appeal against the terms imposed by the Court in the case. The lower Appellate Court ordered that his claim would be dismissed if he failed to do two things, viz., make the deposit and agree to take a sub-lease on certain terms. As he had a right of appeal against part of the conditions, namely, the agreeing to take a sublease on certain terms, I do not see how he can be bound by the lower Courts order even if it be a fact that he did fail to make the deposit. The appeal is accordingly dismissed and the condition which was imposed by the learned lower Appellate Court will be reproduced in the decree of this Court, allowing the appellant a month s time to make the payment if not already made to date from the date of the receipt of this Court s order in the lower Appellate Court. The respondent is entitled to his costs.