MARK D CRUZ Vs. JITENDRA NATH CHATTERJEE

JUDGEMENT

(1.) This is an appeal against a judgment of my learned brother Mr. Justice Greaves, by which he dismissed the plaintiff s suit.

(2.) The suit was for the specific performance of an agreement contained in an Indenture of a lease dated the 8th of July, 1912, which was for a period of five years from the 1st May, 1912, to grant the plaintiff a renewal of the lease of the premises in question; and the matter depends upon a covenant in the lease which was to this effect:--"That in case of due payment by the lessee of the rent hereinbefore contained "hereby reserved and the due performance and observance of the conditions and covenants on his part to "be performed and observed, the lessee shall be entitled "to have a renewal of the lease of the said demised "premises for a further period of five years on the same "terms and conditions as are herein contained except "the present condition as to further renewal provided "that the lessee gives notice in writing to the lessors "of his intention to take such renewal three months "before the expiration of the said first mentioned "period of five years."

(3.) There is no doubt that a notice in writing of the lessee s intention to take a renewal was not, given three months before the expiration of the said first mentioned five years. Such a notice, in order to comply with the terms of the covenant, ought to have been given on the 31st of January, 1917, at the latest. It was not so given and the plaintiff has alleged that the notice as required by the contract was not given because of certain communications which passed between the plaintiff and his wife on the one hand, and one of the defendants on the other: and, with regard to that, the statement of the learned Judge may be taken as accurately setting out the facts:--He says, "the plaintiff s case is that on or "about the 15th January, 1917, one of the defendants, "Ganga Charan came to the premises to collect the "rent, that he there met the wife of the plaintiff who "said that she and the plaintiff were going to leave "the house and that thereupon Ganga Charan said that "they had been good tenants, that he desired them to "remain and said that there was no need to give the "written notice provided by the lease. It appears "that on the 30th March, 1917, the plaintiff wrote to "the defendants stating that his lease was about to "expire and that he would be glad to have a renewal "for a further period of five years on the same terms "and conditions as those specified in the original "lease. No answer was given to this letter until "the 23rd April when the defendants attorney wrote "to the plaintiff saying that no written notice as "provided by the lease had been given by the plaintiff "to renew his lease and that he must deliver up possession on the expiration of the term covered by the "lease. It is the plaintiff s case that on the 7th April, "1917, Ganga Charan, the defendant, again came to the "premises, saw the plaintiff, and agreed with him to "renew the lease, and therefore his case is that, "although no written notice was given in accordance "with the terms of the lease, such written notice was "waived by the defendants and that, this being so, he "is entitled to a renewal of his lease of the premises."