Judgement

BACHAWAT, J.: By an indenture of lease dated February 17, 1954, the respondent leased to the appellant a plot of land at premises No. 22, Jatindra Mohan Avenue, Calcutta, for a term of 10 years commencing from February 1, 1954. Clause 3 (c) of the deed provided for a renewal of the lease and was in the following terms:

"3(c) The lessor will on the written request of the lessees made two calendar months before the expiry of the term hereby created and if there shall not at the time of such request be any existing breach or non-observance of any of the covenants on the part of the lessees hereinabove contained grant to it one renewal of 10 years from the expiry of the said term at the same rent and containing the like covenants and provisos as are herein contained except that as regards the clause for renewal for further period the rent shall be as may be agreed between the lessor and the lessees."

On December 1, 1963, the time fixed for applying for the renewal of the lease expired. On December 13, the appellant made a written inquest for the renewal. On December 23, 1963 the respondent s solicitors replied stating that the request being out of time was ineffective and asking the appellant to vacate the land on the expiry of the lease. The appellant had erected structures on the land for the purpose of running a petrol delivery station and was a Thika tenant within the meaning of the Calcutta Thika Tenancy Act, 1949. In February 1964 the respondent filed an application before the Controller asking for eviction of the appellant under Sections 3 (vi) and 5 of the Calcutta Thika Tenancy Act. The Controller allowed the application. An appeal from this order was dismissed by the appellate Authority. A revision petition against the order was dismissed by the High Court. While dismissing the revision petition, the High Court stayed the execution of the order of eviction for a month and observed that the authorities under the Calcutta Thika Tenancy Act had no power to decide whether the appellant was entitled to a renewal of the lease. Thereafter the appellant filed the present suit on the Original Side of the Calcutta High Court asking for a declaration that it was entitled to a renewal of the lease, specific performance of the covenant for renewal, an injunction restraining execution of the order of eviction passed by the Controller and for other reliefs. In paragraphs 13 and 14 of the plant the appellant alleged that the delay in giving notice of renewal should be excused in view of the following special circumstances: (a) the delay was due to oversight; (b) the respondent had not altered her position for the worse or to her detriment within the space of 12 days; (c) neither party had heated the matter of time as being as the essence of the transaction; (d) the appellant had constructed a service station for petroleum products of immense utility to the public of the locality; (e) the appellant was in possession of the land. The respondent contended that the application for renewal being made out of time was ineffective and that there was no ground for excusing the delay. S. P. Mitra J. accepted the respondent s contention and dismissed the suit. An appeal under Clause 15 of the Letters Patent was dismissed by a Divisional Bench of the High Court. Both the Courts concurrently held that the letter dated December 13, 1963 was not a proper exercise of the option by the appellant under the lease dated February 17, 1954 and that there were no special circumstances for excusing the delay in giving the notice. The appellant has filed the present appeal after obtaining a certificate from the High Court under Article 133 (1) (a) and (b) of the Constitution.

2. The appellant neglected to make the application for renewal of the lease within the stipulated time. Mr. Chagla has submitted that the time is not of the essence of the contract having regard to Section 55. of the Indian Contract Act, 1872 as interpreted in the case of Jamshed K