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1971 Supreme(Cal) 214
HIGH COURT OF CALCUTTA
S. K. DUTTA, M. M. DUTT
SOHANLAL MURARKA - Appellant
Versus
GOKUL CHANDRA PAL - Respondent
First Appeal No. 611 of 1961.
Decided On : September 7, 1971
D.K.DEY, SYAMA CHARAN MITTER
A landlord is entitled to forfeit a lease for breach of covenant by the tenant, provided that the notice to remedy the breach is valid and sufficient and the breach is material.
Headnote:
LANDLORD AND TENANT - LEASE - FORFEITURE - NOTICE - SUFFICIENCY - TIME FOR REMEDYING BREACHES - VARIATION OF TERMS OF LEASE - SUBSEQUENT AGREEMENT - WAIVER - PREMISES TENANCY ACTS - APPLICABILITY - RELIEF AGAINST FORFEITURE - SECTION 114, TRANSFER OF PROPERTY ACT, 1882 - DISCRETION OF COURT - EXPIRY OF LEASE BY EFFLUX OF TIME - TRESPASS - DECREE FOR POSSESSION.
Fact of the Case:
The plaintiff filed a suit for possession of the suit premises on the ground of forfeiture of lease due to non-payment of rent, failure to pay municipal rates and taxes, and failure to execute necessary repairs. The defendant contested the suit, denying the breaches and claiming that the notice to remedy the breaches was invalid and insufficient.
Finding of the Court:
The court found that the defendant had committed breaches of the lease by non-payment of rent and failure to execute repairs, and that the notice to remedy the breaches was valid and sufficient. The court also held that the lease was not void for non-disclosure of latent defects in the premises, and that the defendant was not entitled to relief against forfeiture under section 114 of the Transfer of Property Act, 1882, as the lease had expired by efflux of time.
Issues: 1. Whether the defendant had committed breaches of the lease. 2. Whether the notice to remedy the breaches was valid and sufficient. 3. Whether the lease was void for non-disclosure of latent defects in the premises. 4. Whether the defendant was entitled to relief against forfeiture under section 114 of the Transfer of Property Act, 1882.
Ratio Decidendi: 1. The court held that the defendant had committed breaches of the lease by non-payment of rent and failure to execute repairs, as evidenced by the plaintiff's notice and the defendant's failure to remedy the breaches within the time specified in the notice. 2. The court held that the notice to remedy the breaches was valid and sufficient, as it complied with the requirements of the law and gave the defendant a reasonable opportunity to remedy the breaches. 3. The court held that the lease was not void for non-disclosure of latent defects in the premises, as the defendant had not pleaded or proved that the defects were material or that the plaintiff had fraudulently concealed them. 4. The court held that the defendant was not entitled to relief against forfeiture under section 114 of the Transfer of Property Act, 1882, as the lease had expired by efflux of time and the defendant had not shown any grounds for relief.
Final Decision: The court dismissed the appeal and upheld the trial court's decree for possession of the suit premises in favor of the plaintiff.
( 1 ) THIS is an appeal by the defendant since deceased and substituted by his legal representatives, against a judgment and decree decreeing the plaintiff's suit for khas possession of the suit premises on eviction of the defendant therefrom. The suit premises being Premises Nos. 10a, 10b and 10c, Townshend Road, P. S. Bhowanipur, Calcutta were demised to the defendant on the basis of an indenture of lease dated July 16, 1952 for a period of fifteen years commencing from May 1, 1952 at a rent of Rs. 850/- per month payable by 7th of the next month.
( 2 ) THE relevant terms and conditions of the said lease were: (a)the lessee was to pay the municipal rates and taxes in both shares, and (b)to execute necessary repairs to demised premises as mentioned in the schedule of repairs attached to the indenture of lease. According to the plaint, the defendant committed the following breaches of express conditions of lease: - (a)the defendant defaulted in payment of rent in terms of lease and on adjustment a sum of Rs. 4,217/- was due calculated upto July, 1956. (b)the defendant failed to pay municipal rates and taxes duly. (c)the defendant failed to execute works of Item Nos. 3, 6, 7, 8, 16 and 21 of the schedule of repairs.
( 3 ) THE plaintiffs served a notice dated July 30, 1956 upon the defendant by registered post with A/d intimating their intention to determine the lease and to re-enter the premises. An opportunity was also given to the defendant to remedy the breaches within a month from the notice i. e. by August 30, 1956. In spite of determination of lease by forfeiture the defendant did not vacate the suit premises and deliver vacant possession to the plaintiffs nor remedied the breaches. The plaintiffs in the premises instituted the suit on January 4, 1957, praying for a decree for possession of the suit premises as also for Rs. 4,217/- on account of rent in arrears and for mesne profits till possession was delivered to the plaintiffs.
( 4 ) THE suit was contested by the defendant who filed a written statement as also an additional written statement denying the material allegations made in the plaint. It was denied that any some was due on account of rent or municipal rates and taxes. The allegations about the defendant's failure to repair were also denied as untrue. It was also contended that the notice was invalid, insufficient and not legal. It was also his specific case that he was entitled to a total sum of Rs. 18,198/- for repairs effected by him, and after credit of Rs. 7,098/- given by the plaintiff a sum of Rs. 6,073/- was due to him, apart from Rs. 38,615-4-0 which the defendant spent for additional repairs and for recovery of the same, defendant reserved his right to take proper steps. The defendant also pleaded waiver of breaches if any.
( 5 ) THE suit was tried on evidence and a commission for local inspection was issued to report as to whether the repairs in Item Nos. 3, 6, 7, 8, 16 and 21 were executed. The Commissioner found that repairs in respect of items 3 and 7 relating to dismantling of roof in second floor and construction of new concrete roof were not carried out. The repairs of Item Nos. 16 and 21 were not done while as to Item No. 8, the reconstruction of roof was not done though the existing ceiling was thoroughly repaired. The learned Judge found on evidence that the defendant incurred the penalty of forfeiture not only for not effecting repairs stipulated but also for non-payment of rent. It was also held that the lease was not void for non-disclosure of latent defects in the premises as contended by the defendant. It was however observed that the defendant could contend that time limit in the notice for remedying breaches of covenants relating to repairs was short, but as the plaintiff exercised the option of forfeiture of lease for non-payment of rent as well, the notice was valid and sufficient. The suit was accordingly decreed for possession as also for Rs. 4,217/- for arrear rent
