The doctrine of frustration as enacted under Section 56 of the Indian Contract Act does not apply to leases, as the law of frustration relating to leases is codified under Section 108 (e) of the Transfer of Property Act.

( 1 ) THIS Second Miscellaneous Appeal is on behalf of the landlord, who instituted the suit for possession after a notice to quit and who subsequently got a decree for possession but which has thereafter been set aside under Order 9, Rule 13 of the Code. The defendant thereafter applied under Section 144 of the Code for restitution. The application of the defendant has been allowed by both the Courts below and hence the present appeal by the landlord plaintiff -- the objector to the petition under Section 144 of the Code.

( 2 ) THE plaintiff instituted his ejectment suit on 5-1-1956. On 19th April 1956, an ex parte decree was passed. On 11th March, 1957, possession was delivered to the decree-holder, but defendant immediately started proceedings under Order 9, Rule 13 of the Code for setting aside the ex parte decree and the ex parte decree was set aside; against that order, certain proceedings were pending in this High Court and in the meantime, on the 8th June, 1958, under the order of the Calcutta Corporation one of the structures which was in a dilapidated condition, was demolished.

( 3 ) THE defendant applied for restitution under Section 144 of the Code after the ex parte decree was set aside. The objection of the plaintiff landlord was that as the Corporation demolished one of the structures there has been a frustration of the contract within the meaning of Section 56 of the Indian Contract Act and, therefore, no restitution is possible. This objection was over-ruled by both the Courts below and hence the present appeal.

( 4 ) MR. Sen on behalf of the landlord has referred to Section 59 of the Indian Contract Act and he says that the statute and the principle underlying the same has been applied to leases and he has referred to a decision the case between Kshitish Chandra v. Shiba Rani. According to Mr. Sen, there may be some conflict of opinion on this matter in England, but whatever that may be, so far as our country (sic), the doctrine of frustration has been applied to leases from a very long time. According to Mr. Sen, the decision of R. P. Mukherjee, J. in the aforesaid case is based on an earlier decision of this High Court by R. C. Mitter, J. (Sir Ramesh Chandra) between Inder Pershad Singh v. Campbell reported in ILR 7 Cal 474. The doctrine of frustration was also considered by Sir Ashutosh Mukherjee in a case between Ezekil Abraham v. Ramjus Roy reported in 33 Cal LJ 151 -- the same case as AIR 1921 Cal 305 Mr. Sen says that the doctrine of frustration has recently been considered by the Supreme Court in a case between Satyabrata v. Mughee Ram. According to Mr. Sen, this rule of frustration as applied to India is a rule of positive law as held by Mukherjee, J. of the Supreme Court and there is no question of introducing the principle of implied grants in the same manner as has been done in English cases. According to Mr. Sen, if the section applies, it will apply because of its own force, independent of any implied contract between the parties. Mr. Sen, therefore, submits that the doctrine of frustration being firmly established in our country as under Section 56 of the Indian Contract Act, it must be held that after the Calcutta Corporation demolished one of the structures the contract became frustrated and, therefore, restitution is not possible.

( 5 ) MR. Ganguly on behalf of the tenant has challenged the correctness of the decision of R. P. Mukherjee, J. in the aforesaid case. According to Mr. Ganguly, it is now well established that English cases are no guide as has been held by the Supreme Court in the aforesaid case. Mr. Ganguly referred to the case between Inder Pershad. v. Campbell ILR 7 Cal 474. But according to him, that was a case not of a lease but of a contract pure and simple and, therefore, there is no support for the judgment of Mr. Justice R. P. Mukherjee from the Division Bench judgment in the case of Inder Pershad Singh ILR 7 Cal 474. Mr. Ganguly further says that th