Decided on March 14,1960

Ballygunge Estates Limited Appellant


- (1.) The Appellant of this appeal is a private limited company known as Ballygunge Estate Limited. The Appellant will henceforth be designated simply as the company. The Respondent of this appeal is one Sachindra Satli Mukherjee who was the sole Plaintiff in the trial court. The suit out of which this appeal has arisen was instituted by the Plaintiff against the Defendant for recovery of khas possession of a property which was admittedly leased out to the Defendant company by the Plaintiff by an indenture of lease dated 28th June, 1946. The Plaintiff sought to enforce his right of re-entry on the strength of a covenant in the lease to the effect that if rent remained unpaid for a period of 3 months after the day appointed for payment thereof, the lessor would have the right to re-enter the disputed property. According to the allegations of the Plaintiff in the trial court the Defendant company had neglected and failed to pay rent for the months of May, June and July, 1950. Accordingly, the present suit for recovery of khas possession was instituted by the Plaintiff. There was also a prayer for recovery of a sum of Rs. 1,500 for rent of 3 months and also a prayer for recovery of damages or mesne profits from August, 1950, till recovery of possession of the property.
(2.) The suit was defended in the trial court by the company. The main defence of the company was that rent for the period in question was not paid because Corporation taxes which were payable under the terms of the lease by the company had been increased abnormally, and notice of such increment which was received by the Plaintiff was not communicated to the Defendant. So the Defendant contended that it had suffered a very substantial loss for the above conduct of the Plaintiff. The Defendant further alleged that it had effected substantial improvements in the market which was situate on the leasehold property and if the money spent for effecting such improvement was adjusted against arrears of rent then nothing would be due to the Plaintiff. Last of all, it was alleged by the Defendant that on actual measurement the area of the demised premises had been found to be short by 10 cottahs for which the Defendant was entitled to claim abatement, if not suspension of rent.
(3.) Upon the above pleadings the main issues framed by the trial court were whether the Defendant company was a defaulter for the period from May to July, 1950, and whether it had incurred forfeiture by such default under the terms of the lease. An issue was also raised on the question of abatement or suspension of rent claimed by the Defendant. A further question which does not appear to have been pleaded in the written statement of the Defendant company, but which appears to have been canvassed before the learned Subordinate Judge at the time of hearing, was whether relief against forfeiture of the lease should be granted to the Defendant. All these issues were decided by the learned Subordinate Judge against the Defendant and in favour of the Plaintiff and a decree was passed in favour of the Plaintiff granting all the prayers made in the plaint. This appeal has been referred by the Defendant company from the above judgment and decree passed by the trial court.;

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