LAWS(BOM)-1995-4-59

CHANDRAKANT S.N. PEDNEKAR Vs. SHAIKH KASSIM HAIDERALLI

Decided On April 07, 1995
Chandrakant S.N. Pednekar Appellant
V/S
SHAIKH KASSIM HAIDERALLI Respondents

JUDGEMENT

(1.) This Second Appeal seeks to change the Judgment and Decree of the Additional District Judge, dated Jan. 22, 1993, in Regular Civil Appeal No. 5/91 which upheld the Judgment and Decree of the Civil Judge, Senior Division, Vasco da Gama, dated Jan. 28, 1921, in Regular Civil Suit No. 70/78 filed by the respondent against the appellant for specific performance and mandatory injunction with consequential reliefs Including damages.

(2.) The appeal was admitted on substantial Fauestions of law formulated in the Memo of Appeal but more specifically on the four questions as follows:-

(3.) The brief facts of the case are that the respondent has filed a suit claiming that he was occupying a hut in the property of the appellant situated at Baina of Vasco da Gama as a tenant. Sometime in the year 1977-1978 the appellant requested him to vacate the hut as he proposed to erect a new construction in the place on the condition that after the new building was constructed he would lease out a portion of it to the respondent. Accordingly an Agreement dated Feb. 4.1978 (Exh. P.W. 1/A) was executed between both the parties upon which the respondent agreed to vacate the hut and the appellant agreed to give him an area admeasuring 7 x 3 metres on the ground floor in the form of shop No. 7 in the new building to be erected on the monthly rent of Rs. 150.00. One more condition was incorporated in the Agreement that in case the appellant failed to hand over the possession of the suit shop to the respondent he would pay damages to him at the rate of Rs. 150.00 per month till the actual handing over of the suit shop. On the strength of the understanding the respondent vacated the hut on Feb. 15,1978 and handed over possession of it to the appellant. On July 29, 1978, the appellant wrote a letter to the respondent (Exh. P.W. 1/B) informing him that the new wing was ready for occupation and asking the respondent to take possession of it in terms of the Agreement dated Feb. 4,1978. By letter dated July 31,1978 (Exh. P.W. 1/C) the respondent replied to this letter of the appellant and requested him to get the draft of the Lease Agreement ready and informed him the date for its execution. Since there was no reply from the appellant for some time the respondent wrote to him another letter on Aug. 17,1978 (Exh. P.W. 1/D) reminding him to keep the new Agreement prepared and give him the possession of the suit shop. On Aug. 19, 1978, the appellant wrote back to the respondent (Exh. P.W. 1/E) to inform him that the Lease Agreement was ready and should be executed. However, in spite of that the appellant avoided to execute the Lease Agreement, whereupon with great persuasion and intervention of common friends the appellant executed the Lease Agreement on Sept. 1, 1978 (Exh. P.W. 1/F) in terms whereby the appellant was to give the suit shop on lease to the respondent on a rent of Rs. 150.00 per month but in spite of the execution of the said Agreement the appellant failed to actually hand over the possession of the suit shop and this fact was brought to his notice by the respondent by his letter dated Oct. 5, 1978 (Exh. P.W. 1/G). The appellant, however, replied to this letter by addressing a letter to the respondent dated Oct. 6,1978 (Exh. G) wherein he stated that since the respondent had closed the suit shop for more than one month and did not deposit the advance rent equivalent to three months rent as security deposit the Agreement was terminated and therefore the request for handing over the suit shop to him could not be acceded. The respondent then tried to impress upon the appellant through various friends that his demand for advance rent of three months was illegal as no where in the Agreement executed on Sept. 1, 1978 (Exh. P.W. 1/F) there was any mention of such advance rent and therefore the appellant was bound to hand over the suit shop to the respondent. Thereupon the respondent even sent rent to the appellant on Nov. 4, 1978 for Oct. 1978 but the appellant refused to accept it. When the respondent inquired from the Mormugao Municipal Council for the licence of the shop he was informed by letter dated Oct. 20, 1978, that no occupancy certificate had been issued in respect of the suit shop, hence the suit.