KANWAR LAL THAPPER Vs. RAJA BAHADUR KAMAKHYA NARAYAN SINGH

JUDGEMENT

(1.) The plaintiff, Raja Bahadur Kamkhya Narayan Singh, the proprietor of the Ramgarh Raj, instituted the suit, out of which the present appeal arises, for ejectment of the defendants from the lands demised as set but in schedule A attached to the plaint. The plaintiff also prayed for damages to the extent of Rs. 11,920/- up to the date of the suit as well as further damages from that day till delivery of possession at the rate of Rs. 500/- per day. The case of the plaintiff was that the defendant Kunwar Lal Thapper obtained a lease from him in respect of certain lands situate in village Sugia and Barokakhap within the Ramgarh Raj of which the plaintiff happened to be the proprietor with all the underground minerals in the two villages, Sugia and Barakakhap. The demise in favour of the defendant was made by a registered lease, dated the 21st May, 1944, executed by the parties. According to this lease the term of occupation of the defendant was to begin from the 22nd day of December, 1943, and was to last till the 21st day of December, 1945, The lease was thus to last for a period of two years, but it was subject to certain covenants. A sum of Rs. 13,500/- was paid as Salami and the lessee had contracted to pay a sum of Rs. 1200/-per annum as rent of the leasehold. The lessee was thus entitled to work the mines in the demised land. The mines were coal mines. It was, however, stated further that according to covenant No. 1 of the aforesaid lease, the lessor was authorised to cancel the Indenture at his option any time even during the pendency of the lease with seven days notice to the lessee after which the lessee was obliged to vacate the mines, its beds and seams of coal, as also the lands on which coal might have been stocked. The salami paid, however, was not to be refunded. The lessee was entitled to a refund of rent paid by him proportionate to the period he would be debarred from working the mines. In the event of the lessee's refusing to quit possession on the expiry of the week mentioned in the notice on any ground whatsoever, the lessee would be liable to pay damages to the lessor at the rate of Rs. 500/- per day for the period the lessor would remain out of possession. In giving such a notice the lessor would not be bound to assign any reason whatsoever for the same. It was alleged further that the plaintiff sent a notice by registered post with acknowledgment due on the 27th July, 1944, calling upon the defendant to vacate possession in terms of the covenant, but in spite of receipt of such notice, the defendant refused to vacate the demised lands. The plaintiff accordingly claimed the sum of Rs. 11,920/- as per schedule B attached to the plaint from the date of the expiry of the seven days' notice up to the date of suit, which was the 2nd September, 1944. He also claimed damages at the same rate, that is to say, Rs, 500/- per day from the date of the suit till the date of delivery of possession.

(2.) In the written statement filed by the defendant it was alleged that he had obtained the lease of the lands and its beds and seams of coal referred to in the schedule to the plaint for the term of two years from 22nd December, 1943, as mentioned in the plaint, but the terms and covenants were agreed upon in a personal interview of the defendant with the plaintiff on 26-11-1943 which was confirmed by the letter dated 29-11-1943, from the Chief Manager of the plaintiff to the defendant. There was no reference either at the personal interview or in the letter of the Chief Manager to the fact that the lessor would have the option, to cancel the lease at any time or of any such covenant as the plaintiff relied upon to give him the cause of action for the suit. After giving a detailed account of the documents relating to the negotiation between the parties, the written statement proceeded to narrate that the lease date the 21st May, 1944, was signed by the lessee under a misrepresentation as he was given to understand that it was a mere copy of the previous lease between the parties which was on the basis of the agreement dated 26-11-43. In fact he was authorised by a letter dated 29-11-43 by the plaintiff to start, work by the 7th December, 1943, but when the defendant went to the mines to take possession, he was informed by the then lessee that his term would not expire till 20-12-43 and that he was not willing to let the defendant start the work before the expiration of the said lease, it was also pleaded that the defendant was not the lessee but only acted as an Agent for Messrs K. C. Thappar and Brothers of Burdawan Compound, Ranchi, to the knowledge of the plaintiff, and though the lease was executed in his name, he had no personal interest in the property in suit. Messrs K, C. Thappar and Brothers were all along in possession and they were necessary parties to the suit. After that the plaintiff, however, thought it advisable to implead Messrs K. C. Thappar and Brothers, a registered firm with its Head Office at Burdawan Compound, Ranchi, as a defendant. The defendant accordingly claimed that the plaintiff was not entitled to any of the reliefs prayed for by him.

(3.) The learned Subordinate Judge of Hazaribagh, who tried the suit, negatived the plea of the defendants that they had entered into the contract of lease under a mis-representation. Ha held further that the defendant No. 1 was liable to ejectment in terms of the covenant incorporated in the lease itself and the plaintiff having given the necessary one week's notice the defendant had no right to continue to work the mines in the demised lands thereafter. He held also that the plaintiff was entitled to damages, but as to the actual amount, he did not accept the plaintiff's claim of damages at the rate of Rs. 500 per day as stipulated in the lease which he held to be in the nature of a penalty. Considering the circumstances of the case, he came to the conclusion, however, that under Section 74. of the Contract Act he would assess reasonable damages, and according to him, the plaintiff would be entitled to a sum of Rs. 33/- per day from the date of the expiry of the notice. Having calculate ed the figure from the 9th August 1944, the day of expiry of the notice, to the 2nd September, 1944, when the suit was instituted, he found the plaintiff's claim to be for a total sum of Rs. 825/-. In terms of the covenant of the lease he also gave proportionate deduction in the sum of Rs. 1,200/-, which was paid as advance rent for one year by the defendant to the plaintiff, for the period that he was not able to work the mines, which came to a sum of Rs. 480/-. A sum of Rs. 1007- was also deducted as earnest money and thus a decree for Rs. 245/- by way of damages was passed in favour of the plaintiff from the 9th August, 1944, to the 2nd September, 1944. He held, however, that the plaintiff would be entitled to recover damages at the rate of Rs. 33/- per day up to the date of delivery of possession together, with costs.