MADAN MOHAN GARG Vs. BOHRA RAM LAL

JUDGEMENT

(1.) This is an application for the revision of a decree and order of the Judge of the Small Cause Court of Agra decreeing the plaintiff's suit in part. Mr. Pandey has argued the case for the plaintiff. applicant on the legal ground that in the circumstances of this particular case the Court could not assess the damages, which were payable to the plaintiff as compensation for the use and occupation of some premises but was bound to allow the plaintiff the compensation which he demanded. As the facts are not given fully in the judgment of the trial Court, it is necessary to set them forth at some length.

(2.) The defendant occupied some premises owned by the plaintiff-applicant at the rate of Rs. 55 per mensem. There was a lease which is admitted to have been a legal lease terminable by a month's notice. Subsequently the defendant obtained some additional premises at an additional rent of Rs. 25 per mensem. The defendant is a timber merchant and it appears that there was a rise in rentals in the neighbourhood in which the premises stand with the result that on 24th August 1931 the plaintiff sent a notice to the defendant giving him the alternative of quitting the premises, i.e., both sets of premises, by 27 September 1931, or, if he failed to give up possession of continuing his occupation at a rental of Rs. 125 per mensem for both premises, "as rents had risen very high." The defendant sent a reply on 20 October 1931 to the effect that he would leave the premises on 1 November 1931 but he made no reference to the proposal to increase the rent. The defendant actually vacated the place on the 25 December 1931 as the trial Court has found, and the plaintiff sued in January 1932 for arrears of rent for several months. As regards the earlier period during which the rent was Rs. 80 per mensem there is now no question before me. What I have to consider is whether the plaintiff-applicant was entitled to claim rent with effect from 27 September 1931 at the rate of Rs. 125 per mensem. The trial Court has allowed damages at the rate of Rs. 90 per mensem for the 3 months in dispute, apparently because it considered that Section 74, Contract Act, applied to the case, and this is the main bone of contention at the present stage. In his notice the plaintiff had given the defendant the alternative of quitting on 27 September 1931 or of staying on at the rental of Rs.125 per mensem, and his case was that as the defendant had failed to give up possession on the date named, he must be held to have agreed to pay rent at the rate named by the plaintiff. It does not appear that the defendant broke any contract when he failed to give up possession. He was under an obligation under Section 108(q), T.P. Act, to put the lessor into possession of the property on the determination of the lease, and there is no doubt that the lease determined on 27 September 1931, which was the date named in the notice, and which the trial Court has found to be the date of the determination of the lease. On what terms then did the defendant continue in possession of the premises? There was no renewed lease, nor does he appear to have been holding over under Section 116, T.P. Act, because the plaintiff did not accept rent from him though it may be argued, and has been argued by Mr. Pandey, that he did "otherwise assent to the defendant's continuing in possession" within the meaning of that section. If he was holding over, the old lease would no doubt be renewed, but Mr. Pandey's argument is that owing to the terms of a suggested renewal of the lease having been named in the notice, it must be deemed that the defendant accepted the offer made, so that even if he is to be considered as a tenant holding over, and not a trespasser, he becomes liable to pay the rent claimed by the plaintiff. In the alternative however and even if he is considered as virtually a trespasser after the termination of the lease, there is some authority for holding that he is liable. I have been referred to an English case : Roberts V/s. Hayward (1828) 3 Car. & P. 432, in which the facts are very similar. The Chief Justice remarked: The tenancy under the agreement expired at Midsummer, 1826. Immediately after that time, the plaintiff was a trespasser; but the landlord was not obliged to treat him as such, but might make proposals to him, to renew the relation of landlord and tenant between them. This he did, and the plaintiff did not say, I will go out directly. His silence on the subject is tantamount to his saying. I will continue in on the terms of your proposal.

(3.) In the case of Mohammad Noor V/s. Ashiq Beg, A.I.R. 1933 Oudh 465, in somewhat analogous circumstances, the Bench of the Chief Court held that where enhanced rate of rent is proposed by a landlord, and the tenant continues to occupy the leasehold property without any protest as to the proposed enhancement of rent, the latter should be deemed to have accepted the proposal; but when the tenant protests against such enhancement and the landlord does not take ejectment proceedings, he is not entitled to claim rent at the enhanced rate. It will be observed in the present case that the landlord did propose enhanced rent at a stated rate and the defendant did not protest but announced his intention of vacating by particular date which however he did not do. It has been argued by Mr. S.N. Seth on behalf of the opposite party that the plaintiff's case throughout was that the defendant was a trespasser and that there was no issue on the question of whether he was a tenant or not. If such an issue had been framed, it is argued, the defendant would have been able to prove that being a timber merchant it was not possible for him to vacate the premises at such short notice. For this reason indeed he would distinguish the present case from the one which came before the Oudh Chief Court, where the tenant had been holding over for a considerable period. The distinction however appears to me to be in degree but not in kind. Nor was the defendant really prejudiced by the absence of an issue as to the existence of a tenancy. Whether he was a tenant or a trespasser he could only claim one month's notice, which he received: and if it was not sufficient to enable him to vacate the premises he had only himself to blame.