JUDGEMENT
P.N.BHAGWATI -
(1.)This Revision Application arises out of a suit filed by the plaintiffs against the defendant to recover possession of certain premises situate on Dudheshwar Road Ahmedabad. The premises consist of a structure known as Chhagan Kishor Iron Factory. It appears that from 1931 the defendant was in possession of the premises as a tenant of the plaintiffs. A deed of lease was executed by the between the plaintiffs and the defendant on 28the November 1942 whereby a lease of the premises was granted by the plaintiffs to be defendant for a period of five years from 1st February 1942 at the rent and on the terms and conditions contained in the deed of lease. There was some dispute between the parties as to whether the plaintiffs were the lessors under the deed of lease or whether the lessors were Dhirajlal Khushaldas and Company Agents of the plaintiffs. I shall discuss this aspect of the matter later but for the purpose of the present narration I shall proceed on the basis that the lessors under the deed of lease were the plaintiffs. The deed of lease provided for the rent to be paid by the defendant to the plaintiffs for the demise of the premises and also contained the terms and conditions on which the premises should be held by the defendant to the plaintiffs for the demise of the premises and also contained the terms and conditions on which the premises should be held by the defendant during the period of the lease. The deed of lease was in the Gujarati language and Clauses (1) (3) (7) and (9) of the deed of lease when translated provided as under:
(1). The rent of the said property has been fixed at Rs. 3 912 for one year i.e. 12 months. The amount of rent we will pay every month Rs. 326/in advance by the 5th date of every month. xx xx xx (3). The amount of rent of Rs. 326/if we second party fail to pay in advance by the 5th of every month then we second party would pay to the first party the amount of rent with interest at the rate of eight annas per cent per month and if we second party are in arrears of 3 months rent at a time then the first party will be entitled to get the said property vacated without notice within the stipulated period together with the amount of rent of the remaining duration in that we second party cannot raise any objection. xx xx xx (7). The said property has been taken on lease by we the second party for the duration of five years. In spite of that whenever and within the above stated duration if the first party wants to get vacated then the first party will give to us the second party a written prior notice of 3 months. So at once we the second party will within three months of the written notice vacate and give possession to the first party and will pay whatever amount of rent be due. And if in spite of being given written intimation we second party do not vacate and give possession to the first party and pay up rent due then we the second party and the heirs and legal representatives of we the second party will pay together with 6% interest all the cost and loss incurred by the first party in recovering possession of the property legally. xx xx xx (9). Whatever municipal tax and property tax and government tax have to be paid for this property are the liability of the second party. Also whatever tax has to be paid on account of the business of the second party all that are the liability of the second party. And whatever penalty etc. are incurred on account of the business of the second party are the liability of the second party. For this amount we the second party would pay as soon as you of the first party intimate us and take the receipt of the first party. And if we the second party do not pay to the first party in spite of being intimated then you are entitled to recover together with interest at the rate of 6%.
(2.)I have set out the aforesaid clauses of the deed of lease in extenso since considerable controversy was raised before me as regards the question as to what was the rent payable by the defendant to the plaintiffs for the demise of the premises. After the execution of the deed of lease the defendant continued in possession of the premises as a tenant of the plaintiffs on the terms and conditions contained in the deed of lease. Since the lease was for a period of 5 years it came to an end by efflux of time on 31st January 1947 but the defendant held over and remained in possession of the premises with the assent of the plaintiffs and the tenancy of the defendant was therefore renewed on the same terms and conditions in so far as they were applicable to such tenancy. It was again a matter of controversy between the parties whether the tenancy of the defendant after the expiration of the period of the lease was a tenancy from month to month or a tenancy from year to year. But irrespective of this controversy it was common ground between the parties that the defendant continued to occupy the premises on the same terms and conditions as before. The defendant paid to the plaintiffs rent in respect of the premises upto 20th February 1945 as also municipal taxes upto 1944-45 but thereafter did not pay to the plaintiffs rent in respect of the premises from 1st March 1945 upto 31st December 1952 as also municipal taxes in respect of the premises from 1945-46 to 1952-53 barring two amounts namely Rs. 4 0 and Rs. 2 0 which were paid by the defendant to the plaintiffs on 13th April 1948 and 21st November 1950 respectively. It may be mentioned at this stage that apart from the business of running a factory in the premises the defendant also controlled two Companies namely Metal Moulders Limited and Rubber Products Limited and the defendant Metal Moulders Limited and Rubber Products Limited sold and delivered various goods to the plaintiffs and also supplied labour to the plaintiffs from time to time for which the plaintiffs became liable to pay a sum of Rs. 10 924 to the defendant a sum of Rs. 35 15 to Metal Moulders Ltd. and a sum of Rs. 4 315 to Rubber Products Ltd. On 6th August 1953 an adjustment or settlement of account was made between the plaintiffs on the one hand and the defendant Metal Moulders and Rubber Products Ltd. on the other whereby the items of plaintiffs claim against the defendant for rent from 1st March 1945 upto 31st December 1952 and municipal taxes from 1945-46 to 1952-53 were brought into account on one side and the items of claim of the defendant Metal Moulders Ltd. and Rubber Products Ltd. against the plaintiffs and the items of payment of Rs. 4 0 and Rs. 2 0 made by the defendant to the plaintiffs were brought into account on the other side and the items were set off against one another and the balance of Rs. 18 204 was agreed between the parties as due and payable by the defendant to the plaintiffs. It may be noted that some of the items of the plaintiffs against the defendant in respect of rent and municipal taxes were barred by limitation at the date of this adjustment or settlement of account and yet they were taken into account and set off by the items of claim on the other side of the account and the balance of Rs. 18 204 was struck after such adjustment or settlement. This adjustment or settlement of account was recorded in a letter dated 6th August 1953 addressed by the defendant Metal Moulders Ltd. and Rubber Products Ltd. to the plaintiffs. The defendants however did not pay the sum of Rs. 18 204 or any part thereof to the plaintiffs. The defendant also did not pay to the plaintiffs rent in respect of the premises from 1st January 1953. The municipal taxes in respect of the premises for 1953-54 also remained unpaid by the defendant to the plaintiffs. The plaintiffs therefore by their advocates letter dated 26th February 1954 pointed out to the defendant that the defendant was indebted to the plaintiffs in the aggregate sum of Rs. 28 677 made up of Rs. 18 204 in respect of the adjustment or settlement of account dated 6th August 1953 Rs. 4 230 in respect of rent for 13 months from 1st January 1953 to 31st January 1954 and Rs. 6 234 in respect of municipal taxes for 1953-54. The plaintiffs by this letter gave notice to the defendant demanding payment of Rs. 28 677 -3 from the defendant. The plaintiffs also by this letter gave notice to the defendant to quit the premises on or before 31st January 1955. No reply was given to this letter by the defendant nor was any payment made by the defendant in respect of the sum Rs. 28 677 demanded by the plaintiffs. The plaintiffs thereafter addressed another letter to the defendant through their advocate on 30th December 1954 intimating to the defendant that the plaintiffs wanted to put up a purification plant and that they would therefore seek to recover possession of the premises from the defendant not only on the ground of arrears of rent but also on the ground that they bona fide and reasonably required the premises for their own use and occupation. This letter was received by the defendant on 3rd January 1955. It was after the receipt of this letter that the defendant woke up and decided to send a reply which he did by his advocates letter dated 20th January 1955. The defendant did not in this letter deny the plaintiffs claim but stated that during the period in question the plaintiffs had purchased from the defendant goods worth Rs. 19 558 13 and that the plaintiffs were therefore bound to give credit to the defendant for the sum of Rs. 19 568 against the plaintiffs claim for Rs. 33 82 against the defendant. The defendant thus conceded that the sum of Rs. 33 82 was due and payable by the defendant to the plaintiffs and against that amount the defendant claimed credit only for the sum of Rs. 19 568 but in spite of this clear position the defendant did not choose to pay the balance which on the defendants own admission was due and payable by the defendant to the plaintiffs. The defendant instead of paying the balance to the plaintiffs stated that if after giving credit to the defendant for the sum of Rs. 19 568 against the plaintiffs claim for Rs. 35 82 against the defendant any amount was found due and payable by the defendant to the plaintiffs the defendant was ready and willing to pay the same. The defendant cryptically denied that there were any arrears of rent and stated that if there were any arrears the defendant had never refused to pay the same to the plaintiffs. The defendant also denied that the plaintiffs bona fide and reasonably required the premises for their own use and occupation. Having regard to this attitude of the defendant the plaintiffs filed a suit being Suit No. 43 of 1955 against the defendant on 1st February 1955 for recovering possession of the premises from the defendant. The ground on which the plaintiffs sought to recover possession of the premises from the defendant was two-fold. Firstly the plaintiffs contended that the defendant was a tenant-in-arrears and was therefore not entitled to the protection of the Bombay Rents Hotel and Lodging House Rates (Control) Act 1947 (hereinafter referred to as the Rent Act); and secondly the contention was that the plaintiffs bona fide and reasonably required the premises for their own use and occupation and were therefore entitled to recover possession of the premises from the defendant. According to the plaint as originally laid a sum of Rs. 28 556 was claimed in respect of the rent and municipal taxes which amount was arrived at after giving credit to the defendant for Rs. 11 580 in respect of certain goods sold and delivered to the plaintiffs by Metal Moulders Ltd. and Rubber Products Ltd. The plaintiffs claim against the defendant actually came to Rs. 38 137 and it was made up in the following manner:
Rs. 18 204 in respect of adjustment or settlement of account dated 6th August 1953. Rs. 8 150 in respect of 25 months rent from 1st January 1953 to 31st January 1955. Rs. 6 615 in respect of municipal taxes for 1953-54; and Rs. 5 167 in respect of municipal taxes for ten months of the year 1954-55. Rs. 38 137 The plaintiffs after giving credit to the defendant for the sum of Rs. 11 580 claimed to recover the balance of Rs. 26 556 from the defendant.
(3.)The defendant in his written statement denied that he was tenant-in arrears and contended that the plaintiffs had failed to give credit to the defendant for the sum of Rs. 19 568 which according to the defendant was due and payable by the plaintiffs to the defendant in respect of the goods sold and delivered to the plaintiffs and that if the plaintiffs were prepared to give credit for that amount the defendant had never refused to pay the balance to the plaintiffs. The defendant alleged that he was ready and willing to pay up such amount as might be found due and owing from him to the plaintiffs on settling the accounts. The defendant also denied that the plaintiffs required the premises bona fide and reasonably for their own use and occupation. Now the sum of Rs. 19 568 in respect of which the defendant contended that the plaintiffs were liable to give credit to the defendant was claimed by the defendant in respect of the price of the goods sold and delivered by Metal Moulders Ltd. and Rubber Products Ltd. to the plaintiffs. According to the plaintiffs however the amount which was due and owing by the plaintiffs in respect of the price of the goods sold and delivered by Metal Moulders Ltd. and Rubber Products Ltd. to the plaintiffs was only Rs. 11 580 and the plaintiffs accordingly gave credit to the defendant for that amount in making their claim against the defendant in the suit. After the written statement was filed by the defendant Metal Moulders Ltd. filed a suit being No. 756 of 1956 against the plaintiffs on 24th April 1956 and Rubber Products Ltd. filed a suit being No. 758 of 1956 against the plaintiffs on 28th April 1956 for recovering the respective amounts due and payable to them by the plaintiffs. These suits were settled and as a result of the statement the plaintiffs paid Rs. 8 639 to Metal Moulders Ltd. on 7th September 1956 and Rs. 2 486 to Rubber Products Ltd. on 19 September 1956 in full and final settlement of the respective claims of Metal Moulders Ltd. and Rubber Products Ltd. against the plaintiffs. The claims of Metal Moulders Ltd. and Rubber Products Ltd. against the plaintiffs were thus settled by payment of an aggregate sum of Rs. 11 125 by the plaintiffs. Since the plaintiffs had given credit to the defendant in the plaint for Rs. 11 550 in respect of the claims of Metal Moulders Ltd. and Rubber Products Ltd. against the plaintiffs for the price of the goods sold and delivered by them to the plaintiffs the plaintiffs applied to the learned trial Judge on 11th February 1957 for leave to amend the plaint by deleting the credit and increasing the claim to Rs. 38 137 which amount represented the actual claim of the plaintiffs against the defendant without any credit being given to the defendant. The amendment was allowed by the learned trial Judge with the result that the ultimate claim of the plaintiffs against the defendant came to Rs. 38 137 It was on the amended plaint that the parties ultimately went to a trial of the suit.
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