TMI Blog1960 (6) TMI 29X X X X Extracts X X X X X X X X Extracts X X X X ..... rte decree and the ex parte decree was set aside; against that order, certain proceedings were pending in this High Court and in the meantime, on the 8th June, 1958, under the order of the Calcutta Corporation one of the structures which was in a dilapidated condition, was demolished. 3. The defendant applied for restitution under Section 144 of the Code after the ex parte decree was set aside. The objection of the plaintiff landlord was that as the Corporation demolished one of the structures there has been a frustration of the contract within the meaning of Section 56 of the Indian Contract Act and, therefore, no restitution is possible. This objection was over-ruled by both the Courts below and hence the present appeal. 4. Mr. Sen on behalf of the landlord has referred to Section 59 of the Indian Contract Act and he says that the statute and the principle underlying the same has been applied to leases and he has referred to a decision reported in in the case between Kshitish Chandra v. Shiba Rani. According to Mr. Sen, there may be some conflict of opinion on this matter in England, but whatever that may be, so far as our country (sic), the doctrine of frustration has been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ondal. Mr. justice R. C. Mitter (Sir Roopendra Commar) held We would however, be inclined to take the view that the doctrine does not apply where as a result of contract an estate is created , but observed that it was not necessary for them to decide the point. Mr. Ganguly has further referred to another decision of this High Court of Guba Roy. J., reported in AIR1952Cal567 between Sakhisona Dasi v. Gour Hari Jana where he doubted the decision of R. P. Mukherjee, J. in the case between Kshitish Chandra v. Shiba Rani, AIR1950Cal441 and followed a decision of Coyajee. J. in the Bombay High Court reported in AIR 1950 Bom 89, Tarabai Jivanlal v. Padamchand. He, therefore, submits that the doctrine of frustration has no application to leases and the restitution was correctly allowed by both the Courts below. 6. The first question that has been raised before me is whether the doctrine of frustration applies to leases. Except the decision in ILR 7 Cal 474 a decision of Sir Ramesh Chunder Mitter, all the other decisions referred to the English cases for a proper understanding of the doctrine of frustration. It is Sir R. C. Mitter alone, who restricts himself to Section 56 of the Contra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion to lease-holds; but I am referring the aforesaid for the purpose that as we have our own statute on this matter it is not permissible to import the principles of English law (as stated by him at p. 319 (of SCR): (at p. 47 of AIR)). 10. Coming to our own law, if we refer to the earliest decision in ILR 7 Cal 474 of Sir R. C. Mitter, we do not find anything from the reports as to whether there was a relationship of landlord and tenant between the plaintiff and the defendant. It may be there was a contract between them as is usual in our country between the owner of a particular plot of land and a cultivator for having the land cultivated by a contract system known as Bargha or Bhag. The only difference might have been that in case of Bargha or Bhag, produce is to be delivered but here the contract was by payment of money. Whatever it may be, that case is no authority for the purpose of determining the question whether the doctrine of frustration applies to leases or not. The only question was whether the doctrine of frustration would apply to contracts and whether the circumstances were such as to make the rule applicable. In that view of the matter, I cannot hold that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the lessee is put in possession, it is the duty of the landlord to allow the tenant to continue in possession without interruption under Section 108(c) of the Transfer of Property Act and further the lessee is bound at the proper time and place to pay the rent to the lessor as provided under Section 108(1) of the Transfer of Property Act. What, therefore, is stated is that the possession may be delivered, but that does not mean that the entire contract has been performed and nothing remains yet to be done. It is stated further that this aspect of the matter was not considered by Mr. Justice Guha Roy. However, I cannot say that the entire contract is completely performed as soon as the lessee is put in possession and nothing else is yet to be done. During the period of the lease, the landlord's duty is to allow the tenant peaceful enjoyment of the property. The tenant's duty is to pay the rent. If that is so, the contract of lease does not come to an end as soon as the lease is executed. The other clauses of Section 108 would show that there are other rights and liabilities of the landlord and tenant under its various sub-clauses. In that view of the matter, I cannot accept ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , that the question of frustration of a lease by destruction of the property is to be decided under the Transfer of Property Act but other cases of the lease (contract) becoming impossible are to be adjudged under the Contract Act, seems rather difficult to me. The reason is while dealing with the provisions of the Transfer of Property Act and the Contract Act in relation to contribution the Supreme Court held in Kedar Lal v. Harilal reported in [1952]1SCR179. It is an established principle that where there is a general law and a special law dealing with a particular matter, the special excludes the general . If it excludes the general it excludes the general in its entirety and not in parts only. 19. Heading therefore Section 108(e) together with the proviso I cannot but hold that the entire law of frustration of leases is codified under Section 108(e) of the Transfer of Property Act, The result is that under the Contract Act the contract stands discharged as this is a part of positive law; whereas under the Transfer of Property Act it depends on the option of the lessee. Therefore, the result of frustration, if a lease is to be treated as a contract would contradict the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be entitled to restitution simply because the decree is set aside or varied or reversed. The condition under which the person would be entitled to restitution is that he must be on the date of application a person entitled to benefit by way of restitution or otherwise. The Section clearly says that restitution would not come as a matter of course either on variation or on reversal of the decree; but the person must also be entitled to any benefit by way of restitution. What I mean to say is, if a suit is instituted against a trespasser and the plaintiff gets a decree against the trespasser and finally that decree is reversed will the trespasser be entitled to restitution? He will not be entitled to restitution for the simple reason that he is not entitled to benefit by way of restitution. He has no right to be restituted to the property. If he has none, he cannot be said to be entitled to the benefit of restitution. This is what the Privy Council has decided in a case, between S. N. Banerji v. Kuchwar Lime and Stone Co. Ltd. Lord Atkin considered the matter and observed: that justice does not require such a preposterous conclusion as they (trespassers), should be put back in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efinition of the word 'tenant' that, he continues to be so till a decree for ejectment is passed . 25. In that view of the matter, I hold that the tenant is still entitled to some benefit by way of restitution and he would be so entitled till a decree for ejectment is not passed by a competent Court. As no decree for ejectment has yet been passed, I hold he is entitled to the benefit of restitution and so I substantially agree with the findings of the Courts below. 26. Having held that the lease has not been frustrated because or demolition of one of the structures and having further held the petitioner tenant is entitled to restitution, the question is to which property the tenant may be restituted. I would make it clear that there is no question of restitution with regard to the demolished structure. The structure has been demolished and is not in existence, so no question of tenant's option arises with regard to the non-existing properties. The structure was leased out, not the land underlying and after the structure was demolished, the tenant cannot be put in possession of that structure as a matter of fact even if he would like to be so put in possession; he ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
