Case: Karnani Industrial Bank, Limited Vs. The Province Of Bengal And Others

a manner as to be equivalent to the landlord assenting to the lessee continuing in possession. Both the Cts below, after dealing with the matter elaborately, have concurrently held that in the circumstance of the case the consent of resp. 1 to the applts. continuing in possession cannot be inferred, & we agree with this finding.11. It was pointed out to us in behalf of the resp. that the entry relating to this payment in the books of the pltf. contains the words :"received without prejudice from Karnani Industrial Bank. . . , ."The same words, however, occur in several earlier entries, & we are not inclined to attach any special significance to them. But it seems to us that the very fact that the payment was made at time when there was no. question of the lessor assenting to the lessees continuing in possession & neither party treated the payment as importing such assent is sufficient to take the case out of the mischief of S. 116, T. P. Act.12. There is also another view which we think is possible to take upon the facts of the case. As we have seen the rent for the first year was paid in advance near about the time of the execution of the lease & nothing turns upon it. When however the second payment was made, the sum paid was Rs. 6, 714 & odd, & the payment was made in respect of rent up to 31-3-1930. After this all the subsequent payments were made up to the 31st March of the succeeding year, evidently because the financial year, which the parties considered themselves to be governed by, ran from the 1st April to the 31st March of the succeeding year. It was presumably in view of this fact that the pltf. filed an appln. on 6- 11-1941, for amending the plaint so as to include the following statement : "The pltf submits that even assuming that the registered lease terminated on 23-2-1938 by an agreement between the pltf & the deft. 1, the latter was allowed to hold over up to 31-3-1938. This appln., however, was rejected, because it was made at a very late stage that is to say, after the defts. evidence had been closed & an adjournment had been granted to the plft. to adduce rebutting evidence. However that may be, the utmost that can be said upon the evidence as it stands is that by the implied consent of the parties the period of the lease was extended up to 31- 3 1938. In this view, the resp. 1 became entitled to re-enter after the 31st March, & no. notice u/s. 106, T. P. Act, was necessary. In the circumstances, the decree for ejectment passed by the Court below must be upheld.13. The next question which arises in this case turns on the proper construction of cl. 11 of part I & cl. 1 of part III of the lease, which have already been quoted. It seems to us that cl. 11 should be read as a whole, & when it is so read, it becomes clear that it was intended to be applicable only where the Secretary of State decided to exercise his right to terminate the lease at any time subject to 6 months notice, " in the event of the lessee failing to observe & duly perform the conditions mentioned in the lease. In such a case, if the lessee did not remove the boilers, engines & all other materials & yield up the premises to the Secretary of State, those articles were to become the property of the Secretary of State. This clause is evidently not applicable to the present case. The clause which applies to this case is cl. 1 of part III, which is intended to be applicable to the normal case of the lease expiring by efflux of time. This clause as we have seen provides that the lessee shall be at liberty to keep on the demised premises for 3 months after the expiration of the lease any bricks, boilers, etc., but it also provides that "any bricks & other materials in contravention of this condition shall become the absolute property of the Secretary of State without payment." There can be no. doubt that under this clause, the bricks & other materials have become the absolute property of the pltf. The only question is as to the meaning of "other materials." It seems to us on an examination of the lease as a whole that there must be a distinction between materials, & machinery & tools & similar articles, & the words "other materials" have no. reference to engines, trucks, rly. & tramway lines & plant. They mean building materials such as bricks, tiles & similar articles that might have been manufactured by the applts. on the demised premises. That being so, the decree under appeal should be modified accordingly.14. The only other point which arises for consideration relates to the pltfs prayer for a decree for permanent injunction against the defts. to restrain them from removing or otherwise disposing of the articles in regard to which the decree is to be passed. It was contended on behalf of the applts. that the resp. 1 not being in possession of these properties could not ask for the relief of injunction without asking for the declaration of its title in respect of them & possession over them, & in support of this proposition, the following cases were cited : -Rathnasabapathi Pillai v. Ramasami Aiyar, 33 Mad. 452) , Bhramar Lal v. Nanda Lal, (24 I. C. 199), and Valia Tamburathi v. Parvati, 13 Mad. 454. After reading & fully considering those cases, we find them to be wholly inapplicable to the present case. In the present case, it has been found that the bricks & other materials have become the property of the pltf. & there can be no. legal objection to the granting of an injunction as prayed.15.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]It was pointed out to us in behalf of the resp. that the entry relating to this payment in the books of the pltf. contains the words :"received without prejudice from Karnani Industrial Bank. . . , ."The same words, however, occur in several earlier entries, & we are not inclined to attach any special significance to them. But it seems to us that the very fact that the payment was made at time when there was no. question of the lessor assenting to the lessees continuing in possession & neither party treated the payment as importing such assent is sufficient to take the case out of the mischief of S. 116, T. P. Act.There is also another view which we think is possible to take upon the facts of the case. As we have seen the rent for the first year was paid in advance near about the time of the execution of the lease & nothing turns upon it. When however the second payment was made, the sum paid was Rs. 6, 714 & odd, & the payment was made in respect of rent up to 31-3-1930. After this all the subsequent payments were made up to the 31st March of the succeeding year, evidently because the financial year, which the parties considered themselves to be governed by, ran from the 1st April to the 31st March of the succeeding year. It was presumably in view of this fact that the pltf. filed an appln. on 6- 11-1941, for amending the plaint so as to include the following statement : "The pltf submits that even assuming that the registered lease terminated on 23-2-1938 by an agreement between the pltf & the deft. 1, the latter was allowed to hold over up toThis appln., however, was rejected, because it was made at a very late stage that is to say, after the defts. evidence had been closed & an adjournment had been granted to the plft. to adduce rebutting evidence. However that may be, the utmost that can be said upon the evidence as it stands is that by the implied consent of the parties the period of the lease was extended up to 31- 3In this view, the resp. 1 became entitled to re-enter after the 31st March, & no. notice u/s. 106, T. P. Act, was necessary. In the circumstances, the decree for ejectment passed by the Court below must be upheld.e next question which arises in this case turns on the proper construction of cl. 11 of part I & cl. 1 of part III of the lease, which have already been quoted.It seems to us that cl. 11 should be read as a whole, & when it is so read, it becomes clear that it was intended to be applicable only where the Secretary of State decided to exercise his right to terminate the lease at any time subject to 6 months notice, " in the event of the lessee failing to observe & duly perform the conditions mentioned in the lease. In such a case, if the lessee did not remove the boilers, engines & all other materials & yield up the premises to the Secretary of State, those articles were to become the property of the Secretary of State. This clause is evidently not applicable to the present case. The clause which applies to this case is cl. 1 of part III, which is intended to be applicable to the normal case of the lease expiring by efflux of time. This clause as we have seen provides that the lessee shall be at liberty to keep on the demised premises for 3 months after the expiration of the lease any bricks, boilers, etc., but it also provides that "any bricks & other materials in contravention of this condition shall become the absolute property of the Secretary of State without payment." There can be no. doubt that under this clause, the bricks & other materials have become the absolute property of the pltf. The only question is as to the meaning of "other materials." It seems to us on an examination of the lease as a whole that there must be a distinction between materials, & machinery & tools & similar articles, & the words "other materials" have no. reference to engines, trucks, rly. & tramway lines & plant. They mean building materials such as bricks, tiles & similar articles that might have been manufactured by the applts. on the demised premises. That being so, the decree under appeal should be modified accordingly.The only other point which arises for consideration relates to the pltfs prayer for a decree for permanent injunction against the defts. to restrain them from removing or otherwise disposing of the articles in regard to which the decree is to be passed. It was contended on behalf of the applts. that the resp. 1 not being in possession of these properties could not ask for the relief of injunction without asking for the declaration of its title in respect of them & possession over them, & in support of this proposition, the following cases were cited : -Rathnasabapathi Pillai v. Ramasami Aiyar, 33 Mad. 452)  , Bhramar Lal v. Nanda Lal, (24 I. C. 199), and Valia Tamburathi v. Parvati, 13 Mad.After reading & fully considering those cases, we find them to be wholly inapplicable to the present case. In the present case, it has been found that the bricks & other materials have become the property of the pltf. & there can be no. legal objection to the granting of an injunction as prayed.