This Second Appeal arises out of a suit for damages for breach of contract of lease. The lease was of a house in periyakulara and is dated 12th November 1916. (Exs. 1 and A). It was executed by Subban Chettiar, plaintiff's elder brother and it is not denied that plaintiff is the person now entitled to the house. The lease was for five years. One of the terms of the lease is that within six months from its date, the lessor “shall have a latrine constructed, a well sunk and a room upstairs built”. The lessee occupied the house upto 23rd February 1919, and a notice was given to the plaintiff on 3rd March 1919, alleging that the defendant vacated the house, as the well was not sunk and other necessary repairs were not effected. The plaintiff brought this suit for Rs. 521-12-9, being the rent for the period 23rd March 1919 to 15th September 1920. The District Munsif gave a decree but the District Munsif Judge reversed his decision and dismissed the suit.
Before me, Mr. T. L. Venkatarama Aiyar, who has appeared for the appellant, argued that the lessee for a term is not entitled to put an end to the lease, for breach of covenants in the lease. He can only claim damages for such breach, if any. It is unnecessary to refer to the authorities cited by him. For the learned vakil for the respondent concedes that if there is a breach of mere covenants, the lessee is not entitled to put an end to the lease. (See Woodfal p. 213 Surplice v. Farnsworth. But the respondent contends that the term is a condition in the lease and not a covenant. He relies on Foa on Landlord and Tenant pp. 312 and 313. But the distinction between a condition and covenant is made, only when a lessor relies on the breach for putting an end to the lease. At p. 317 Foa says:
“In no case can the lessee take advantage of the proviso for re-entry, in order to avoid the lease, even where it is in the form that the term shall cease, or that the lease shall be avoided for all purposes.”
Anyhow, Sect. 111 of the Transfer of property Act contains no clause providing for the termination of the lease, at the option of the lessee, on account of a breach of a term of the contract by the lessor, similar to Cl. (g) providing for a forfeiture at the option of the lessor. I am, therefore, unable to agree with the District Judge, when he says:
“It is further argued that the lease could only be avoided under the provisions of Sect. 108 of the Transfer of Property Act. Exhaustive as these provisions appear to be, they do not say that a perfectly clear breach of contract is not a good ground for avoiding a lease”.
All that I have to observe is that the Act does not provide for the termination of the lease for a term, by the lessee, on account of a breach by the lessor. Nor is there anything in Sect. 108 to enable the lessee to avoid the lease.
But assuming that the lessee is entitled to terminate the lease, on account of the lessor's default in carrying out a term of the contract, it seems to me that he has waived it. The lease provides for the construction of a well within six months, i.e 12th May, 1917. It is not pretended that the time was extended by mutual agreement, or that the lessee while condoning the breach on 13th May 1917 gave notice to the lessor, extending the time for performance of the term, upto any later date. The lessee simply chose to continue to occupy the house till 23rd February 1919 and then vacated it. It seems to me not open to the lessee to continue to occupy the house after breach, without giving notice that he was willing to extend the time for performance upto a specified date, and then throw up the lease on a date arbitrarily chosen by him. If he did not put an end to the lease on 12th May, 1917, it must be taken that he has waived the benefit of the condition (assuming there was one). In this view, the plaintiff is entitled to succeed.
I am not satisfied that plaintiff is entitled to the whole of the rent for the remaining period. In his deposition he says:
“I asked many persons. They said the rent was high.”
It seems to me that he demanded higher rent than people were willing to pay and could get no tenant. I think it was his duty to mitigate damages, by taking tenants for a smaller rent. The vakils, to avoid calling for a finding, left it to me to fix the damages, I have fixed it at half the suit amount and they have agreed to it.
The plaintiff will therefore have a decree for Rs. 260-14-4.
The defendant will pay half the Court-fee in Second Appeal to plaintiff. Otherwise, each party will bear his own costs.
K. S. D.Appeal allowed..
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