1. This rule has been obtained by the defendant. It is directed against a decree for rent. The plaintiff let two rooms and a kitchen to the defendant on a monthly rent of Rs. 30 from December 1942. The vital clause in the agreement was to this effect:
“This agreement will remain in force so long as British European troops will remain in this town and so long as even one restaurant will remain open and I shall be liable to pay rent at the above rate.”
2. In March 1913, the locality where the restaurant was situated was declared out of bounds to British troops. In September, the petitioner received a notice from the military authorities to the effect that his bar was out of bounds to the Royal Air Force and British troops. In consequence, the petitioner sent a notice to the plaintiff terminating the agreement.
3. It is clear that the petitioner can only succeed by showing that the contract has been frustrated. In this connection I should like to refer to two decisions of the House of Lords. In the case of F.A Tamplin Steamship Co. Ltd. v. Anglo Mexican Petroleum Products Go., Ltd., (1916) 2 A.C 397 : (85 L.J.K.B 1389), Lord Loreburn said this:
“In order to decide this question it is necessary to ascertain the principle of law which underlies the authorities. I believe it to be as follows: When a lawful contract has been made and there is no default, a Court of law has no power to discharge either party from the performance of it unless either the rights of some one else or some Act of Parliament give the necessary jurisdiction. But a Court can and ought to examine the contract and the circumstances in which it was made, not of course to vary, but only to explain it, in order to see whether or not from the nature of it the pasties must have made their bargain on the footing that a particular thing or state of things would continue to exist and if they must have done so, then a term to that effect will be implied, though it be not expressed in the contract. In applying this rule it is manifest that such a term can rarely be implied except where the discontinuance is such as to upset altogether the purpose of the contract. Some delay or some change is very common in all human affairs, and it cannot be supposed that any bargain has been made on the tacit condition that such a thing will not happen in any degree.”
4. In the case of Joseph Constantine Steamship Line Ltd. v. Imperial Smelting Corporation Ltd., 1942 A.C 154 : (1941-2 ALL. E.R 165) Lord Simon said this:
“In this connection it is well to emphasize that when ‘frustration’ in the legal sense occurs, it does not merely provide one party with a defence in an action brought by the other. It kills the contract itself and discharges both parties automatically.”
5. It is probable that the petitioner would not have agreed to pay such a high rent apart from the expectation of deriving higher profits from the British troops than from other customers. That is not sufficient to dispose of the matter. The test is to see whether if things had gone the other way, if, for example, there had been a rise in rents owing to an exodus from Calcutta on account of another panic, it would have been open to the plaintiff to say that the contract had been frustrated on account of the action of the military authorities. Mr. Bose was unable to suggest that it would.
6. Finally, the materials on the petition are not sufficient to enable me to give the petitioner relief. Obviously, he cannot be allowed to retain the rooms and at the same time refuse to pay the rent. I am told by Mr. Haidar that the bar is still there and that Indian troops use it.
7. There is no statement in the petition to the effect that the petitioner surrendered the premises at the end of October.
8. The rule is discharged. I make no order as to costs.
R.G.D
9. Rule discharged.