Mohammed vs Pushpalatha

agreement entered into by the parties. It is not in dispute 2

that under the agreement, being Exhibit No. P1 before

the trial Court, the respondent agreed to reconstruct the

premises in question with toilet facility. The premises in

question was reconstructed, but, however, the toilet was

not reconstructed according to the terms of the

agreement. In the old structure of the said premises, the

appellant was paying, as a tenant to the respondent, a

sum of Rs. 325/- per month as rent. It would be evident

from the agreement itself that the tenant had agreed to

pay rent at the rate of Rs. 1250/- per month after

reconstruction in terms of the said agreement.

Admittedly, under the said agreement, the respondent

was liable to reconstruct the premises with toilet facility.

The toilet was not constructed and accordingly, the

aforesaid suit was filed by the appellant for a decree that

the respondent shall construct a toilet and to declare that

the tenant was liable to pay the rent at the old rate and

not as per Exhibit P1 and for permanent injunction not to

interfere with the peaceful possession and enjoyment. 3

3. The trial Court decreed the suit and directed the

respondent to construct the toilet as agreed to by the

parties within three months from the date of the delivery

of the judgment. The impugned order of the High Court

discloses that the toilet has not yet been constructed.

According to the appellant, the tenant is only liable to

pay at the rate of Rs.1250/- per month after the toilet is

constructed and given possession to him. The High

Court, in Appeal, held that the appellant was liable to

pay rent at the rate of Rs. 1250/- per month and not at the

rate of Rs. 325/- per month, although, in terms of the

agreement, toilet was not constructed and possession not

given in respect of the same.

4. Feeling aggrieved by the Judgment of the High Court,

the present appeal, after grant of leave, has been filed,

which was heard by us in presence of the learned counsel

for the parties. Having heard the learned counsel for the

parties and after going through the materials on record

including the judgments of the Courts below and the

agreement executed between the parties, we are of the 4

view that the appellant shall be liable to pay rent at the

rate of Rs. 1250/- per month after the toilet is constructed

and possession given thereof.

5. As noted herein earlier, in this case, toilet has not been

constructed at all, although, the other part of the

agreement, namely, reconstruction has been made and

possession has been delivered to the appellant. In view

of Section 51 of the Contract Act, we are of the view that

the appellant is liable to pay rent at the rate of Rs. 1250/-

per month, only after the toilet is constructed and

possession of the toilet given to the appellant.

6. The learned counsel for the respondent also agreed that if

three months' time is granted to the respondent, the toilet

shall be constructed and possession can be given within

a month from the date of construction of the toilet.

7. Such being the stand taken by the learned counsel for the

respondent, we dispose of this appeal in the following

manner :-

a) The decree passed by the trial Court that the toilet shall be constructed is

affirmed and the respondent is directed to construct the toilet and 5

possession of the toilet must be given to the appellant within four months

from the date of supply of a copy of this order.

b) If such toilet is constructed and possession is delivered to the appellant, the appellant shall pay rent at the rate of Rs. 1250/- per month from the

1st day of the Calendar month, in which the possession of the toilet shall

be given to the appellant.

c) If no toilet is constructed and possession of the toilet is not given to the

appellant, the Judgment of the High Court shall stand affirmed and this

appeal shall stand dismissed.

8. With the above directions, the appeal is disposed of.

There will be no order as to costs.

................................J. (TARUN CHATTERJEE)

................................J. (AFTAB ALAM) NEW DELHI,

JULY 21, 2008