Charles Stuart vs Patrick Playfair and another

Jenkins, J.—(sic) ction brought by a Mr. (sic). Playfair and Mr. James Hewitt Barry, who carry on business in this town under the name of Barry & Co. By his plaint, Mr. Stuart prays-"That the Defendants may be ordered to execute a proper agreement for a six months'' extension of his lease, or in the event of their being unable to do so, they be ordered to pay Rs. 1,470 damages in lieu of such extension.

Rs. 3,830 for the other breaches of agreement mentioned in the plaint.

At the hearing, however, the claim embodied in the first paragraph of the prayer has been abandoned, so that I have only to consider whether the claim of Rs. 3,830 can be supported.

In 1885, the Plaintiff took from Barry & Co. a lease of 170, Dhurumtalla, for a term of four years, which expired on the 15th of December 1889, and under his lease he was entitled to an option of renewal which is expressed in these terms.

Subject to the payment of the rents and taxes and the performance by the lessee, his executors or administrators of the Stipulations on his or their part hereinbefore contained, the lessee, his executors, administrators or assigns shall, at the expiration of the said term of four years hereby granted, be entitled on giving to the lessors, their respective heirs, executors, administrators or assigns three calendar months'' previous notice in writing of such his intention to a renewal of this lease of the said messuage and premises hereby demised for the further period or term of four years subject to the payment of rent and to the observance and performance of the conditions and stipulations herein contained, excepting only the proviso herein contained, for the extension of the said term hereby demised, and in case of such election, he shall execute at his own expense a lease for such further term and deliver the same to the lessors, their respective executors, administrators or assigns at or before the commencement of such further term.

For the purpose of this case it is conceded by the Defendants that the requisite notice was served, and it is obvious that the lease contemplated by the option was one to commence immediately from the determination of the expired lease and to end on the 15th of December 1893. The new lease, however, was not executed until October 1892, and in view of this fact the Plaintiff and the Defendants agreed that the term should be for four years from that date. In addition to this, the Plaintiff was in possession of the premises from 1889 up to the granting of the new lease, and also for a period of eight months after the expiration of the extended lease.

Notwithstanding these facts the Plaintiff alleges that he has a claim for damages which was kept alive when the new lease was granted.

Now, Mr. Graham, in the course of his argument which was none the less clear because it was concise, has very fairly admitted that under the special circumstances of the case, his client cannot recover damages unless he can establish that Barry & Co. were under an obligation to effect any structural repairs that the house might require.

To ascertain the lessor's liability in this direction one naturally and necessarily turns to the lease of 1885; but admittedly that document contains no express covenant on the part of the lessors to repair. Then is there anything in the terms of the lense, on the relationship of the parties, from which such an obligation is to be implied. It is true that the lessee's liability to yield up in repair is subject to an express exception of damages by fire, explosion, earthquake, tempest, and other inevitable accident, and that his liability to repair expressly excepts rebuilding the premises or any part thereof, if injured or destroyed by accident or by act of God; but as matter of construction it appears to me perfectly clear that these exceptions are limited in their operation to the exemption they express and in no way impose a corresponding liability on the lessors. But then it is said that the covenant to renew imports an obligation on the part of the landlord to put the premises into a proper state of structural repair. No such obligation is imposed by the Transfer of Property Act, nor am I aware of any principle of equity, justice and good conscience which requires such a result. Had the lease of 1885 been for eight years, then it is conceded that the lessee could not have called on the lessors to have done the repairs, so that the lessors apparently undertook a heavier obligation, because they granted a lease for four years, with an option of renewal for another term of four years.

The limit of the lessee's rights was that if by fire, tempest, flood or other irresistible force any material part of the property was rendered substantially unfit for the purposes for which it was let then he had an option to avoid (sic) he could not have called (sic) to expend any money on (sic) It appears to me, therefore, that whether one treats the new lease as a continuation of the old one, or as a fresh and independent lease, the lessors were not under the liability for which the Plaintiff contends.

In my opinion the lessors were under no implied obligation during the currency of the past four years to repair and maintain the demised property or to compensate for any loss sustained by the lessee from defect of repair, nor was there any implied warranty or condition on their part to put the premises into structural repair on a renewal which resulted from the exercise by the lessee of his option, an act, be it noted, done by the lessee with full knowledge of the condition of the property, and while he was in a better position to judge of that condition than the lessors who became bound by the exercise of this option. For these reasons I hold that the action fails; but though I have disposed of the case on the footing that the house was in structural disrepair, it must not be taken that I hold that to be the fact. Another fatal objection to the suit is that the evidence discloses no damage. The result then is that I dismiss the action with-costs on scale No. 2.