Court affirms dismissal of appeal for lack of evidence on unauthorized constructions. Plaintiffs' adverse inference request denied.

Peter Alan Basil and Anr. Versus East India Pharmaceutical Works Ltd.

Peter Alan Basil and Anr. Versus East India Pharmaceutical Works Ltd. - AIR 1976 Cal 182 Issues Involved:
1. Whether the defendant erected two structures in February 1962 without the written consent of the plaintiffs.
2. Whether the lease was legally terminated and forfeited due to the alleged unauthorized constructions.
3. Whether an adverse inference should be drawn against the defendant for not producing the plans from 1951 and 1955.

Issue-wise Detailed Analysis:

1. Unauthorized Construction Without Written Consent:
The principal question in this appeal was whether the defendant erected two structures in February 1962 without the written consent of the plaintiffs. The lease contained a covenant prohibiting structural alterations or additions without the lessor's prior written consent. The plaintiffs alleged that the defendant constructed an asbestos shed and made additions without consent, thereby breaching the lease. The defendant denied these allegations, asserting that all constructions were approved by the plaintiffs in 1951 and 1955. The court noted that the plaintiffs failed to provide evidence proving the constructions were unauthorized and made in 1962. The absence of the original plans from both parties complicated the matter, but the court emphasized that the burden of proof lay with the plaintiffs.

2. Legal Termination and Forfeiture of Lease:
The plaintiffs argued that the lease was terminated due to the defendant's breach of the covenant. Clause (ii) of the lease provided for reentry by the lessor in case of covenant breaches. The court examined the evidence and found that the plaintiffs did not substantiate their claim that the disputed structures were unauthorized and constructed in 1962. The court concluded that there was no breach of the covenant, and thus, the lease was not legally terminated or forfeited. The judgment of the learned Subordinate Judge, who dismissed the suit on these grounds, was affirmed.

3. Adverse Inference for Non-production of Plans:
The plaintiffs contended that an adverse inference should be drawn against the defendant under Section 114(g) of the Evidence Act for not producing the plans from 1951 and 1955. The court considered the positive evidence of D.W. 3, an office assistant of the defendant, who testified that the plans could not be traced. The South Suburban Municipality also confirmed that the plans were destroyed. The court noted that the defendant had made efforts to locate the plans, including contacting their lawyer, who also failed to find them. Given these circumstances, the court held that the defendant did not deliberately withhold the plans, and therefore, no adverse inference could be drawn.

Conclusion:
The court concluded that the plaintiffs failed to prove that the defendant made unauthorized constructions in February 1962 without their consent. Consequently, the lease was not determined by forfeiture. The judgment and decree of the learned Subordinate Judge were affirmed, and the appeal was dismissed. The appellants were allowed to withdraw the rents deposited by the respondent in the trial court without furnishing any security.