Commercial lease apportionment and appellate review discretion favoured annual rent valuation and relief for non-appealing proprietors.

An apportionment clause in a commercial lease on compulsory acquisition was construed by reading the instrument as a whole and in light of its commercial purpose, so the reference was to annual rent rather than monthly rent; the lessors were therefore entitled to twenty-five times the annual rent. On review, the High Court could invoke Order 41, Rule 33 CPC to grant relief to non-appealing proprietors, because omission to consider that discretionary power was treated as an error affecting complete justice. The appeal failed on both issues, and the High Court's decision was left undisturbed.

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Issues: (i) Whether the apportionment clause in the lease entitled the lessors to twenty-five times the monthly rent or twenty-five times the annual rent on compulsory acquisition of the property; (ii) Whether the High Court could grant relief to the non-appealing proprietors under Order 41, Rule 33 of the Code of Civil Procedure, 1908 on review.

Issue (i): Whether the apportionment clause in the lease entitled the lessors to twenty-five times the monthly rent or twenty-five times the annual rent on compulsory acquisition of the property.

Analysis: The clause had to be construed in the setting of the whole lease and in the light of its commercial purpose. The expression used in the apportionment clause could not be read mechanically from the adjoining covenant dealing with rent payment, because the two clauses served different purposes. In valuing property on compulsory acquisition, the accepted method is capitalisation of the annual rental, and the language of the document was held to support that commercial construction. Reading the clause to mean monthly rent would produce an unnatural and commercially improbable result.

Conclusion: The expression referred to annual rent, and the lessors were entitled to twenty-five times the annual rent.

Issue (ii): Whether the High Court could grant relief to the non-appealing proprietors under Order 41, Rule 33 of the Code of Civil Procedure, 1908 on review.

Analysis: Order 41, Rule 33 confers a wide enabling discretion on the appellate court to do complete justice and avoid inconsistent decrees. The omission to consider that power in the original judgment could be corrected on review where the point was overlooked, and such omission was treated as an error analogous to one apparent on the face of the record. The review jurisdiction was therefore available to enable reconsideration of the omitted point.

Conclusion: The High Court was competent to extend relief to the non-appealing proprietors and its exercise of that power was upheld.

Final Conclusion: The appeal failed on both grounds, and the High Court's decision in favour of the proprietors was left undisturbed.

Ratio Decidendi: A commercial lease clause for apportionment on compulsory acquisition must be construed according to the scheme and purpose of the instrument, and an appellate court may, in review, correct an omission to consider its discretionary power under Order 41, Rule 33 where that omission affects complete justice between the parties.

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