ACHUTHAN PILLAI Vs. FR CYRIAE J MATTATHIL

JUDGEMENT

(1.) SECOND Appeal No. 677 of 1977 arises out of O. S. 36/68 and SECOND A Appeal No. 676 of 1977 arises out of O. S. 56/71 on the file of the sub Court, Cochin. Both the suits are for arrears of rent in respect of the premises let out to the defendant by the plaintiff as per the terms of Ext. A1 agreement dated 20-8-1958. O. S. No. 36|68 is for a period of three years from May 1965 and O. S. No. 56/71 is for a period three years from May 1968.

(2.) THE defendant is the appellant in both these Second appeals. As per Ext. A1 the premises described therein including a godown and a jetty for loading and unloading cargo from the backwaters of Cochin were let out to the defendant by the plaintiff on a monthly rent of Rs. 1, 500/ -. THE rent was in arrears for the three years period aforesaid and the two suits are filed for recovery of arrears of rent, at the rate fixed in Ext. A1.

(3.) IN appeal, the lower appellate court has reversed the decision of the trial court and has decreed both the suits dismissing the defendant's counter claims. The lower appellate court has held that the defendant is not entitled to claim abatement of rent on account of the breach of covenant by the plaintiff to repair the premises. The defendant had an obligation to carry out the repairs himself and claim the expenses of repairs to be adjusted towards the rent due for the premises. The appellate court has also held that in any view of the matter, the defendant had a duty to mitigate the damages by carrying out the necessary repairs and claiming set off of such amounts as he had to spent for the repairs, towards the rent payable by him. According to the lower appellate court the defendant is not obliged to continue the tenancy in respect of the premises rendered unfit for his use and for the failure of the plaintiff to carry out the necessary repairs, the defendant is not entitled to claim abatement of rent due under the agreement of tenancy. The defendant did not press the claim for damages on account of the expenses incurred for finding alternative accommodation for carrying on his business.