CHATHU EZHUTHASSAN RAMAN EZHUTHASSAN Vs. VARIATH DEVASSI

JUDGEMENT

(1.) THESE two appeals arise respectively out of two connected suits O. S. 183 of 1123 and 0. 8. 154 of 1124 on the file of the Trichur district Court relating to a contract of hire of an engine. The plaintiffs I and 2 and the sole defendant in both the suits are the same. The common 2nd plaintiff is the appellant in both the appeals.

(2.) THE plaintiffs 1 and 2, Sankaran and Raman Ezhuthassan were the owners of a 12-14 H. P. Sten Hornsby Engine having purchased it secondhand and were working their "sivaram Rice Mill Vilangan" therewith. THEy gave this engine and its accessories on hire to the defendant devassy, under Ext. A agreement executed by him on 14-5 -1123, for a period of three months commencing 15-5-1123 for purpose of draining water from certain'kole Nilam'. Under Ext. A terms the defendant had to pay towards hire a total sum of Rs. 900/- of which one-half was payable at date of agreement and the other half a month later, on 15-6-1123. THE defendant acknowledged that the engine was in good working order and covenanted to return the same properly fitted and in running condition at the plaintiff's premises and at his own expense on the termination of the hire on 15 - 8-1123. Default recurring in this, the defendant; undertook to pay the plaintiff, a sum of Rs. 7000/- as value of the engine and further sums at the rate of Rs. 15/- per day of detention, towards the plaintiffs' loss of profits. It was the plaintiffs' case that even though Ext. A mentioned that the 1st instalment of Rs. 450/- was paid on the date of the agreement only Rs. 300/- thereof was paid. THE defendant did not also pay the second instalment of Rs. 450/ -. on the due date, 15-8-1123. THE plaintiffs, therefore laid suit on 4-5-1123 as O. S. 547 of 1123 on the file of the Trichur Munsiffs Court for rea!isation under the two heads as above of a sum of Rs. 600/- with interest. thereon. In; the contest which the defendant raised in this suit on 30-10-1123 , he pleaded full payment of Rs. 450/-so as to leave no balance as due under the first instalment. He also denied the plaintiffs' right to call for the second instalment dues inasmuch as the engine could not be and actually was not worked for the purpose he took it for more than one and a half months owing to a defect of gas leak from which it suffered. Indeed, on that amount the engine had been already returned to the plaintiffs on 29. 6. 1123.

(3.) BEFORE proceeding to consider the merits of the appeals it is necessary to notice a preliminary objection raised on behalf of the defendant-respondent that the appeals were not maintainable because they were filed by the 2nd plaintiff alone without the 1st plaintiff, joint claimant on the party array whether as co-appellant or respondent. The argument was plausible without more. But it soon appeared that the first plaintiff had, even while the suits were pending, given up all his interests in favour of the 2nd plaintiff. The preliminary objection therefore fails.