KURUVILA THOMA Vs. GOVINDA MENON RAGHAVA MENON

JUDGEMENT

(1.) This Second Appeal is by the defendant. The suit is one for eviction on foot of a registered lease deed, Ext. A, dated 25.4.1103 and the appellants complaint in Second Appeal is that the suit is premature. Ext. A provides that the lease shall last for a period of 12 years and according to the appellant, it contains a further provision for renewal for another period of 12 years at his option. The point is no doubt interesting, but for reasons which we shall presently state, we feel constrained not to consider it.

(2.) The question whether there is a provision for renewal in the lease deed is no doubt a question of construction of the document. Assuming there is such a provision whether that will avail as a defence to the present suit must depend on the subsequent conduct and acting of the parties. That is a question of fact and we do not find the point that the suit is premature taken either in the first court or in the second court. It is in the memorandum of appeal to this court, that the point is first mentioned. The written statement contains a plea that the suit is not maintainable, but why or how the suit is not maintainable is not seen stated at all. Presumably it refers to the alleged want of title in the plaintiffs. There is no issue raised as to whether the suit is premature or not, nor any discussion in the Trial Courts judgment with reference to it. The memorandum of appeal to the lower appellate court is also silent with regard to this point, nor was the point raised at the hearing of the appeal before that court. In these circumstances, especially when the point involved cannot be considered to be a point of mere law, it would not be proper to permit the appellant to agitate this point, for the first time, in the Second Appeal. To permit it would work hardship on the opposite side.

(3.) The respondents learned Advocate pointed out that the relief was not valued in the second appeal or any court fee paid with respect to it. That objection is one more of form than of substance. Had the memorandum of appeal stated that as the two reliefs claimed, viz., the dismissal of the suit and the enhancement of compensation are reliefs claimed in the alternative and that court fee is paid for the relief demanding higher valuation there would have been no occasion at all to raise the point. The court fee now paid is more than what the plaintiff paid in the suit with respect to the relief of eviction. The first ground however is more fundamental and we have to uphold it.