PRESIDENT OF F 1250 CHOWGHAT FIRKA P C C CO OPERATIVE Vs. MUTHAVALLY SEYDALIS SON VALIYAKATH KAITHAKKAL KUNHI BARA

JUDGEMENT

(1.) This civil revision petition is against the decree and judgment of the learned District Munsif of Chowghat decreeing the suit brought by the plaintiff claiming a sum, of Us. 238 towards rent due in respect of a godown belonging to the plaintiff for the month of February 1949. The defendant is the petitioner. The plaintiff is the manager of a wakf and the suit property forms part of the family wakf created for the benefit of the descendants of the wakif and the ultimate benefit vests in poor orphans. The property is a godown said to have been constructed for the purpose of storing food-grains. It was taken up by the Government and in the first instance was allowed to be kept by one of the distributors. Subsequently, the defendant became the occupier of the premises at the stipulated rent of Rs. 285 per month. By Ex. B.2 dated 6-12-1948 the defendant-society gave notice to the plaintiff that since the godown was no longer required for the society's use, the plaintiff should take possession of the same on 15-12-1948. The defendant society also offered to give the key of the premises. This notice was promptly replied to by the plaintiff on 14-12-1948. The plaintiff in that notice stated that the society was not entitled to surrender the building as it was put up for the purpose of storing foodgrains and on the understanding with the Government that it would be occupied as long as the distribution of grains continued in that Firka, that the notice issued by the society was neither legal nor proper, that on account of the carelessness of the society the building had been damaged and that consequently he was not bound to take possession and that for any loss caused to the plaintiff, the society would be held responsible. On receipt of this notice, the defendant society sent another notice, Ex. B. 3, dated 27-12-1948, reiterating that the society was going to surrender the building by the end of 31-1-1949 after paying the rent till that date and that there will be no liability against them for any subsequent rent. The society also denied that any damage had been caused to the building on account of the society's carelessness. Ex. A.3 dated 28-1-1949 was then sent by the plaintiff to the defendant denying the allegations contained in Ex. B.3 and questioning the attitude of the society in offering to surrender the building without paying for the damages and characterising it as a wrongful attitude and questioning the legality of the notice on that ground and intimating the society that they would be held responsible for the subsequent rent also. Thereafter, the plaintiff filed the suit against the defendant for recovery of the rent for the month of February 1949.

(2.) In the plaint the averment seems to be to the effect that in spite of the demands, the defendant society was wilfully not paying the arrears of rents and that since the society has damaged the property very much, the plaintiff was not bound to take possession, that the lease had consequently not been determined and so the plaintiff was entitled to claim rent, that even it the lease was determined, since the property had not been restored to its original condition, the plaintiff was entitled to damages for use and occupation.

(3.) The defendant society raised various contentions; chief among them being that the lease was determined by sending a valid notice to the plaintiff, that along with it the rent for January 1949 had also been remitted and which the plaintiff had accepted, that the society had vacated the building from that date and it was therefore not liable for any subsequent rent or damages and that the other allegations in the plaint that the lease had not been determined were not true, that the defendant society had not committed any damages to the building and that the plaintiff was not entitled to any amount. The learned District Munsif held in the course of his judgment that the notice the original of Ex. B.3 was a proper notice expressing the intention of the defendant to determine the tenancy by the end of the midnight of January 1949. He further held that the validity of the notice was not questioned in the plaint. The only point on which the notice terminating the lease was questioned 'would appear to be that it was not a valid notice for the reason that it did not express the defendant's willingness to pay for the damages.