KANDASWAMY GOUNDER Vs. K P SIVASUBRAMANIA IYER

JUDGEMENT

(1.) THIS is a civil revision petition by a cultivating tenant as defined under Madras act 25 of 1955, who has been directed to be evicted by the Assistant Collector, ohindigul, at the instance of his landlord.

(2.) THE facts are quite simple. The petitioner is a lessee, holding agricultural lands under the respondent, the owner of the properties, agreeing to pay rent at a stipulated rate. It is not disputed that the petitioner has been the lessee for the past six years, commencing from the year 1956. He failed to pay the rent and executed a promissory note Ex. A-2 for a sum of Rs. 1100 in favour of the respondent. He also executed another promissory note Ex. A-3 for a sum of Rs. 450 for further arrears of rent due by him. The amounts covered by these two promissory notes represented arrears of rent due till the end of fasli year 1958-59. The petitioner failed to discharge these promissory notes, and, of course, did not pay any rent to the respondent. The latter, therefore, filed an application for eviction in C. T. P. A. No. 28 of 1960 on the file of the Assistant Collector, dindigul, charging the petitioner with default in the matter of payment of rent. The respondent claimed that another sum of Rs. 300 was also due by the petitioner for improvements effected on the lands by installation of a pump-set, in respect of which it was alleged that the petitioner agreed to bear the expenses. The petitioner admitted the execution of the two promissory notes and also the non-payment of rent by dim but he claimed to have incurred expenses for fencing the cocoanut trees on the land, for constructing a bund and for other improvements alleged to have been effected by him on the land. The dispute between the parties raised the question as to what was the state of account between them regarding the improvements on the lands. But undisputed fact remained, viz. , that, as a cultivating tenant, the petitioner was due to pay arrears of rent and that the promissory notes were not discharged. The Assistant Collector of Dindigul held that the settlement of accounts between the parties regarding the improvements and other incidental things, which arose out of the tenancy relationship, might be settled in a civil court, but that the petitioner, being admittedly a defaulter in the matter of payment of the stipulated rent, was liable to be evicted. The contention raised on behalf of the petitioner before him that the execution of the promissory notes operated as a discharge of his obligation as a tenant was repelled.

(3.) BEFORE me, the only question that is argued by learned counsel for the petitioner is that the two promissory notes brought about the extinction of the petitioner's obligations to pay rent, and that, if that be the position, the finding of the court below that he is in arrears of rent, cannot be supported. Now what is the effect of taking a bill of exchange or a promissory note on account of a preexisting debt? Does it operate as an absolute discharge of the debt or only as a conditional payment; keeping the debt in suspended animation till it is dishonoured by non-payments? The answer is that it all depends upon the intention of the parties. The intention need not be expressed on the instrument itself, but can be gathered from the circumstances attending the transaction. Lord ehser M. R. enunciated the proposition of law in these terms in In re, Romer and haslam (1393) 2 QB 286 at P. 296 :