NASIRUDDIN Vs. ABDULLAH MIAN

JUDGEMENT

(1.) THIS is a revision by the defendants in a Small Cause Suit.

(2.) THIS facts of the case are that a registered agreement took place between the plaintiff Abdullah Mian and the defendants Nasiruddin and Haji Gaind Mohammed on 26. 7. 48, by which it was agreed that a particular house of the defendants be leased to Abdullah Mian for a period of five years for the purpose of a factory. It was agreed that after the expiry of the said period, the tenant would hand over the house in as good a condition as it was taken. On the next day, that is 27th July 1948, the tenant deposited Rs. 420/- with the landlord as a security for the due fulfilment of the stipulation to do all repairs which may be necessary at the termination of the lease, and that if the tenant did not do so, the landlords would be entitled to do it and deduct the cost out of the said deposit, and hand over the balance to the tenant. Some time after this the landlords instituted a suit on 24th August, 1949, for recovery of rent from Abdullah Mian for a period of one year on the allegation that the tenant had failed to pay the rent from the date of his occupation ion 26th July, 1948. They gave a credit for Rs. 420/- and sued for the balance of the amount. The tenant took a plea that although the rent-note was executed and registered, the landlord did not hand over possession of the house, and therefore, no rent was due. The trial court decreed the suit, but on appeal the learned, District Judge by judgment dated 6th November, 1951, upheld the defence and dismissed the suit. The same judgment was upheld on second appeal to this Court by decision in Civil Second Appeal No. 41 of 1951 dated 4th October, 1954. The tenant, through his lawyer, gave notice to the landlord on 16th November, 1951, calling upon the landlords:, to pay damages for non-delivery of possession to the tune of Rs. 18,000/- and also to return Rs. 420/-given on deposit as a security for fulfilment of one of the terms of the lease. The same notice called upon the landlords to even then hand over possession of the leased premises within 48 hours, in default whereof further damages would be claimed at the rate of Rs. 700/-p. m. The landlords gave a reply to the lawyer on 4th December, 1951, that no reply Was necessary as the notice purported to be on behalf of Abdullah Mian son of Rahim Baksh, while the contract of lease was made with Abdullah Mian son of Khuda Baksh. It appears that in mentioning the name of the client, the learned lawyer had made a mistake. The tenant was Abdullah Mian son of Khuda Baksh, and it was on his behalf that notice was intended to be served on the landlords. A second notice was served by the lawyer for the tenant, in which the latter was correctly described as Abdullah Mian son of Haji Khuda Baksh, calling upon the landlords to pay damages to the tune of Rs. 30,000/ -. THIS notice was dated 22nd November, 1954. A reply was given by the landlords that the tenant had got into possession, and was liable to pay rent upto 26th December, 1954, to the tune of Rs. 4,970/-, and it was also intimated that the amount of Rs. 420/- was paid towards rent, and had been so adjusted. The tenant filed the present suit on 22nd March, 1955, for recovery of Rs. 420/- on the ground that the landlords had never handed over possession of the leased premises to the tenant, and the amount was refundable to the tenant. The landlords reiterated their previous pleas that possession had been handed over to the tenant, and he had failed to pay the rent, and that the amount was not refundable. A plea of limitation was also raised. The learned Judge, Small Cause Court, held that the plea of the defendants about the possession being handed over to the tenant had been decided against him in the former suit, and was barred on the principle of res-judicata. He accordingly framed an issue of limitation, and appeal Art, 145 of the Limitation Act, and held the suit within limitation. The suit was accordingly decreed.