A M KOMAN NAIR Vs. KUNHAMBU MOOLACHERI NAIR

JUDGEMENT

(1.) These two revision petitions are preferred against two orders of the Subordinate Judge of South Kanara in O.S. No. 529 of 1928, District Munsif Section Court, Kasargode, transposing defendant 2 as plaintiff 2 and permitting an amendment to the plaint. The suit was-originally filed before the District Munsif of Kasargode against defendant 1, the plaintiff claiming to be an assignee of the representative of the lessor's interest who was impleaded as defendant 2 - Ostensibly it was suit for rent. The District Munsif found that it should properly have been a suit for damages for use and occupation as the term of the lease had expired and on that footing the plaintiff as assignee obtained no right to sue by the assignment. He accordingly dismissed the suit. In appeal the Subordinate Judge felt a doubt whether the plaintiff's suit was in fact a suit for rent or for damages and not being able upon the record to decide this himself he proposed to remand it framing an issue which inquired whether the plaintiff's claim was one for damages for use and occupation or whether it was a claim for rent. Against this remand order a civil revision petition was filed in this Court and the learned Judge Madhavan Nair, J., who heard it set aside the remand order, up held the finding of the District Munsif and returned the case to the lower appellate Court for the disposal of the other issues arising in it. When it went back to the Subordinate Judge the two petitions out of which these revision applications arise were filed, namely, for the transposition of the assignor of the lease as plaintiff 2 and the amendment of the plaint in certain particulars. The question accordingly is whether these two orders require revision and as they are largely complementary in character they may be considered together.

(2.) So far as the amendment is concerned the main point taken is that it effected a change in the character of the suit namely, from a suit for rent to a suit for damages for use and occupation. It is perfectly true that a perusal of the plaint lends much colour to this objection, because in para. 8 it is stated that defendant 1 had not paid certain arrears of rout and that defendant 2 had transferred to the plaintiff the right to recover them. But it so happens that the question of the real nature of the suit has already been investigated and decided at a prior stage of this litigation. I have said that the Subordinate Judge appeared to be in some doubt upon the point. When the case came before Madliavan Nair, J., he devoted a greater part of his judgment to discussing the matter and his conclusion is summarised as follows: Having regard to the pleadings in the case, (there can be no doubt that the plaintiff's claim was one for damages for use and occupation and it was dealt with from that standpoint in the first Court.

(3.) The only meaning I can attach to that is that the plaint properly construed supports the view that the claim was of that character. Such a claim of course differs from a claim for rent in respect at least of the question of occupation. It is necessary to prove that the person made liable for damages was in occupation of the property whereas a claim for rent under a lease does not necessarily involve any such issue. It is pointed out however that in point of fact the question of possession has been gone into at the trial in respect of issue 9, namely, whether defendant 1 as he alleged surrendered the property and valid surrendered it. If he did not surrender it, the only alternative was that lie remained in possession after the expiry of the lease and during the period for which the damages were claimed. The learned District Munsif held upon this issue that the surrender was not bona fide and was therefore invalid. I do not think accordingly that any issue which was necessary for the decision whether damages were payable has been omitted in this case. In this respect the case differs from that which was dealt with by Jackson, J., in Veerabhadra V/s. Sri Vaithinathaswami Koil Devasthanam 1927 Mad. 182, the question of possession not having a risen for decision in the suit which was originally for rent and which had been allowed to be converted into one for damages for use and occupation.