SHEONANDAN GOPE Vs. SHAHDEO KHATIK

JUDGEMENT

(1.) This is an appeal from a decision of the District Judge of Patna reversing a decision of the Munsif. The appellants sued for rent of a house occupied by the defendants on a monthly rent of Rs. 10. The defendants remained in occupation of the house in spite of the notice to quit. The suit was for recovery of ten months arrears of rent and for mesne profits from the date of the determination of the tenancy. On 30 April 1937, a petition of compromise purporting to be on behalf of both parties was filed. By this agreement the defendants undertook to vacate the house on 15 May and to pay Rs. 84 to the plaintiffs by 5 May in settlement of the plaintiffs claim. It was also agreed that if this amount was not paid by the due date the plaintiffs would have a decree for the full amount claimed, which was Rs. 250. The house was vacated on 15 May as agreed, but the sum of Rs. 84 was not paid on the stipulated date.

(2.) It appears that among the parties was a minor plaintiff and three minor defendants. The guardians of these minors had not been permitted by the Court to enter into the compromise on behalf of their wards. On 5 May, defendant 1 applied to the Court to discharge the guardian ad litem of the minor defendants and to be appointed in his place and to be permitted to compromise the suit on behalf of the minor defendants. The Court directed this application to be heard on 10 May which was the date fixed for considering the compromise petition.

(3.) No orders however were passed on 10 May but the defendants were permitted on that date to deposit Rs. 84 in spite of the plaintiffs objection. On 27 May, the Court directed the compromise to be recorded and held that as time was the essence of the contract between the parties and the money had not been paid on 5 May as agreed, the plaintiffs were entitled to a decree for the full amount claimed. Against that decree the defendants appealed to the District Judge. He held that the compromise was not for the benefit of the minor defendants and time was not the essence of the contract and he dismissed the plaintiffs suit. The plaintiffs have preferred the present appeal without including the minor defendants.