Bavachi vs Vizhoth Kanhirote Kunhi Kannan and Another

Jackson, J.—Petitioner seeks to set aside the decree passed against him in A.S. No. 266 of 1921 on the file of the Court of the Subordinate

Judge of Tellicherry. The plaintiffs were kanomdars against whom the jenmi had obtained a decree for redemption on 3rd February, 1915. On

22nd June, 1915, the plaintiffs compromised their suit for rent against the present petitioner by arranging (Ex. C) that they would pay into Court the

improvements found due to the petitioner in the jenmis suit (Rs. 563-13-0) and then the petitioner should deduct from that sum Rs. 1.69-8-8 the

amount of rent due from petitioner to plaintiffs, and take the balance of Rs. 394-4-4 as compensation for improvements. The plaintiffs instead of

themselves paying in the improvement value waited till their jenmi paid in Rs. 563-130 to petitioner''s credit to ejected them under his decree. The

petitioner then instead of leaving Rs. 169-8-8 as due to plaintiffs for rent, drew the full amount. Plaintiffs accordingly brought the present suit. The

question raised by petitioner is whether plaintiffs'' suit is time-barred; plaintiffs contending on their part that the withdrawal of the whole amount

gave them a new cause of action.

There can be no doubt that the agreement was incapable of fulfilment from the time when the jenmi paid in the compensation amount and the

petitioner drew it out. There would be no object in plaintiffs paying the same sum for improvements again into Court. It is, therefore, the duty of the

petitioner to restore to plaintiffs the advantage which, he obtained under the, agreement, the suspension, of the claim to rent. Accordingly in the

light of, Section 65, Act IX of 1872, a fresh cause of action accrued when the act agreed upon became impossible. Nor is the reasoning in the

case cited by the learned Subordinate Judge, Muthuveerappa Chetty alias Vellayappa Chetty Vs. Adaikappa Chetty and Others, inapplicable to

this case. As observed by the Chief Justice in that ruling, where a party has been deprived of the satisfaction which he had originally obtained, it is

equitable that he should be allowed to prefer a fresh claim. In this case the equities are all on the side of the counter-petitioners so far as can be

judged from the present record. Petitioner''s withdrawal of the rent amount on the merely technical ground that it was deposited by the jenmi and

not by the petitioner''s landlords was a piece of sharp practice and it comes ill from his mouth that plaintiffs instead of immediately ejecting him after

the compromise Ex. C was decreed, allowed him to stay on the land till they themselves were ejected by their jenmi.

I see no reason to interfere. The petition is dismissed with costs.