Rajeshwar Prasad Sinha and Others vs Chunilal Daruka and Another

Dhavle, J.—This is an application u/s 25, Small Cause Courts Act, and arises out of a suit for damages in the following circumstances: The defendants took a house from the plaintiff on a rent of Rs. 13 per month and, according to the plaintiff, the agreement between the parties was that in case of default in the payment of rent the defendants were liable to be evicted on three days'' notice. The plaintiff said that the defendants had defaulted in the payment of the rent, that notice, was served upon them but they failed to vacate the house. The defendants denied any such agreement, but the lower Court has found, from the counterfoils of the rent receipts given by the plaintiff to the defendants, that the agreement set up by the plaintiff is a fact and that the defendants were liable to be evicted on three days'' notice.

Coming to the question whether the plaintiff was entitled to get any damages, the learned Judge below held that the Small Cause Court could not determine this point "specially as from Ex. 1 to 1 (b)(i.e. the counterfoils) it transpires that the effect of non-payment would be charging of interest at Re. 1 per mensem and not damages."

The learned Judge also observed that "it is not within the scope of S.C.C. to see why the defendants did not vacate the house. This can be only determined in a title suit" and he gave the plaintiff a decree for the rent that Was admittedly due.

It has been contended on behalf of the petitioners, who have been brought on the record in place of the plaintiff, since deceased that the learned Judge below was in error in holding that the Small Cause Court cannot award damages in such a case. In support of this contention, the learned advocate has referred to Vira Pillai v. Rangaswami Pillai (�99) 22 Mad. 149, Kunjo Behari Singh v. Madhub Chandra (96) Cal. 884 (F.B.), Kali Krishna v. Izzat-un-nissa Khatun 24 Cal. 557 and Kordatu Gurayya Vs. Vuppalapati Sathiraju, . The learned advocate for the defendants opposite party has not been able to maintain that the view of the lower Court on this point was right. He has, however, suggested that what the lower Court really thought was that, in case of default in the payment of rent, the plaintiff was confined to the two remedies mentioned in the counterfoils, namely, realisation of interest at Re. 1 per month on the rent due and eviction on three days'' notice. The suggestion is supported by the somewhat obscure language of the learned Judge below; but the remedy pf a suit for damages for breach of a contract need not, of course, be one of the terms of the contract but becomes available under the law in case of a breach of a contract without any express stipulation, to say nothing of the fact that it cannot be pretended that the terms of the contract, as gathered from the counterfoils, exclude the ordinary remedy of a suit for damages in case of breach.

The result is that the judgment and the decree of the lower Court must be set aside and the case remanded for a trial de novo, necessitated by the fact that the notes of evidence recorded in a Small Cause Court trial are not of a kind to enable a decision on disputed points to be arrived at months afterwards. The petitioners will be entitled to their costs in this Court, including a hearing fee of one p gold mohur.