MERLA SURAMMA Vs. KAKILETI SAITA RAMASWAMY AND ANR.
LAWS(APH)-1955-11-30
HIGH COURT OF ANDHRA PRADESH
Decided on November 01,1955

Merla Suramma Appellant
VERSUS
Kakileti Saita Ramaswamy And Anr. Respondents


Referred Judgements :-

SUBRAHMANIA IATHAN V. KATTAMBATH RAMA [REFERRED TO]
HARI LAXMAN V. SECRETARY OF STATE [REFERRED TO]
SANKARAN V. DISTRICT BOARD OF MALABAR [REFERRED TO]
SATYABRATA GHOSE VS. MUGNEERAM BANGUR AND CO [REFERRED TO]
KANDOTH CHATHOTH KUNHI RAMAN NAMBIAR VS. CHERIYALANTHOT ANIYATH ELAMBILAM KUNHI KANNAN NAMBIAR [REFERRED TO]
TWENTSCHE OVERSEAS TRADING CO LTD VS. UGANDA SUGAR FACTORY LTD [REFERRED TO]
FIRM SARADA PROSAD DE VS. BHUT NATH MALLIK [REFERRED TO]


JUDGEMENT

Chandra Reddy, J. - (1.)THIS second appeal is brought by the Plaintiff O. C. 100 of 1950 on the file of the District Munsif Court Kakinada against the decree of the Subordinate judge, Kakinada modifying that of the District Munsiff. The Appellant brought the suit for recovery of (lie value of 105 bags of paddy for the year 1949 -50. lie leased out the land to the Defendant under Ex. A -l on a central of 105 bags a year. The lease deed inter and provided that the rent was fixed irrespective of heavy rains or draught, etc. (athivrishti anavrishti doshamula vagaira) and whether the tenant cultivated the land or not. As the lessee defaulted in raiment of rent, the Plaintiff was obliged to file the suit.
(2.)THE suit was opposed chiefly on the plea that the Defendant was not liable to pay the lull rent as owing to unforeseen cyclone in October 1949 there was damage to the crop on the suit land and it yielded only 60 bags in all.
The trial court decreed the suit in full being of the opinion that the expression ''athivrishti" covered a case of a cyclone also, and the Defendant is pot entitled to any regale in the matter. On appeal, the learned Subordinate Judge came to the apposite conclusion, In his opinion the clause in question contained in the lease deed was not comprehensive enough to include a cyclone and that further since this was unforeseen and not provided for, it frustrated the common basis of the contract and hence the tenant could get equitable relief. He also came to the conclusion that the yield from the lands for that year was only 63 1/2 bags and that on equitable considerations the Plaintiff should be given a decree, only for 42 bags. The aggrieved Plaintiff has preferred this appeal.

(3.)THE view of the Subordinate Judge is canvassed before me. It is urged by Mr. Krishna Rao that the lower court erred in thinking that the word "athivrishti" embraced cyclone also, and that since the rent was fixed taking into consideration the vicissitudes of nature it is not open to a tenant to ask for abatement of rent on the occurrence of any of the contingencies envisaged in the lease deed.
The expression "athivrishti" means very heavy [rains and a cyclone cannot be excluded from the Purview of this term. In this case the damage to the crop is alleged to have been done by the crop having been submerged under water for a few days owing to the overflow of the irrigation canals. No particular damage was done by the gusts of wind The damage to the crop is attributed only to heavy rains which resulted in the irrigation canals being, flooded with water. The reasoning of the Subordinate Jude therefore seems to be unsound.

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