JUDGMENT :- This second appeal is brought by the plaintiff in 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 Munsif. The appellant brought the suit for recovery of the value of 105 bags of paddy for the year 1949-50. He leased out the land to the defendant under Ex. A-1 on a rental of 105 bags a year. The lease deed inter alia 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 payment 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 full 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.

3. 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 not entitled to any rebate in the matter. On appeal, the learned Subordinate Judge came to the opposite 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.

4. 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 Judge therefore seems to be unsound.

5. Assuming the cyclone was an unforeseen contingency it is difficult to bring this case within the doctrine of frustration of a contract. We are not here concerned with the development of this concept in English law and the conflicting theories that are embodied in the decisions of the English, Courts. The law on the subject is codified in S. 56 of the Contract Act which recites;

"An agreement to do an act impossible in itself is void. A contract to do an act which, after the contract is made becomes impossible, or by reason of some event which the promiser could not prevent, unlawful, becomes void when the act becomes impossible or unlawful..................................."

The second paragraph enunciates the law relating to the rescission of a contract by reason of some supervening impossibility or illegality. It should be remembered that this section occurs in the chapter dealing with discharge of contracts. So the doctrine entrenched in this section can come into operation only when the performance of a contract becomes impossible or unlawful by an event that intervened subsequently. The lower court relied on Firm Sarada Prasad De v. Bhut Nath, AIR 1942 Cal 291 (A) and Twentsche overseas, Trading Co. v. Uganda Sugar Factory Ltd. AIR 1945 PC 144 at p. 145 (B) to support its conclusion. These pronouncements are not relevant to the p

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