The defendant in O.S.No.1723/1986 on the file of the Munsiff Court, Irinjalakuda is the appellant. The plaintiff filed the suit for recovery of arrears of rent. The plaintiff’s father was the Estate Officer of former Bank of Cochin Ltd. He leased out his building situated in a remote rural area to M/s. Bank of Cochin ltd.as per Ext.B1 lease deed dated 1-7-1976. The monthly rent fixed was Rs.300/- and the period was 20 years. As per the terms of the lease, the parties are not entitled to terminate the tenancy. It was also agreed to pay interest at the rate of 12% per annum for the defaulted payment. Later the Bank of Cochin Ltd. Was amalgamated with the State Bank of Cochin Ltd. Were taken over the defendant Bank. The defendant Bank kept the rent in arrears from the month of April 1986. The Branch manager sent a notice to the plaintiff on 31-10-1985 terminating the tenancy as on 31-12-1985. The plaintiff sent a reply stating that the defendant had no right to terminate the tenancy unilaterally. Afterwards the rent till and including the month of march 1986 was paid to the plaintiff. Another notice was sent on 17-3-1986 by the defendant stating that the plaint schedule building will be vacated on 31-3-1986. The defendant has not right to terminate the tenancy before the expiry of the lease period. The suit is filed for arrears of rent at the rate of 300 per month together with interest from April 1986.

2. The defendant resisted the suit, contending inter alia, that the suit is not maintainable. The father of the plaintiff, who was a senior officer of the erstwhile Bank of Cochin Ltd. approached the bank to take over the building on rent. Any stipulation under the lease agreement curtailing the lease against termination of lease is unconscionable and hence not enforceable. The defendant is not bound by agreement between the plaintiff and the erstwhile Bank of Cochin Ltd. The agreement has become impossible of performance. The defendant is not in possession of the building and the defendant does not require the building for the use and occupation of their Branch Manager. There is no lease agreement between the defendant and the plaintiff. The agreement between the plaintiff and the erstwhile Bank of Cochin Ltd. has been terminated when the defendant has taken over the erstwhile bank of Cochin Ltd. has been terminated when the defendant has taken over the erstwhile Bank of Cochin Ltd. There is no transfer of possession of the premises to the defendant by the erstwhile bank of Cochin Ltd. The defendant has produced the key of the building along with the written statement. Therefore, the suit is liable to be dismissed.

3. The trial court raised three issues. The evidence in this case consists of the oral testimony of PW1 and DW1 and Exts. A1 to A20 Ext.B1. The trial court after appreciation of the evidence decreed the suit. Against the said judgment and decree, the defendant filed A.S.No.21 of 1989 before the Sub Court, Irinjalakuda. The first appellate court dismissed the appeal confirming the decree and judgment of the trial court, against which this second Appeal is preferred by the defendant. Substantial questions of law involved in this appeal are:

i) Whether on the facts and circumstances of the case the courts below were right in holding that the lease evidenced by Ext.B1 is still in force, in spite of the surrender of the lease hold by the lessee?

ii) Have not the courts below went wring in decreeing arrears of rent in respect of the subject matter of lease which has been surrendered?

iii) Is not plaintiff liable to treat the lease evidenced by Ext.B1 as broken and take steps for mitigating the loss for breach of contract rather than filing the suit for arrears of rent?

iv) Is not the suit liable to be dismissed, the same being in essence on one in the nature of a suit for specific performance of contract, which cannot be decreed on the facts of the case?

The points:

4. It is admitted case of the parties that the buildin