ORDER : This civil revision petition arises out of small cause suit No. 4369 of 1959 filed by the respondent herein for recovery of arrears of rents in respect of No. 7 Sivan Koil South Tank St. Villivakkam, for the months of February 1958 to the end of June 1959 amounting to Rs. 340. The defence to the suit was that he surrendered the premises in the end of December 1957 and as such the plaintiff was not entitled to the rent.

2. The facts necessary for the disposal of this revision are as follows. The defendant admitted that he took the above said promises for rent and continued till 14-12-1957 when he vacated it delivering the key of the premises to the plaintiff through his counsel which the plaintiff refused to receive. Therefore, according to the defendant, he was not liable to pay the rent. The first court found that there was surrender of the suit premises on 14-12-1957, and therefore the defendant was not liable to pay rent. On appeal it has been reversed.

3. The only question that has to be considered in this petition is whether there was surrender by the lessee as contended by him. It is settled law that the surrender may be either express or implied. Express surrender need not be in writing. No particular words are essential to make a good surrender and a surrender may be oral if accompanied with delivery of possession. There may be an implied surrender by relinquishment of possession. In the instant case the lessor admits that he was informed by his counsel that his tenant surrendered the key, but the instructed his counsel to return the key. The petitioner is certainly not responsible for the return of the key. When once he expressed his intention that he does not want to continue his tenancy he would not be liable for the rent for the subsequent period. Further, there, is an admission made by the respondent that he allowed a Brahmin gentleman to occupy the premises and accepted vent from him. The respondent cannot claim rent once

again from the petitioner.

4. In Phene s. Popplewell, (1862) 12 CR (NS) 334, the lessor at first refused to accept the key but afterwards put upon the premises a board "to let" and gave the key to an agent and painted out the name of the tenant from the front of the house. His conduct shows that he had exercised his option to accept the surrender.

5. I am of opinion that the petitioner has proved his case that there was surrender of possession on 14-12-1957 and the plaintiff cannot get a decree.

6. Another contention put forward by the respondent is that the present petition is barred by res judicata by virtue of the previous proceedings with the same cause of action. I have gone through the judgment in that case. The question of surrender was not considered; only the tenancy was considered, I do not think that the judgment in that suit will bar the present one. The civil revision petition is allowed. There will be no order as to costs. Six months' time is given for the respondent to return bad the decree amount.

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