JUDGMENT

Peh Swee Chin J:

In what appeared to be, at first sight, a simple and straightforward case, this case does reveal a few points of some interest and importance when dealing with the question of mitigation of losses later.

The following facts are not in dispute. The plaintiff, the registered owner of land with a factory building in question, entered into a written agreement (AB1, pp. 1 to 6) with the defendant whereby the latter was granted a tenancy for a term of three years commencing from 12 October 1974 and ending on 11 October 1977 at the monthly rental of RM5,928.75. I shall hereafter refer to the plaintiff as landlord and the defendant as tenant. Under the agreement of tenancy, the tenant was required not to do anything, which may be a breach of any of the express conditions endorsed on the document of title under which the land with the building thereon was held. The express conditions referred to were set out in a schedule annexed to this agreement. I will set out only two of such express conditions as relevant to the case:

(i) The lessee shall within two years from the date of issue of this title or within such further term as may be approved by the State Authority build upon the land hereby leased factories/ workshops and building appurtenant thereto not being dwelling house for artisans of a type and to a plan to be approved by the Commissioner of the Federal Capital, Kuala Lumpur and the said land shall not except with the consent of the State Authority be used for any other purpose.

(ii) The lessee shall not use or permit the use of any building erected on the land for any purpose other than that stated in (i) above.

The following facts are also not in dispute. By letter dated 11 February 1976 (Exh. AB1 - p. 9), the tenant's solicitors, on behalf of the tenant, gave notice that he (the tenant) would vacate the factory building on 11 May 1976. By letter dated 12 February 1976 (Exh. AB1 - p. 10) the landlord, in reply, expressly refused to accept the tenant's letter aforesaid, stating that, provided that the tenant continued to pay rent punctually, and without prejudice to the landlord's right, the landlord would be prepared to look for a new tenant. By letter dated 27 February 1976, the tenant's solicitors wrote and said that the tenancy being a monthly tenancy, three months' notice given was therefore reasonable notice, (Exh. AB1 - p. 12). By letter dated 1 March 1976, the landlord's solicitors replied and maintained that it was a tenancy of three years commencing from 12 October 1974 (Exh. AB1 - p. 13). By letter dated 12 May 1976, (Exh. AB1- p. 14), the tenant's solicitors advised that the tenant had vacated on 11 May 1976 the factory building and enclosed the keys thereto. By letter dated 21 September 1976, the landlord's solicitors informed the tenant's solicitor, of the inability to find a tenant so far and also asked for payment of the rent due and up to 11 October 1976 amounting to RM41,501.25 (Exh. AB1 - p. 22). By letter dated 22 September 1976 (Exh. AB1 - p. 23), liability to pay the same was promptly denied. On 6 April 1977, the landlord's solicitors wrote to the tenant's solicitors asking whether the tenant would consent to the assigning the tenancy to a prospective tenant found by the landlord at the same rental (Exh. AB1 - p. 26), and by letter dated 22 April 1977, in reply, the tenant's solicitors wrote and referred to their previous letters, (Exh. AB1 - p. 28). By (Exh. AB1 - pp. 17, 19 and 20), advertisements were inserted in the Malay Mail, inviting prospective tenants for the said factory building.

From the above documentary evidence and oral evidence, and in his written submissions, learned Counsel for the tenant correctly submitted four points or issues for determination. I will deal with them one by one.

The first issue raised by the learned Counsel for the tenant was that the tenancy was assigned with the consent of the landlord to Box-Pak (M) Sdn. Bhd. and rental was paid in fact by