Abdul Sattar and Others vs Rajkishore Sah and Others

Kulwant Sahay, J.—This is an appeal under Clause 10, Letters Patent against a decision of a single Judge of this Court. The appeal arises out of a suit for enhancement of rent of a tenure u/s 7, Ben. Ten. Act. The important defence which it is necessary to consider in the present appeal taken on behalf of the defendants was that the suit wan barred under the provisions of Section 109, Ben. Ten. Act, on account of a previous application for enhancement of rent of the tenure in question u/s 105, Ben. Ten. Act having been dismissed for default. That application u/s 105 was made by the plaintiffs on 2nd April 1907.

An objection was taken on behalf of the present defendants that the rent was not liable to enhancement as it was a fixed rent. The application u/s 105 was, however, withdrawn on 20th September 1907. The present suit for enhancement was instituted in the civil Court on 18th August 1926 and one of the objections taken by the defendants was, as I have already stated, that the suit was not maintainable having regard to the provisions of Section 109, Ben. Ten, Act.

The Munsif gave effect to this objection and held that the suit was not maintainable. He, however, found the amount to which the rent should be enhanced in case the suit was maintainable. The plaintiff went in appeal to the Subordinate Judge. The learned Subordinate Judge set aside the decree of the Munsif being of opinion that the suit was not barred by Section 109, Ben. Ten. Act. He, however, instead of disposing of the appeal himself remanded the case to the Munsif for a finding as regards the amount of enhancement overlooking the fact that the Munsif had already come to a finding upon that point.

The defendants then came in second appeal to this Court. Their objection was that the suit was barred by the provisions of Section 109. The learned Judge of this Court who heard the appeal was of opinion that Section 109 did not operate as a bar to the present suit and one of the reasons given by him was that the present suit was instituted more than 15 years after the date of the withdrawal of the application u/s 105.

Section 109, Ben. Ten. Act, bars the maintainability of a suit if the subject-matter of the suit is the same as the subject-matter of an application u/s 105. In the present case it is clear that the subject-matter of the present suit is not the same as the subject-matter of the application u/s 105. It is contended on behalf of the appellants that the defence taken by the defendants in the present suit is the same as the objection taken by them in the application u/s 105, namely, that the rent of the tenure was fixed for ever and was not liable to enhancements.

This, however, was not the subject-matter of the application u/s 105, or the subject-matter of the suit. The subject-matter of the application was the enhancement of the rent. The nature of the objection taken by the tenure-holder was not and cannot be considered to be the subject-matter of the application. I agree with the view taken by the learned Judge of this Court and am of opinion that this is the correct view to take. In this view of the matter it is unnecessary to consider the Full Bench decision of the Calcutta High Court in the case of Becharam Choudhuri and Others Vs. Purna Chandra Chatterji and Others, , and the Privy Council decision in the case of Raja Reshee Case Law v. Satis Chandra Pal AIR 1929 P.C. 134. The question whether the subject-matter of the suit in those cases was the same as the subject-matter of the application was not considered, I am of opinion that this appeal should be dismissed with costs.

Courtney-Terrell, C.J.

I entirely agree