Gopal Lal Ray vs Taj Muhammad

Kulwant Sahay, J.—This appeal arises out of a suit for enhancement of the rent of a tenure. Upon the merits, the learned, Munsif was of opinion that the plaintiff was entitled to an enhancement of Rs. 36 odd upon the present rental. The suit was, however, dismissed on the ground that a previous suit for enhancement had been dismissed for default under Order 9, Rule 8, Civil P.C., and the present suit was instituted within 15 years of the dismissal of the previous suit.

On appeal the learned District Judge was of the same opinion as regards the maintainability of the suit and he did not consider the question as regards the amount of enhancement to which the plaintiff was entitled. The previous suit was instituted on the 21st February 1922, and it was dismissed for default on the 7ch June 1922. An application for re-hearing under Order 9, Rule 9 was also dismissed.

The question is whether the dismissal of the previous suit under Order 9, Rule 8 would debar the plaintiff from maintaining the present suit for enhancement of rent of the fame tenure. Section 9 of the Bengal Tenancy Act, provides that when the rent of a tenure-holder had been enhanced by the Court or by contract, it shall not be again enhanced by the Court during the 15 years next following the date on which it has been so enhanced. In the present case there has been no enhancement of rent either by the Court or by contract and, therefore, a fresh suit will not be barred.

The learned District Judge has referred to the provisions of Order 9, Rule 9, Civil P.C., and has held that, having regard to the fact that the previous suit was dismissed under Rule 8, the plaintiff was precluded from bringing a fresh suit in respect of the same cause of action, and he was of opinion that the cause of action in the previous suit was the same as the cause of action in the present suit.

I am of opinion that the cause of action in the present suit cannot be considered to be the same as the cause of auction in the previous suit. The learned Munsif observed that the Cause of action in the previous suit was that the rent of the tenure had not been enhanced within the last 15 years, and in this suit also the cause of action is that the rent had not been enhanced within 15 years; but he overlooked the fact that the period of 15 years in the present suit is different from the period of 15 years in the prior suit.

u/s 37, Bengal Tenancy Act, the dismissal of a suit on merits would debar the plaintiff from bringing a fresh suit for enhancement of rent of an occupancy holding. Section 9 of the Act is different from the provisions of Section 37. Section 9 does not provide that the dismissal of a suit on merits would debar the maintainability of a fresh suit for enhancement of rent. If that is so, the dismissal of a suit for default cannot debar the plaintiff from bringing a fresh suit for enhancement of rent of a tenure.

I am of opinion that the cause of action in the present suit is not the same as the cause of action in the previous suit and, therefore, the present suit is maintainable.

The decision of the learned District Judge will therefore, be set aside and the appeal remanded to him for decision of the question as regards the amount of enhancement to which the plaintiff is entitled. Costs will abide the result.

James, J.

I agree.