Jowala Prasad vs Harihar Prasad and Others

Manohar Lall, J.—This is an appeal by the defendant and arises out of a suit instituted by the respondent to recover arrears of rent due on account of certain villages which were settled with him by the receiver of the estate when he was in possession thereof on the basis of an amaldastak and followed by a registered lease given with the sanction of the Collector of Gaya.

The learned subordinate Judge reduced the claim of the plaintiff and passed a decree for a smaller sum than what was claimed in the plaint. He gave credit to defendant 1 for a sum of Rs. 1457-4-0 and overruled the defence contention that a sum of Rs. 1725 should be further reduced from the claim so found by him. He gave interest at the rate of 12 per cent, on the amount of arrears due and did not agree with the contention of the defendants that they should be allowed to make counterclaim for damages on account of their having been dispossessed in 1342 F. The defendants were referred to separate suits to claim damages if they thought fit, hence this appeal by the defendant who alone contested.

The learned advocate for the appellant contended that the Court below has not understood the defence of the appellant, and, in particular, he sought to argue that the plaintiff had not made out any case in the plaint with regard to rent for villages, Banarasi Bigha and Jarahra. He, therefore, argued that the claim of the plaintiff, as reduced by the learned subordinate Judge, should be further reduced by allowing a deduction of Rs. 1725 which was the jama for these two villages, Banarasi Bigha and Jarahra. But the difficulty in accepting this argument is that the parties appear to have agreed that the account, as produced by the defendants themselves in Exs. B and E (1), represented the correct state of affairs so far as the demand from the defendants to the plaintiff was concerned.

The learned subordinate Judge, in discussing this contention at p. 27 of the judgment observes as follows:

It is said that in the plaint there is no claim regarding mouzas Jarahra and Banarasi Bigha but the plaintiff says that Ex. 4 is the basis of his claim and Ex. 4 contains the arrears with respect to Jarahra and Banarasi Bigha as well. It is no doubt true that in the list of arrears, Ex. 4, the names of mauzas Jarahra and Banarasi Bigha are not mentioned. D. W. 2 who is still a servant of the receiver, says that the names of these two mauzas were not mentioned as at the time of the charge they were in sir possession of the receiver. Besides this from Exs. E 1 and H, it appears that Rs. 4502-7-9 includes the arrears with respect to Jarahra and Banarasi Bigha as well. Therefore, there is no truth in the contention of defendant 1 that there is no claim with respect to mauzas Jarahra and Banarasi Bigha.

We have been taken through the entire documentary evidence in the case and, in particular, the accounts, Exs. C to C (4), receipts given by the receiver for thika rent, and Exs. E and E (1), register of demand and receipt of thika rent for 1341 and 1342 P. I am satisfied that the learned subordinate Judge was correct in his finding that a sum of Rs. 4502-7-9, although erroneously allocated to some villages only in the plaint, correctly represents his claim in the plaint on account of the arrears with respect to Jarahra and Banarasi Bigha as well.

In this view of the matter, the contention of the appellant that a sum of Rs. 1725, being the annual jama of these villages, should be deducted from this amount, was correctly overruled by the learned subordinate Judge. The appellant, however, is entitled to relief on the ground of interest. The learned subordinate Judge granted interest at the rate of 12� per cent, per annum on the sum of Rs. 3045-3-9 which he found was due from the appellant. It is pointed out by the learned advocate for the appellant that neither the lease which is the basis of the present suit, namely Ex. A (1), nor the amaldastak make any provision for the payment of interest on the arrears of rent. The learned advocate for the respondents relied upon the provisions in Sub-clause (b) printed at p. 7 of Part 3 of the paper book wherein it is provided that

in case of default of four consecutive kists the lease shall stand forfeited and the lessor shall be entitled to re-enter immediately without any reference to the lessee and in such case the lessee shall also be liable to half of one year''s rental as damages.

This provision is not a provision for the payment of interest. It comes into operation only in the circumstances stated therein. The question whether there has been a default of four consecutive kists has not been raised or tried in the Court below. It may be noticed that at line 37 of this very lease, where the lessor intended to realise interest from the lessee, an express provision has been inserted by which in certain circumstances the lessor is entitled to recover the costs with interest at twelve per cent, per annum from the lessee.

The lease already referred to is not an agricultural lease within the meaning of the Bengal Tenancy Act. The lease is for collection of rents, and, therefore, the provisions of the Bengal Tenancy Act for awarding interest cannot apply. In the absence, therefore, of any term in the lease providing for payment of interest, the claim for interest up to the date of suit ought to have been disallowed. The decree of the learned subordinate Judge on this question will, therefore, be varied by providing for interest on the amount found due to the plaintiff, namely Rs. 3045-3-9 only from the date of the suit till the date of realisation at the Court rate of six per cent.

Lastly, it was contended that the Court below ought to have decided the question of damages and should not have referred the defendants to another suit. It is impossible to accede to this argument, because although the defendant had claimed a sum of Rs. 4963 as damages, which, the appellant said, had accrued to him by reason of the high-handed and illegal acts of the plaintiff, he did not pay any court-fee on this amount, and for this reason alone he was not entitled to any relief in the present suit.

Further, the nature of the enquiry which would have been essential to determine the correctness or otherwise of this claim of the appellant would be quite foreign to the scope of a rent suit. In these circumstances, the learned subordinate Judge exercised a wise discretion when he refrained from entering into this question in this rent suit.

It was then argued that the learned subordinate Judge had made observations with regard to the effect of settlements made by the receiver who was appointed to hold the properties attached u/s 146, Criminal P.C. It is enough to state that the observation of the learned subordinate Judge does not pretend to be any decision on the matter and indeed he could not do so, because he had expressly referred the parties to a separate suit to determine this very question. Any observation, which has been made by the learned subordinate Judge in passing while dealing with this matter at p. 28 of the paper-book, cannot be taken to have decided the question when it arises for decision in a proper action.

With these remarks the appeal is allowed only to the extent indicated in the course of the judgment above. In the circumstances, each party will boar its own costs of this appeal.

Harries, C.J.

I agree.