Maharaja Kesho Prasad Singh vs Ramdhar Rai and Others

Courtney-Terrell, C.J.—These Letters Patent Appeals arise out of a series of rent suits, each of which was brought by the same landlord against a group of tenants. Each suit was dismissed for formal defects in the plaint and each suit claims rent in respect of a number of khatas and in each some of the tenant-defendants are sued in respect of one or more khatas in which all are co-sharer-tenants. In the schedule to each plaint the khatas in which all the tenants are interested as co-sharers are specified, and the undivided share of each group of tenants is specified, and each group is sued for the corresponding proportion of the rent, another group of the tenant-defendants being sued in respect of the remaining fraction of the share. Thus to take a simple illustration in any of the suits we find this condition that there are say three khatas X, Y & Z and say two groups of defendants A and B, A holds a 16 annas share in X and a one-third share of Y and B holds a 16 annas share in Z and a two-third share of Y and A is sued for the rent of X and a one-third share of the rent Y and B is sued for the rent of Z and two-thirds of the rent of Y. This example may be taken as typical of all the cases.

The first objection to the form of the plaint is that it includes a claim for the rent of a portion only of a holding, for A is sued in respect of one-third of the rent of Y. This is entirely a misunderstanding of the claim. Provided that in any suit in respect of the khata the whole of the tenants are made defendants and the whole of the rent is claimed, the apportionment between them by the plaintiff of the respective shares is no infringement of the rule.

The second objection is that the plaintiff has failed to comply with Section 148 of the Bengal Tenancy Act in that the area of each khata is not set forth. This objection is pressed as to the khatas for the rental of which defendants are , sued for a proportionate share. The statement of the area is in fact given as against each group in each of the suits, as the area of the share to which that group would be entitled on partition is given, on the hypothesis that the land in each khata is homogeneous. Thus the area of one-third of Y is given as X acres, so that the total area of Y is easily obtained by a simple computation. This is the statement of the area of Y which is of a clumsy character but the statement is nevertheless made.

Now Section 148 of the Bengal Tenancy Act sets forth a list of particulars to which the defendant in a rent suit is entitled and the matter should be treated as a matter of pleading. If the plaintiff in his plaint does not specify the particulars set forth in Section 148, the duty of the defendants is to apply for further and better particulars, . or it may be the duty of the Court to insist that those particulars are given before the suit is allowed to proceed. But as I have said this is a matter of pleading only and provided that the plaint sets forth a cause of action, it is not right to dismiss the suit for the lack of any one or more of the particulars required u/s 148. If, however, a plaintiff in a rent suit should refuse to comply with the obligations cast upon him by Section 148, then it is of course, right for the Court to dismiss the suit, but short of a flagrant case such as I have mentioned it is the duty of the Court not to allow the suit to proceed until the particulars required have been delivered.

The third objection taken to the form of the plaint is due to the fact that in the Record of Rights the holdings are somewhat confusedly stated, there being attached to each khata in respect of rent numerous other hawalgai khatas and in many cases the plaintiff has neglected to set forth in each suit precisely the hawalgai khatas which are attached to the khatas in respect of which he sues for rent. This again is a matter of pleading. It is true that it is obligatory on the plaintiff to set forth the whole of the khatas in respect of which he sues but it is a case in which when the point has been made clear, the plaintiff should have been given time to amend his plaint and when he corrected the defect the case should be allowed to proceed. In my opinion the proper course to follow in these suits would have been to allow the amendment subject to such payment of costs as in the discretion of the Munsif the defendants have been put to by reason of the faulty pleading. The course which we will adopt in these cases is to send the cases back to the Munsif with liberty to the plaintiff to amend his claims and without prejudice to the right of the defendants, if the plaintiff refuses to comply or fails flagrantly to comply with the obligations to set forth the particulars required by Section 148, to ask the Munsif to dismiss the suits again; and having regard to the fact that much of the trouble has arisen owing to the neglect of the plaintiff to treat his pleadings seriously, the appeals should be decreed but without costs.

Dhavle, J.

I agree. It has been urged on behalf of the respondents that there is a concurrent finding of fact arrived at by the trial Court and the Court of first appeal as regards the defective character of the suits, That defect consisted, according to the learned Advocate for the respondents, in the omission to state in schedules to the plaints the whole hawalgai khata or khatas partly constituting the suit holdings: to take the illustration given by my Lord the Chief Justice, a holding of X plus the whole of Y is described as X plus one-third of Y where the principal defendant has only a one-third share in the hawalgai khata Y. It seems to me that if that be the defect on which the two lower Courts have proceeded, there is involved in this a misreading of the schedules, for nothing more is really implied than that the defendant''s share in Y was one-third and the area of the whole hawalgai khata could be easily computed from the area shown against one-third. The schedules were apparently not placed before the learned Judge of this Court when he heard the matter in second appeal. When the learned Advocate for the appellant placed the schedules before us, the learned Advocate for the respondents objected and said that this was new matter. He has, however; gone into the schedules and come across another possible defect to which my Lord the Chief Justice has made reference already. It will, of course, be open to the respondents to take in the trial Court whatever defences may be disclosed on a searching examination of the schedules. The principal contention of the learned Advocate for the appellant was that he should have been allowed to amend his plaints in order to get over the defects found by the trial Court and the Court of first appeal. So far as the record has been examined before us, it does not appear that he ever seriously applied for an amendment of his plaints. It will, however, now be open to him to put the matter right.