1. This and the connected appeal arise out of suits for arrears of rent brought by the zemindar against his lessee. The defence was that there had been a prior suit by the plaintiff against the same defendants for rent and that the present rent had then become due and might have been claimed, and that, consequently, a second suit was barred by Order II, Rule 2 of the Code of Civil Procedure. The plaintiff meets this plea by contending that he could not have claimed the rent now sued for in the previous suit because there had been a suspension of revenue and a corresponding suspension of rent under the provisions of Section 51 of the Tenancy Act. It has been contended here that it is only tenants in actual occupation whose rents can be affected by the provisions of Section 51. In our opinion, this contention is not sound. In the ordinary course of events, if the Government suspended the payment of revenue, the Collector would make the corresponding order suspending the payment of the rents of tenants holding land immediately or mediately from the proprietor. If the order, which admittedly was made in the present case, was made in this form, the plaintiff could not have included the rent now sued for in his previous suit. It is not pretended that this rent has been paid nor has it been shown that the order of suspension of the rent of tenants was confined to tenants who actually cultivated. It was upon the ground that the suspensions in that case only apply to tenants who were actually cultivating that the unreported case Second Appeal No. 55 of 1908 was decided, of which merely a short note is given in Shiam Lal v. Makhan Lal 6 A.L.J. 107 Short notes.
2. It is next contended that the plaintiff cannot succeed in recovering rent which was actually remitted. We find, upon looking at the grounds of appeal in the lower Appellate Court, that no such question was raised, and the judgment of the learned District Judge is also quite silent on the subject. It is impossible, therefore, for us to entertain a matter which was never urged in the Court below.
3. We, accordingly, dismiss the appeal with costs including in this Court fees on the higher scale.