1. The petitioner (plaintiff) brought a suit for Rs. 88-4-3, being the amount due as rent, or as damages for use and occupation of his land by'the respondents (defendants) for three specified years. The lower Court found that the defendants did occupy the lands for the three suit years and that they would have been liable by way of damages for use and occupation to the extent of the suit claim, had it not been for the facts that the respondents had been adjudicated insolvents and the plaintiff had brought his suit without leave of the Insolvency Court. The learned Munsiff held that the plaintiff was precluded by Section 28(2) of the Provincial Insolvency Act from bringing the suit. He dismissed it.
2. The lower Court has found that the plaintiff, but for his insolvency, would have been entitled to damages for use and occupation. Now, damages for use and occupation are of the nature of unliquidated damages and would, therefore, come within the provisions of Section 34(1) of the Act, which prohibits the proving of such debts in insolvency. Further, the suit years were after the respondents had been adjudicated insolvents. They were not, therefore, within the meaning of Section 34(2), debts and liabilities to which the debtor was subject when he was adjudged an insolvent, nor were they debts to which he became subject before his discharge by reason of any obligation incurred before adjudication. Even if we regard the suit as a suit for rent, which it could be if it had been proved that the petitioner had accepted rent after the termination of the period of the lease, then the liability would arise in each year only if and when the respondents continued in possession. The liability could not have arisen on the date of the original contract. For any of the above reasons the suit was maintainable.
3. The petition is allowed. The petitioner is entitled to 3 years' damages at Rs. 27 a year, together with interest on Rs. 81 from the date of suit to the date of payment. The respondents will pay the costs of the petitioner in both the Courts.