1. The arrangement between the plaintiff and his sub-lessee the defendant was that the latter should pay rent to the superior landlord, obtain a receipt from him and deliver it to the plaintiff. In the suit now under second appeal the plaintiff sued for damages in respect of the non-payment of rent in this manner for faslis, 1326, 1327 and 1328. He had brought a previous suit against the defendant, the plaint being dated 27th April 1918, for similar relief in respect of faslis 1324 and 1325. The point now raised is that inasmuch as by the date on which that suit was filed the rent for faslis 1326 and 1327 had already accrued, he is debarred by the terms of Order 2, Rule 2, from including these claims in the present suit. For a decision upon this point we have to consider the agreement, Ex. A. A construction is put forward which was not offered before the lower Courts and which in consequence I cannot accept. It is that the document not only makes the payment to the superior landlord due by the 30th Magha Bahula of each year, but also the delivery of the receipt. This is in the first place not a reasonable construction, because it would not be reasonable to require that the money should be paid to one person and the receipt delivered to another on one and the same day. I think that the alternative view, which is that of the learned Subordinate Judge, that the money was to be paid on the specified date and that no precise date was fixed for the delivery of the receipt is correct. That being so, the terms of Section 46, Contract Act, would govern the matter and the engagement to deliver the receipt would have to be performed within a reasonable time, The cause of action for suing for damages for non-performance would not arise until that reasonable time had expired. The explanation to the section expressly provides that the question What is reasonable time? is in each particular case a question of fact. The learned Subordinate Judge has decided that in the case of neither of the two years claimed had the reasonable time expired by the time the suit now under consideration was filed. I am unable to interfere with that decision. I think moreover, that the plaintiff was entitled to wait until the expiry of the time in each case, notwithstanding that he may have indirectly learnt that the money had not been paid on the due date. It is unnecessary, however, to insist upon this view because the lower appellate Court has found as a fact that he did not know at the time when he filed the suit that those payments had not been made. In coming to this conclusion the learned Subordinate Judge has not expressly referred to Ex. 1, the plaint in the previous suit, but I do not think that by its terms it convicts the plaintiff of knowledge of failure to make the payments. It only says that
a separate suit will be instituted subsequently according so necessity for the makta etc., due for faslis 1326, 1327, and 1328
and the words 'according to necessity' seem to embody a reservation in case the payment had in fact been made. On the view taken of the nature of the suit by the lower Courts accordingly I consider that the law has been properly applied. It is urged here that the suit rather than being one for damages was a suit for rent due by the tenant to his landlord, notwithstanding that the arrangement was that the payment should be made to a third party. In similar circumstances in Basanta Kumari Debya v. Ashutosh Chuckerbutti  27 Cal. 67 it was held that the suit was of the nature of a claim to arrears of rent and it may be that the same view would be justified here, so far as the claim to mukta is concerned. Inasmnch as the prayer was also for the proportionate costs of the suit which the superior landlord brought against the plaintiff, it was certainly a claim for damages. But I do not think that the question is really material because I am unable to see why the same test should not be applies, whether it was a suit of the one kind or the other. It would, for instance, be absurd to say that the provisions of Order 2, Rule 2, should be enforced where a payment of rent had to be made to a third party in circumstances such that the payment could not have come to the knowledge of the plaintiff before he filed his suit. The second appeal accordingly fails and is dismissed with costs.