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BepIn Behari Bose and ors. Vs. Ali Ahammad Sirdar - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata
Decided On
Judge
Reported in(1893)ILR20Cal595
AppellantBepIn Behari Bose and ors.
RespondentAli Ahammad Sirdar
Excerpt:
bengal tenancy act (viii of 1885), section 150 - admission of rent due to landlord. - .....as follows:--------------------------------------------------------------------------------------- year. rent. cess. interest. total. amount outstanding paid. balance.--------------------------------------------------------------------------------------- rs. a. p. rs. a. p. rs. a. p. rs. a. p. rs. a. p. rs. a. p.---------------------------------------------------------------------------------------1292 ... ... 245 0 0 16 13 6 47 11 0 309 4 6 167 0 0 142 4 61293 ... ... 245 0 0 16 13 6 6 5 0 268 2 6 245 0 0 23 2 61294 ... ... 245 0 0 16 13 6 12 8 0 274 5 6 162 0 0 112 5 61295 ... ... 245 0 0 16 13 6 13 6 0 275 3 6 151 0 0 124 3 6 980 0 0 67 6 0 79 10 0 1               0 0 67 6 0 79 10 0.....
Judgment:

W. Comer Petheram, C.J. and Norris, J.

1. This was a suit to recover a sum of Rs. 402 as being due from the defendant to the plaintiffs for rent of a holding with cesses and interest.

2. Paragraphs 3 and 4 of the plaint state the claim as follows:

3. That the rent of the said jama from the year 1292 to 1295, together with interest and cesses, amount, as per account given below, to total of Rs. 402, and is justly due to the plaintiff's, and that the defendants have not paid the same even on repeated demands.

4. In the disputed mehal it is the practice to pay the rent according to the following instalments, viz., half-anna share of the entire rent in the month of Bysakh, half-anna in Jeit, one anna in Assar, 2 annas 6 gundas in Srabun, 4 annas in Bhadro, half-anna in Assin, half-anna in Kartik, 3 annas 6 gundas in Aughran, 2 annas in Pous, half-anna in Magh, half-anna in Falgun, and the rent is paid accordingly. The cause of action arose at the expiration of each year and at the lapse of each instalment.

3. The schedule of accounts is as follows:

---------------------------------------------------------------------------------------

YEAR. Rent. Cess. Interest. Total. Amount Outstanding

Paid. balance.

---------------------------------------------------------------------------------------

RS. A. P. RS. A. P. RS. A. P. RS. A. P. RS. A. P. RS. A. P.

---------------------------------------------------------------------------------------

1292 ... ... 245 0 0 16 13 6 47 11 0 309 4 6 167 0 0 142 4 6

1293 ... ... 245 0 0 16 13 6 6 5 0 268 2 6 245 0 0 23 2 6

1294 ... ... 245 0 0 16 13 6 12 8 0 274 5 6 162 0 0 112 5 6

1295 ... ... 245 0 0 16 13 6 13 6 0 275 3 6 151 0 0 124 3 6

980 0 0 67 6 0 79 10 0 1               0 0 67 6 0 79 10 0 1      ,127 0 0 725 0 0 402 0 0

---------------------------------------------------------------------------------------

4. The verification of the plaint was signed by the agent of the plaintiff on the 30th of Choit 1295, that being either the last or the last day but one of the year. The plaint was filed on the 2nd of Bysakh 1296, the second day of the year.

5. The defendant, on the 24th of June 1889, equivalent to the 11th Assar 1296, filed his written statement, paragraphs 4, 6 and 7 of which are as follows:

4. In the mehal connected with the suit, it is not the practice to pay the rent according to instalments stated by the plaintiffs, or by any system of instalments. Under such circumstances, the suit for recovery of rent for the entire year 1295, before the expiration of the said year, cannot proceed.

6. The practice being to realize the rent of the mehal connected with the suit through agents, the said agents have collected the entire rent for the years 1292, 1293, 1294, and a portion of the rent of the year 1295. I file herewith the dakhilas granted to us by the said agents. The other dakhilas will be filed through agents.

7. The plaintiffs' claim for cesses and interest is excessive.

6. The cause appears to have been tried before the Munsif of Khulna on the 10th May 1890, and from the judgment I gather that the defendant offered evidence in support of his plea of payment, but that it was rejected by the Munsif, who says: 'As to the first point, the defendant has not paid his admitted rent into Court : he is not entitled to be heard as to his plea of payment therefore under Section 150 of the new Rent Law' : and that upon that the defendant put in the following petition:

I, defendant Munshi Ali Ahammad Sirdar, beg to state that in the suit brought by the plaintiff, Baboo Bepin Behari Bose, he having sued for rent for the year 1295, which has become due, I want one day's time for payment of the said amount of rent. It is therefore prayed that the Court may be pleased to grant me one day's time for payment of the said rent. Dated the 10th May 1890. Munshi Ali Ahammad Sirdar.

7. This was refused, and judgment given for the plaintiffs for the rent of all the four years without hearing the defendant's evidence in support of his assertion, that the whole of the rent for the three years had been satisfied by payment. On appeal, the Subordinate Judge supported the Munsifs view, and the question we have to consider is whether, on these facts, the defendant admitted that he owed the plaintiff the rent for 1295 when the action was brought, and by not paying that into Court has forfeited his right to show, if he can, that he has satisfied the claim for the whole of the years 1292, 1293 and 1294 and part of 1295 by payment.

8. Section 150 of the Bengal Tenancy Act provides that when a defendant admits that rent is due, but pleads that the amount claimed is in excess of the amount due, his plea shall not be heard, unless he pays into Court the amount which he admits to be due. There can be no doubt that the admission intended by the section must be an admission in the action,--in the present case an admission in the written statement, as that was the only admission in the action which was before the Munsif when he refused to allow the defendant to give evidence in support of his plea of payment, and when he commenced to write his judgment on the 10th of May 1890; and the only question is whether the written statement contains an admission that a portion of the rent for 1295 was due at the commencement of the suit, and that the defendant had then no answer to the plaintiff's claim for that money. It is clear that the defendant had no intention of making any such admission; but it is said that, as the year 1295 had expired when the plaint was filed, the statement in paragraph 4 of the written statement that the rent was not payable by instalments, and that no part of the rent of 1295 was payable until the expiration of the year, does not show that the rent for that year had not become due; and that the statement in the plaint that the rent for 1295 was due when the suit was brought, is not denied, and so must be taken to be admitted; and if so, the defendant has admitted that the rent for 1295 was due when the plaint was filed, and is liable to the penalty imposed by Section 150. I do not think so. For the purpose of ascertaining whether anything is admitted to be due and payable by this written statement, the whole of it must be taken into consideration and, further, must be assumed to be true. The claim is for a sum of Rs. 402 made up of four yearly balances, particulars of which are given in the schedule to the plaint. The defendant in his written statement says that the whole of the rents for the first three years and for a portion of the fourth, 1295, have been paid, that the account is not correct as the claim for cesses and interest is excessive, and that the rent of 1295 was not due when the suit was brought. How this can be said to be an admission that anything was payable at the time the action was brought I quite fail to understand, or even if the statement that the rent of 1295 was not due be struck out, there is still a statement that the whole of the rent for 1292, 1293 and 1294, and part of 1295, has been paid, and that the amount claimed is not due, as the interest and cesses are excessive. Section 150 is highly penal in its character, and I do not think can be put in force against a defendant unless he has intentionally admitted money to be due and has not paid it.

9. For these reasons, I am of opinion that defendant has not in this case admitted that any money is due from him to the plaintiff within the meaning of Section 150, and I think that the judgment must be set aside and the case sent back to the Munsif, who will replace it upon his file and try the issues according to law, taking such evidence upon them as the parties may think fit to produce.

10. I think that all the costs in all Courts up to this time should abide the ultimate event of the litigation.


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