P.N. Mookehjee, J.
1. These two appeals arise out of a suit for (Renk Suit No. 15 of 1945) and a proceeding for certification of payment in a previous Rent Suit No. 3 1942 of the Court of the Subordinate Judge of Berhampore. Both the Rent Suits were in respect of a Patni, held by the respondents under the appellant Maharaja who was the zemindar or the holder of the superior interest. The Patni was created in the year 1292 B.S. The relevant kabuliyat is dated 31st Bhadra of that year and it was executed by the original Patnid3r Kunja Behari Ghosh in favour of the appellant's predecessor. The Patni eventually passed in the hands of Robert Watson & Co. who executed an Ekrarnama (Agree-merit) in favour of the zemindar landlord on 6-4-1897. The respondents are the present owners in possession of the above Patni which still continues to be recorded in the landlord's sherista in the name of Robert Watson & Co.
2. In the Patni Kabuliyat the rent is stated to be Rs. 4,055/5/- per annum. In the Ekrarnama, however, there is reference to realisation of rent at the rate of Rs. 3805/5/- per annum which also appears to be the recorded rent in the relevant Settlement Records. This discrepancy in the amount of the annual Patni jama in the different documents, referred to above, led to a dispute between the parties but it has now been finally settled by this Court in the Appeal from Original Decree No. 280 of 19-13 which came up to it from the previous Rent Suit No. 3 of 1942 between the parties, mentioned in the preceding paragraph, that the annual Jama of the disputed Patni is Rs. 4055/5/- as stated in the Kabuliyat and that controversy must now be deemed to have been closed.
3. In First Appeal No. 108 of 1951, which arises out of the present Rent Suit No. 15 of 1945, the only Question is whether the landlord's claim for rent for 1313 B.S. up to the Poush kist of that year in respect of the disputed Patni is barred by Order 2, Rule 2, Civil P. C. and, in the certification proceeding, which has given rise to the other or the Miscellaneous Appeal, namely, F.M.A. No. 45 of 1951, the parties fought over the propriety of the appellant landlord's appropriation of a payment of Rs. 5,200/- towards the rent of the said year 1348 B.S., the tenants petitioners contending for its appropriation towards the landlord-decree-holder's decretal dues in Rent Suit No. 3 of 1942.
4. To appreciate the rival points of view of the two contending parties it is necessary to refer to some other facts which may conveniently be set out here in brief details as follows:
5. Rent Suit No. 3 of 1942 was instituted by the appellant Maharaja on 5-3-1942, corresponding to 21st Falgoon 1348 B.S. Under the Patni Kabuliyat. the Patni rent was payable in monthly kists or instalments according to the Bengali Calendar, but the landlord did not include any part of the rent of 1348 B.S. in the Bent Suit No. 3 of 1942 which, as stated above, was filed on 21st Falgoon 1348 B.S.' The landlord, however, started Astam proceedings, for the whole rent of the year 1348 B.S. which proved unsuccessful on account of the dispute as to the amount of rent which was then pending in the Civil Court and remained unsettled until the subsequent decision of this Court in the landlord's favour in the regular Appeal (F.A. No. 280 of 1943), arising out of the said Rent Suit No. 3 of 1942, to which reference has already been made.
8. Meanwhile, two other events of importance had happened. The Patni had been split up as between the tenants-Patnidars by the opening of a separate account in favour of defendants 10 under the Bengal Patni Taluks Regulation (Amendment) Act (Bengal Act 15 of 1940) with effect from 5-1-1942, introducing complications about the rent of the Magh kist of 1348 B.S. and, accordingly, the plaintiff Maharaja confined his claim in the present Rent Suit to the Patni Rent from Baisakh to Pous 1348 B.S. Admittedly also, a payment of Rs. 5,200/- had been made by the Patnidars to the zemindar landlord in respect of the Patni some time in the early part of January, 1950.
7. When, in the above circumstances, the present Rent Suit No. 15 of 1945 was filed by th'e appellant Maharaja on 13-4-1945, for recovery of the Patni rent of 1348 E.S. from Baisakh to Pous with cesses and damage, the tenatits-Patnidars (defendants 1 to 10) took the plea of bar under Order 2, Rule 2, Civil P. C. upon the allegation that the cause of action for this claim had arisen before the date of institution of the earlier Rent Suit No. 3 of 1942 and that the said cause of action was the same as of the said Rent Suit No. 3 of 1942 under the Explanation to Order 2, R, 2, Civil P. C. and that, accordingly, the Maharaja's claim was barred by that provision of law. To this plea, the landlord demurred, contending inter alia, that the causes of action in the two Rent Suits Nos. 3 of the 1942 and 15 of 1945 were different and, in any event, the cause of action for the rent of 1348 B.S., even up to the Pous Kist, which formed the subject-matter of the second Rent Suit No. 15 of 1945, had not arisen at the date (21st Falgun 1348 B.S,) of the earlier Rent Suit No. 3 of 1942 and so Order 2, Rule 2, Civil P. C. would not apply. The present Rent Suit (No. 15 of 1945) remained stayed from 21-9-1945, to 15-1-1950, by an order of Court under Section 10, Civil P. O. in view of the High Court appeal (F.A. No. 280 of 1943) from the decision, in the previous Rent Suit No. 3 of 1942 and, after the disposal of that appeal, the said stay order in the present Rent Suit was vacated on 16-1-1950, and, eventually, the learned Subordinate Judge upheld the tenant's plea under Order 2, Rule 2, Civil P. C. and dismissed the Kent Suib (No. 15 of 1945) on 23-11-1950. Hence this-regular appeal (F.A. No. 108 of 1951) by the landlord Maharaja.
8. On 13-3-1950, the tenants-patnidars applied in Rent Suit No. 3 of 1942 for certification of payment in respect of a sum of Rs. 5,200, alleged by them to have been paid to the plaintiff decree-holder, namely, the Maharaja landlord, towards his decretal dues of the above suit on 10-1-1950. The application was opposed by the Msharaja upon the plea that the amount in question was a general payment towards the outstanding arrears of rent without any direction for appropriation from the payers, namely, the tenants, and that it had been duly appropriated by him, the landlord, towards the arrears of 1348 B.S. upto the Pous kist of that year, for which the other Rent Suit No. 15 of 1945 was pending at the time. The question thus turned on the proper appropriation of the above amount and here again the learned Subordinate Judge accepted the tenants' contention. The Maharaja has, accordingly, come up to this Court in F.M.A. No. 45 of 1951 against the said decision.
9. In the Court below, the rent suits and the certification proceeding were tried together and they are governed by the same judgment of the learned Subordinate Judge. The appeals, therefore, from the two proceedings have been heard together and we will dispose of them by this common judgment.
10. In the Miscellaneous Appeal, (F.M.A. No. 45 of 1951) which arises out of the certification proceeding, two questions arise, one of law and the other of fact. The question of fact is whether the sum of Rs. 5200/- at the time of its payment was paid specifically towards the outstanding decretal dues of Rent Suit No, 3 of 1942 or whether it was a general payment towards the outstanding arrear rents including the said decretal dues without any specific direction for appropriation from the tenants. If the first part of this question is answered in the affirmative, no other question will arise for consideration in this appeal. But, if the said answer be in the negative and the payment be held to have been a general payment without any direction for appropriation at the time of such payment, as stated in the second part, it will be necessary to consider how long and under what circumstances the tenants retained their right of appropriation of the amount in question which was at the time of payment a general payment towards arrears of rent. On this latter question, the only other fact, to which reference is necessary in the present case, is that the actual appropriation of the amount in the landlord's books towards the rent of 1348 B.S. appears to have been made only on 28-3-1950, which was admittedly long after the tenants' request for appropriation towards the decretal dues of Rent Suit No. 3 of 1942, on the effect of which alone the parties practically differ, so far as the certification proceeding is concerned. This difference arises from the fact that while the landlord contends that the tenants not having intimated any particular appropriation at the time of payment, the right of appropriation irrevocably passed from them to the landlord and no subsequent direction for appropriation from the tenants could affect the landlord's said right, no matter that the landlord sought to exercise it (his said right) only after and. then again, contrary to the direction of the tenants, the latter claim to be lawfully entitled to direct appropriation at any time prior to the landlord's actual appropriation.
11. On facts, as disclosed by the evidence on record, the tenants' position seems to be unassailable. They have given positive evidence that the amount in question was paid towards the decretal dues of Rent Suit No. 3 of 1942. (After discussion of the evidence on this point the judgment proceeds:) We, therefore, hold that the patnidars paid the above sum of Bs. 5200/- towards the decretal dues of Kent Suit No. 3 of 1942 and such payment was made direct to the Maharaja himself or in his presence and specifically towards the said dues.
12. The above finding makes it unnecessary to discuss the question of law relating to the rights of appropriation of the respective parties when no direction in that behalf was given or when no right was reserved by the tenant at the time of such payment. We may, however, indicate that, on this part of the case, if it had really required decision in the present case, we would have been inclined to accept the landlord's submission. It seems to us that law gives the first right of appropriation to the debtor or the tenant which has to be exercised at the time of payment unless it is reserved for exercise at a subsequent point of time, and, failing that, the right of appropriation passes on to the creditor or the landlord and he can exercise it irrespective of and even contrary to any intermediate direction from the tenant. That seems t8 be the law both under the Bengal Tenancy Act (S. 55) and also under the more general Indian Contract Act (Sections 59 and 60) and, in this respect, the same basic principle underlies both the statutes. A contrary view may lead to various complications and, when the statutory language better accords with the above statement of the law, there is no reason why we should search for something else. This, however, is of no assistance to the landlord in the present case as, in view of our finding on the primary question of fact, namely, that the disputed amount was actually paid towards the decretal dues of Rent Suit No. 3 of 1942, his present miscellaneous appeal (P.M.A. No. 45 of 1951) must fail and the learned Subordinate Judge's decision must be affirmed.
13. We now pass on to the regular appeal (F. A. 108 of 1951), which is directed against the dismissal of the Maharaja's Rent Suit (No. 15 of 1945). Mere the defence plea, which has succeeded in the trial Court, is one under Order 2, R, 2, Civil P. C. The learned Subordinate Judge has held that, for purposes of the faid statutory provision, the cause of action for this suit which seeks to recover the rent of the patni for the year 1348 B.S. upto Pous kist was the same as the cause of action for the earlier Rent Suit No. 3 of 1942, which was filed for recovery of the rents of 1345 to 1347 B.s. and that such cause of action had arisen before the date of institution of this earlier suit No. 3 of 1942, namely, 5-3-1942, corresponding to 21st Palgoon 1348 B.S., and that, accordingly, the later suit (Rent Suit No. 15 of 1945) was barred under the said provision of law, namely, Order 2, Rule 2, Civil P. C. These findings of the learned Subordinate Judge have been challenged by the appellant and, on his behalf, Mr. Sen Gupta has made a two-fold submission, namely, (1) that the two Rent Suits (No. 15 of 1945 and No. 3 of 1942) were based on different causes of action and (2) that the cause of action for Rent Suit No. 15 of 1945 had not arisen when the earlier Rent Suit No. 3 of 1942 was instituted and, in the above view, he has contended that the Dresent Rent Suit No. 15 of 1945 was not barred under Order 2, Rule 2, Civil P. C.
14. Quite clearly, if either of the above two submissions of Mr. Sen Gupta can be accepted, the present Bent Suit would not be within 'the mischief of Order 2, Rule 2, Civil P. C. and the Maharaja's regular appeal (P.A.No. 108 of 1951) would succeed. We have, therefore, to examine the validity of these two submissions.
15. In support of his submissions, Mr. Sen Gupta relied upon Section 54(1) proviso, Bengal Tenancy Act and upon the third clause of Section 3 and the proviso to the third clause of Section 17 of the Patni Regulation. He conceded that the causes of action for the two Rent Suits, so far as they arise under the Patni lease, that is, so far as the claims in the two Rent Suits arising under the obligation thereunder are concerned, must be deemed to constitute the same cause of action for purposes of Order 2, Rule 2, Civil P. C. under the Explanation, appended thereto, but he contended that the cause of action for the second Rent Suit which related to the recovery of the rent for 1348 B.S. upto the Pous kist did not arise at the date of the first and was not therefore, relevent under the said rule. It is perfectly true that the material cause of action under Order 2, Rule 2, Civil P. C. is one which is ripe for enforcement and on which the plaintiff can make a present claim and it is only in such a case that the plaintiff is obliged under that rule to include the whole of his claim and seek all available reliefs in respect of the said cause of action in his suit and is not permitted to omit or relinquish any portion of his said claim or omit to sue for any of the said reliefs without the leave of the Court and, if the plaintiff acts otherwise, a fresh suit for the omitted or reliquished portion of the claim or for the omitted relief will be barred under the provisions of that rule. The first question, therefore, is whether the plaintiff Maharaja had an enforceable cause of action in respect of the present claim for the rent of 1348 B.S. upto the Pous kist at the date of the earlier Rent Suit No. 3 of 1942. Clearly-also, Order 2, Rule 2, Civil P. C. would not apply to a case where the cause of action for the subsequent suit is different from that of the earlier one even under and in spite of the extended meaning of the phrase 'same cause of action' under the Explanation thereto. This will also be relevant consideration in the present case in view of the submissions of Mr. sen Gupta to which we shall presently advert.
16. Upon the first question as to the accrual of the cause of action for the claim in the present suit, namely, for the rent of 1348 B.S. upto the Pous kist, Mr. Sen Gupta relied upon the proviso to Section 54(1), Bengal Tenancy Act and also upon the third clause of Section 3 of the Patni Regulation. Relying on the proviso to Section 54(1), Bengal Tenancy Act, in the light of its main part, Mr. Sen Gupta argued that, under that proviso, the tenant had the option of paying the instalment rents for a particular year before the sunset of the day, on which the particular kist or instalment falls due, or the whole rent of the year at a time before the same in its entirety falls due and, accordingly, for no part of the rent of a particular year or of any kist thereof would there be any effective or enforceable cause of action until the whole rent of the year has fallen due or, to put it in terms of the particular instance before us, there was no enforceable cause of action for any part or kist of the 1348 B.s. Path! rent before the expiry of Chaitra of that year when, at the earliest, the rent for the whole year 1348 B.S. could be said to have fallen due and, If that be correct, 110 suit could have been brought for the disputed claim from Baisakh to Pous 1348 B.S. on the 21st of Palgoon of that year when the earlier Rent Suit No. 3 of 1942 was instituted.
17. The language of the proviso is certainly not very happy but we do not think It should be read as supporting Mr. Sen Gupta's argument. Whether the proviso applies only to cases of rents, payable at a time for the whole year, or whether it applies to cases of instalment rents as well but refers, for purposes of the tenant's right to pay, to the point of time, when the earliest of the instalments tails due, is not very clear but we have little doubt that it does not affect or restrict the landlord's right to sue for a defaulted lust of rent immediately it falls due under Section 53 (which of course, is subject to agreement or established usage in this respect) read with the main part of Section 54(1). Sub-section (5) of Section 54 confirms this position. Under it, on the expiry of the time, mentioned in Section 54(1), the particular instalment of rent or the part of it, remaining unpaid becomes an arrear which implies that it will be immediately recoverable by suit. We do not accept Mr. Sen Gupta's argument that the only effect of an instalment of rent getting into arrears would be to make the tenant liable to pay interest under Section 67 of the Act. The landlord's normal right to sue for a defaulted lust or instalment of rent, immediately on the occurrence of such default, is not affected by any provision of the Bengal Tenancy Act and he gets an enforceable cause of action as soon as the default occurs. The proviso to Section 54(1) does not affect or alter this right of the landlord. It rather seems to us that the proviso was enacted entirely for a different purpose, namely, to regulate the rights of the parties in regard to advance payment of rent and, by sanctioning such payment up to a limit of one year only, it impliedly forbids payment or receipt of advance rent beyond that period except at the parties' risk. We, accordingly, reject the appellant's contention, based on the proviso to Section 54(1), Bengal Tenancy Act.
18. We take up next Mr. Sen Gupta's argument on the third clause of Section 3 of the Patni Regulation. Mr. Sen Gupta argued that, in view of the language used in that clause, the zemindar had no right to proceed to the civil Court for recovery of arrears of patni rent until he had lost his remedy under the 'Regulation. We are unable to see how the statute supports this argument. It would foe more reasonable to contend, upon the language of the section, that the zemindar was bound to proceed under the Regulation for recovery of patni rents and the civil Court could not give him any relief in the matter. Prima facie, such a contention would have tome support from the statute as the words 'public auction' in the third clause of Section 3 can refer only to a public auction under the Regulation in view of the express mention therein of Section 17 (which applies only to astam sales under the Regulation) as the controlling provision, regulating the disposal of the sale proceeds. Even that contention, however, in spite of this apparent support from the statutory language, would not permit acceptance. It would undoubtedly be opposed to long established practice which received the sanction of the Privy Council in Brindabun Chunder Sircar Choudhury v. Brindabun Chunder Dey Chowdhury, 1 Ind App 178 (A) and also in Pramada Nath Roy v. Ramani Kanta Roy, 35 Gal 331 at page 344: 12 Cal WN 249 at page 255 (col. 1) (PC) (B) and, in the well-known case of Satya Sankar Ghoral v. Monmohan Guha, 22 Cal WN 131: (AIR 1918 Cal 265) (C), N.R. Chatterjea, J., on reasons which commend themselves to us, expressly rejected the said contention. Smither J. no doubt took a different view but it seems to us that he did not attach sufficient weight to the long standing practice or pay proper or sufficient attention to the implications of the Privy Council decisions, referred to above. The dictum of the Judicial Committee in Pramada Nath Roy's case (B) which inns as follows:
'By the express terms of the Bengal Tenancy Act, in the event of rent being unpaid, the owners of the zemindary interest are entitled, by suit under that Act, to bring a patni to sale, with the consequence provided by the Act', is of particular importance in this connection and virtually settles the point. It is to be noticed further that, in spit of Smither J.'s criticism and condemnation, the same practice has continued all these years and, during all the several decades which have passed since the enactment of the Bengal Tenancy Act, patnis have frequently and on numerous occasions been sold by the Courts under that Act for recovery of arrears of rent. We entirely agree with H.R. Chatterjea J. when he says that 'the Regulation does not take away the rights of the zemindar to proceed in the ordinary way under the general law to recover arrears of rent' and that 'it only gives him an additional right to recover rent by a summary process of sale.'
The Regulation and the Act are both available to the zemindar for realisation of Patni rents and they provide him with alternative, and optional remedies in the matter. The argument, therefore, that, lor arrears of rent a Patni cannot be sold under the Bengal Tenancy Act but the zemindar must proceed under the Regulation, which has some apparent support from the language of the third clause of Section 3 of the Regulation and which found favour with Smither J. cannot be accepted. For reasons, already given, this argument does not appeal to us and we have little hesitation in rejecting the same. Mr. Sen Gupta's present argument is even much weaker and we do not find the least warrant or justification for it in the staute.
19. In the above view of the matter, we hold that the appellant Maharaja had an enforceable cau3e of action for recovery of the rents of 1348 B.S. upto the Pous kist at the time of institution of the earlier Rent Suit 'No. 3 of 1942, on 21st Pal-goon 1348 B.S. The first point in support of the appeal must, therefore, fail.
20. The remaining question need not detain us long. Section 17, clause three proviso of the Patni Regulation, on which reliance was placed by Mr. Sen Gupta to support his argument that, upon the failure of his client's attempt to have a patni sale for recovery of the arrears of 1348 B.S., a fresh cause of action accrued to him, as the zemindar, in respect thereof in the shape of a fresh right to recover them as personal debts by a regular suit in the Court, does not support that argument. To' us, the argument appears to be misconceived. Section 17 can have no application to a case where there has been no patni sale. This is clear from the opening words of the section. The section deals only with the disposal of the sale proceeds and, while permitting recovery of arrears of patni rent, not beyond the preceding year, from the astam sale proceeds, it relegates the zemindar to his rights under the general law so far as former or antecedent balances are concerned and emphasises that position by treating them as 'mere personal debts' of the patnidar for the obvious reason that, the patni having been lost by sale, it would no longer be available for those balances. For our present purpose, it is not necessary to consider whether, in view of the language of the proviso read with the succeeding fourth clause of the section, the first charge under Section 65 of the Bengal Tenancy Act would remain in any form after the sale of the Patni under the Regulation. That point is not altogether free from difficulty and it has given rise to some serious divergence of judicial opinion (Vide in this connection 22 Cal WN 131 : (AIR 1918 Cal 265) (C), supra, and the cases, considered there, namely, Peary Mohan v. Sreeram Chandra', 6 CWN 794 (D), Jogonath v. Mohiuddin Mirza', 37 Cal 747 (E); 'Basan Kumar Bose v. Khulaa Loan Co.', 19 Cal WN 1001 : 20 Cal LJ 1 ; (AIR 1915 Cal 24) (F), etc. We need not, however, express any opinion on the point as it, does not arise in the present case. It is enough for our present purpose to draw attention to the fact that the section (S. 17), -- or, rather, the relevant proviso to its third clause -- speaks of former or antecedent balances, having obvious reference to the current balance, for which the sale is held, thus postulating two kinds of balances --current and antecedent -- and a sale for the current balance with antecedent balances outstanding. In the present case, no such question arises; there is no sale and no question also of current and antecedent balances, and, accordingly, the section --and, necessarily, the proviso also -- can have no application to it. Reference or recourse to Section 17, therefore, or any part thereof is utterly irrelevant and misconceived in the present case where the patni has not been sold under the Regulation and where no question of current and antecedent balances arises, and, accordingly, it cannot be of any assistance to the Maharaja appellant. The second point, urged in support of the appeal, also, there-tore, fails.
21. In the result, the appeals are dismissed with costs. There will, however, be one set of hearing fee for the two appeals which is assessed at five gold mohurs.
Renupada Mukherjee, J.
22. I agree.