Tottenham and Agnew, JJ.
1. This was a suit to recover from the defendant, tenant, rent greater in amount than has been paid by him hitherto.
2. The suit was based on a contract embodied in the kabuliat given by the defendant.
3. The only question before us in second appeal is, whether in such a suit it was necessary that the plaintiff should first serve a notice of enhancement under Section 14 of the Rent Law.
4. The Courts below have held that a notice was necessary, and for want of it they have dismissed the suit. The Full Bench decision of this Court in Nistarini Dasi v. Bonomali Chatterjee I.L.R. 4 Cal. 941 : 4 C.L.R. 278 was cited in the Court of First Instance, but was held not to apply to this particular case.
5. We are of opinion that the Full Bench case does apply. The suit was upon a contract to the effect that the defendants, agreeing to pay a certain rent for a certain specified area, bound themselves to pay further rent, at the rate set out in the kabuliat, for any lands found on measurement to be in their cultivation in excess of the area of which the jumma had been fixed. The Full Bench decided that in such a case a notice under Section 14 was not necessary in order to enable the plaintiff to institute his suit.
6. It has been objected in this case that no rate is fixed in the kabuliat. It is true there is no specified rate per bigha mentioned, but we think that a reasonable interpretation of the kabuliat is, that when a certain amount, namely, Rs. 61-5, has been fixed for 109 bighas of land, the rate is the average of 9 annas per bigha. At any rate we think that the plaintiffs are entitled to have their suit tried. Upon the trial of the suit what will be found to be the area, rate of rent and so forth, we have not to decide. All we now hold is that the case can proceed without previous notice under Section 14.
7. The decrees of the Courts below will be set aside, and the case remanded to the first Court to be tried on the merits.
8. Costs will abide the result. The appellant is entitled to a refund of the Court-fee for the memorandum of appeal to this Court.