K.C. Das Gupta, J.
1. This case raises the question whether the Small Cause Court, Calcutta, acted without jurisdiction in trying a suit for recovery of arrears of rent for premises in Pakistan.
2. The opposite party brought the present suit on the allegation 'that the defendants are tenants-at-will' in respect of a room in Dacca Municipality, at a rent of Rs. 38/- per month, and that the rents for the months Kartik 1357 to Jaisthaya 1358 had not been paid. It was further alleged that the rents from the months Sravan 1355 to Aswin 1357 were paid in Calcutta, and that the defendants 'came down to Calcutta immediately after the partition of the Province of Bengal', and all of them are living here permanently.
3. It may be mentioned that defendants 2 and 3 are father and son, and they obtained the present Rule. Defendant No. 1 is the firm, of which defendants 2 and 3 are the partners.
4. Defendants 2 and 3 filed written statementdenying liability. They also denied the jurisdiction of the Small Cause Court, and denied that rents were paid in Calcutta or that the defendants had come to Calcutta.
5. The trial Court found that defendants 2 and 3 have been residing at 11, Holwell Lane, since 1947,and have also agreed to pay rent at Calcutta since the Partition, and concluded on those findings that the Court had jurisdiction. The Court decreed the suit in part allowing the claim for rent, but disallowed the claim for compensation.
6. On application under Section 38 of the Small Cause Court Act the Full Bench of the Small Cause Court held that the plaintiff was not entitled to sue on Calcutta on the ground that cause of action had arisen in Calcutta as no leave on such ground was taken, but as the defendants resided within the jurisdiction of the Court, as found, the Court had jurisdiction to try the suit. It is contended on behalf of the defendants that residence in Holwell Lane will not give the Small Cause Court jurisdiction, as thesuit is in respect of a right arising out of immovableproperty, ana under the rules of International Law, the Court of a Country will not try any such suit.
7. The law is clear that the Courts in India will not exercise jurisdiction in a suit brought for declaration of a right to immovable property or in a suitwhich directly involves the question of a right to immovable property.
8. The question before us is whether the rule against exercise of jurisdiction in a suit involving thedecision of title to immovable property should be applied to a suit for recovery of arrears of rent forsuch property.
9. Mr. Mukherjee has relied on the case of Whitaker v. Forbes, (1875) 10 CP 583 (A), for the proposition that the Court will not exercise jurisdiction in such a case. In that case, an action was brought in England for arrears of rent-charge in respect of land in Australia. The defendant contended that as the right of action depended upon the privity of estate, and not on privity of contract, the venue was local and consequently the estate being in Australia, no action could be brought in England. Thisplea was successful.
10. Mr. Mukherjee has asked us to hold that inthe present case also the claim is based on privity of estate and not on privity of contract, and consequently, the Courts in this country could not exercisejurisdiction, as the 'estate' is in a foreign, country.
11. It is to be noticed, however, that evidence was given in the case by Sarveswar Roy, one of theplaintiffs, that the defendants themselves took leaseof the room. Defendants 2 and 3 father and son gave evidence in this case after Sarbeswar. But they did not say a single word on the question whether they were the original lessees or were assignees from the original lessees. The evidence leaves no doubt, therefore, that defendants 2 and 3 took the lease from the plaintiffs. There was, therefore, in this case privity of contract between the plaintiffs and these defendants. The fact that these two defendants were partners in business and the firm name was used for the purpose of the lease, makes no difference.
12. When relief is claimed on the basis of contract, the action is a personal action, which, it is undisputed, can be tried by the Court of the country where the parties to the contract reside.
13. The present suit for recovery of arrears of rent is, in my opinion, based on contract and was, therefore, triable by the Small Cause Court, Calcutta, in spite of the fact that the premises were in Pakistan.
14. It is not necessary for the purpose of the present case to consider the more difficult question, whether a suit for recovery of arrears of rent, which is claimed on privity of estate as distinct from privity of contract, can be tried by Indian Courts, where the premises of the lease is in a foreign country.
15. I would, accordingly, discharge this Rule with costs.
Debabrata Mookerjee, J.
16. I agree.