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Rani Harshamukhi Dasi Vs. Yunus Molla and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1938Cal187
AppellantRani Harshamukhi Dasi
RespondentYunus Molla and ors.
Excerpt:
- .....interest of the present petitioner owned an eight anna share of a certain touzi, instituted a rent suit being rent suit no. 175 of 1932 in the court of the third munsif at alipur for recovery of rent due in respect of a certain tenure held by opposite parties 1 to 8 as tenants under her. the total rent payable in respect of the tenure was rs. 18-4-4 a year and the plaintiff claimed rent for three years at the rate of rs. 9-2.2 for her eight anna share together with cesses, damages, etc., the aggregate claim being laid at rs. 35 and odd. in addition to the prayer for recovery of rent, there was another prayer for enhancement of rent of the entire tenure under section 7, ben. ten. act, and the plaintiff claimed enhancement to the extent of rs. 35 and odd upon the existing rent of rs......
Judgment:
ORDER

B.K. Mukherjea, J.

1. This is a rule directed against an order allowing amendment of a decree under the following circumstances : One Mrinmoyee Dasi who as predecessor-in. interest of the present petitioner owned an eight anna share of a certain touzi, instituted a rent suit being rent Suit No. 175 of 1932 in the Court of the Third Munsif at Alipur for recovery of rent due in respect of a certain tenure held by opposite parties 1 to 8 as tenants under her. The total rent payable in respect of the tenure was Rs. 18-4-4 a year and the plaintiff claimed rent for three years at the rate of Rs. 9-2.2 for her eight anna share together with cesses, damages, etc., the aggregate claim being laid at Rs. 35 and odd. In addition to the prayer for recovery of rent, there was another prayer for enhancement of rent of the entire tenure under Section 7, Ben. Ten. Act, and the plaintiff claimed enhancement to the extent of Rs. 35 and odd upon the existing rent of Rs. 18 and odd. The suit was not contested by the tenant defendants and it culminated in an ex parte decree on 26th January 1933. The ordering portion of the judgment stands as follows: 'Decreed ex parte with costs. Plaintiff do also get enhancement of rent at Rs. 23-10-0 from Baisakh 1340 B.S. under Section 7, Ben. Ten. Act'. The decree was in identical terms. In 1935 the pre-sent petitioner, who purchased the interest of Mrinmoyee, instituted a rent suit against the said tenant, and she claimed enhanced rent at the rate of Rs. 23-10-0 a year in her half share basing her claim upon the ex parte rent decree mentioned above.

2. The defendant's contention was that the enhanced rent of Rs. 23-10-0 allowed by the Court in the previous suit was in respect of the entire tenure and consequently the plaintiff was entitled to only one half of the same. As the decree was not very clear on this point, the defendants thereupon made this application to the Court of the Third Munsif at Alipore for amendment of the decree passed in rent Suit No. 175 of 1932, under the provisions of Section 152, Civil P. C, praying that it might be expressly stated that Rs. 23-10.0 being the rent in respect of the entire tenure the plaintiff was entitled to half of it. Mr. Gupta who appears for the petitioner has contended before me that the decree being in entire conformity with the judgment, there is no scope for amendment of the decree under the provisions of Section 152, Civil P.C. On the other hand, it has been contended by Mr. Sannyal for the opposite party that the Court in passing the decree in rent Suit No. 175 of 1932 could not but mean that Rs. 23-10-0 was the enhanced rent in respect of the whole tenure. He relies in support of his contention upon the provisions of Sections 7 and 188, Ban. Ten. Act. It is true that in schedule Kha of the plaint in rent Suit No. 175 of 1932, the enhanced rent in respect of the entire tenure claimed by the plaintiff was set out, and there was no distribution of the total enhanced rent amongst the different cosharers as Section 188, Ben. Ten. Act, enjoins.

3. Be that as it may, I think that the whole question is one of interpretation of the decree having regard to the pleadings of the case and the other relevant papers, but it is not a matter for which an application for amendment could be made under Section 152, Civil P.C. The decree follows the judgment in its entirety, and I am unable to say that there was any accidental slip or omission which would bring the case within Section 152 of the Code. The judgment and the decree both seem to be a bit ambiguous, and certainly it is open to the Court before whom the rent suit which was instituted by the plaintiff, is still pending to construe the ex parte decree properly having regard to the pleadings of the parties and the exact relief which the Court purported to grant in that case. It may be that the view taken by the trial Court in granting the amendment is the right view, but without expressing any opinion upon this point finally I set aside the order of amendment passed by the trial Court simply on the ground that the application is not maintainable under Section 152 of the Code. The defendants will be at liberty to call upon the Munsif before whom the rent suit is pending to accept the interpretation which he wants to put upon the decree in the previous rent suit. That is a matter which has to be decided by the Court which is at present hearing the rent suit, and his decision subject to any right opinion will be final. The result is that the rule is made absolute and the order of the Court below is set aside with the observations mentioned above. There will be no order as to costs, either in this Court or in the Court below.


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