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Lala Jatadhari Lal Vs. Shah Shamsul Bari - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in14Ind.Cas.713
AppellantLala Jatadhari Lal
RespondentShah Shamsul Bari
Cases ReferredHaldane v. Johnson
Excerpt:
compromise decree - valid unless set aside--compromise of rent suit--subsequent suit for rent of same premises--plea that compromise decree fraudulent, if tenable--payment of rent--no mention where rent to be paid--duty of tenant to seek out landlord and pay. - .....reasons, refused to give effect to the consent decree made between the parties in a previous suit for rent and ejectment.3. it appears that on the 11th october 1909, the plaintiff sued the defendant for arrears of rent and for ejectment on default of payment. that suit was compromised and a decree made by consent on the 9th february 1910. the defendant agreed to pay rent at the rate of rs. 20 a month and undertook to pay interest at the rate of rs. 75 per cent. per annum in the event of default. the defendant contends that the agreement had regard to both the houses; the plaintiff, on the other hand, contends that the previous suit related to the bigger house alone, and the compromise related to that property and did not affect the contract in respect of the other house. it has not.....
Judgment:

1. These Rules have been obtained by the plaintiff in two suits for rent of two houses in the town of Gaya, claimed by him as owner This case is that the de-fendant took a lease of these two houses from him and agreed to pay rent at the rate of Rs. 20 and Rs. 5 a month respectively. The plaintiff seeks to recover arrears and also claims interest thereon at the rate of Rs. 75 per cent. per annum. The defendant urges that he is liable to pay rent only at the rate of Rs. 20 for the two houses taken together and that as there was a valid tender of rent he is not liable for interest. The Small Cause Court Judge has made a decree in favour of the plaintiff for rent at the rate of Rs. 20 a month for the two houses and has disallowed the claim for interest and costs.

2. On behalf of the plaintiff that decision has been assailed on the ground that the learned Judge has, for erroneous reasons, refused to give effect to the consent decree made between the parties in a previous suit for rent and ejectment.

3. It appears that on the 11th October 1909, the plaintiff sued the defendant for arrears of rent and for ejectment on default of payment. That suit was compromised and a decree made by consent on the 9th February 1910. The defendant agreed to pay rent at the rate of Rs. 20 a month and undertook to pay interest at the rate of Rs. 75 per cent. per annum in the event of default. The defendant contends that the agreement had regard to both the houses; the plaintiff, on the other hand, contends that the previous suit related to the bigger house alone, and the compromise related to that property and did not affect the contract in respect of the other house. It has not been disputed that the claim as set out in the plaint of the former suit covered only the bigger house, but the defendant suggests that he was misled by the vagueness of the plaint. We are of opinion that it is not open to the defendant in the present suit to avoid the effect of the consent decree. If the decree was obtained by fraud or mis-representation or was based on a compromise into which the defendant had entered under a mistake, it was open to him to bring a suit properly framed to set it aside. Till it has been set aside, it must be deemed operative. The Small Cause Court Judge had no jurisdiction to set aside directly or by implication that decree passed in a regular suit by a Court of competent jurisdiction, and, consequently, the doctrine recognised in Nistarini Dassi v. Nundo Lal 26 C. 891 : 3 C.W.N. 670 and Rajib Panda v. Lakhan 27 C. 11 : 3 C.W.N. 660 cannot be applied here. The inference follows that the plaintiff is entitled to realise rent at the rate of Rs. 20 a month in respect of the bigger house, and also to claim interest upon the rent in arrears.

4. It has been finally suggested on behalf of the defendant that as he gave notice to the plaintiff that he was ready and willing to pay rent, there was a valid tender. We are unable to accept this contention as well-founded. It is well settled that where there is a covenant to pay rent, as in this case, and no particular place of payment is specified, the tenant must seek out the landlord in order to make the payment, the plea that on the day when it became due he was ready with the money on the land demised affords no answer to an action on the covenant, though it may possibly prevent the landlord from exercising his right of re-entry. This principle was recognized by this Court in the cases of Kripa Sindhu Mukherji v. Annada Sundari Debi 6 C.L.J. 273 at p. 292 : 11 C.W.N. 983 and Fakir Lull Goswami v. Bannerji 4 C.W.N. 324 and is in accord with the rule laid down in Haldane v. Johnson (1853) 8 Exch. 689 : 91 R.R. 705 : 22 L.J.E. 264 : 17 Jur. 937.

5. In so far as the second house is concerned, the plaintiff is in a difficulty. He has not proved that there was a contract for payment of rent at the rate claimed. On the other hand, the Small Cause Court Judge has held upon the evidence that there was an agreement to pay rent at the rate of 8 annas a month. The plaintiff is, therefore, entitled to a decree in respect of that property for rent for 17 months at the rate of 8 annas a month. There was no agreement to pay interest and upon the facts disclosed, we are of opinion that no damages should be allowed.

6. The result is, that these Rules are made absolute and the decrees of the Court below varied. In the first suit there will be a decree for Rs. 140 and interest as claimed. In the second suit there will be a decree for Rs. 8-8. We make no order for costs either in this Court or in the Court below in either of these Rules.


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