1. This is an appeal by the defendants against the decision of the learned Subordinate Judge of Pabna, dated the 21st February 1916, affirming the decision of the Munsif of Serajganj. The plaintiffs brought the suit to recover rent in arrears for the years 1317, 1318 and 1319 B.S. The amount sued for rent and cesses was Rs. 429-0-9. Rs. 104-4-0 was also claimed for damages under the provisions of the Bengal Tenancy Act. The claim with regard to the rent and cesses for the year 1317 has been, decreed in favour of the plaintiffs and no question has been raised in this appeal with regard to that. Therefore, the judgment appealed against with regard to the arrears of rent for 1317 must stand. The question arises with reference to the years 1318 and 1319. It is common case between both the parties that the rent in this case is payable by five kistt; namely, 10th Assar, 10th Bhadra, 10th Aswin, 25th Agrahayan and 25th Falgun. Now, the damages that have been claimed in this case are damages which the plaintiffs are entitled to and they say they are entitled to snder the provisions of Section 68 of the Bengal Tenancy Act, which provides that 'if, in any suit brought for the recovery of arrears of rent, it appears to the Court that the defendant has without reasonable or probable cause neglected or refused to pay the amount of rent due by him, the Court may award to the plaintiff, in addition to the amount decreed for rent and, cost?, such damages not exceeding twenty-five percentum on the amount of rent decreed, as it thinks fit.' In this case, it is common fact that the rent was tendered by money order, and the reason which the learned Judge considered made those tenders bad was that the tenders did not include interest as from the dates on which the rent became due, namely, the respective dates fixed for the payment of the rent. On what dates the rent was actually tendered through money order, does not appear from the judgments of the Courts below. But we have been handed a table which is stated to have been made from a perusal of the record. Whether that table is accurate or not we are not in a position to say. This is not a case of any contract in writing proved. The interest that the plaintiffs can claim is under and by virtue of the provisions of Section 67 of the Bengal Tenancy Act, and that Section does not provide that arrears of rent shall bear interest from the date on which the rent becomes due, but from the expiration of the quarter of the agricultural year in which the nstalment falls due. It depends on what dates the tenders were made by money order. If the tender was made before the date mentioned in Section 67, then no interest was due on the arrears of rent; but if it was made after that date, then interest was due and whether that was a good tender would depend on a consideration of those facts. If the tender was made before the time from which by virtue of Section 67 interest commences to run, then it can hardly be said, the tenants having tendered the whole amounts of the Ttists due, that they under the provisions of Section 68 had without reasonable or probable cause neglected or refused to pay the amounts. I think in this case the learned Judge of the lower Appellate Court has not considered the facts relating to the tender with reference to Section 67 of the Bengal Tenancy Act. In that view, the case must go back to the learned Judge of the lower Appellate Court for him to re-hear the appeal, after taking into consideration what was the date of the tender which was refused by the plaintiffs. This remand only relate? to the claim for the years 1318 and 1319, the appeal as rearards the claim for 1317 is dismissed. The learned Judge of the lower Appellate Court will also find whether on the dale of the tender interest, having regard to the provisions of Section 67 of the Bengal Tenancy Act, had commenced to run so that the tender was or was not a good tender by reason of its not having included any interest. The case must, therefore, go back to have the appeal, save and except as regards the claim for 1317, re-heard by the loarned Judge of he lower Appellate Court. Costs will abide the result of the re-hearing by the learned Judge of the lower Appellate Court.
2. Shamsul Huda, J.--I agree.