1. This Rule is directed against an order of the Small Cause Court Judge of Sealdah, by which the Small Cause Court Judge dismissed the plaintiff's suit for recovery of a sum of Rs. 543-1-6. The plaintiff, it appears, is the owner of premises No. 35, Harish Mookerjee Road, and the defend-ant was his tenant and occupier of the said premises. The sum sued for represented payment of consolidated rate made by the plaintiff, and his case was that under the lease executed in favour of the defendant, defendant was liable to pay the whole rate. In the lease that was produced there was a stipulation to the effect that the consolidated rate should be paid in full by the tenant occupier. It has been found in a suit between the parties that that stipulation was fraudulently inserted. That being so, it is obvious that the plaintiff could not recover the sums, he had paid, in full; but under Section 171 of the Calcutta Municipal Act, in the absence of any contract to the contrary, half of the consolidated rate is payable by the owner and the other half by the occupier. Falling back upon this provision of the law the plaintiff says that he should now be given a decree for half the amount he claimed.
2. The case for the opposite party before us is that on removal of the clause fraudulently inserted, the contract between the parties was not that the defendant should pay the whole of the consolidated rate but that the plaintiff should do so. He further contends that inasmuch as no suit or any other action was brought or taken by the Municipal Authorities in order to recover the sums paid, the payment by the plaintiff was a voluntary payment and he could not on that ground recover. From the contention he now puts forward it is quite clear that the defendant was determined not to pay either the whole or half of the consolidated rate.
3. It has been suggested that the plaintiff should have waited until a suit was brought against him, or that he should have left it open to the Municipal Authorities to proceed against the defaulting occupier by way of distress and sale under the provisions of Section 213 and the following sections of the Municipal Act. in view, however, that such distress and sale would have the effect of removing the plaintiff's, the landlord's security for his rent, and in view of the provisions of Section 228 of the Act which make the consolidated rate a first charge upon the building or land in question, it is clear that the plaintiff is a person who under the provisions of Section 69 of the Contract Act, is interested in the payment of this money. The defendant has made it clear that he did not in fact intend to pay; if the plaintiff has paid it, he is clearly entitled to be reimbursed. In other words, Section 69 or Section 70 of the Contract Act is applicable, the plaintiff not having made this payment with the intention of doing so gratuitously is entitled to recover from the defendant the payments actually made in so far as such payments should have been made by the defendant.
4. Other defences are also put forward. It is suggested, for instance, that the plaintiff has not actually made the payments he alleges. It is further represented to us that for the period covered by these payments the defendant was not in occupation of the building. All these, however, are questions of fact into which we cannot enter here.
5. We, therefore, set aside the order complained of and remand the case to the Court of Small Causes in order that after ascertaining the facts the learned Judge may proceed to pass a decree for such amount, if any, as may be justly recoverable from the defendant.
6. Costs of this Rule will be costs in the suit. We assess the hearing fee at two gold mohurs.