IQRAR AHMED Vs. HULKEY

JUDGEMENT

(1.) THIS revision arises out o a Small Cause Suit. The plaintiff brought a suit for the recovery of Rs. 208/10/6 as arrears of rent on the basis, of a rent-note executed by the defendant on 19-11-54 and exhibited as Ex. P. . 1.

(2.) IT appears that the house, about the rent of which this suit was filed, belonged to the defendant. , who had mortgaged it to the plaintiff and thereafter taken a lease of the same from the plaintiff. The suit was resisted on the ground that since it is a claim arising out of a mortgage-deed and the rent is by way of interest on the mortgage, therefore the Small Cause Court had no jurisdiction. This contention was rejected by the trial Court. The Court instead of passing a decree for the rent claimed, calculated interest on the mortgaged-money at 6 per cent, and decreed the suit for a sum of Rs. 46-2-6 only. Against this decision, the plaintiff has filed this revision. 2. Two questions arise for consideration; One, whether the plaintiff can bring a suit on the rentnote in the Court of Small Cause Judge? two, whether the Court could reduce the amount of rent in the manner in which it has done?

(3.) WITH regard to the first question, the learned counsel for the opposite party was unable to show any authority on the point and the three cases, he has cited nanekeshwar Prasad v. Nand Gopal Ram, AIR 1943 Pat 282 (A); Ram Narain Pasi v. Sukhi-Tiwari, AIR 1957 Pat 24 (B) and Harilal Bhagwanji v. Shastri Hemshanker umiya Shanker, AIR 1958 Bom 8 (C), do not discuss the point at all. His contention however is that because the rent-note was executed in lieu of interest on the mortgage, therefore the claim for arrears of rent is in fact a claim arising out of a mortgage. This argument is contrary to the cases cited above, because in air 1958 Bom 8 (C), it has been said that a decree for rent on the footing that it really represented interest payable by the defendant can be given. Similarly AIR 1943 Pat-282 (A), does not say that such no suit cannot be filed In fact AIR 1943 pat 282 (A) is wholly irrelevant because what is considered in it is the effect of order 34, Rule 14, C. P. Code, which is quite a different matter.