INDER PARKASH Vs. HANS RAJ AND ANR.

JUDGEMENT

(1.) THE petitioner in this case Inder Parkash is one of the defendants in a suit instituted by Hans Raj respondent for the recovery of Rs. 6,000 -00. The Proforma defendant in the suit Shrimati Padma Wati owned considerable area of land which she leased to Inder Parkash as a tenant and as he did not pay any rent after Kharif 1952. Shrimati Padma Wati instituted proceedings against him in a revenue Court on the 5th of December 1955 for his ejectment from the land. That application was compromised in 1959 by the landlord's allowing Inder parkash to remain as tenant on his undertaking to pay Rs. 6,00000 as arrears of rent up to Rabi 1959 by the 15th of June 1959 and undertaking further to pay an annual rent of Rs. 2,000.00 on a date between the 1st of May and the 15th of June each year. There was also some under taking in the compromise not to fell any trees or make any extension to his buildings without the landlord's consent. On these terms the ejectment application was dismissed.

(2.) THE present suit was instituted by Hans Raj for the recovery of Rs. 6,000. 00 on the allegation that Shrimati Padma Wati had assigned to him her right to recover the some of Rs. 6,000.00 payable under the compromise on his payment to her of a sum of Rs. 4,000. The objection was raised at the outset by Inder Parkash that the suit was not cognizable by the civil Court and was only cognizable by the revenue Court. This objection was upheld by the trial Court which returned the plaint for presentation to the proper Court under Order VII rule Civil procedure Code. However, the plaintiffs appeal was accepted by the learned District Judge who held that the suit was cognizable by the civil Court.

(3.) THE trial court held that this amendment, being procedural was applicable to the present suit although it was introduced during the pendency of the suit. Before the learned District Judge it was conceded that the amendment was procedural and would apply to pending suits of the right kind but it was contended that this was not a suit by the landlord or his assignee to recover rent within the scope of section 77(3) (n) of the Act, but arrears of rent based on a novation of contract by which under the terms of the compromise new terms of tenancy were introduced and an undertaking was given to pay Rs. 6,000.00 on account of arrears. This proposition was accepted by the learned District Judge on the strength of the decisions in two cases, the first of which is Amrit Lal v. Bhaguana, 41 PR. 1907 -, 80 P.L.K. 1908 and a decision by Johnstone and Kattigan JJ. In that case bond had been executed for a certain sum due on account of arrears of rent and it was held that although the sum due was on account of rent the claim was in fact based on a bond and the claim for rent had merged in the right given by the bond and the civil Court was accordingly held to have jurisdiction.