BATUL KUAR Vs. MUNNI LAL

JUDGEMENT

(1.) THIS appeal arises out of a suit for rent for the year 1313 Fasli. The defence set up was that the suit was barred by the provisions of 43 of the old Code of Civil Procedure, a decree having been obtained against the appellant in a suit instituted on the 10 of January, 1907, in respect of the rent for the year 1314 Fasli. The former tenant of the holding was one Gokul Singh. He died leaving his mother of the name of Batul Kuer and a daughter of the same name. They continued to reside on the holding of Gokul Singh. On the 17 of July, 1907, the plaintiff sued the mother Batul Kuer, for the rent for the year 1313 Fasli, and obtained an ex parte decree on the 31 of August, 1906. The rent for the succeeding year having fallen into arrears, on the 10 of January, 1907, the plaintiff sued Batul Kuer, the daughter, for that rent. The plaintiff at this time had become aware that Batul Kuer, the daughter, was or claimed to be the tenant. THIS suit was also decreed ex parte. After this in March, 1907, Batul Kuer, the daughter, filed an application in the suit relating to the arrears of rent for 1313 Fasli, under 108 of the old Civil Procedure Code, asking for a re-hearing of that suit. That application was rejected on the ground that she was not a party to the suit. Upon this Batul Kuer, the mother, applied for a re-hearing of the case on the 27 March, 1907, and the re- hearing was granted. Then the plaintiff applied to have Batul Kuer, the daughter, made a defendant and she was added as such on the 17 of May, 1907, and a notice was served on her on the 27 of May, 1907. The result was that the Court gave the plaintiff a decree as against Batul Kuer, the daughter. THIS decision was upheld by the lower appellate Court, whereupon a second appeal was preferred to the High Court with the result that the decision of the lower Court was affirmed. The present appeal under the Letters Patent has now been preferred and the sole ground on which the appeal is supported is that the plaintiff was aware on the 10 of January, 1907, when he instituted his suit for the arrears of rent for 1314 Fasli, that Batul Kuer, the daughter, was tenant of the holding and omitted to sue her for the rent of 1313 Fasli. It appears to us that the fallacy in the argument in support of the appeal lies in the fact that there is nothing to show that the plaintiff had any knowledge, that Batul Kuer was tenant in the year 1313 Fasli. On the contrary, the fact that he had instituted a suit against Batul Kuer, the mother, as tenant on the 17 of July, 1906, and obtained a decree against her ex parte shows that he had not any such knowledge. It is true that on the 10 of January, 1907, he was aware that Batul Kuer, the daughter, was or claimed to be then tenant, but from this we cannot infer that she was tenant, during the previous year. A plaintiff is not under such circumstances barred by the provisions of Section 43 of the former Civil P. C., corresponding to Order II, Rule 2, Sub-section 2 of Act V of 1908. That section provides that "if a plaintiff omits to sue in respect of or intentionally relinquishes any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished." If, at the time of the institution of the suit for the arrears of rent for 1314, viz., the 10 of January, 1907, the plaintiff was not aware that Batul Kuer, the daughter, was the tenant, he cannot be said to have omitted to sue for the rent of 1313 Fasli, within the meaning of the section. In the case of Amanat Bibi V/s. Imdad Husain 15 C. 800 : 15 I.A. 106, their Lordships explained the meaning of Section 7 of Act VIII of 1859, which corresponds with the section now under consideration and observed in the course of their judgment as follows: "It appears to us that the fair result of the evidence is that at the date of the former suit the respondent was not aware of the right on which he is now insisting. A right which a litigant possesses without knowing or ever having known that he possesses it, can hardly be regarded as a portion of his claim within the meaning of the section in question." We are, therefore, of opinion that the decision of the learned Judge of this Court affirming the decision of the Court below is correct, and we dismiss the appeal with costs.