PURNA CHANDRA SAHA Vs. HYDER ALI PATARI

JUDGEMENT

(1.) I have the honour to submit for the decision of the Hon ble High Court under Order 46, Rule 1, Civil P.C., the following points which have arisen on the hearing of Bent Suit No. 419 of 1930 of this Court: Purna Chandra Saha V/s. Hydar Ali Patari.

(2.) In this suit the plaintiff seeks to recover rent as a fractional landlord in respect of a permanent mukarari tenure at the rate of Rs. 8-1-0 per year in his share for the years 1333 to 1336, cesses thereon at six pies in the rupee and interest on the arrears at the rate of three per cent per mensem. The total claim amounts to Rs. 45-9-0 only. The evidence makes out the claim. The only point that raises difficulty is whether the plaintiff can recover interest at the rate of three per cent per mensem. The plaintiff's claim of interest at this rate is based upon a stipulation in the kabuliyat (Ex. l) executed by the defendants predecessor on 21st Chait, 1284 B.S. But whether this contract can be given effect to in view of the provision of Section 178 (1) (i), Ben. Ten. Act, which lays down that: Nothing in any contract between a landlord and a tenant made before or after the passing of this Act shall affect the provisions of Section 67 relating to interest payable on arrears of rent.

(3.) It is urged on behalf of the plaintiff that this provision is the result of an amendment made in the section by Act 4 of 1928 (B. C.) and that prior to this amendment the section did not interfere with contracts regarding interest made before the passing of the Bengal Tenancy Act (8 of 1885) and that the amending Act has no retrospective operation. In support of this contention reliance is placed upon a decision of the Hon ble High Court in the ease of Hamiduddin Khan V/s. Ramani Kanta Roy [1929] 33 C.W.N. 123 (notes). In that case the tenant wanted to take advantage of the amendment made during the pendency of the case in second appeal but it was held that the amendment could not be applied retrospectively to that case. Stress is laid upon the following observation of his Lordship Mukerji, J., quoted in the above report: I do not find any word either in Section 178 or anywhere else in the amending Act which gives this amendment retrospective operation.