NAFAR CHANDRA PAL CHOWDHURY Vs. BHUSI MOLLA

JUDGEMENT

(1.) The suit giving rise to this appeal was a suit for rent brought by the plaintiff appellant claiming rent at the rate of Rs. 8-11-12 1/2 gundas. The defendant alleged that the rent was Rs. 6-7 a year. It has been proved that the plaintiff got two rent-decrees one for the rent for 1313 to 1316 and the other for the period 1317 to 1320 at the rate of rent, claimed by him. These decrees were ex parte decrees but they were put into execution and in both cases the money was paid out of Court. The Court of first instance treated these decrees is evidence in the case but gave effect to the defendant's contention that the plaintiff was not competent to claim the rent at the rate alleged by him in contravention of the provisions of Section 29 of the Bengal Tenancy Act. It was found from the evidence on the record that the rent of the holding was Rs. 6-7 a year. On appeal the learned District Judge raised a presumption in favour of the plaintiff as to the rate of rent under Section 51 of the Bengal Tenancy Act on the basis of the above two decrees obtained by him against the defendant but held that the tenant is not precluded from contending that that rate ia illegal being in contravention of the provisions of Section 29 of the Tenancy Act. The appeal was dismissed and the plaintiff has preferred this second appeal to this Court.

(2.) It is argued on his behalf that the two rent-decrees ought to have been given effect to as res judicata against the defendant. In these decrees no issue was raised as to the rate at which the rent was payable by the defendant. Nor was there any decision with regard to such rate. The decrees were ex parte and the suits were decreed at the rate claimed by the plaintiff in those suits. Such decrees, therefore, cannot operate as res judicata in favour of the plaintiff. [Modhusudun Shaha Mundul V/s. Brae 16 C. 300: 8 Ind. Dec. (N.S.) 197 (F.B.)] decided by a Fall Court, The question as to the effect of an ex parte degree which has been put into execution was left open. It has since been held in several cases that an ex parte decree for arrears of rent which has been duly executed is of some evidence as to the rate of rent. Madhu Munjari V/s. Jhumar Bibi 1 C.W.N. 120 and Mati Lal Poddar V/s. Nripendra Nath Ray 2 C.W.N. 172. Both the Courts below have treated ex parte decrees as evidence in the case. The learned Munsif observes with regard to the first decree: "It should be considered only as a piece of evidence as to the rate at which the defendant actually paid rent to the plaintiff during the period in claim in the suit, that is 1313 to 1316 B.S. It is not res judicata about the rate of rent". As such, he has found as a fast that the defendant made payment of rent for 1313 to 1316 and 1317 to 1320 at the rate of Rs. 8-11-12 1/2 gundas a year. The learned District Judge has also taken these decrees into consideration as raising a presumption in favour of the plaintiff under Section 51 of the Bengal Tenancy set. It cannot, therefore, be said that the Courts below have not taken these important pieces of evidence into consideration. But they have concurrently found that the rent paid by the defendant was originally Rs. 67 a year and that it was for the landlord to explain the enhancement which he has failed to do.

(3.) It is next argued that the defendant not having taken in the previous rent suits the defence under Section 29 of the Bengal Tenancy Act is incompetent to raise that defence in this suit under Section 12 Explanations 2 and 4 of the Civil Procedure Code. We do not think that there is any force in this contention. There cannot be any estoppel against Statutes and even if the previous rent decrees were res judicata the plaintiff could not do what the Legislature specifically laid down that he should not be allowed to do. The whole scheme of the Tenancy Act is to prevent the landlords from circumventing the provisions of the Act to the detriment of the illiterate tenants. Section 147A of the Tenancy Act shows the scheme on which the Act was framed.