GOPAL CHANDRA CHANDA Vs. DWARIKA NATH BEPARI

JUDGEMENT

(1.) This appeal is by the plain-tiff. The dispute between the parties is whether the principal defendant held at a rent of Rs. 3 or whether no rent has been fixed. Proceeding on the latter view, the plaintiff instituted the present suit for assessment of fair rent. The decision of the dispute depends upon the interpretation of Ex. 1. This apparently simple dispute has led to most protracted proceedings. The Munsif decided in favour of the defendants. It is difficult to avoid the conclusion that there was a certain amount of confusion. At any rate, his judgment was anything but con-elusive. He summed up as follows: Be that as it may, to claim a fair and equitable rent the plaintiff should have prayed for local investigation to find out the prevailing rate of rent paid by the tenants in the locality in question. That has not been done. Hence, considering the circumstances the Court is unable to assess the fair and equitable rent for the rent- land in this suit.

(2.) Now, that is a strong indication that he was going to overrule the defence contention that the rent had already been fixed. He then, however, made a complete volte-face and finished as follows: In view of this state of affairs the plaintiff is entitled to get rents at the rate of Rs. 3 per year from the share of the plaintiff and cosharer defendant 8. Hence, the point is found in favour of the defendants.

(3.) Thus, however inconclusive the judgment may have been, the decision itself was in favour of the defendants. There was therefore nothing for them to appeal against and their failure to appeal or to file a cross-objection could not affect their right to have the matter decided in a higher Court. The plaintiff appealed. The Subordinate Judge in an equally inconclusive judgment agreed with the Munsif that the materials for assessing fair rent were insufficient. Instead of following the proper procedure, he made an order which is fairly frequently made and which generally leads to trouble. He remanded the whole suit. At the trial the Munsif delivered a careful judgment and assessed fair rent. The defendant appealed. The Subordinate Judge held that the rent was fixed at Rs. 3. He accordingly declined to consider the question of assessing a fair rent and restored the original decision of the first Munsif. The plaintiff now appeals to this Court and two points have been pressed in support of the appeal, (1) that after the order of remand the dispute between the parties had been finally determined and the only question remaining was the assessment of fair rent; and (2) that the decision of the Subordinate Judge on the merits was wrong. On the first point Mr. Guha contended that, at any rate, the order of the Subordinate Judge was a bad order. After the remand the appellate Court could only consider the assessment of fair rent and had no authority to re-open the main issue which had already been determined at the first hearing of the appeal. There is ample authority for this proposition and I need only refer to the case of Brojo Soondur Gossamee V/s. Juggut Chunder Dey ( 74) 21 WR 199. Their Lordships said this: It is necessary to observe also that the District Judge, in hearing this appeal after a remand by the Subordinate Judge of the District, seems to have thought himself at liberty to question and dissent from the issues framed by the Subordinate Judge when the appeal was before him. In this respect as to the hearing of an appeal from the Munsif's decision, the District Judge has no authority to vary or ignore the directions made by an Appellate Court of co-ordinate jurisdiction ....