BHONDA SINGH Vs. DOWLAT ROY

JUDGEMENT

(1.) In the present appeal, the only point which has been raised on behalf of the appellants is whether a suit lies in the Civil Court for the purpose of amending a judgment and decree previously passed in a suit between the same parties by another Civil Court, on the ground that a mistake had been made by the Judge of the previous Court in his judgment and decree. The facts of the original suit, which in this case it is said was incorrectly decided, are that the present defendants brought a suit against the plaintiffs to recover the rent of their holding for a certain number of years. The defendants in that suit, (who are the plaintiffs in the present suit), raised objections on the grounds that the area stated in the plaint was wrongly given and that the rate of rent claimed was incorrect. They further pleaded payment. While that suit was in progress, a survey and settlement of rights was held in the Mauzah and the result of that was that a regular civil suit was instituted between the parties to the rent suit for the determination or adjustment of the area of the holding and the rate of rent. In consequence, when the rent suit cams on for trial, both parties agreed that, so far as that suit was concerned, the question what was the correct area and the yearly rent should be left open; and the only issue which the Court decided was whether the defendants, the present plaintiffs, had paid their rents for the years in suit or not. The Court found that the payment had not been proved and gave a decree to the plaintiffs for the full amount claimed in that suit. It appears that afterwards there was an application made under Section 206 of the Code of Civil Procedure, 1882, for rectification of the decree. That application was, however, dismissed as the decree was found to be in accordance with the terms of the judgment. In that application, it was alleged that the suit had been decreed in favour of the plaintiffs for recovery of rent from the tenants at the jama admitted by them and not at the rent claimed as given by the decree. No proceedings were taken to set aside that judgment and decree and no appeal was preferred against the decision of the Court in that rent suit. The present suit has been instituted by the tenants, the defendants in that case, alleging that the Court which decided the rent suit was wrong in giving the plaintiff a decree for the full amount claimed instead of giving them a decree for rent at the amount admitted by them (defendants) and praying that the judgment and decree in the rent suit might be rectified.

(2.) The Court of first instance held that the suit was not maintainable and dismissed it. On appeal, the lower Appellate Court has held that the suit is maintainable and has set aside the judgment and decree of the Court of first instance and has decreed the suit. The defendants in the present suit have now appealed.

(3.) In support of the appellants contention that the present suit would not lie, the learned Vakil, who appears on their behalf, has placed reliance on the decision of this Court in the case of Chand Mea v. Srimati Asima Banu 10 C.W.N. 1024. The learned Judges who decided that case took into consideration the previous decision of this Court in the case of Jogeswar Atha v. Ganga Bishun Ghattach 8 0. W.N. 473. Reference has also been made on behalf of the appellants to a decision of this Court in the case of Sadho Misser v. Golab Singh 3 C.W.N. 375. These cases have also been referred to by the lower Appellate Court in its judgment. The learned Subordinate Judge holds that the case in Jogeswar Atha v. Ganga Bishun Ghattaci 8 0. W.N. 473 supports the view that the present suit would lie and he goes on to say that the decision in Chand Mea v. Srimati Asima. Banu 10 C.W.N. 1024 approves of that ruling.