LALA JATADHARI LAL Vs. SHAH SHAMSUL BARI

JUDGEMENT

(1.) These Rules have been obtained by the plaintiff in two suits for rent of two houses in the town of Gaya, claimed by him as owner This case is that the de-fendant took a lease of these two houses from him and agreed to pay rent at the rate of Rs. 20 and Rs. 5 a month respectively. The plaintiff seeks to recover arrears and also claims interest thereon at the rate of Rs. 75 per cent. per annum. The defendant urges that he is liable to pay rent only at the rate of Rs. 20 for the two houses taken together and that as there was a valid tender of rent he is not liable for interest. The Small Cause Court Judge has made a decree in favour of the plaintiff for rent at the rate of Rs. 20 a month for the two houses and has disallowed the claim for interest and costs.

(2.) On behalf of the plaintiff that decision has been assailed on the ground that the learned Judge has, for erroneous reasons, refused to give effect to the consent decree made between the parties in a previous suit for rent and ejectment.

(3.) It appears that on the 11th October 1909, the plaintiff sued the defendant for arrears of rent and for ejectment on default of payment. That suit was compromised and a decree made by consent on the 9th February 1910. The defendant agreed to pay rent at the rate of Rs. 20 a month and undertook to pay interest at the rate of Rs. 75 per cent. per annum in the event of default. The defendant contends that the agreement had regard to both the houses; the plaintiff, on the other hand, contends that the previous suit related to the bigger house alone, and the compromise related to that property and did not affect the contract in respect of the other house. It has not been disputed that the claim as set out in the plaint of the former suit covered only the bigger house, but the defendant suggests that he was misled by the vagueness of the plaint. We are of opinion that it is not open to the defendant in the present suit to avoid the effect of the consent decree. If the decree was obtained by fraud or mis- representation or was based on a compromise into which the defendant had entered under a mistake, it was open to him to bring a suit properly framed to set it aside. Till it has been set aside, it must be deemed operative. The Small Cause Court Judge had no jurisdiction to set aside directly or by implication that decree passed in a regular suit by a Court of competent jurisdiction, and, consequently, the doctrine recognised in Nistarini Dassi v. Nundo Lal 26 C. 891 : 3 C.W.N. 670 and Rajib Panda v. Lakhan 27 C. 11 : 3 C.W.N. 660 cannot be applied here. The inference follows that the plaintiff is entitled to realise rent at the rate of Rs. 20 a month in respect of the bigger house, and also to claim interest upon the rent in arrears.