HAMID ALI Vs. MAHOMED NURERJJAMA MEAH

JUDGEMENT

(1.) This appeal, arises out of a suit for the recovery of arrears of rent on the basis of a kabuliyat. This kabuliyat stipulated that arrears of rent should bear interest at the rate of 75 percent, per annum and in decreeing the claim both Courts have enforced this stipulation, The defendant appeals and on his behalf the sole contention is that interest at so high a rate is contrary to law.

(2.) It appears that the respondent ban twice before obtained decrees for arrears of rent on the basis of this kabuhyat with interest at the rate stipulated. In 1911 the Munsif decreed the suit in part, but allowed interest at the rate claimed. His finding on the subject of interest was that the lease is a kayemi raiyati lease and that plaintiff was entitled to the rate claimed (vide Exhibit D). This finding had reference, no doubt, to the provision of Secs.178 and 179 of the Bengal Tenancy Act. The plaintiff appealed in respect to the part of his claim for arrears which had been disallowed, and the appeal was decreed on the 25 August 1912 (vide Exhibit E). It is said that there was a cross-appeal by the present appellant on the subject of the rate of interest which was dismissed for default. However that may be, the Munsif's finding as to the liability of the present appellant to pay interest at 75 percent. was undisturbed.

(3.) The present respondent instituted a second suit for arrears for a subsequent period and this suit was decreed in his favour on the 20th. March 1915. The judgment is not upon the record but an appeal was preferred against it and from the appellate judgment (Exhibit 2) dated the 19 June 1916 it can be gathered that the question was raised as to whether the earlier decisions on the subject of the liability to interest at the rate claimed operated as res judicata. The learned Subordinate Judge observed in the judgment just referred to: "A wrong decision in a rent suit about interest does not operate as a res judicata in a Sub-sequent rent- suit. But in the present case the previous judgment was not a wrong one. It appears from the lease that the jama was permanently fixed and trie tenure created by it is heritable and transferable."