JNANENDRAKUMAR RAY Vs. DILEEPKUMAR RAY

JUDGEMENT

(1.) This appeal is directed against decision of the learned District Judge, 24 Parganas, passed on appeal in suit for rent and cesses in which a claim for damages was also made. The plaintiffs in the suit claimed rent for the years 1325 to 1328 B.S., on the footing that the annual rent payable by the tenant defendant was Rs. 728-4-7i gandas, and this was on the allegation that the tenant was holding as part of his tenure an area of land for which he was not paying rent. The definite allegation made was that the defendant was in possession of 1,398 odd bighas of land while he was paying Rs. 533-5-6 gandas as rent for only 1,000 bighas. The original rent payable in respect of the tenure, it may be mentioned, was Rs. 326- 5-7 gandas for an area of 576 odd bighas land. The Courts below have agreed in passing decrees in favour of the plaintiffs for arrears of rent at the rate mentioned by the plaintiffs, negativing the defence of the tenant defendant, which mainly related to this, that the plaintiffs were not entitled to the additional rent as claimed in the suit.

(2.) In the decree of the trial Court, an amount was mentioned as damages decreed in favour of the plaintiffs, although the judgment of that Court contained no decision or direction so far as payment of damages was concerned. The learned District Judge, on appeal, has reversed the decree of the trial Court and has held that the plaintiffs "will not get the damages" as mentioned in the decree of the trial Court. This appeal, by the plaintiffs in the suit relates to the question that, after the decision of the Court of appeal below disallowing damages, it was incumbent upon that Court to allow the plaintiffs interest on the arrears of rent, although no interest was, in point of fact, claimed in the suit.

(3.) The argument in this behalf was based upon the provision contained in Section 67, Ben. Ten. Act; and it was contended on behalf of the appellants that the Court below has altogether overlooked Section 67, which enacts that "an arrear of rent shall bear simple interest at the rate of 12 per cent per annum." Reliance has been placed on certain observations contained in the judgment of Rampini, Ag. C.J., in the case of Kripa, Sindhu Mukerjee V/s. Annada Sundari (1907) 35 Cal 34 decided by a Full Bench of this Court, to the effect that Section 67, Ben. Ten. Act, made a great change in the law. Under Section 21, Act 8 of 1809, an arrear of rent was only liable to interest." This gave the Court a discretion to award interest or not, as it thought fit. No such discretion is allowed by Section 67.