DWIPENDRA NATH CHATTOPADHAYA Vs. MAHENDRA NATH BISWAS

JUDGEMENT

(1.) This appeal has arisen out of a suit for correction of a certain entry in the Record of Rights and also for enhancement of rent and for additional rent under Section 30 and Section 52, Ben. Ten. Act. The suit was dismissed in the Court of first instance on the ground that the plaintiff was a cosharer landlord and his cosharers were not joined either as plaintiffs or defendants in the suit under Section 188, Ben. Ten. Act, and the prayer for the amendment of the plaint making his cosharers party defendants was also rejected. The lower appellate Court held that the amendment of the plaint should have been allowed so as to enable the plaintiff to join the cosharer landlords as defendants and therefore remanded the suit for trial on the merits. In this appeal it is contended on behalf of the defendant appellant that, in any case, having been brought before the amendment of Section 188 of the Act which was brought into force in February 1929, the suit by a cosharer landlord for enhancement of rent and for additional rent under Section 30 and Section 52, Ben. Ten. Act, was not admissible, and further that since the amendment of the plaint was allowed after the period of six years limitation, the suit for the correction of the Record of Rights was also barred. It appears however that the suit for the correction of the Record of Rights is really one under the general law (Specific Relief Act). It does not come under Section 111-A, Ben. Ten. Act, nor does it appear to come under any other section of the Act; therefore the suit is not barred by six years limitation.

(2.) As regards the suit for enhancement of rent and for additional rent, it is not barred by limitation, and if the amendment is allowed the plaintiff is entitled to bring it. We think that the learned Judge in the circumstances of the case was right in allowing the amendment of the plaint. It was mentioned in the plaint, in the first instance, that a suit was pending in the High Court in which it might be held that the defendants were cosharer landlords and in that case the plaintiff would apply for the rent of his share only. In these circumstances we think that the amendment should have been allowed and that being so, the suit both as regards the correction of the Record of Rights and as regards the enhancement of rent and additional rent is maintainable. This appeal is therefore dismissed and the order of the learned District Judge remanding the suit to the Court of first instance for trial on the merits should stand. The parties will bear their own costs throughout. Mallik, J.

(3.) I agree.