MADARIPUR GENERAL BANK, LTD Vs. MOHIUDDIN AHMED, GUARDIAN ANDMANAGER OF COURT OF WARDS TO ESTATE OF MAULVI GOLAM SATTAR CHOUDHURIAND MAULVI GOLAM MOULA CHOUDHURI

JUDGEMENT

(1.) This appeal arises out of a judgment and decree of the Subordinate Judge, Second Court, Faridpur, confirming the decree of the Munsif of the First Court, Madari-pur, in a suit for rent, namely Suit No. 69 of 1939 brought by the 10 annas proprietors in a superior interest. At the same time there was a claim by the 6 annas proprietors in Rent Suit No. 1783 of 1938 which was tried along with the suit out of which the present appeal arises. The plaintiff's claim was that the rental in his share was Rs. 18-9-6, while the tenant defendants alleged that the rental was Rs. 14-7-6 in 16 annas share. The C.S. Kantians published in 1914 support the defendants case and show the lower rate both for the 6 annas proprietors and also for the tenant proprietors. The plaintiff relies upon an ex prate decree in Rent Suit No. 1343 of 1934, wherein he was made co-plaintiff in a suit brought originally by the 6 annas proprietors and the decree was given in his favour at the higher rate now claimed by him. In the same suit a decree was given in favour of the 6 annas proprietors at the lower rate, that is to say, the original rate shown in the record of rights and still claimed by them in their present suit, namely Rent Suit NO. 1783 of 1938. Both the trial and the appellate Courts appear to have proceeded upon the assumption that the decree in Rent Suit No. 1343 of 1934 was executed; but it has been brought out in the course of this appeal that the extract from the suit register, Ex. 2, shows that in fact what was executed was only that portion of the decree relating to the claim of the 6 annas proprietors and that the claim of the present plaintiff for the higher rate amounting in all to Rs. 63-13-6 was not executed. The lower appellate Court, relying on two eases one of which has been given a defective reference of and is untraced and the other case in Maheswari Deiv. Gaurhari Maity (26) 13 A.I.R. 1926 Cal. has held an ex prate decree in a previous rent suit, though not strictly operating as res judicata; raises the presumption of Section 51, Ben. Ten Act, and entitles the plaintiff to claim rent at the rate decreed in the previous suit, unless the defendant can show that the previous decree was obtained by fraud or by any irregularity or that the rate of rent has been changed or varied since then.

(2.) On behalf of the appellant, it is now con-tended that as it has been shown that the ex parte decree in the suit of 1934 has not been executed so far as it relates to the claim of the 10 annas proprietors, the decree is no evidence in the present suit as to the rate of rent and for this reference is made to the case in Ram Chandra Dutt V/s. Haro Gobinda Bhattacharjee. 1 C. W. N. cxxviii. On behalf of the respondent it is urged that the decision in the previous suit should operate as res judicata. In my opinion, neither of these contentions is sound. There has been some difference of opinion on the question as to whether a decree in a previous rent suit operates as res judicata on the question of the rate of rent or not; but I think that the decision of Full Court in Modhusudan Shaha Mundul V/s. Brae (89) 16 Cal. 300 (F. B.) has settled that such a decree will not operate as res judicata, even though there is a statement of the alleged rate of rent in the plaint, or a recital in the decree of the rate of rent alleged by the plaintiff, unless it can be shown that a declaration had been asked for in the plaint as part of the substantive relief claimed that the rate was at a specific figure. As I understand that decision although it held in the circumstances stated that the previous decision would not operate as res judicata, it did not hold that the previous decision would not be evidence.

(3.) In the present case, nothing has been shown to bring it within the required category as laid down in the decision of the Full Court so as to make this case one in which the previous decision would operate as res judicata. The plaint itself has not been proved in the case. All we have is the extract of an entry in the register of suit showing the nature of the claim and the decree. The decision of the Full Court in Modhusudan Shaha Mundul V/s. Brae (89) 16 Cal. 300 (F. B.) has been discussed and to some extent criticised in the case cited by the lower appellate Court, namely the case in Maheswari Dei V/s. Gaurhari Maity (26) 13 A.I.R. 1926 Cal But still it was held there that the previous decree in the circumstances therein stated would be evidence of the rate of rent. The trial Court in this case has proceeded on this basis, but the lower appellate Court has proceeded on the basis that the previous decree was no evidence at all as to the rate of rent. The value to be attached to the decree as evidence will however, vary with the circumstances of the particular case. The lower appellate Court does not appear to me to have considered the evidence as a whole but treated the matter as practically decided on the basis of the case cited by it, namely the case in Maheswari Dei V/s. Gaurhari Maity (26) 13 A.I.R. 1926 Cal. and in so proceeding, in my opinion, had committed an error.