JAMADAR SINGH Vs. RAJA JAGAT KISHORE ACHARYA CHOWDHURY

JUDGEMENT

(1.) The objection taken by the respondent to the competency of this appeal raises a question of first impression. The plaintiff instituted this suit against the defendant for recovery of a sum of Rs. 132 8-0. He claimed Rs. 82-8-0 arrears of rent and damages; and he added thereto a claim for Rs. 50 as damages for breach of contract. His allegation was that the defendant had failed to prepare and deliver certain papers as he had undertaken to do, and had made himself liable under the terms of the agreement between them to pay to the plaintiff the sum of Rs. 50. The defendant protested against the joinder of these claims in one suit; but his objection was overruled. The case was tried on the merits, and a decree was ultimately made against him. That decree has been confirmed on appeal by the Subordinate Judge. On the present appeal, the defendant seeks to contest the propriety of the decision of the Court of Appeal below.

(2.) A preliminary objection is taken on behalf of the respondent that the appeal is incompetent under Section 153 of the Bengal Tenancy Act. That section provides that an appeal shall not lie from any decree passed on appeal in any suit instituted by a landlord for recovery of rent, where the decree is passed by a District Judge, Additional District Judge or Subordinate Judge and the amount claimed in the suit does not exceed Rs. 100, unless the decree has decided one or more of several special questions. The appellant contends that as this is a suit instituted by a landlord for recovery of rent and the amount claimed in the suit exceeds Rs. 100, the appeal is competent. In our opinion, this argument is based upon a superficial reading of Section 153. No doubt, the suit has been instituted by a landlord for recovery of rent, although he has joined to the claim for rent a claim for damages for breach of contract; but the amount claimed on account of rent does not exceed Rs. 100. It is plain that the expression the amount claimed in the suit", which occurs in Clause (a) of Section 153, must be read with the words in any suit instituted by a landord for the recovery of rent"-- which find a place in the introductory paragraph of the section. The amount claimed" has plainly reference to the rent for the recovery whereof the suit has been instituted. The term rent may possibly include whatever is recoverable as rent under the provisions of the Bengal Tenancy Act as also sums ancillary to rent, such as interest on rent in arrears, or, statutory damages for nonpayment of rent. But the Legislature could never have intended that the bar provided in Section 153 should be evaded by the joinder of a claim for money with a claim for rent. The contention of the defendant in substance is that although there would have been no second appeal, if two different suits had been instituted for the recovery of the arrears of rent and the recovery of damages for breach of contract, by reason of Section 153, Bengal Tenancy Act, and Section 102, Code of Civil Procedure, he is entitled to evade the provisions of both these sections because the two claims have been amalgamated in one suit. We are clearly of opinion that this argument should not prevail. The result follows that the appeal is barred under Section 153, Bengal Tenancy Act, in so far as the claim for rent is concerned. In respect of the claim for damages for breach of contract, there can be no question that the appeal is equally barred, under Section 102, Civil Procedure Code.

(3.) We have finally been invited to interfere with the decision of the Subordinate Judge in the exercise of our revisional jurisdiction. We are of opinion that this is clearly a case where the Court cannot interfere under Section 115, Civil Procedure Code. If the contention of the appellant be conceded to be well founded, the utmost that can be said is that the Subordinate Judge has committed an error of law: but that is undoubtedly not a ground for interference in the exercise of our revisional jurisdiction. In fact, if we were to accede to the prayer of the appellant, we should allow him an appeal in the disguise of revision, where an appeal is expressly barred by statutory provisions.