SUPRABHAT CHANDRA Vs. BHUPATI BHUSAN MANDAL

JUDGEMENT

(1.) This appeal arises out of a suit for recovery of arrears of rent and for enhancement of rent under Section 30 (b), Ben. Ten. Act. The material defences to the suit were: (1) that the arrears were paid and (2) that the claim for enhancement was not maintainable in the civil Court. The Courts below have decreed the claim for arrears of rent but have disallowed the claim for enhancement. Hence this second appeal by the landlords. The only point for determination is whether the plaintiffs are entitled to have the rent of the holding enhanced under Section 30 (b), Ben. Ten. Act. It appears that the landlords instituted proceedings under Section 105, Ben. Ten. Act, before the Revenue Officer some time in 1928. The claim for enhancement of rent of the holding under Section 30 (b) of the Act was the subject-matter of this application. On 26 February 1929, when this application was pending before the Revenue Officer, the Bengal Tenancy Amendment Act of 1928 came into force. It was withdrawn on 24 July 1929. The present suit was instituted on 19 January 1932. The contention of the tenants is that the claim for enhancement in the civil Court is barred by Section 109, Ben. Ten. Act, as it stood before the amending Act of 1928. Section 109 is in these terms: Subject to the provisions of Section 109-A a civil Court shall not entertain any application or suit concerning any matter which is or has already been the subject of an application made, suit instituted or proceedings taken under Sub-section 105 to 108 (both inclusive).

(2.) In Purna Chandra V/s. Narendra Nath 1925 Cal 845, the effect of the withdrawal of an application under Section 105 came up for consideration before a Full Bench of this Court. Walmsley, J. (Newbould J., C.C. Ghose J., and B.B. Ghose, J., concurring and Suhrawardy, J., dissenting) in that case observed as follows: In my opinion, therefore, it is the making of the application that brings into play the prohibition of Section 109, and the answer that I would give to the reference is to this effect, namely, that if an application is made under Section 105, Ben. Ten. Act, and subsequently withdrawn, whether with or without the permission of the Court, a suit on the same subject-matter is barred by the provisions of Section 109, Ben. Ten. Act.

(3.) This decision was given on 6 May 1925. In 1928 the Bengal Tenancy Amendment Act was passed and the following proviso was added to Section 109: Provided that nothing contained in this Section shall debar a civil Court from entertaining a suit concerning any matter which: (a) was the subject-matter of an application under Section 105, or Section 105-A, or of a suit under Section 106, if such application or suit has been dismissed for default or withdrawn; or (b) has not been finally adjudicated upon in such proceeding or suit.