PHANI BHUSAN MUKHERJEE Vs. RAJENDRA NANDAN GOSWAMI

JUDGEMENT

(1.) This appeal is on behalf of the plaintiff, and it arises out of a suit commenced by him in the Court of the Third Munsif at Burdwan for recovery of arrears of durputni rents from the defendants, for the years 1343 and 1344 B.S. Of the two defendants, defendant 2 did not contest the suit, and the claim of the plaintiff was resisted by defendant 1 alone whose contentions were of a twofold character. The first contention was that there was a payment by this defendant of a sum of Rs. 49-7-0 every year on behalf of the plaintiff by way of contribution to the choukidari funds, and he was entitled to deduct this amount from the annual rents payable. The second defence was that the plaintiff's suit was barred under the provisions of Order 2, Rule 2, Civil P.C. It was averred that in the year 1939, the plaintiff's predecessor brought a suit against defendant 1 claiming rent due in respect of the same durputni, and in this suit, rent was claimed only for the year 1342 B.S. although at the date when the suit was filed, rents for the years 1343 and 1344 B.S. had already become due. The plaintiff, it was said, having omitted to sue for a portion of the claim which arose out of the same cause of action, was not entitled to bring a separate suit for recovery of the balance under Order 2, Rule 2, Civil P.C. Both these contentions found favour with the learned Munsif who dismissed the plaintiff's suit. The decision of the trial Judge was affirmed on appeal by the learned District Judge of Burdwan. The plaintiff has now come up on second appeal to this Court.

(2.) It is not disputed by Mr. Sen who appears for the appellant that a sum of Rs. 49-7-0 was paid by defendant 1 every year as contribution to the choukidari funds, and consequently these payments should be deducted from the total amount payable which is as 100 a year. Mr. Sen has also conceded that so far as defendant 1 is concerned, as he was a party to the previous suits, the bar under Order 2, Rule 2, Civil P.C., would apply, and the plaintiff is no longer entitled to claim against him the rents for the years 1343 and 1344 B.S. Section 147 (2), Bengal Tenancy Act, it is conceded, has no application to the facts of this ease which is a suit for rent in respect of a tenure and not a holding. Mr. Sen's contention, however, is that as defendant 2 was not a party to the previous rent suit and the liability of the tenants to pay rent is a joint and several liability, the Courts below should have given the plaintiff a decree against defendant 2 for the rents due in respect of the durputni. This contention which was put forward on behalf of the plaintiff in the Courts below was negatived by them on the ground that a decree obtained against one of the joint promisors was a bar to a subsequent suit against others on the principle enunciated in the well known case in King V/s. Hoare (1844) 13 M. & W. 494 which has been followed by this Court in a series of decisions. The only point for our consideration in this appeal is whether the view taken by the Courts below is right.

(3.) It cannot be disputed that there is some conflict of judicial opinion on the point as to how far the rule of law enunciated in King V/s. Hoare (1844) 13 M. & W. 494 is applicable to this country in view of the express provision of Section 43, Contract Act. In Hemendro Coomar v. Rajendrolal ( 77) 3 Cal. 353 it was held by Garth C.J. and Markby J. that Section 43, Contract Act, had not the effect of making the liability of joint promisors joint and several and did not make inapplicable in India the rule of law laid down in King V/s. Hoare (1844) 13 M. & w. 494 and Brinsmead V/s. Harrison (1873) 7 C.P. 547. The effect of Section 43, Contract Act, according to their Lordships, was merely to prevent one or some of the joint contractors who might be sued upon the debt to plead abatement of the suit on the ground that his or their co- contractors ought to be made parties defendants. This was a case in which a decree was obtained against one of several joint makers of a promissory note, and it was held that this was a bar to a subsequent suit. This decision was followed with approval by the Madras High Court in Gurusami Chetti V/s. Samurti Chinna Manar Chetti ( 82) 5 Mad. 37. The view taken by the Bombay High Court does not seem to be quite uniform. In Shivlal Moti Lal V/s. Bridhi Chand Jivraj ( 17) 4 A.I.R. 1917 Bom. 268, Macleod J. reviewed all the cases on the point, and agreed with the view taken in Hemendro V/s. Rajendro Lall ( 77) 3 Cal. 353.