HOTI LAL Vs. CHUTTAN LAL

JUDGEMENT

(1.) The main question in this appeal really is whether a landlord suing a tenant, who has been in occupation of his land without an agreement and without a decree of the Court fixing the rent under the Tenancy Act, can sue him in one suit for the determination of the amount and also for the arrears of rent payable for the period during which the tenant has been occupying it without paying anything.

(2.) A number of authorities have been cited, by some of which at any rate I am not bound, showing that after the tenancy has been determined, the landlord cannot recover the arrears of rent unless he has during the tenancy either an agreement fixing the amount of the rent or has obtained a decree of the proper Court fixing such amount. In each of those oases the suit for arrears of rent was brought after the ejectment and was, therefore, irrelevant to the present discussion.

(3.) It is admitted, and indeed cannot be denied, that the plaintiff in this case, the tenancy being still in existence, could have sued for a declaration under Section 95, and have brought his suit for that declaration in the Court in which this suit was commenced. It is also admitted, and could not be denied, that had he done so and obtained a declaration determining the amount of the rent, he could then have brought another suit also in the Court in which this suit was brought for the arrears of rent. In substance the plaintiff has in this suit combined those two claims. One of the contentions on behalf of the appellant is that he has no right to do that, but that he is bound to take what is graphically described as a preliminary "canter" in the same Court over the same course against the same tenant with precisely the same subject-matter and to obtain a separate decree. Had there been any authority indicating that that was the correct view of the law, I should have referred this matter to a Full Bench. There being no authority I decline to hold anything so entirely, to my mind, contrary to equity, justice and common sense. It seems to me not only that he ought to be allowed to combine two such claims in one suit but that he ought to be compelled, if possible, to do so, and be penalised as regards costs if he brought two suits for what in substance is the same subject-matter. If there were no other considerations, the prevailing one is that it is in the public interest that there should be a determination of litigation, viz., that the subject-matter in dispute between the parties should be brought to a head and finally determined once and for all. I think in substance that is what the plaintiff sued for in this case, although the plaint is not artistically framed. In paragraph 9 he alleged that the defendant was liable to pay a rent. In paragraph 7 he alleged it is true that the rent had been determined and assessed by the arbitrator at Rs. 105 and he asked merely for payment upon that footing. I think that was only one way of stating that his case was that the rent ought to be Rs. 105, that Rs. 105 was a fair rental value and he asked the Court to determine that amount of rent in his favour. If amendment were necessary. I am prepared to allow such amendment as is required to make the plaint in form comply with what I think, the plaintiff clearly claims in substance. I think there is no substance in the appeal as there are no merits in the defendant s case.