TRIBENIPRASAD Vs. RAMDAS

JUDGEMENT

(1.) THE plaintiff in, a Small Cause Court suit alleged that the defendant agreed to occupy his house on a monthly rent of Rs. 25 from Pous badi 1, Sambat 1982, to Aghan sudi 15, Sambat 1983. The plaintiff did not execute a written lease, but the defendant executed an unregistered document, dated 24th November 1925, by which he agreed to pay rent. The defendant made some payment but arrears were due. The plaintiff sued to recover these arrears. The defendant pleaded that, as the period of lease was more than one year according to the English calendar no valid lease of the property had been made. The plaintiff urged that if the lease was invalid he was entitled to compensation for use and occupation of the premises; but the defendant submitted that the suit could not be converted into suit for damages.

(2.) THE learned Judge has stated that he entertains doubt on three points: (1) whether the document filed by the plaintiff amounted to a lease; (2) whether the agreement for lease was for a year or for more, (3) whether any sum could be decreed as damages for use and occupation, where the suit was for rent and no alternative claim was made. He accordingly made a reference under the provisions of Order 46, Rule 1, Schedule 1, Civil P.C.

(3.) WITH regard to the third point the learned Judge has referred to the view taken in Sheo Karan Singh v. Parbhu Narain Singh [1909] 31 All. 276, that a decree for compensation can be passed in a suit for rent where no alternative claim is made; but he states that he prefers the definite view: to the contrary held by the Calcutta High Court. It would have been well if he had cited the rulings of the Calcutta High Court to which he refers. In Lukhee Kanto Das Chowdhry v. Sumeeruddi Lusker 21 W.R. 203 a Full Bench of the Calcutta High Court decided that where a claim for compensation on account of occupation of the land is not made in the plaint, the landlord was not entitled to have the question tried whether any compensation was due. But their Lordships added: It is in the discretion of the Court to amend the plaint or the issues and to allow it to be tried, and where the omission to make the claim is the plaint appears to be due to inadvertence or by mistake, it would be proper to do so.