TARINI CHARAN BHATTACHARJEE Vs. KEDAR NATH HALDAR

JUDGEMENT

(1.) The present reference to the Full Bench has been made by a Division Bench in a second appeal arising out of a rent suit. Two questions of law have been formulated for our opinion, but under Rule 2, Ch. 7 of the appellate side rules, the whole case is submitted to us for final decision.

(2.) The first point taken before us was not taken at the hearing before the Division Bench, but as it goes to jurisdiction it must be entertained and decided.

(3.) The contention is that no second appeal lies in this case by reason of the provisions of Section 153, Ben Ten. Act. The claim in the suit was (1) for arrears of rent of four years 1327- 1330 B.S. at Rs. 16 per annum, i.e., Rs. 64; (2) cess for four years at 8 annas per annum, i.e., Rs. 2; (3) interest on rent in arrear at 75 per cent, per annum, i.e., Rs. 108-2-0, making a total claim of Rs. 174-2-0. The tenant nevertheless contends that the case comes within Clause (a), Section 153, in that "the amount claimed in the suit does not exceed Rs. 100." The terms of the section are well known: An appeal shall not lie from any decree or order passed whether in the first instance or in appeal in any suit instituted by a landlord for the recovery of rent where (a) the decree or order 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 or order has decided...a question of the amount of rent annually payable by a tenant.