GULMATINNESSA CHOWDHURANI Vs. JAGO PALI

JUDGEMENT

(1.) In these two appeals by the plaintiff the facts are not in dispute The suits in which these two appeals arise were for arrears of rent. The plaintiff alleged that the original rental in one case was Rs. 22-9-0 and that the tenant subsequently agreed to an enhanced rental of Rs. 25- 6-5 gds. The holding in question is the holding of an occupancy raiyat at a money rent and the enhancement exceeded very slightly the enhancement allowed under the law. Section 29, Ben. Ten. Act, prohibits an enhancement by contract of more than two annas in the rupee. So in this case the legal enhancement would have been Rs. 25-6-2 1/2gds. Instead of that it is said that enhancement was agreed to Rs. 25-6-5gds. in other words there is an enhancement of more than 2 1/2gds.

(2.) Both the Courts below have granted the plaintiff a decree in this suit at the rate of Rs. 22- 9-0 which was the admitted rental. It was argued before them and that argument has been repeated before me that there has not really been a contravention of the provisions of Section 29 seeing that the excess is indeed so slight that the principle of deminimis non curat lex should be attracted to the facts of this case and that the Courts below are wrong in not allowing the enhancement at the rate claimed because in spirit there is no violation of Section 29. I can-not agree with this contention. The statute enacts in the most explicit terms that there is to be no enhancement of more than two annas in the rupee. Ex concessis there is an enhancement however small over two annas in the rupee and therefore the statute has been violated. This principle of deminimis non curat lex has no application to a prohibitory statute which says that the excess can in no case be more than two-annas. I have had to consider this question in another unreported case (Appeal from Appellate Decree No. 2314 of 1926, Bidhu Bhusan Das Mazumdar V/s. Ghenu Nasya) and I came to the same conclusion at which the Courts below have arrived. The learned District Judge rightly points out that it may be a hard case because the enhancement is just over the legal maximum. But he rightly reasons that it is not advisable to stretch the law out of its obvious meaning. There is the plain direction of the law and it would not be right to make a departure however slight from its provision. If once you begin to make a departure with reference to the statute which is in the nature of prohibitory statute you know not where you will stop and you may ultimately come to a position where the very object of the prohibitory statute will be frustrated. I think the Courts below have come to the right conclusion in allowing a decree at the rate of Rs. 22-9-0 in the suit.

(3.) With reference to the other suit the original rental was Rs. 20-5-5gds. The amount which was contracted to be paid as enhanced rent was Rs. 22-14-0. The law allows the increase of only As. 22-13-16 1/8 gds. So there has been an increase of 3 7/8 gds. The increase is also slight but the reasons which have been given with reference to the other case apply equally to this case and I think the Courts below were right in decreeing the plaintiff's suit at the admitted rate of As. 20-5-5gds.