P L D 1961 Dacca 246 (PLP)

CHOWDHURY, C. J.-This rule is obtained by the defendant in a suit for rent and it is directed against the order of the Court below allowing the prayer of the plaintiff for amendment of the plaint.

2. Facts of the case, shortly stated, are as follows : The plaintiff-opposite party Haji Mohammed Sadeq filed Money Suit No. 39 of 1957 in the third Court of the Subordinate Judge, Chittagong against the defendant-petitioner for recovery of Rs. 15,250 as compensation for wrongful use and occupation of the land described in schedule to the plaint for the period from November, 1952 to October, 1957. His case is that the land originally belonged to one Biswamber Pal, from whom the plaintiff opposite party purchased it by a registered deed of conveyance dated 26-3-51 for a consideration of Rs. 26,

250. At that time the defendant petitioner was a temporary monthly tenant under the said Radha Krishna Pal at a monthly rental of Rs. 150 since February 1950. The plaintiff opposite party terminated the tenancy of the defendant by serving a notice under section 106 of the Trans fer of Property Act on 4-4-52 asking the defendant petitioner to vacate the disputed land and filed the other Suit No. 38 of 1952 in the aforesaid Court for eviction of the petitioner from the said land, for recovery of Rs. 2,231/4 as arrears of rent for the period from March, 1951 to April, 1952 with damages and also for recovery of Rs. 1,350 on account of compensation for wrongful use and occupation of the same at the rate of Rs. 300 per month from May, 1952 to October, 1952. That suit (other suit No. 38 of 1952) went up to the Supreme Court where it was held that the tenancy was not terminated by a valid notice and the defendant was in occupation of the land as a tenant under the East Bengal Non-Agricultural Tenancy Act (Act XXIII of 1949) and the plaintiff's suit was dismissed including his claim for damages for use and occupation for the period from May, 1952 to October, 1952 by the Supreme Court by its judgment dated 9-7-59, but his claim for rent prior to the alleged date of termination of the tenancy was allowed. At the time when the Suit No. 38 of 1952 was dismissed by the Supreme Court, the Money Suit No. 39 of 1957 for compensation for use and occupation of the disputed land for the subsequent period was pending in the third Court of the Subordinate Judge, Chittagong, on account of the decision of the Supreme Court the amendment of the plaint was necessitated as the plaintiff had to claim rent for the period in suit instead of damages by way of compensation for wrongful use and occupation. Accordingly an application for amendment of the plaint was filed and it was allowed. Subsequently the plaintiff filed another application for further amendment of the plaint by including his claim for rent for the period from May, 1952 to October 1952, that is, the period prior to the period in suit for which the plaintiff claimed damages for use and occupation and which was dismissed by the Supreme Court. The period under claim in the subsequent petition of amendment is from the month of May, 1952 to October 1952 and the amount on the basis of rent at the rate of Rs. 150 per month comes up to Rs.

900. This latter amendment, in spite of objection by the defendant-petitioner, was allowed by the trial Court. Hence this Rule by the defendant-petitioner.

3. The contention raised by Mr. D. C. Bhattacharjee, the learned advocate for the petitioner, is that this amendment will affect the law of limitation, because the claim sought to be included was barred by limitation at the time when it was sought to be included by amendment. It is no doubt true that the suit for this claim was to be filed within three years from the date of cause of action but the application for amendment was filed beyond the period of three years.

4. Mr. Salam, the learned advocate for the opposite party, contends that as the plaintiff was prosecuting with due diligence another civil proceeding claiming damages for use and occupation for the said period on the ground that the tenancy of the defendant was terminated before that date, under section 14 of the Limitation Act he is entitled to deduction of that period and his claim is not barred on the date of application for amendment of the plaint his claim for damages for use and occupation in the previous Suit No. 38 of 1952 was negatived by the Supreme Court holding that defendant was still a tenant under the East Bengal Non Agricultural Tenancy Act (XXIII of 1949) and he was not a trespasser and that if the plaintiff is not allowed to include his claim in this suit he cannot bring a separate suit on account of the bar of Order II, rule 2 of the Code of Civil Procedure. In support of his contention Mr. Salam strongly relied on the Privy Council decision in the case of Srimati Nrityamoni Dassi and others v. Lakhan Chunder Sen and others (20 C W N 522) where it has been held : "That though limitation began to run against them (Plaintiff) litigating their rights in the previous suit, and this suit was, therefore, not time-barred." The facts of that case are almost similar in substance to those of the present case. There the sons (B and M) and grandsons by a pre-deceased son (C) of a deceased Hindu (G), being members of a joint Dayabhaga.

5. Dayabhaga Hindu family, with a view to deceive the creditors of B and M, in 1891 executed a document whereby they purported to acknowledge that G's widow S was the real owner of properties which in fact they had inherited as G's heirs, and S having begun to deal with the properties adversely to the real owners from January 1892, C's branch of the family in 1896 sued for a declaration of their own title and the title of M's representatives (whom they joined as defendants) two shares in the properties, and the latter associated themselves with the plaintiffs and asked for an adjudication of their right to one-third share and a distinct issue in respect of their claim was without objection raised and decided and the Court made a decree on 20th April, 1903, in favour of both the plaintiffs and M's representatives: but on appeal the decree so far as it was' in favour of the latter was set aside on 22nd February, 1904, on the ground that not being plaintiffs they could not be given any relief in that suit, and M's representatives thereupon on 14th November, 1904, instituted a fresh suit for recovery of their shares.

6. In the present case, the plaintiff in the previous suit, namely, the other Suit No. 38 of 1952 claimed damages for the period from May, 1952 to October, 1952 treating the defendants of that suit as trespasser as the tenancy was terminated by service of notice under section 106 of the Transfer of Property Act. The plaintiff succeeded in the High Court, but on appeal the Supreme Court held that the tenancy was not validly terminated and the defendant was a tenant under the East Bengal Non-Agricultural Tenancy Act and refused the claim of the plaintiff for damages for use and occupation by the defendant as a trespasser.

7. Now, in view of the finding of the Supreme Court that the defendant is a tenant, the plaintiff wants to include his claim for rent for the period from May, 1952 to October, 1952. In the circumstances, it is quite clear that the plaintiff was prosecuting with due diligence another civil proceeding on the same cause of action. So, in our opinion, the case is fully covered by the Privy Council decision in 20 C W N 522 and the limitation though began to run from 1952, when the suit was filed, but that limita tion remain suspended till the decision of the Supreme Court. If this period is deducted then the plaintiff's claim is riot barred even on the date of the application for amendment of the plaint.

8. Mr. Bhattacharjee relying on the wordings of section 14 of the Limitation Act, first of all contended that the cause of action of the two suits is not one and the same and secondly that the claim was refused not on the ground of any defect of jurisdic tion and so the case does not come under section 14 of the Limitation Act. We are unable to accept these contentions, because his right to get the money accrued when the money fell in arrear. He claimed it in the present suit as damages acid now he claims it as rent. Though there is a difference in character of the' claim but the cause of action in both the suits is one and the same. As regards Mr. Bhattacarjee s second contention, the wording in section 14 of the Limitation Act is not only "from defect of jurisdiction" but also ` or other cause of a like nature . We believe that the present case comes within the wordings "other cause of a like nature" in section 14 of the Limitation Act.

9. We may also mention that almost same question arose in the case of Muhammad Zahoor Ali Khan v. Mst. Thakoo ranee Rutta Koer and others (11 Moor's I A 468) where at page 485-86 their Lordships observed "They have already intimated that the appeal must be dismissed against all the respondents except Rutta Koer; and they have felt some doubt whether, inasmuch as the suit was wholly misconceived, the proper course was not to dismiss this appeal altogether, with prejudice to the right of the appellant to bring a new suit against Rutta Koer upon this bond, treat ing it as a mere money bond. Considering, however, that such a suit would probably be met by a plea of the Act of Limitation that in the circumstances of this case such a defence would be inequitable ; and, that the respondents not having appeared, their Lordships are not in a position to put her on terms as to her defence to a fresh suit, they have come to the conclusion that the fairer course is to do what the Judge of the Court of first instance might, under the Code of Civil Procedure, have done at an earlier stage of the course, namely, allow the appellant to amend his plaint so as to make it a plaint against Rutta Koer alone for the recovery of money due on a bond. Her liability on the bond may thus be tried on the issues already settled.

10. In this views of the matter, we think that this Rule has got no substance and is to be discharged, and we, accordingly, discharge it with costs. SATTAR, J.-I agree with my Lord the Chief Justice. K. B. A. Rule discharged.