P L D 1958 (W (PLP)

Provincial Small Causes Courts Act (IX of 1887), Schedule 11, para. 8‑" House " means building‑"Shop rent"‑Included in term "house rent." Iswin v. End (1906) A C 299 ; Nga Kan v. Mi Mya 4 I C 822 ; Nathu v. Sonasa A I R 1922 Nag. 15 ; Matwal Das v. Nand Lal A I R 1928 Lah. 284 and Mst. Ahmadi Begurn v. Girraj Kishore A I R 1927'All. 194 rel. Kamla Prasad v. Ram Prasad A I R 1933 All. 918 dissent. Mushtaq Ahmed brought a suit against Raza Ahmed for the recovery of Rs. 480 as arrears of rent for a shop in Quetta. The suit was treated as a small cause suit.

2. The plaintiff claimed that the shop in question had been taken on rent by the defendant at Rs. 35 per month, that out of Rs. 980 which had become due to him as rent for 28 months from 28th April, 1954 to 28th August, 1956, the defendant had paid to him Rs. 500 only by means of a cheque and Rs. 480 was still due from him.

3. The defendant repudiating the claims, relied on an agree ment Exhibit D. W. I/A executed on 17th November, 1953, which was in substance to the following effect :‑ The parties agree to a rent of Rs. 35 to be paid by Raza Ahmed to Mushtaq Ahmed. Mushtaq Ahmed, the landlord, has received Rs. 1,000 and has to receive Rs. 2,000 altogether. Of the remaining Rs. 1,000 he shall receive Rs. 500 in January 1954 and Rs. 500 in April, 1954. The tenancy is for three years, at the expiry of which term the total amount due to the landlord as rent would be Rs. 1,260 at the rate of Rs. 35 a month, but as he will have received Rs. 2,000 if he then pays the balance of Rs. 740, lie will take back the shop, but if he does not pay it, the tenant Raza Ahmed will retain the shop as a tenant at the sane rate.

4. The defendant claimed that, as stated in the agreement Exhibit S. W. I/A, the plaintiff had received from him Rs. 1,000 at the time of execution of the deed, and his counsel claimed that another Rs. 395 had been received by the plaintiff by a money order as arrears of rent. 5 The Small Cause Judge held that the plaintiff had received only Rs. 500 and decreed the suit. The defendant has come in revision.

6. The plaintiff's case was that at the time of execution of the deed the shop was under construction and the defendant had advanced to him Rs. 500 for payment to Haji Qalander, the con tractor who was constructing the shop, while another sum of Rs. 500 was paid by the defendant directly to him. The first amount of Rs. 500 was paid through a cheque dated the 17th November, 1953 drawn in the name of Haji Qalander, the second through a cheque dated the 26th November, 1953 drawn in favour of the plaintiff. Haji Qalander having constructed the shop up to the plinth level, colluded with one Kale Khan who was con structing a shop on an adjacent plot of land and allowed Kale Khan to construct this shop also. Kale Khan was hoping that he would, in due course, receive the allotment of the site which had been allotted to the plaintiff, but as he did not succeed, lie brought a suit against the plaintiff for the recovery of Rs. 1,500 as cost of construction. The plaintiff in that suit pleaded adjustment of Rs. 500 which had been paid by cheque to Haji Qalander and which payment, the plaintiff pleaded, had been made on his behalf by the defendant by means of the cheque mentioned above. The defendant Raza Ahmed, however, was won over by Kale Khan, in whose suit the defendant appeared as a witness to say that he had given the cheque to Qalander Khan as a private loan and not as an advance on behalf of Mushtaq Ahmed, plaintiff. The plea of Mushtaq Ahmed was consequently not accepted and he was made to pay the total claim of Kale Khan. He has claimed that the amount of Rs. 1,000 mentioned in the agreement Exhibit S. W. I/A relates to the amounts represented by the two cheques aforesaid, but since his liability in respect of the cheques drawn in favour of Haji Qalander was extinguished by the result of Kale Khan's suit, he cannot be said to have received Rs. 1,000 from Raza Ahmed. This plea was accepted by the Judge of Small Causes, and I think it ought to have been accepted.

7. Learned counsel then argued that the plaintiff had ad mitted in his cross‑examination that he had received Rs. 395 "by money order towards arrears of rent due to me and not as rent for the period from October 1956 to September 1957" and claimed that his intention was to appropriate this amount towards the present claim. It is obvious that the plaintiff's intention is not to be confined to any particular period in respect of the amount of Rs.

395. The date of the money order is 21st October, 1957 and the date of the statement is 4th November, 1957. The cross examiner's intention also does not seem to have been anything except to prove that Rs. 395 were intended to cover the arrears of rent for the period October 1956 to September, 1957, and it is possible that the plaintiff did not wish to be confined to this period because his claim in the present suit is up to the 28th August, 1956 and not up to the end of September 1956. In any case, the plaintiff's reply cannot mean that he admitted having received Rs. 395 in part payment of the present claim.

8. The main objection, however, was that this claim could not be tried in a small cause suit and reliance was placed on Article 8 of the Second Schedule of the Small Cause Courts Act which excludes "a suit for the recovery of rent other than house rent" from the cognizance of a Court of Small Causes. It was held by a Division Bench in Kamla Prasad v. Ram Prasad (A I R 1933 All. 918) that where a part as a khatti for storing grain and let out, it cannot be treated as a house as it is not used for human habitation and that a suit for the recovery of rent in respect of a khatti was there fore, not a suit for the recovery of house rent. It appears to have been taken as granted that a house was distinct from a shop, for the argument in that case was concentrated on the fact "that the khauis are integral parts of the houses in which they are situate and must, therefore, be considered to be parts of dwelling houses." It was also assumed that a house is necessarily a dwelling house. It does not appear that previous case law was brought to the notice of their Lordships, and the research was confined to the meaning of the word "house" as given in Murray's Dictionary, "a place fit for human habitation."

9. It is true, as observed by Pollock, C.B., in Surman v. Darley (cited in Stroud s Judicial Dictionary, 3rd edition, at page 1342) that "we all think that the term `houses' prima facie means dwelling house." but the editor remarks that this observa tion was made in relation to the phrase "houses of the inhabitants" in a rating Act, and it was held that Covent Garden Theatre was not such a house. Surman v. Darley was not followed in Iswin v. End ((1906) A C 299) in which the building in Covent Garden had formerly been a dwelling house but had been converted into a fruit‑store warehouse and offices in which no one slept and was held to be a house as regards assessment to the rector's rate.

10. At page 1342 of Stroud's Judicial Dictionary cited above, it has been shown that in section 91 (5), Public Health Act, 1875, " `house' is not limited to an ordinary dwelling house and includes a day school having no boarders and where none of the staff resides" In the Public Health (Ireland) Act, 1878, " `house' includes schools, and also factories and other buildings in which persons are employed, whatever their number may be." In Nga Kan v Mi Mya (4 I C 822) an Upper Burman case of 1909, it was held after an examination of the various definitions of the word "house" that a stall or shop in a market in Burma is capable of being used for residence by‑the people of the country and that it should be regarded as a house within the meaning of clause 8 of Schedule II. The trend of argument of the learned Judicial Commissioner was that the term "house" should not be confined in meaning to a dwelling house which is intended exclu sively for human habitation.

11. In Nathu v. Sonasa (A I R 1922 Nag. 15) it was observed that although `house' ordinarily signifies a structure for dwelling in and `shop' signifies a structure in which goods are stored and sold, in India the same structure or part of a structure is, according to the habits of the majority of its people not unsuited for use and is often used for both these purposes at the same or different times. "In other words, what is ordinarily a shop is also a house." There is further, the following useful observation. "Again the reason for not excepting from the jurisdiction of a Small Cause Court a suit for rent of a house would apply equally to a suit for the rent of a shop. I can see no reason for distinguishing between shop rent and house rent in this connection."

12. In Mai wal Das v. Nand Lal (A I R 1928 Lah. 284) it was observed without reference to authority or definitions that the words "house rent" in clause 8 of Schedule II cover and include shop rent.

13. In Mst. Ahmadi Bagum v. Girraj Kishore (A I R 1927 All. 194) reliance was placed on the Upper Burma case cited above and the meaning of the word "house" in Halsbury's Laws of England, where it was stated that the word "house" has been used in the English statutes as meaning not only dwelling houses but including schools, factories and other buildings in which persons are employed. There is, further, a very pertinent reference to section 7, clause (v) of the Court Fees Act, where "in suits for the possession of Land, houses and gardens" the amount of Court fee payable is computed according to the value of the subject‑matter, and it has been observed that the word "house" has been used in that Act as including buildings of every description, "for there is no provision anywhere in the Act prescribing any particular amount of Court- fee with respect to suits for possession of shops as distinguished from houses."

14. But the most important point to consider is whether the Legislature really thought that a suit relating to the rent of a house up to a certain amount should be triable in a Court of Small Causes while a suit for the rent of a shop of equal value should not be so triable. There is no reason why more importance should have been attached to business premises than to residential accommodation. A "house," it seems to me, is regarded in a general sense as a building, and when we want to place a restricted meaning on it, we call it a dwelling‑house or a. ware‑house, according to the use to which A it is put.

15. I, therefore, respectfully adopt the view which has been uniformly followed, although in Single Benches, prior to Kamlal Prasad v. Ram Prasad.

16. The petition for revision is dismissed with costs. K.M.A. Petition dismissed.