JUDGMENT Banerjee, J. - The questions raised in these two appeals are two, namely, first, whether the Lower Appellate Court is right in law in holding that the First Court had good grounds for refusing the application of the Plaintiff, dated the 13th of March 1900, for further process on his witnesses; and second, whether the Court of Appeal below is right in holding that the first Court was justified in deciding the case without regard to the provisions of Section 150 of the Bengal Tenancy Act. 2. Upon the first question the Lower Appellate Court says: "It is clear from the record that the Plaintiff took four adjournments before to 'produce his witnesses who are his tenants in these cases. Without taking any steps on previous two or three occasions to have his witnesses produced, he made an application for issue of warrants against his tenant witnesses on the 13th March 1900, but that application was rightly rejected by the Lower Court." 3. I do not think that the Courts below were wrong in their view that the application for further process on his witnesses that was made by the Plaintiff was rightly rejected. If the Plaintiff had not used due diligence in the matter and if he had not asked for the issue of further process at the earliest date, it cannot be said that the first Court did not exercise its judicial discretion properly in refusing the application for further process on the 13th March 1900. At any rate, I cannot, in second appeal, say that the Lower Appellate Court, in holding that the first Court was right in the course it took, committed any error of law for which we can interfere with its judgment. 4. At any rate, I cannot, in second appeal, say that the Lower Appellate Court, in holding that the first Court was right in the course it took, committed any error of law for which we can interfere with its judgment. 4. On the second question, it is argued that the language of Section 150 of the Bengal Tenancy Act is imperative and makes it obligatory on the Court to refuse to take cognisance of the Defendant's plea, when the Defendant admits that some money was due and the plea is that the amount claimed is in excess of the amount due; and as the Defendant in the present case admitted that some money was due, that is to say, that rent at the rate of nine rupees a year was due from 1303 to the date of the institution of the suit, the Court below was wrong in taking cognisance of the Defendant's plea, that the rate at which rent was claimed was in excess of the rate at which rent was payable. 5. No doubt the Defendant admitted in this case that rent at the rate of nine rupees annually was due from 1303 up to the date of suit and the Court without recording any special reason in writing took cognisance of the plea that the rate at which rent was claimed was in excess of the rate at which it was payable. It not only permitted the Defendant to cross-examine the witnesses called by the Plaintiff in support of his claim, but allowed the Defendant to give evidence to rebut that claim. 6. But the question still remains whether the First Court acted in contravention of Section 150 of the Bengal Tenancy Act. The Lower Appellate Court gets over the objection on the ground that as the Plaintiff did not ask the Court to enforce the provisions of that section, the Plaintiff must he taken to have waived his right to have the benefit of the section. I am not prepared to accept this view as correct. The section does not say that the Plaintiff must ask the Court to enforce the section before the Court can be required to enforce the provisions of the section. I am not prepared to accept this view as correct. The section does not say that the Plaintiff must ask the Court to enforce the section before the Court can be required to enforce the provisions of the section. Of course the omission of the Plaintiff to call the attention of the Court to the section had this effect, namely, that it prevented the Court from recording special reasons in writing upon which it could take cognisance of the plea, notwithstanding that the amount admitted to be due was not deposited. It may also be said, now that the plea has been taken cognisance of and evidence has been gone into, that it would be too late to ask the Court to decide the case without taking cognisance of the plea, if it does not find any special reasons for dispensing with the provisions of the section against the taking of the plea. Be that as it may, I do not propose to base my judgment on any such narrow ground. 7. I am of opinion that, having regard to the nature of the objection raised in this case by the Defendant, it must be held that it is one which is not covered by Section 150 of the Bengal Tenancy Act. In my opinion, Section 150 of the Bengal Tenancy Act is limited in its operation to those cases where the plea of the tenant is of a nature such that the burden of proving it rests upon the tenant and in the absence of evidence on his side, the Plaintiff would be entitled to a decree for the full amount; as for instance where the plea is in the nature of a plea of payment or a plea of exemption from liability to pay rent by reason of diluvion or by reason of partial eviction or for any other similar reason. Where, however, the plea is of a nature such that the real question involved in it must remain to be determined by the Court notwithstanding that the Defendant's plea is disregarded, I am of opinion that the section was not intended to apply to such a case. Where, however, the plea is of a nature such that the real question involved in it must remain to be determined by the Court notwithstanding that the Defendant's plea is disregarded, I am of opinion that the section was not intended to apply to such a case. No doubt the language of the section is not very happy; but the view I take seems to me to be the only reasonable view of its meaning and intention and the only view upon which it can work without leading to any anomaly. For where, as in the present case, the plea is that the amount claimed is in excess of the amount due by reason of the rent claimed to be annually payable being in excess' of the amount that is really so payable, whether the Defendant takes any plea objecting to the annual rate of rent or not, the burden must lie upon the Plaintiff to prove that rent is payable at the rate claimed. 8. This the learned vakil for the Appellant does not dispute and indeed it cannot well be disputed. The mere fact of the Defendant being honest enough to admit some rent to be due, cannot exonerate the Plaintiff from the obligation that attaches to the Plaintiff in a rent suit to prove that rent is payable at the rate claimed. Even if the case had been tried ex-parte, the Plaintiff would have been bound to prove that. If that is so, what would be the effect of the Court's refusing to take cognisance of the Defendant's plea that the rate claimed is not the correct rate, when, notwithstanding the absence of any such plea, the Court is still bound to go into the question involved in the plea? Could it then be said that the Court refuses to take cognisance of the plea, when it must call upon the Plaintiff to prove the rate claimed and it must determine what the rate is at which the rent is annually payable? Though it may nominally refuse to take cognisance of the plea, yet it really does enter into a trial and determination of the question involved in the plea. Though it may nominally refuse to take cognisance of the plea, yet it really does enter into a trial and determination of the question involved in the plea. Unless then the section is construed in the limited sense in which I understand it, namely, that it is intended to apply only to those cases where the plea of the tenant is one in respect of which the burden of proof lies upon Trim, there is no refusal to take cognisance of the plea; and to give effect to the contention urged on behalf of the Appellant that the section applied even to cases like the present, would lead to this anomalous result, that although the Court has to determine the question involved in the plea, it is nevertheless to refuse to take cognisance of the plea. Shortly stated, the section is intended to cover that class of cases where the plea is, in technical language, a plea of confession and avoidance. The grounds of avoidance not being made out, the plea of confession will be operative and the Plaintiff will be entitled to a decree without having to prove anything more. That is the view I take of the proper construction of the section and is that view the Courts below were quite right in going into the question of the rate of rent without regard to the provisions of Section 150 of the Bengal Tenancy Act. 9. The grounds urged before us both fail and these two appeals must be dismissed with costs. Pargiter J. 10. I agree. I wish to add a few words why I come to the same conclusion regarding Section 150 of the Bengal Tenancy Act. The section treats the defence as consisting of two parts,--an admission and a plea. The admission is that money is due; the plea is that the amount claimed is in excess of the amount due. The admission according to the words of the section is in general terms, simply--money is due. The plea is the part that modifies the admission; it is the plea that, read with the concluding words of the section, introduces precision and specifies the exact amount admitted to be due. The admission according to the words of the section is in general terms, simply--money is due. The plea is the part that modifies the admission; it is the plea that, read with the concluding words of the section, introduces precision and specifies the exact amount admitted to be due. If the Defendant does not pay in that amount and the plea is struck out in consequence, there remains the admission in general term that money is due and the result thereupon would be that the Plaintiff would be entitled to a decree for his claim. That seems to me to be the effect of the words as they stand in the section, if taken apart from the intention of the Legislature. But I do not think that the Legislature can have intended to place an honest Defendant in a worse position than a dishonest one; for if the Defendant denies the whole of the Plaintiff's ease, the Plaintiff is put to proof of it and the Defendant secures time before he is obliged to pay up any part of the claim; whereas according to the above construction an honest Defendant who admits part of the Plaintiff's claim would have the whole of the claim decreed against him unless he pays in the admitted sum at once. 11. It appears to me, therefore, that the construction must be modified and it must be modified in the sense in which it has been taken by my learned colleague.