Bhagabati Debya Chowdhurani v. Basanta Kumari Debi
1906-07-19
body1906
DigiLaw.ai
JUDGMENT 1. This appeal arises out of a suit for rent. It was based upon the terms of a lease executed between the parties. According to the statement of the Plaintiff, the Defendant paid the arrears up to the year 1305, and the rent claimed was in respect of the year 1306 with interest. One of the questions that was raised between the parties was whether the Plaintiff landlord was entitled to appropriate the sums of money which were paid by the Defendant from time to time as rent, towards the interest due to him upon the arrears of rent. The Court of first Instance was of opinion that he could not do so. The Subordinate Judge has, however, come to a different conclusion. He says as follows :-I cannot agree with the Munsif In giving credit against the principal Instead of reducing both the principal, and Interest at one and the same time if the particular payment so applied covered both. As rent includes interest which legally accrues due on it, the Plaintiff is at perfect liberty to apply a payment of rent first towards reducing the Interest and then, if a balance of that payment still remains available towards reducing the principal by it. This being the principle applicable in such a case, the Munsif's decree will accordingly be modified." We are not prepared to agree with the Subordinate Judge when he says or when he means to say that the word rent necessarily includes interest. If any sum of money be paid by tenant to a landlord as rent, and the latter receives it as such he cannot be permitted to apply that money towards any interest which might then be due to him. As already indicated, the word rent does not necessarily Include Interest, as illustrated by two cases Raicharan Chose v. Kumud Mohun Dutta Chowdhuri I. L. R. 25 Cal 571 (1898)., Koylash Chandra De v. Tarak Nath Mandal I. L. R. 25 Cal. 575 (1897)., and it seems to us that the Subordinate Judge is not quite right in the view that he has expressed upon this matter.
575 (1897)., and it seems to us that the Subordinate Judge is not quite right in the view that he has expressed upon this matter. We accordingly send back the case to the Court of Appeal below with direction that the Subordinate Judge do take an account between the parties from the year 1302, down to the year 1306, both years inclusive, and determine whether any monies are paid by the Defendant as rent and received by the landlord as rent. If so, such monies should be applied towards the arrears of rent, and not of interest. And it should further be determined, upon such an account being taken whether any amount and, if any what amount is due to the Plaintiff from the Defendant. The rent In respect of a portion of the years 1302 to 1306 may be barred by limitation; but if the Defendant asks, as he does now ask, that an account should be gone Into between the parties, the Plaintiff landlord will be at liberty to apply any payment made by the Defendant towards any arrears that might be barred by limitation. The Respondent has urged by way of cross-appeal that the Court of Appeal below should not have omitted to allow him interest upon the amount decreed to him and also upon the costs. We think that the Plaintiff is entitled to interest both on the decrial amount and on costs. 2. We need hardly add that if any sum be not proved to have been received as rent, it would be applied towards the payment of interest, if such interest were at the time due. Each party will bear disown costs in this Court.