Francis William Maclean, K.C.I.E., C.J.
1. The question submitted is, 'whether a suit brought by an assignee of arrears of rent after they fell due, for recovery of the amount due is a suit for rent, and therefore excepted from the cognizance of the Court of Small Causes, or whether it should be treated as an ordinary suit for money, and therefore not so excepted.'
2. The question is a short one, and, but for the view entertained by my learned colleague Mr. Justice Banerjee, I should have thought not a very intricate one.
3. The question after all is only as to the Court in which the suit is to be brought, and in the interest of litigants it is desirable that, as regards this Province at any rate, the matter should, as far as possible, be definitely settled. It is clear that the assignor could not have sued for these arrears of rent, in the Small Cause Court, and I fail to understand, upon what principle the assignee, who stands in the assignor's shoes, should be entitled, or bound to do so. The debt, in its inception, was clearly in respect of that which is known as 'rent,' and if the assignor had sued for it, he must have sued in the Civil Court, and if the assignee had sued in the name of the assignor, assuming that by the contract between them he was entitled so to do, the suit must have been brought in the Civil Court. If this be so and it must be so, when and how is the Small Cause Court substituted for the Civil Court? It is said that this is not rent because the assignee is not the landlord of the tenant, and rent, under the definition in the Bengal Tenancy Act (Section 3, Sub-section 5) is only that which is lawfully payable by a tenant to his landlord for the use or occupation of the land held by the tenant. But as between the assignor and the tenant, the money due was clearly for rent, and as the assignee in respect of this debt, which was rent, stands in the shoes of the landlord, is it unreasonable to say that what he is seeking to recover is the rent which wa3 due to his assignor, and if so, why is it not a suit for the recovery of rent, and so excepted from the jurisdiction of the Small Cause Court? I think there is much force in the reasoning of the learned Judges in the unreported cases--Special Appeal No. 1193 (and analogous cases) of 1898, where those learned Judges say, 'what was assigned in this case was the right to receive from the tenant the rent then due to the assignor, and it seems to us that the suit brought by the assignee against the tenant is a suit to recover the rent within the meaning of Article 8. The money was due as rent at the time of assignment, and the assignment did not deprive it of that character, so far at all events as the tenant was concerned. If it were not so, and rent which had become due ceased, when assigned, to be rent it would follow that an assignment, to which the tenant was not a party, would have the effect of changing the tribunal to which the contracting parties subjected themselves at the time of the contract with reference to the subject-matter of it, and depriving the tenant of rights to which he was entitled; for example, the right of an appeal, the right of making a deposit, and possibly other rights. It would not, we consider, be right to construe Article 8, as limited to suits brought by the landlord and so as to exclude suits brought by a person who represented the landlord, whether the representation was by an assignment or otherwise.'
4. The bulk of the authorities cited in the reference appear to me to support, this view, which on principle seems to me to be sound, nor do I think that the case of Lalla Bhugwan Sahoy v. Sungessur Chowdhry (1873) 19 W.R., 431, is an authority against it, for, if carefully examined, the passage from the judgment in that case, cited in the reference, appears to be scarcely consistent with a later passage in the same judgment. Besides the precise point, now before us, was not then before the Court in that case. It may be that the view I take may lead to certain anomalies; but take which view we may, some anomalies must result, so that any argument to be deduced from possible anomalies may perhaps with prudence be eliminated from the discussion.
5. In my opinion this suit is one for the recovery of rent, and excepted from the cognizance of the Small Cause Court. The appeal must be allowed, and the case remitted to the lower Court for decision on the merits. The respondent must pay the costs before the referring Court, and of this reference.
Macpherson, J.
6. I agree. I see no reason to change the opinion which I formed in the unreported case, special appeal No. 1193 of 1898, and other analogous cases, and I have nothing to add to what I said in that case and to what has been said by the learned Chief Justice in the present case, beyond this that a suit may be a suit for rent and yet not a suit to which all the provisions of the Tenancy Act would apply. A suit by a co-sharer for his share of the rent is a suit for rent, but it is not a suit of the kind contemplated or provided for by the Tenancy Act.
Hill, J.
7. I agree in what has been said by the learned Chief Justice.
Stevens, J.
8. I agree with the Learned Chief Justice.
Banerjee, J.
9. I regret very much that I am unable to agree with my learned colleagues in this case.
10. The question for the determination of which the case has been referred to a Full Bench is,
Whether a suit brought by an assignee of arrears of rent after they fell due, for recovery of the amount due, is a suit for rent, and therefore excepted from the cognizance of the Court of Small Causes, or whether it should be treated as an ordinary suit for money and therefore not so excepted.
11. The answer to this question must depend primarily upon the provisions of the Small Cause Courts Act (Act IX of 1887).
12. By Clause 8 of the second schedule of that Act--' A suit for the recovery of the rent,' is, subject to certain qualifications not necessary to be considered here, excepted from the cognizance of a Court of Small Causes, and the question then is whether a suit by an assignee of arrears of rent brought for recovery of the amount due is 'a suit for recovery of rent' within the meaning of that clause, the assignment having been made after the arrears of rent fell due, and not including any part of the landlord's interest in the land in respect of which the rent was due. The Act does not define rent, but according to the ordinary signification of the term, it means (I confine my remarks to money rent) money payable by one person for use and occupation of land to another person under whom he holds the land. That the qualifying words 'under whom he holds the land' or some other words to the same effect, must form a necessary part: of the definition, will be evident from the consideration that money may be payable by one person to another for the occupation of land, as for instance a municipal rate on a holding, which is not rent. An arrear of rent is a debt, but there are two characteristics which distinguish it from other kinds of debts, (1) it is due for the use and occupation of land, and (2), it is due to the person under whom the land is held. This is not disputed; but it is argued for the appellant that as the debt in question had both these characteristics when it fell due, and is claimed by an assignee of the landlord, it continued to be an arrear of rent notwithstanding the transfer by the landlord to. the plaintiff of the right to recover it; and a suit by the transferee for the amount due must be regarded as a suit for the recovery of rent. This argument no doubt requires consideration. But after considering it carefully, I am unable to accept it as correct. The argument is based on the assumption that the transferee claims the amount in the same right as the landlord, an assumption which is not wholly correct. If the landlord had transferred to the plaintiff not only his right to the arrears of rent, but also his interest in the land, it was then only that the transferee could be said to be claiming the amount in the same right as the landlord. But as the landlord's interest in the land has not been transferred to the assignee of the arrears of rent, the claim for the amount ceased to be one for rent after the assignment, by reason of the second characteristic, namely, that of the debt being due to the landlord no longer attaching to it, and it became reduced to a claim for an ordinary debt.
13. There is another way in which this matter may be viewed. A person can claim rent only from his tenant. The defendant is not a tenant of the plaintiff. The present suit cannot therefore be considered as a suit for rent. As I have said in the referring order, the question whether a suit for money should be treated as one for rent or not, is to be answered, not with reference to the ground upon which the defendants' liability originally arose, but with reference to the ground on which the plaintiff's right to the relief claimed rests.
14. The letter of the law (clause 8 of the second schedule of Act IX of 1887), therefore is, n my opinion, in favour of the respondents' view and against that of the appellant.
15. Let us next see which view the spirit, that is the reason, of the law favours. As far as one can gather from the provisions of the Provincial Small Cause Courts Act, and especially from the second schedule to it, the reason why-certain suits though of small value are excepted from the jurisdiction of the Court of Small Causes, is, that either on account of their involving complicated questions for determination, or on account of their involving important consequences to the parties, or on account of both, it is undesirable that they should be tried by a Court of summary jurisdiction. Among the excepted suits, a suit for rent often involves complicated questions such as those of title to land, and always involves important consequences to the parties such as, prima facie fixing the rate of rent for future years (see Section 51 of the Bengal Tenancy Act), and creating liability to ejectment, if the tenant is a non-occupancy ryot (see Section 66 of the same Act). But the same thing does not hold good when an assignee of arrears of rent brings a suit for the amount assigned over. Such a suit may involve questions of title, but it can never in its result carry with it any of the important consequences to the parties, that a suit for rent by a landlord does. A decree in such a suit is no evidence against the landlord suing for arrears of rent for subsequent years; nor can any decree for ejectment of me tenant be made on the basis of a decree made in such
16. It was argued that, if a suit like the present be held to be cognizable by a Court of Small Causes, the defendant will be deprived of his right of appeal by an act of his landlord, to which he was no party. That no doubt is an apparent anomaly. But an explanation of the anomaly is furnished by the fact that one cogent reason for allowing an appeal in a rent suit, namely, that founded on the importance of its result to the parties, is, as I have shown. above, wanting in the case of a suit by an assignee of arrears of rent. But while the anomaly arising from the view I take is capable of explanation, a greater and a more inexplicable anomaly would result from the opposite view. For if a suit by an assignee of arrears of rent for the amount due be held to be excepted from the cognizance of a Small Cause Court, an appeal and also a second appeal will always lie in such a suit, whereas if the suit had been brought by the landlord, an appeal would lie in such a suit only to the extent allowed by Section 153 of the Bengal Tenancy Act. Thus in a suit for any amount, however small, brought by an assignee of arrears of rent, an appeal and a second appeal will always lie even where the suit involves no question of rate of rent or title to land, though, if the landlord had brought the suit, not even one appeal could lie.
17. As regards the argument that, upon the view I take, assignment of arrears of rent by the landlord will deprive the tenant of his right to deposit rent under Section 61 of the Bengal Tenancy Act. I may observe in addition to what I have said in the referring order, that it is by no means clear that the tenant will be deprived of this right in cases coming under clause {d) of Sub-section (1) of Section 61.
18. Weighing the considerations for and against the two views, I think those in favour of the respondent's view preponderate.
19. With regard to the cases cited, I will only add to what I have said in the referring order, that, on a question like the one before us, the determination of which does not affect any vested rights of parties, there is not the same reason for not departing from a current of decisions shown to be erroneous that there is where such departure may be likely to unsettle titles.
20. For all these reasons I would say in answer to the question stated in the reference that a suit like the present is not excepted from the cognizance of a Court of Small Causes, and I would dismiss this appeal.