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Bachawat, J.—This appeal arises out of a suit for rent instituted by the Appellant landlord against the Respondent tenant in respect of a tenure. The Appellant landlord is a limited company carrying on business at Hilly in West Dinajpur. The tenure is of land partly in West Dinajpur and partly in Pakistan. The suit was instituted in the court of the Subordinate Judge of West Dinajpur. The learned Subordinate Judge held that he had jurisdiction to entertain the suit and he passed a decree for rent in favour of the Plaintiff Appellant. The suit was not contested on the merits. On appeal from that decree the learned Additional District Judge held that the trial court had no jurisdiction to try the suit and on that finding reversed the decree of the trial court and dismissed the suit.
Mr. Sen Gupta, appearing on behalf of the Appellant, stated that the Appellant was content to obtain a decree for money in respect of arrears of rent and that the Appellant did not press for a decree for rent in the technical sense under Chapters XIII and XIV of the Bengal Tenancy Act.
The jurisdiction of a court to entertain a suit for arrears of rent of a tenure governed by the Bengal Tenancy Act has to be determined with reference to Section 20 of the CPC read with Section 144 of the Bengal Tenancy Act.
u/s 20 of the CPC the suit may be instituted either at the place where the Defendant resides or carries on business or personally works for gain or where the cause of action wholly or in part arises.
Sub-section (1) of Section 144 of the Bengal Tenancy Act reads as follows:
The cause of action in all suits between landlord and tenant as such shall, for the purposes of the Code of Civil Procedure, 1908, be deemed to have arisen within the local limits of the jurisdiction of the Civil Court which would have jurisdiction to entertain a suit for the possession of the tenure or holding in connection with which the suit is brought and no suit between landlord and tenant as such shall be instituted in any Court other than a Court within the local jurisdiction of which the lands of the tenure or holding, as the case may be, are wholly or partly sitated.
In this case part of the tenure is situated in West Dinajpur. The suit, therefore, is not barred by the second part of Sub-section (1) of Section 144 of the Bengal Tenancy Act.
The trial court would have therefore jurisdiction to try the suit if either (a) the Defendant resides or carries on business or personally works for gain in West Dinajpur or (b) the cause of action arose there wholly or in part.
In Panchanan Banerjee v. Bhupendra Kishore Acharya Chowdhury (1954) 59 C.W.N. 541, S.R. Das Gupta and Mallick, JJ. decided that there being no scope for the application of the bar imposed by the second part of Sub-section (1) of Section 144 of the Bengal Tenancy Act the trial court had jurisdiction to try a suit for rent in respect of a tenure situated partly in India and partly in Pakistan because the Defendant resided within the local limits of its jurisdiction. In this case, however, the Defendant does not reside within the jurisdiction of the trial court.
The question then remains whether the cause of action arose within the jurisdiction of the trial court either wholly or in part.
In this appeal we shall assume in favour of the Appellant that Sub-section (1) of Section 144 of the Bengal Tenancy Act restricts and does not extend the meaning of the expression "cause of action". We make it clear that we do not actually so decide and we leave the point open.
Mr. Pal, on behalf of the Respondent contends that the expression "tenure or holding" in the first part of Sub-section (1) of Section 144 means the entire tenure or holding and that no civil court in West Dinajpur has jurisdiction to try a suit for possession of the tenure in question and that, therefore, the cause of action cannot be deemed to arise in West Dinajpur.
Mr. Sengupta on behalf of the Appellant on the other hand contends that the expression "tenure or holding" in the Sub-section means the "tenure or holding so far as the land of the tenure or holding is situated in West Bengal" and that where a tenure is of land situated partly in West Dinajpur and partly in Pakistan a civil court in West Dinajpur is competent to try a suit for its possession so far as its land is situated in West Dinajpur and has, therefore, jurisdiction to try a suit for possession of the tenure as contemplated by the Sub-section. If Mr. Sengupta''s contention is accepted clearly the trial court has jurisdiction. We do not think it necessary to decide in this appeal whether the contention of Mr. Sengupta is correct.
We are clearly of the opinion that the Appellant succeeds even if the contention of Mr. Pal is accepted. On the assumption that the contention of Mr. Pal is correct it follows that no civil court in India has jurisdiction to try a suit for possession of the tenure and that there is no place where the cause of action can be deemed to have arisen within the meaning of Sub-section (1) of Section 144 of the Bengal Tenancy Act. The Sub-section postulates and assumes that there is a place where the cause of action may be deemed to have arisen. If there is such a place the cause of action is deemed to arise there though in fact it has arisen elsewhere. If there is no such place there is no scope for the application of the first part of that Sub-section and the place where the cause of action arose must be determined with reference to the general law.
The cause of action, in this case, is non-payment of rent. Section 54 of the Bengal Tenancy Act provides for the time and place for payment of the rent. Sub-section (2) of Section 54 of the Bengal Tenancy Act gives an option to the tenant to pay the rent either at the landlord''s village office or at a convenient place appointed in that behalf by the landlord or by postal Money'' Order. It is the case of neither party that the option given by this Sub-section was exercised. There was an express covenant to pay but there is no evidence to show that the covenant provided for any specified place for payment. No custom fixing the place of payment is either pleaded or proved. In these circumstances, in our opinion, the place for payment must be fixed at Hilly in West Dinajpur where the Plaintiff carries on business by application of the general rule that the debtor must seek his creditor.
In the case of Jatadhari Lal v. Shamsul Bari (1912) 16 C.L.J. 552, 554, Sir, Asutosh Mookerjee, J. observed:
It is well-settled that where there is a covenant to pay rent, as in this case, and no particular place of payment is specified, the tenant must seek out the landlord in order to make the payment.
In the case of Fakir Lal Goswami v. W.C. Banerji (1900) 4 C.W.N. 324 dealing with a case governed by Section 54 of the Bengal Tenancy Act, Hill, J. observed thus:
At what place is the rent to be paid? We think that under such circumstnces, and when there is no controlling agreement the tenant must go to his landlord and pay the rent to him as it falls due, and this being so it was open to the Defendant to make a tender of the rent to the Plaintiff at his place of residence, when no doubt it would have been accepted.
Similar observations were made by Roberts, J., in a case under the Burma Tenancy Act. In the matter of Maung Pyu AIR (1940) Ran. 88.
Our conclusion, therefore, is that even if the contention of Mr. Pal on behalf of the Respondent is accepted the trial court clearly had jurisdiction to try the suit.
This appeal is allowed and the decree of the Additional District Judge is set aside and the decree of the Subordinate Judge is restored and the Appellant is entitled to the costs of this appeal and of the courts below throughout.
We declare that the decree will operate only as a money decree and not as a rent decree.
Mallick, J.
I agree.