Decided on May 04,1869

Ramesh Chandra Roy Appellant
NIZAMAT ALI Respondents


- (1.) This was a suit for a kabuliat at enhanced rate. The defendant pleaded his occupancy as talookdar at a fixed rate of rent. The first Court gave the plaintiff a decree for a kabuliat at rupees 2, the amount claimed being rupees 6 per kani. The lower appellate Court upheld the judgment of the first Court. The only point urged in special appeal is, that the plaintiff having failed to prove the specific rate he sued for, viz., rupees 6 per kani, his suit should have been dismissed at once under the Full Bench decision to that effect. This objection was not taken before the lower appellate Court, although the question of rate was clearly before that Court. The pleader for the special appellant however contends, on this point, that it has been laid down in Shama Churn Chuckerbutty v. Bindabun Chunder Roy Case No. 1395 of 1866; January 30th, 1868. (B.L.R. Sup. 982.), that every new exposition of law, as made by the Full Bench, should always be followed by us; and that this being so, the plaintiff having failed to make out the precise rate which he sued for, his suit was liable to dismissal.
(2.) In the first place the decision of the Full Bench in Shama Churn Chuckerbutty v. Bindabun Chunder Roy Case No. 1395 of 1866; January 30th, 1868. (B.L.R. Sup. 982.) was exclusively confined to the question as to whether an appeal lay to this Court as to the reasonableness or otherwise of the order of the lower Court admitting a review, after the expiry of the prescribed period of 90 days; and in the next place, I am aware of no rule or authority which makes it imperative on the Division Benches to follow every ruling of the Full Bench, when the point subsequently decided by that ruling, was never pleaded in the Court below. If this were so, every case in which a Full Bench decision is passed intermediately between the date of the decision of the lower appellate Court, and that of the hearing of the special appeal, has to result in an entire dismissal of the plaintiff's suit, on the authority of the subsequent Full Bench ruling, although the defendant may not have contested the plaintiff's claim as to that point.
(3.) I do not think, therefore, that, in a special appeal like this, the objection, now taken before us, ought to be allowed. Besides, the justice of the case does not, it seems to me, require that such an objection should be allowed to be taken at this late stage of the case. The lower Courts have, after a careful investigation, come to a finding as to what was the fair and equitable rate of rent due to the plaintiff, and nothing has been urged as against this finding on evidence.;

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