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 Art. 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 Art. 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.";