Amitava Lala, J. - (1.) This second appeal arises out of a very interesting and effective point of law with regard to necessary application of Section 110 of the Transfer of Property Act, 1882. In both the Courts below, the appellants lost the case. The second appeal was directed to be heard only on the ground No. II of the Memorandum of Appeal. The ground No. II is set out herein as follows : "For that the lease for 21 years having commenced admittedly from the 19th day of April, 1962 and there being no date specifically mentioning the date of its expiry in the Deed of Lease (Ext.2), the learned Courts below erred in law in not holding that the lease lasted during the whole anniversary of the day, that is, till the midnight of 19th day of April, 1983 and could not be terminated on April 18, 1983 as pleaded and proved by the plaintiff/respondents".
(2.) The learned Counsel appearing for the appellants stated that there is no dispute in respect of the factual aspect of the matter. The only ground is the date of expiry of the lease. He has brought my notice to the Exhibit 2 of the Lower Court Record from which it appears that the lease was commencing from 19th April, 1962 for a period of 21 years. Therefore, when there is no specific date of expiry in the lease deed, the lease shall last during the whole' anniversary of the day, from which such time commences and expire on 19th April, 1983. But the cause of action as pleaded in the plaint speaks expiry of the period on 18th April, 1983. He has drawn my attention to a well celebrated judgement of the Privy Council reported in 37 C.W.N. I (Benoy Krishna Das and ors. v. Salsiccioni and Ors.) wherein it has been held that the relevant question was whether the term of the lease was from the 1st Day of June, 1921, for the term of four years thence next ensuing. But in this case it was not held that under Section 110 of the Transfer of Property Act, 1982, the lease ended on the midnight of 19th April, 1983. According to him, if the ratio of that judgement is applicable in this case then the decision of the Court of first instance and the lower appellate Court will be counted as wrong in calculating the date of expiry of the lease. Therefore, the decree should be set aside.
(3.) On the other hand, Mr. Sudish Dasgupta, learned Senior Counsel appearing on behalf of the respondent contended that the appropriate date of institution of the suit is the basis of its maintainability. According to me the cardinal principle of determining the issue in this circumstances is that whether the suit was prematurely instituted or not. I find the suit was instituted in the month of May, 1983. Therefore, whether lease expired by efflux of time on the expiry of 18th April, 1983 or 19th April, 1983 is immaterial. This is also nobody's case that suit was instituted on 18th April, 1983 while lease was expired on 19th April, 1983. Therefore, where is the dispute ? The dispute is wrong insertion of the date of expiry of lease in the plaint. If only the wrong insertion of the date is the last word, then what is the necessity of judicial scrutiny is best known to the appellants. In fact wrong insertion or incorporation of such date, subject to judicial scrutiny, is the last word. Judicial scrutiny will be made to see whether there is wrong cause of action or wrong statement of cause of action. Therefore, when suit was instituted after expiry of admitted period of lease by efflux of time wrongness, if any, by giving date cannot be construed as wrong cause of action but as wrong statement of cause of action for which one cannot be non-suited.;