- (1.) This is an appeal from a decree of the District Judge of Murshidabad, affirming a decree of the Subordinate Judge of Berhampore dismissing the plaintiffs suit for patni rent and cesses for the years 1345 and 1346.
(2.) The plaintiffs previously brought Suit No. 557 of 1941 in the second Court of the Munsif at Jangipore for the rent of the same patni tenure for the year 1344 on 2nd Baisakh 1348 (15th April 1941) when the rent for the years 1345,1346. had already fallen due. That suit was dismissed for default or 10th April 1942. The present suit was brought on 15th April 1942.
(3.) It is found by both the Courts that the rent for 1344 had been paid amicably before 10th April 1942 when suit No. 557 of 1941 was dismissed by the following order "plaintiff s pleader states that he has to instruction. Ordered, dismissed for default." The defendants claim that the present suit is barred by the terms of Order 2, Rule 2, Civil P.C. In the lower Courts the plaintiffs contended that the former suit was dismissed under Order. 9, Rule 3 of the Code, and that they are permitted to bring a fresh suit under the terms of Order. 9, Rule 4.;