21st May 1906. 9th Jany. 1907. Case referred by S. Clifford, Esquire, Divisional Judge, Delhi This was a reference to a Division Bench made by Rattigan, The order of reference by the learned Judge was 88 follows: RATTIGAN, J.-Defendant executed a bond for Rs. 66-12-0 in favour of plaintiff, the consideration being arrears of rent. P.tiff saɔs on th boad. Is the suit cog nisable by a Civil or a Revenue Court? In my opinion, it is clearly cognizable by a Civil Court as being a claim based upon a bond, the claim for rent having merged in the right given by the bond which was executed in satisfaction of the claim for rent. This was, I understand, the view adopted by Chatterji, J., in Civil Reference No. 95 of 1905, but as Frizelle, J., has taken a different view in Civil Reference No. 55 of 1897, and as the question is one which should be authoritatively settled, I refer the case to a Division Bench. The judgment of the learned Judges who constituted the Division Bench was delivered by JOHNSTONE, J.-Arrears of rent of land became due to plaintiff by defendant, who thereapon executed a bond in favour of plaintiff for the amount of those arrears. Plaintiff asserts this and saes on the bond. There being a conflict of rulings by this Court in regard to the question of jurisdiction of Civil as opposed to Revenue Courts in such cases, the Munsif before whom the case was pending has made a reference to this Court on the point, giving his own opinion that the suit is a revenue one and falls under Section 77 (3) (n), Punjab Tenancy Act, 1887. The conflicting rulings are that of Frizelle, J., in Civil Reference No. 55 of 1897, decided on 20th November of that year, and that of Chatterji, J., in Civil Reference No. 95 of 1905, decided on 13th December 1905. In the former order no reasons whatever are given, and the reasoning in the reference itself does not commend itself to us. But Chatterji, J., in the latter ruling held, on grounds which appear to us quite sound, that a suit "The suit is laid of this kind is really a Civil suit. He said: 66 on the bond and it clearly lies in the Civil Court. The claim "for rent has been discharged by the bond, and plaintiff, if he "had sued for it, would have been successfully met by the plea "that a bond with one surety had been given in lieu of it." We fully endorse this reasoning and we return the papers to the learned Munsif aud direct him to hear the case. No. 42. Before Mr. Justice Johnstone. HARI SINGH,-(DEFENDANT),-PETITIONER, Versus NIKA SINGH AND OTHERS,-(PLAINTIFFS),-RESPONDENTS. Civil Revision No. 2057 of 1905. Valuation of suit-Suit to declare an alienation of land to be not binding after alienor's death--Value for purposes of further appeal--Punjab Courts Act. 1884, Section 40 (b). Held that for purposes of Section 40 (b) of the Punjab Courts Act, 1884, the value of a suit for a declaration that a mortgage by a widow of agricultural land would not b binding after the alienor's death, is the value of the land calculated at thirty times the revenue and not the amount of the encumbrance in dispute. Bakhu v, Jhanda (') followed. Petition for revision of the order of Captain B. O. Roe, Additional Roshan Lal, for petitioner. Duni Chand, for respondents. The judgment of the learned Judge so far as is material for the purposes of this report was as follows : JOHNSTONE, J.-The Srst question in this case is whether an appeal lies or not The suit is for a declaration that a certain mortgage deed in which the consideration was stated at Rs. 300 but the land mortgaged by which is worth, according to the 30 times jama rule, only Rs. 60-3-6, shall not affect the reversionary rights of the plaintiff. I take this to be in effect a suit for a declaration that plaintiff is reversioner to land, worth Rs. 60-3-6 according to the said rule, regardless of any encumbrance created by the widow defandant (1). (1) 145, P. R., 1892. REVISION SIDE. 7th Jany. 1907. The first Court dismissed the claim, but the lower Appellate Court decreed it, and the mortgagee came to this Court with a revision petition. In calling for files my brother Kensington noted that an appeal lay as of right, and this opinion was repeated by my brother Rattigan, when the case came up with files. Now that the case has come on for regular trial the point has been raised by the respondent's counsel and I am entitled and indeed bound to deal with it. He relies upon Bakhu v. Jhanda and others (1), while Mr. Roshan Lal for the mortgagee relies on Ghulam Ghaus v. Nabi Bakhsh (2). The former ruling has been referred to in the latter, and has been also followed and has been declared good law in very recent rulings of this Court. The suit there was also for a declaration against an alienation for Rs. 1,300, the value of the land by the 30 times jima rule being Rs. 770. The critical value in that case was Rs. 1,000. It was held that Rs. 770 was the value. In Ghulam Ghaus v. Nabi Bakhsh three cases were under consideration. The first two were pre-emption suits, and from them it is not suggested that we can deduce any authority to govern cases like the present. The third was a claim by a mortgages for possession of land, in which it was found by the Court below that the sum of money, on payment of which the mortgagor might redeem, was over Rs. 1,000, while the value by the 30 times jama rule was ander Rs. 1,000. Here it was held that the value of the property in suit should be taken as over Rs. 1,000. In the second paragraph of the head note this suit is called a suit for redemption, which is clearly a misdescription. In my opinion I must follow Bakhu v. Jhanda and others. The ruling of Ghulam Ghaus is not directly in point: there the value of the property was no doubt over Rs. 1,000, inasmuch as no one could take it from the mortgagee plaintiff without paying him more than that sum. Here plaintiff according to the decree now attached will, on the death of the widow, get the land without reference to the mortgagemoney or its precise amount. There is no connection between the decree and the amount of the mortgage-money. I rule, then, that no appeal lies, as the value of the suit and the value of the property involved must be taken as less than Rs. 250. Note. The rest of the judgment is not material to this report.-Ed. No. 43. Before Mr. Justice Rattigan. GURDITTA,-(DEFENDANT),-APPELLANT, Versus NAR AIN DAS,- (PLAINTIFF),-RESPONDENT. Civil Appeal No. 949 of 1906. Mortgage Redemption— Euit by mortgagor for redemption—Dismissal of suit for default—Subsequent suit for the same object-Civil Procedure Code 1882, Sections 102, 103. Held, that a dismissal under Section 102 of the Code of Civil Procedure of a suit by a mortgagor for redemption of mortgaged property precludes the plaintiff under Section 103 from bringing a fresh suit for the redemption of the same property. Shankar Bakhsh v. Daya Shankar (1), Mam Raj v. Chandwa Mal (*), and Imdad Ali v. Hurmat Ali (*), referred to. Further appeal from the order of W. A. Le Rossignol, Esquire, Divisional Judge, Amritsar Division, dated 11th July 1906. Sohan Lal, for appellant. The judgment of the learned Judge was as follows: APPELLATE SIDE. RATTIGAN, J.-On the 20th March 1896 present plaintiff 5th Jany. 1907. sued present defendant for redemption of a certain house on payment of Rs. 40. This suit was dismissed in default under Section 102, Civil Procedure Code, on the 8th March 1897. On the 14th December 1905 plaintiff instituted the present suit for redemption of the said house on payment of the said sum of Rs. 40. The suit was dismissed by the Munsif, 1st class, as barred by the provisions of Section 103, Civil Procedure Code, but this decision was reversed on appeal by the Divisional Judge, who held that "the present and the former cause of "action are different, for a mortgagor can at any time claim "redemption." The caso was accordingly remanded under Section 562, Civil Procedure Codc, for decision on the merits. Defendant has appealed to this Court, and I have heard his learned pleader and plaintiff (who appeared in person) in support of their respective cases. The allegations in the present plaint are identical with those set out in the previous plaint, with the exception that in paragraph 4 of the present plaint, the plaintiff alleges that within four months of suit he requested defendant to accept the sum of Rs. 40 and give up the house, and that defendant has refused to comply with this demand. I do not con. sider this addition as material or as, in any respect, altering the cause of action which is the denial of plaintiff's alleged right to redeem the property. With the exception, however, of this addition, the allegations in the two plaints and the reliefs sought in the former and the present suit are, as I have said, absolutely the same. The question, ther, is whether the Divisional Judge's view is correct that the dismissal of the former suit under Section 102, Civil Procedure Code, is no bar, under Section 103 of the Code, to the present suit because a mortgagor can at any time claim redemption. For this very sweeping statement of the law I can find no authority nor does the learned Judge refer to any. On the other hand, the terms of Section 103 are clear :- "When "a suit is wholly or partially dismissed under Section 102, "the plaintiff shall be precluded from bringing a fresh suit "in respect of the same cause of action." If, then, a mortgagor sues for redemption and his suit is dismissed under Section 102, and he thereafter brings a fresh suit for redemption of the same mortgage is the cause of action in the second suit the same as, or different from, the cause of action in the first suit ? To this question there can be only one answer, for the very question has been decided by their Lordships of the Privy Council in Shankar Bakhsh v. Daya Shankar (1). The head note to this report runs as follows: for redemption of a mort Oudh subsequetly includedestate and sanad, the "To a suit brought in 1883 gage made in 1853 villages in "in the mortgagee's talukdari "defence was that the mortgagor having brought a suit in "1864 to redeem, and not having appeared at the hearing, "in person or by pleader, judgment was passed, the mort"gagee having appeared to defend against the plaintiff under "Section 114 of Act VIII of 1859. Held, "that, although the plaintiff, who had claimed "in the prior suit the under proprietary Corresponding Sections 102, 103 of the present Code. 46 right in virtue of a sub-settlement, the superior proprietary (1) I. L. R., XV, Calc., 422. |