Patna High Court
Murli Manohar And Ors. vs Raja Nand Singh And Ors. on 29 January, 1923
Equivalent citations: 72IND. CAS.1, AIR 1924 PATNA 205
JUDGMENT Ross, J.
1. This is all appeal by the plaintiffs in a suit for recovery of Road Cess alleged to be payable by the defendants who are Malikanadars. The Munsif decreed the suit; but the Subordinate Judge, while agreeing with the Munsif that cess had been assessed on the Malikana lands in suit, dismissed the claim on the ground that the plaintiffs had failed to prove ser vice of notice under Section 54 of the Cess Act (Bengal Act IX of 1880).
2. The learned Vakil for the appellants contends, in the first place, that the effect of Order VI, Rule 6, Civil Procedure Code, is that an averment of the giving of this notice must be implied in the plaint. He also contends that under Order VIII, Rule 2, Civil Procedure Code, it was for the defendants to raise by their pleadings the mm fact of non-service on which they relied to show that the suit was not maintainable, Order VI, Rule 6, corresponds to Order XIX, Rule 14 of the Rules of the Supreme Count and the decisions on that rule are, applicable to this case. The rule has been stated in this way, that it is for the defendant, if he contends that there was a condition precedent and that it has not been dully performed, to State specifically what the condition was and to plead its due performance, otherwise its dug performance will be presumed (Annual Practice, 1923, page 342). In Harris Calculating Machine Co. In re Sumner v. Harris Calculating Machne Co. (1914) 1 Ch. 920 : L.J. Ch. 545 : 110 L.T. 997 : 58 S.J. 455 where a demand for payment to be made at Lloyds Bank was a position precedent and it was not pleaded that no such demand had based made, Astbury, J., said that he was not at all satisfied that Order XIX, Rule 14, did not apply to the case, that the defendants had not given the slightest warning that they were going to take any such point in the pleadings, and that it should have been done if a point of that character was going to be relied on In Gates v. Jacobs (1920) 1 Ch. 567 : 89 L.J. Ch. 319 : 123 L.T. 238 : 64 S.J. 425 where there was a question of the service on a lessee of the notice required by Section 14 of the Conveyancing Act, 1881, Lawrence, J., held that "the statement of claim must be read as if it contained an allegation that the plaintiffs had given the necessary notice under Section 14 of the Act before the commencement of the action. These decisions are, in my opinion, applicable to the present case. And the terms of Order VI, Rule 6, are explicit. It is no longer necessary for the plaintiff to plead the performance of a condition precedent. If the pleadings are silent they must be read as implying an allegation of performance. And there is no denial by the defence. That notice under Section 52 of the Cess Act is a condition precedent has been held in Ashanullah Khan v. Trilochan Bagchi 13 C. 197 : 6 Ind. Dec (N.S.) 630 and notice under Section 54 must similarly be held to be a condition precedent to liability to pay cess. On this -ground, therefore, it seems clear that the plaintiffs are entitled to succeed in this appeal.
3. A further ground was taken that Section 54 of the Cess Act has no application, inasmuch as the lands are not lands held free of rent within the meaning of that section. The words used in the Record of Rights are Mafi Malikana and it is contended that this means that the rent is remitted as equivalent to the Malikana payable to the tenure-holder. If it were necessary to decide the point I should be inclined to hold that this is the correct view and that the lands are not lands held free of rent. But as the plaintiffs are entitled to succeed on the first point, I do not think it necessary to decide this.
4. The result is, that the appeal is decreed with costs, the decree of the Subordinate judge is set aside and the decree of the Munsif restored. The plaintiffs will get the costs of the lower Appellate Court also.