JUDGMENT

1. This is an appeal by the plaintiff in a suit for arrearsof rent. The rent is claimed for the period between the 12th April 1896 and the2nd September 1896. The suit was commenced on the 21st December 1906. Thequestion thus arises, whether the claim is barred by the Statute of Limitation.It has not been disputed, and it cannot be seriously disputed, that the cafe isgoverned by Article 2 of Schedule III of the Bengal Tenancy Act, and that theplaintiff should have sued within three years from the 12th April 1897. Theclaim is consequently, prima facie, barred by limitation. But the plaintiffseeks to remove the bar of limitation by a two-fold argument.

2. It is contended, in the first place, that the principleof the decision in Surno Moyee v. Shooshee Mokhee 12 M.I.A. 244 : 11 W.R.(P.C.) 5 : 2 B.L.R. (P.C.) 10 : 20 Eng. Rep. 331 is applicable, because theplaintiff brought a previous suit for rent which was withdrawn at the appellatestage: he asserts that he could not have brought the present suit for rent tillthe disposal of that case. In our opinion, the principle of the decision inSurno Moyee v. Shooshee Mokhee 12 M.I.A. 244 : 11 W.R. (P.C.) 5 : 2 B.L.R.(P.C.) 10 : 20 Eng. Rep. 331 has not the remotest application to this case. Aswas pointed out by their Lordships of the Judicial Committee in Huro PershadRoy v. Gopal Dass Dutt : 9 C. 255 : 12 C.L.R. 129 : 9 I.A.82, the right of the plaintiff to sue, in the case of Surno Moyee v. ShoosheeMukhee 12 M.I.A. 244 : 11 W.R. (P.C.) 5 : 2 B.L.R. (P.C.) 10 : 20 Eng. Rep.331, was suspended by reason of a putni sale, the validity whereof was in disputeand the right of the plaintiff to recover rent revived only after finaljudicial determination that the putni sale was not valid in law. The casebefore us is of an entirely different description. Here the plaintiff brought asuit, which he felt constrained to withdraw: this does not entitle him to adeduction of the time during which that suit remained pending. See Section 374of the Code of 1882 and Order XXIII, rule 2, of the Code of 1908. In the newsuit, when instituted, the plaintiff is bound by the law of limitation in thesame manner as if the first suit had not been instituted. [Varajlal Someshwar29 B. 219 : 7 Bom. L.R. 90.

3. It is contended, in the second place, upon the authorityof the decision of the Judicial Committee in Rangayya Appa Rao v. BobbaSriramulu : 27 M. 143 (P.C.), that the plaintiff could notsue for the rent now in dispute till the amount of the rent had beenascertained because rent is claimed in respect of excess land in the possessionof the tenants, and that, consequently, time should be deemed to run againstthe plaintiff only from the date of the assessment. In our opinion, thedecision in Rangayya Appa Rao v. Bobba Sriramulu : 27 M. 143(P.C.) is clearly distinguishable. In that case, it was not competent to theplaintiff to sue till the rent had been actually assessed in an appropriatestatutory proceeding. In the case before us, as explained in Jagannath Manjhiv. Jumman Ali Putwari : 29 C. 247, it was open to the plaintiffto ask for ascertainment of the area in the actual occupation of the tenantsand for recovery of rent in respect thereof. The suit is thus clearly barred bylimitation and has been rightly dismissed by the Subordinate Judge.

4. The result is that the decree of the Subordinate Judge isaffirmed and this appeal dismissed with costs.

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Upendra Nath Nag Chowdhuryvs. Surya Kanta Roy Chowdhury(10.12.1912 - CALHC)