The main legal point established in the judgment is the interpretation of Section 153, Ben Ten. Act and the principle of res judicata in determining the applicability of the claim for interest at a high contractual rate and the conclusiveness of the previous decision on the rate of interest in the present suit.

JUDGMENT

Rankin, C.J. - The present reference to the Full Bench has been made by a Division Bench in a second appeal arising out of a rent suit. Two questions of law have been formulated for our opinion, but under Rule 2, Ch. 7 of the appellate side rules, the whole case is submitted to us for final decision.

2. The first point taken before us was not taken at the hearing before the Division Bench, but as it goes to jurisdiction it must be entertained and decided.

3. The contention is that no second appeal lies in this case by reason of the provisions of Section 153, Ben Ten. Act. The claim in the suit was (1) for arrears of rent of four years 1327-1330 B.S. at Rs. 16 per annum, i.e., Rs. 64; (2) cess for four years at'8 annas per annum, i.e., Rs. 2; (3) interest on rent in arrear at 75 per cent, per annum, i.e., Rs. 108-2-0, making a total claim of Rs. 174-2-0. The tenant nevertheless contends that the case comes within Clause (a), Section 153, in that "the amount claimed in the suit does not exceed Rs. 100." The terms of the section are well known:

An appeal shall not lie from any decree or order passed whether in the first instance or in appeal in any suit instituted by a landlord for the recovery of rent where (a) the decree or order is passed by a District Judge, Additional District Judge or Subordinate Judge and the amount claimed in the suit does not exceed Rs. 100...unless the decree or order has decided...a question of the amount of rent annually payable by a tenant.

4. The contention is that the section contemplates a suit "for the recovery of rent" and that "the amount claimed in the suit" cannot be read so as to include interest at a high contractual rate such as 75 per cent. It is conceded that a claim for statutory interest at 12 1/2 per cent, u/s 67, Ben. Ten Act, or a claim for statutory damages not exceeding 25 per cent, on the amount decreed as provided for by Section 68 of the Act, are ordinary incidents of a rent suit and must be taken into consideration in ascertaining for the purposes of Section 153 whether the amount claimed in the suit does not exceed Rs. 100. But it is contended that a claim to interest at 75 per cent, made upon the basis of an agreement evidenced by a kabuliat is not within the contemplation of the section. Reliance is placed upon decisions which hold that the statutory restriction upon, appeals cannot be evaded by adding a separate cause of action to the claim for rent.

5. In my opinion this objection fails. We are here concerned not with the words "a question of the amount of rent annually payable by a tenant" which occur in the clause of exception, but with the words "the amount claimed in the suit" which occur in Clause (a). Such cases as Kripasindhu v. Jogendra [1907] 5 C.L.J. 78 and Koylash Chandra De v. Tarak Nath Mondal [1897] 25 Cal. 571 are, therefore, not in point. In Jamadar Singh v. Jagat Kishore [1916] 23 C.L.J. 557 the plaintiff in addition to the ordinary claim for rent had added as claim for damages for breach of a contract to furnish certain documents. It was held that this claim for damages was not a claim of such a character that it could be added to the claim for rent in order to ascertain the amount claimed in the suit for the purposes of Section 153. The Court, however, was of opinion that "sums ancillary to rent, such as interest on rent in arrears or statutory damages" might require to be taken into consideration before it could be said of a suit for rent that the amount claimed in the suit does not exceed Rs. Rs. 100. In my opinion this is the only reasonable and correct view.

6. In the present case both rent and interest have been fixed by contract. The claim for interest, if it is to be made at all, must be made in the same suit as the claim for rent. If two separate suits had been brought, one for rent and one for interest, the tenant would not only have had a legitimate grievance but could, in my opinion, have taken advantage of the defence afforded by Order 2,