C.P Sinha, J.:— These two sets of second appeals arise out of suits for bhauli rent, and have been heard together because they were referred to a Division Bench and were ordered to be heard together, as they involved common question of law. These appeals were accordingly heard together and are being disposed of by this judgment. In second appeals nos. 343 to 347 of 1948, the claim for bhauli rent was for the years 1352 and 1353 Fs. There was plea of payment in each of the suits which gave rise to these appeals. The quantity and kinds of produce were also challenged. The first court decreed the suits in part with proportionate costs by its judgment dated the 15th of April, 1947. There were appeals to the lower appellate court and the appeals were dismissed with costs on the 15th of December, 1947. The second appeals to this Court were filed in the year 1948. After the institution of the rent suits, the tenants defendants had made applications for, commutation of their bhauli rent into nakdi under the provisions of section 40 of the Bihar Tenancy Act before the Revenue Court. The commutation proceedings came to an end on the 20th of March, 1950 and the rents of the holdings in suit were commuted into nakdi. According to the order of the learned Revenue Officer, the commuted rent is to take effect from the Fasli year 1353.
An application had been filed under Order XLI, rule 27 of the Code of Civil Procedure, along with the schedule of the commuted rent, for taking this schedule into evidence in these appeals.
The points taken in this set of appeals are, that so far as the decree for bhauli rent for the year 1353 Fs. is concerned, it should be set aside on the ground that the rent has been commuted into nakdi by a court of competent jurisdiction, since 1353 Fs., as already indicated, and secondly, that the documentary and oral evidence as produced by the plaintiffs-respondents, in support of their case of the kinds and quantities of produce, having been disbelieved, the courts below have committed an error of law in giving a decree to the plaintiffs at a rate higher than one admitted by the defendants-appellants. Point no. 1 is common to both sets of second appeals mentioned above and the decision on this point in these appeals will govern the other appeal as well.
It has been argued that under, section 40, sub-clause (5) of the Bihar Tenancy Act, the Revenue Court had full jurisdiction to order the time from which the commuted rent is to take effect and, therefore, if the Revenue Officer has ordered in this case that the commuted rent shall take effect from the year 1353 Fs., the landlords are not entitled to get a decree for rent other than the rent commuted for that year and that this Court, as a court of appeal having the powers, same as the powers of the court of first instance, should take notice of the commuted rent, the order for which came into existence during the pendency, of the second appeals. It has, however, been urged by the learned. Counsel for the respondents that the rights of the parties should be decided on the materials as they did exist when the rent suits were filed and that this Court should not take into account the order of the Commutation Officer, which was not in existence on the date of the suits. The learned Counsel for the respondents has relied upon a decision of a Bench of this Court in Chaman Singh v. Inderdeo Narain Singh, which is an unreported case. That decision, no doubt, gives some support to his contention, but, in my opinion, that judgment has not discussed the effect of the provisions contained in sub-clause (5) of section 40 of the B.T Act, Their Lordships held; without any reference to or consideration of sub-clauses (5) and (6) of section 40 of the B.T Act, that the decision of the Revenue Court cannot affect the decree of the Civil Court when the Revenue Court took up the question of commutation after the institution of the present suit. As I have said above, section 40, sub-clause (5) of the B.T Act, gives jurisdiction to the Revenue Court to fix the time from which the commuted rent is to take effect and section 40, sub-clause (6) says that the decision under sub-clause (5) of section 40 shall be final, subject to appeal to the prescribed authority; in case of an appeal, the appellate order shall be final. In this case, there was no appeal and, therefore, the order under sub-clause (5) of section 40 of the Act became final between the parties. The decision, therefore, in the said First Appeal can be distinguished on this ground. According to section 107 of the Code of Civil Procedure, an appellate court has the power to determine a case finally and it has the same powers and has to perform, as nearly as may be, the same duties as are conferred and imposed by the Code on the courts of original jurisdiction in respect of suits instituted therein. Then again, under the provisions of Order XLI, rule 33 of the Code of Civil Procedure, the appellate court has power, “to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order, as the case may require”. In view of these provisions contained in the Code of Civil Procedure, I have no doubt that the appellate court to finally decide the case and pronounce upon the rights of the parties, must take notice of the events subsequent to the filing of the suit and modulate its judgment accordingly. I am fortified in this view, which I take, by the Judgment of their Lordships of the Federal Court in Shyamakant Lal v. Rambhajan Singh. In this case, the question that their Lordships had to decide was, whether section 16 of the Bihar Money Lenders Act (III of 1938) was void as being repugnant to the provision of an “existing Indian law” within the meaning of section 107 of the Government of India Act, 1935. The High Court had held that section 16 of the impugned Act was ultra vires as it was repugnant to Order XXI, rule 66 of the Code of Civil Procedure, the existing Indian law, within the meaning of section 107 of the Government of India Act, 1935. When the appeal against that judgment was being heard by their Lordships of the Federal Court, it was brought to their notice that since the above decision of the High Court the Bihar Legislature had repealed certain provisions of the impugned Act of 1938 and had substantially re-enacted them in the Bihar Money Lenders (Regulations of Transactions) Act, 1939 (Act 7 of 1939); and that this Act had been reserved for the consideration of His Excellency the Governor General; and that it had received His Excellency's assent and that it had come into force on May, 3. By reason of the provisions of section 107, sub-clause (2) of the Government of India Act, 1935 the new Act could not have been challenged on the ground of its repugnancy to an “existing Indian law” and it wag, therefore, contended before their Lordships that as sections 13 and 14 of the new Act, which, in substance, re-enacted sections 16 and 17 of the Act of 1938, were retrospective in effect, the appellant was entitled to take advantage of the provisions of the new Act and in that view of the matter, the discussion of the validity of sections 16 and 17 of the earlier Act was merely academic. Their Lordships, after having held that the new Act was retrospective in its effect, made the following observation:—
“Accordingly, it only, remains to consider whether this Court in the exercise of its appellate-jurisdiction can remit the case to the High Court with a declaration that there shall be substituted for the judgment, decree or order of the High Court a judgment, decree or order which recognizes the state of the law as it now exists, without discussing the law as now existed at the time when the High Court had seisin of the case. We are of opinion that, sections 205 and 209(i) of the Constitution Act give us this power. There is no doubt that a High Court possesses such a power in dealing with appeals from courts subordinate, to itself; see section 107 and Order 41, rule 33 of the Civil Procedure Code; and we think that, thus in the absence of any evidence of a contrary intention it is to be assumed that the powers of this Court as a Court of Appeal are not less wide.”
I have underlined the important lines in the above quotation to emphasise that an appellate court has the power to recognise the state of law as it exists at the time it is passing the judgment. Their Lordships also relied upon the Privy Council case in K.C Mukherjee v. Musammat Ramratan Kuer in which case also their Lordships of the Privy Council did take notice of the newly enacted sections 26(N) and 26(O) which had come into existence during the pendency of the appeal before His Majesty in Council. If the appellate court can take notice of a change in the law made during the pendency of the appeal, or after the institution of the suit, then there is greater reason to hold that the appellate court can take judicial notice of a final decree, or order binding on the parties and affecting the matter in dispute. It must be held, therefore, that this Court as a Court of Appeal is entitled to take into consideration the order, of commutation which was passed on the 20th of March, 1950 during the pendency of these second appeals. That the Revenue Court, under sub-clause (5) of section 40, has the power to give retrospective effect to its order, is clear on the language of the section itself and it has been so held by a Division Bench of this Court in Enayat Khan v. Bipin Bihari Bose. In this view of the matter, I do not feel, bound by the observations made in the judgment of the First Appeal aforesaid.
The application filed by the appellants under Order 41, rule 27 of the Code of Civil Procedure should, therefore, be allowed and the order and the schedule of the Commutation Officer should be admitted into evidence.
It must, therefore, be held that the decrees for rent for the year 1353 Fs., as passed by the court below, must be set aside and in its place decrees be substituted at the rate mentioned in the schedule aforesaid.
The other point urged by the learned Counsel for the appellants, is, that the courts below have erred in law in passing a decree at a rate higher than the one admitted by the defendants after having disbelieved the documentary and the oral evidence given by the plaintiffs. I have gone carefully through the judgment and I fail to find any finding in either of the two judgments by which the oral evidence of the plaintiffs has been disbelieved. That being so, it cannot be said that the finding of the court below about the quantity and kinds of produce is not supported by any evidence on record. I would accordingly reject this contention of the appellants and hold that the decree of the court below in respect of the arrears of rent for the year 1352 Fs. is well-founded and the judgment and the decree of the court below must be affirmed to that extent. The result is that the appeals are allowed to the extent mentioned above in respect of the claim for arrears of rent for the year 1353. In rent suit no. 156/46 (S.A 343/48) the commuted rent is Rs. 16 per year for the holding; in rent suit no. 155/46 (S.A 344/48) the commuted rent of the holding is Rs. 7-2-0; in rent suit no. 153/46 (S.A 345/48) the commuted rent is Rs. 9-1-0; in rent suit no. 157/46 (S.A 346/48) the commuted rent is Rs. 2-2-10 dams; and in rent suit no. 154/46 (S.A 347/48) the commuted rent is Rs. 5-4-10 dams. These figures have been given to us by the learned Counsel for the appellants from the schedule and they have not been controverted by the other side. Office will, therefore, prepare a decree according to the above mentioned rent in the several appeals for the year 1353 Fs. The appeals are, therefore, allowed to the extent indicated above, but, in the circumstances of the case, there will be no order for costs of this Court.
Second Appeal 1942/48 arises out of rent suit no. 37/47 and was for the recovery of arrears of produce rent for the year 1351 Fs. In this case, the rent schedule prepared after the commutation of rent by the Revenue Officer was filed during the pendency of the appeal in the lower appellate court and prayer was made for taking this rent schedule as additional evidence in the case. The learned Subordinate Judge, while disposing of this part of the case, says, “The defence contention that the rent has been commuted into nakdi since the passing of the decree by the lower court is not supported by evidence as the rent schedule could not he admitted into evidence in the appellate stage.” The court below was entirely in the wrong in holding that this rent schedule, which came into existence after the judgment of the first court, could not be taken into evidence at the appellate stage. As I have said above while disposing of the other batch of second appeals, it is the duty of the appellate court, under the provisions of section 107 and Order 41, rule 33 of the Code of Civil Procedure, to take into account any subsequent event which might affect the rights of the parties and which may have come into existence at or before the passing of the final decree by the appellate court. I have held above that the landlords respondents cannot get a decree for produce rent after the rent has been commuted by the Revenue Officer. In this case also the rent having been commuted info nakdi, the decree of the court below for produce rent for the year in suit must, therefore, stand vacated and in its place the landlords will be entitled to get a decree for rent for the year in suit according to the rent schedule. The office will, therefore, prepare a decree for the year in suit according to the commuted rent as per rent schedule to be found on the record of the case.
The appeal is, therefore, allowed, but in the circumstances of this case, there will be no order for costs of this court.
Sinha, J.:— I agree.
Appeal allowed.
K.D