This Appeal by the Plaintiff arises out of a suit for rent in which the Plaintiff also claimed enhancement on account of an alleged rise in the price of staple food corps under sec. 30(b) of the Bengal Tenancy Act. The Plaintiff obtained a decree for the arrears of rent but his claim to enhancement was rejected by both Courts on the ground that he had previously preferred an application for the same relief under sec. 105. It is admitted that an application under sec. 105 was preferred in 1906. The Plaintiff did not or could not proceed with is, and accordingly applied for leave to withdraw it. This was allowed, but no leave was reserved to him to prefer a fresh application. He appealed on this point and his appeal was dismissed on 3rd April, 1907. On 7th January he filed the present suit. In our opinion an application under sec. 105 cannot be regarded as a suit. The cases of Upadhya Thakur v. Persidh Singh and Janatdan Messir v. Barclay(2), decided with reference to sec. 104(2) of the Act as it originally stood, support this view. There does not appear to be any distinction between that and the present section so far as this point is concerned.
Further the application under sec. 105 having been withdrawn, it must be regarded as having been non existent. There was no order passed under it which could be said to have the force and effect of a decree under sec. 107 nor can it be said that there was a suit which was dismissed on the merits. The application under sec. 105 may have been withdrawn under the provisions of Or. XXIII of the Civil Procedure Code but that would not convert it into a suit, which would bar a subsequent suit by reason of no leave to file such subsequent suit having been reserved. Moreover it cannot well be said that the subject-matter of the application made in 1906 and the subject-matter of the suit brought in 1909 are the same.
In the above view of the case, sec. 37 and sec. 109 of the Bengal Tenancy Act have no application. The Appeal must be allowed, the decrees of both the Courts set aside and the case remanded 10 the Court of first instance for a trial on the merits of the Plaintiff's claim to enhancement of rent. Costs of this Appeal to be costs in the case.
Appeal allowed.