Newbould and Ghose, JJ.:— In this appeal a preliminary objection has been taken that no appeal lies. The appeal was at first summarily dismissed under Order XLI, rule 11, C.P.C Then on an application for review made by the appellant the same Bench cancelled that order dismissing the appeal summarily and directed that the appeal should be heard. This order was passed ex parte, and it is contended that it should be therefore treated as null and void. The point now raised has been considered by this Court in the case of Abdul Hakim Chowdhury v. Hem Chandra Das, and also in the case of Janoki Nath Hore v. Prabhasini Dasee. The latter decision dissents from the former and we have no hesitation in following the latter. We agree that the procedure which has been followed in numerous cases in this Court for over 40 years should not be changed although it was departed from in one or two solitary instances.
As regards the merits of the appeal the question that arises is one that is frequently the subject of dispute between landlord and tenant. The tenant holds on a lease under which he agreed to pay his rent partly in cash and partly in kind and there are conditions in the lease as to the payment of cash in lieu of the rent in kind. The question is whether the landlord is entitled to get the market price of the paddy portion of the rent or the price as stated in the lease. The essential sentence in the main body of the lease is:—“settling as rent thereof Rs. 87 in cash and 2 bishas and 5½ aris of gula paddy or its price Rs. 45-8, total Rs. 132-8”. In our opinion the use of the word “or” in this passage distinguishes this lease from many others which have been considered in reported cases, and it is unnecessary to refer to these cases. We hold that under this condition the tenant is entitled, if he prefers it, as he would naturally do when the price of paddy rises, to pay the money value fixed in the lease in lieu of the paddy in kind. Having regard to this passage in the main portion of the lease we are unable to accept the contention that the later passage which provides that the tenant shall be liable to pay as the price of the paddy the sum of Rs. 45-8 aforesaid is absolutely conditional on the special circumstances mentioned in the sentence.
The result is that the appeal is dismissed with costs.
G.S
Appeal dismissed.