Murli Manohar And Others v. Raja Nand Singh And Others

1. This is an appeal by the plaintiffs in a suit for recovery of Road Cess alleged to be payable by the defendants who are Malikanadars. The Munsif decreed the suit; but the Subordinate Jugged while agreeing with the Munsif, that cess had been assessed on the Malikana lands in suit, dismissed the claim on the ground that the plaintiffs had failed to prove service or notice under Section 54 of the Cess Act (Bengal Act IX of 1880).

2. The learned Vakil for the appellants contends, in the first ??? that the effect of O. VI, r. 6 of the CPC, is that an averment of the giving of this notice must be implied in the plaint.

3. He also contends that under O. VIII, r. 2 of the CPC, it was for the defendants to raise by their pleadings the new fact of non-service on which they relied to show that the suit was not maintainable. Order VI r. 6, corresponds to O. XIX, r. 14 of the Rules of the Supreme Court and the decisions on that rule are applicable to this case. The rule has been stated in this way, that it is for the defendant, if he contends that there was a condition precedent and that it has not been duly performed, to state specifically what the condition was and to plead its non-performance otherwise its due performance will be presumed (Annual Practice, 1922, page 342). In Harris Calculating Machine Company In re, Sumner v. Harris Calculating Machine Company (1) where a demand for payment to be made at Lloyds Bank was a condition precedent and it was not pleaded that no such demand had been made, Astbury, J., said that he was not at all satisfied that O. 19, r. 14, did not apply to the case, that the defendants had not given the slightest warning that they were going to take any such point in the pleadings, and that it should have been done if a point of that character was going to be relied on in Gates v. Jacobs (2) where there was a question of the service on a lessee of the notice required by Section 14 of the Conveyancing Act, 1881, Lawrence, J., held that the statement of claim must be read as if it contained an allegation that the plaintiffs had given the necessary notice under S. 14 of the Act before the commencement of the action. These decisions are, in my opinion, applicable to the present case and the terms of O. VI, R. 6, are explicit. It is no longer necessary for the plaintiff to plead the performance of a condition precedent. If the pleadings are silent they must be read as implying an allegation of performance and there is no denial by the defence. That notice under Section 52 of the Cess Act is a condition precedent has been held in Ashanullah Khan v. Trilochan Bagchi (3) and notice Under S. 54 must similarly be held to be a condition precedent to liability to pay cess. On this ground, therefore, it seems clear that the plaintiffs are entitled to Succeed in this appeal.

4. A further ground was taken that Section 54 of the Cess Act has no application, inasmuch as the lands are not lands held free of rent within the meaning of that section. The words Used in the Record of Rights are Mafi Malikana and it is contended that this means that the rent is remitted as equivalent to the Malikana payable to the tenure holder. If it were necessary to decide the point I should be inclined to hold that this is the correct view and that the lands are not lands held free of rent. But as the plaintiffs are entitled to succeed on the first point, I do not think it necessary to decide this.

5. The result is, that the appeal is decreed with costs, the decree of the Subordinate Judge is set aside and the decree of the Munsif restored. The plaintiffs will get the costs of the lower Appellate Court also.

6. Appeal allowed.