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Alka Vinayak Pendse and ors. Vs. K.V. Kirpekar - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai High Court
Decided On
Case NumberCivil Revn. Appln. No. 555 of 1973
Judge
Reported inAIR1977Bom314; (1976)78BOMLR433
ActsBombay Rents, Hotel and Lodging House Rates Control Act, 1947 - Sections 11, 11(3), 20 and 20(1); Limitation Act, 1963 - Sections 14, 14(1), 14(2) and 29(2); Mortgage Interest Restriction Act - Sections 8; Rent and Mortgage Interest Restriction Act, 1923 - Sections 8(2); Increase of Rent and Mortgage Interest (Restrictions) Act, 1920
AppellantAlka Vinayak Pendse and ors.
RespondentK.V. Kirpekar
Appellant AdvocateD.S. Marathe, Adv.
Respondent AdvocateS.H. Thatte, Adv.
Excerpt:
.....of the rent act, and that there could not be exclusion of time taken in prosecuting the standard rent application because the matter in issue in the civil suit and in the earlier proceedings was not the same. being aggrieved, the plaintiffs moved the high court in revision.;that the question for consideration was whether the proceeding in the two actions related to the same matter in issue so that under section 14 of the limitation act, time could be extended. in the application for fixation of standard rent the court was invited to fix the correct rent, and thus, to determine what rent was excessively charged. in the suit for recovery of overpayment, the determination of the excessively charged amount had iso to be looked into before granting further relief. to that extent, the matter..........of the limitation act, there could not be the exclusion of time taken in prosecuting the standard rent application. although the learned judge held that by reason of section 29 (2) of the limitation act, section 14 was applicable in computing the period of limitation, sub-section (1) of section 14, which governed the proceedings, was inapplicable, because the matter in issue in civil suit and in the earlier proceedings was not the same.3. aggrieved by that decision, the plaintiffs have preferred this revision petition. section 20 of the bombay rents, hotel and lodging house rates control act, 1947, to the extent relevant, is as follows:--any amount paid on account of rent after the date of the coming into operation of this act shall, except in so far as payment thereof is in accordance.....
Judgment:
ORDER

1. The question arising for determination in this Civil Revision Application is regarding the computation of limitation period for the recovery of rent paid to the landlord which is determined as excessive payment on account of the standard rent getting fixed at a lower amount.

2. The facts of the case are not in dispute. The petitioners, original plaintiffs, had filed Miscellaneous Application No. 82 of 1969 on 28-14969 for fixing of standard rent of the premises occupied by them and owned by the opponent, original defendant. In that application a prayer was made for permission to deduct from future rent amount recovered by the landlord in excess of the standard rent that may be fixed. This application was decided on 13-10-1970 and the standard rent was fixed at Rs. 50/- per month as against the contractual rent of Rs. 245/-per month- However, the Court did not grant any adjustment of the overpay meat observing that the same was beyond the jurisdiction of the Court to which the application was made. On 16-10-1970, therefore the notice (Ex. 28) was served by the petitioners against the landlord seeking to recover excess payment made during the months of July 1968 to December 1968. The suit out of which the present revision petition arises, being Civil Suit No. 3328 of 1970, was filed by the petitioners against the respondent for getting a sum of Rs. 1,170/- as the excess rent and Rs, 10/- more as notice charges. The Small Causes Court Judge, Poona, who heard the suit, allowed the decree in a sum of Rs. 985/- and proportionate costs with future interest at 6 p. c. p. a. This was for the excess rent paid during the months of August 1968 to December 1968 and the notice charges. Excess payment for July 1968 was taken as time-barred. Civil Appeal No. 55 of 3972 was filed against that decision in the District Court at Poona, The Extra Assistant Judge, Poona, allowed the appeal and the decree passed by the trial Court was set aside. According to the learned Assistant Judge, as the claim was not filed within 6 months of the accrual of the cause of action as required by Section 20 of the Bombay Rent Act. In his opinion, under Sec, 14 of the Limitation Act, there could not be the exclusion of time taken in prosecuting the standard rent application. Although the learned Judge held that by reason of Section 29 (2) of the Limitation Act, Section 14 was applicable in computing the period of limitation, Sub-section (1) of Section 14, which governed the proceedings, was inapplicable, because the matter in issue In Civil Suit and in the earlier proceedings was not the same.

3. Aggrieved by that decision, the plaintiffs have preferred this revision petition. Section 20 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, to the extent relevant, is as follows:--

Any amount paid on account of rent after the date of the coming into operation of this Act shall, except in so far as payment thereof is in accordance with the provisions of this Act, be recoverable by the tenant from the landlord to whom it was paid or on whose behalf it was received or from his legal representatives at any time within a period of six months from the date of payment and may, without prejudice to any other remedy for recovery, be deducted by such tenant from any rent payable by him to such landlord.'

The learned trial judge has held the claim for the months of August 1968 to December, 1968 recoverable. On the phraseology of Section 20 (1) of the Bombay Rent Act for recovering the excess payment for the above noted months a suit ought to have been filed in February 1969 so as to keep the claim for August 1968 in time. The suit here has actually been filed on 2nd of November 1970, so that prima facie no amount asked for is sought to be recovered within the period of six months.

4. It is true that the application for fixation of standard rent, which was given in January 1969, was not decided till 13th of October 1970, Mr. Divekar, the learned Advocate for the petitioner, therefore, argues that until determination of the standard rent on that day the plaintiffs-petitioners could not have taken up any steps for recovery in the absence of knowing what was the excess amount. It is, however, difficult to hold that for that reason alone we can overlook the provisions of Section 20 of the Bombay Rent Act and come to the conclusion that the limitation actually starts running from 13th of October 1970.

5. The only other way in which the suit could be brought in time is by excluding the time taken in the standard rent application proceedings from 28th January 1969 to 13th of October 1970. In this connection reliance is placed on Section 14 of the Indian Limitation Act. Sub-section (1) of Section 14 relates to the filing of a suit, while Sub-section (2) is in connection with the filing of any application. Since here exclusion of time of proceedings bona fide taken in the standard rent petition is sought while Suit No. 3328 of 1970 was filed, v-e will be concerned with Sub-section (1) of Section 14. It runs as follows:--

'In computing the period of limitation for any suit the time during which the plaintiff has been prosecuting with due diligence another civil proceedings whether in a court of first instance or of appeal or revision, against the defendant shall be excluded, where the proceeding relates to the same matter in issue and is prosecuted in good faith in a court which from defect of jurisdiction or other cause of a like nature, is unable to entertain it.'

According to this provision, if time is spent in other civil proceedings which are prosecuted with due diligence and if the proceedings relate to the same matter in issue and are prosecuted in good faith, the time taken up by these proceedings could be excluded if those proceedings were not entertained by reason of the defect of jurisdiction or other cause of a like nature. In addition to the proceedings relating to the same matter in issue, they must not have been entertained by reason of lack of jurisdiction etc. and that these proceedings must have been prosecuted in good faith and with due diligence. Mr. Thatte, appearing for the respondents, contends that this provision could not apply chiefly because the matter in issue in the standard rent petition and the suit is not the same. It has to be remembered in this connection that while Miscellaneous Petition No. 82 of 1969 was filed by the petitioners in that very application, they had asked for adjustment of overpayment. It is, however, contended that under Section 11 of the Rent Act, Courts could not pass any order either of adjusting the amount or allowing recovery of the amount but that only fixation of rent could be declared, and as such the matter in issue in the two proceedings cannot be the same.

6. In developing this argument Mr. Thatte, relied upon the decision reported in Maganlal Chhotalal Desai v. Chandrakant Motilal, : [1969]1SCR58 . The Supreme Court there was concerned in finding out whether the defendant paid or was ready and willing to pay rent due from him. According to the defendant, he was compelled to pay Rs. 15,2247. between March 14, 1950 and August 4, 1954. The Courts below found that between these two dates he paid Rs. 14,369-2-0 on account of rent from October 1, 1948 at the rate of Rs. 300/- per month. These payments were in excess of the standard which was eventually fixed at Rs. 125/- per month. The rent falling due after August 4, 1954 was not paid. The question was whether the rent was in arrears. Claim was made that the over-payment should be treated as rent paid, by adjustment or deduction of the over-payments. That claim was denied by making the following observations:

'The section gives the tenant a general right of recovery of the overpaid rent within six months from the date of payment, Without prejudice to any other mode of recovery, he may deduct the overpayment from any rent payable by him to the landlord. Deduction is one mode of recovery. If the amount is incapable of recovery because of the bar of limitation, it cannot be recovered by deduction. In other words, the right of recovery by deduction is barred at the same time as the right of recovery by suit. If the tenant seeks recovery of the overpaid amount he must bring the suit or make the deduction within six months.'

7. Apparently, the defendant had not filed any suit for the recovery of the overpayments and on the date the Supreme Court was concerned in finding out whether adjustment could be made, the claim was time-barred by reason of Section 20 of the Bombay Rents, Hotel and Lodging House Hates Control Act, 1947. That is why the Court held that the amount was not recoverable because of the bar of limitation and that the right of recovery by deduction is also barred at the same time as the right of recovery by suit.

8. In my opinion, the point raised for decision here is different. Adjustment by way of deduction was claimed retrospectively in the suit before the Supreme Court when that was out of limitation. The question for our consideration in the present revision petition is whether such limitation is saved or whether time is extended by reason of the application of Section 14 (1) of the Limitation Act.

9. During the course of arguments Mr. Thatte, for the respondent, referred me to the decision in Diment v. Robert (1925) 1 KB 9. The provision in Section 8 of the Mortgage Interest Restriction Act with which the Court of Appeal was concerned is almost similar and the word 'recoverable' appears in that section as well as in Section 20 of the Bombay Rent Act in similar circumstances. The head-note of the case runs as follows:--

'The effect of the provisions of Section 8, Sub-section (2) of the Rent and Mortgage Interest Restriction Act, 1923, whereby any rent or interest paid by a tenant or mortgagor in excess of the increases allowed by the Increase of Rent and Mortgage Interest (Restrictions) Act, 1920, shall be 'recoverable at any time within six months' is that the tenant to recover the excess, must take some kind of legal proceeding, as by issue of a writ of summons within the prescribed period. It is not necessary that he should actually have obtained judgment before the six months have expired'.

Mr. Thatte, emphasises the statement that the tenant must take some kind of legal proceedings within the prescribed period of six months. However, the controversy in that suit and the other decisions referred to, one of which is Lewis v. Makay (1924) 2 KB 136, centred round the interpretation of the word 'recoverable'. It was contended that within that period of six months the tenant himself actually must have obtained a judgment for repayment of the excess and not simply taken some steps towards recovery. The contention was repelled. Dealing with that contention, Pollock M. R. in the passage at page 11 observes as follows:

'Now what is the meaning of the word Recoverable'? Does it mean that the money must have been recovered, in the sense that a judgment must have been given to enforce its recovery, or does it mean that a suit for its recovery has been commenced? The Divisional Court decided that it means that the tenant must have taken steps to recover by issuing legal proceedings, and I think that view is correct. Counsel for the appellant referred to Ings. v. London and S.W. Rly. Co., but it seems to me that that case has no bearing on the present one. One must always look at the purpose of an Act of Parliament and the basis of such decision. There were other cases: Morris v. Duncan (1899) 1 QB 4, was relied upon but it seems to me that the judgment in that case was the exact opposite of the argument presented to us by counsel. I am satisfied that the judgment of the divisional Court was right. It is impossible to suppose that the Legislature intended to leave the tenant to the chance of his right to recover falling within the area of very busy court, or to be determined by the changes or chances of the Court's business.'

The contention, depending upon the contingency of the decision being obtained from the Court over which the litigant had no control, was negatived, and it was held that mere taking of some legal proceeding was sufficient.

10. In our case, on behalf of the petitioners-plaintiffs, it is said that the petitioners had taken steps by filing Miscellaneous Application No. 82 of 1969 in which they had also prayed for adjustment, and that, therefore, it could be held that they had started the proceedings. Again, therefore, the question falling for determination in the present matter would be whether the petitioners could relate back their claim in Suit No. 3228 of 1970 to the filing of the application on 28th of January 1969. That they could do only by the help of Section 14 (1) of the Limitation Act and the question would be whether, in the circumstances of the case, that is permissible.

11. According to Mr. Thatte, the petitioners cannot link the two matters, He argues that it was open for the petitioner to file a suit just when they filed the application for fixation of standard rent. In that suit, they could have claimed the relief of recovery of overpayment simultaneously with the prayer for fixation of standard rent. In other words, although the standard rent was not fixed and though the exact amount recoverable was not known at the time of the filing of such a contemplated suit, it is argued that he could have envisaged some figure as standard rent and could have framed his plaint in terms of such a figure. According to him, this kind of suit is contemplated by Section 20 of the Rent Act and he relies upon the observations made in Dalal's Bombay Rent Act, (4th Edition) at page 542, which are as follows:--

'It is, however, not a condition precedent to the filing of a suit for the recovery of the amount paid in excess of the standard rent and permitted increases that the standard rent or permitted increases should have been already fixed by the court under an application. The scheme of the section is to give a right of recovery within a period of six months from the date of payment. It is in a suit filed for the recovery of such an amount, that the court will have to decide after a proper trial as to whether the amount is in excess of the amount payable in accordance with the provisions of this Act; It is in such a suit that the court will, if required, decide the standard rent and/or the permitted increases, as the case may be, A tenant may, therefore, file a suit to recover an amount which, according to him, is in excess of the standard rent and permitted increases and therein pray for the determination of the standard rent and/or permitted increases.'

The case on which these observations of the learned Author are based was also cited before me. It is a decision of a Bench of Small Causes Court, of 15th October, 1965 in RAR Appeal No. 360 of 1960 in RAE Suit No. 2146/11321 of 1955 Moosaji Adamji Lakdawalla v. Lingappa Puttal Pujari. Principal facts of the case can be usefully noted. The appellant Moosaji Adamji had let out to the respondent Lingappa Puttal Pujari a plot of land by an indenture of lease dated 7th October 1952 at a monthly rent of Rs. 135/-. On the same day, he borrowed from the respondent a sum of Rs. 1,625/- on a pronote. Rs. 60/- per month was the instalment of repayment of that loan with liberty to adjust the same with the rent falling due. In July 1953 Lingappa filed an application for fixation of the standard rent of the premises. Pending disposal of the petition, a Commissioner was appointed for valuing and suggesting fair rent. He had indicated that Rs. 55-8-0 could be the fair rent, However, on 1-12-1955, the main petition was dismissed on the ground that the provisions of the Rent Act were not applicable to the premises in question. An appeal filed over it was also dismissed on 29-2-1956. On 27-8-3955, Lingappa filed the suit claiming to recover from the appellant under the provisions of Section 20 of the Rent Act, certain sum paid by him in excess of the standard rent. Obviously while filing this suit, the standard rent he has envisaged is of Rs. 55-8-0 as suggested by the Commissioner. But the whole proceedings could not have attracted Section 20 of the Bent Act because of the finding in the earlier petition and in appeal over it that the Rent Act did not apply to the premises -in dispute, Had that finding been maintained, tire fate of the suit was very clear. However, in between the filing of the suit and the ultimate decision of it, certain other events happened. On 11th September 1956 Civil Revision Application filed by Lingappa in the standard rent proceedings was allowed and the matter was remanded for fixation of standard rent. The trial Court then fixed it in April 1957 at Rs. 76/- per month. Appellate Bench changed the figure to Rs. 40-33 on 25-9-1957 and the same was maintained In the Civil Revision Application filed over it. On the date of the decision of the Suit, therefore, the plaintiff then could easily lay hand on the finding of standard rent at Rs. 40.33. In the suit, Lingappa had given credit to the landlord of the standard rent he had envisaged and had also calculated the dues under the pronote.

12. One of the contentions raised in opposing the suit was that there was no cause of action for the suit when it was filed, inasmuch as no standard rent was fixed on that date. In dealing with the objection, the learned judges have observed that the standard rent application was not pending but the revision application filed by the tenant was pending whereunder the standard rent application was remanded to the trial Court for disposal. In this context the following are further observations:--

'We are of the view that it is not a condition precedent to the filing of a suit under Section 20 of the Rent Act to recover back the amount of excess over the standard rent paid to the landlord, that the standard rent should have already been fixed by the Court. In a case where the contractual rent charged from the tenant happens to be the rent at which the premises were first let after 1st September 1940, it is no doubt true that prima facie such contractual rent would be regarded as the standard rent till the standard rent is fixed by the Court either upon an application made under Section 11 of the Rent Act or in a suit. But it is open to a tenant in such a case to file a suit to claim back what is excess over the standard rent according to him and at the same time pray that the standard rent be fixed and decree may be passed for such amount paid to the landlord within the prescribed period as is in excess or the standard rent so fixed In the present case it was not necessary for the trial Court to go into the question of fixation of the standard rent as when the suit came up for hearing, the standard rent was already fixed by the appellate Court in the standard rent application filed by the respondent. We are, therefore, unable to uphold the contention of Mr. Tunara that the respondent had no cause of action for filing the suit on the date when it was filed.'

The language used in these observations shows that the fixation of the standard rent is not a condition precedent for the filing of the suit so that it could not he urged that before fixing of the standard rent, no action under Section 20 of the Rent Act could be taken. The possibility of the tenant filing a suit simultaneously with the prayer to fix standard rent has been considered and approved. Now. what is sought to be argued is that that is the only mode by which recovery of excess payment by suit can be made and that unless such an action is taken, the tenant is deprived of his remedy to file a suit and recover the amount. This is on the background of the expiry of the period of six months before the fixation of the standard rent in a proceeding started. That the filing of a suit as indicated above is possible and permissible would not however, mean that other remedy is not possible. If, for instance, in the present case action taken by the tenants at the time of the filing of the standard rent application in praying for adjustment is looked upon as a step for adjustment of the overpayment or a step in the nature of recovering the excess payments, and if in a regular suit filed thereafter time spent in those proceedings could be excluded, then the ruling given by the learned Judges of the Small Causes Court, ought not to come in the way of a tenant. Hence also, the crucial question falling for determination in this revision application is, in the circumstances as existing in the present case, whether Section 14 (1) of the Indian Limitation Act is applicable. The learned trial Judge was of the view that the matter in issue in the Miscellaneous Application No. 82 of 1969 and the subsequent suit, being Suit No. 3328 of 1970, was the same. He did not appreciate the distinction made on behalf of the landlord that the relief claimed in the standard rent application was one of adjustment, whereas the relief claimed in the suit was for recovery of the amount. He felt that the argument had the ring of the phraseology used in Sub-section (2) of Section 14 of the Limitation Act which obviously was not applicable and in finding that the matter in issue in both the proceedings was the same he concluded that in the Standard Rent Application, the plaintiffs had claimed adjustment in respect of the amount paid in excess of the standard rent and in the suit also they claimed back the same amount.

13. The learned Appellate Judge, has not found favour with that reasoning. He calls this view erroneous. According to him, the cause of action for filing standard rent application arose under Section 11 of the Rent Act when the tenant found that the agreed rent charged by the landlord was excessive. That application was essentially for fixing of the standard rent and although there was an ancillary prayer for permission to deduct from future rent that much amount recovered by the landlord in excess of the standard rent that may be fixed for a period of six months immediately preceding the months in which the application was filed, he concludes that the matter in issue was not the same. According to him, the making of adjustment was outside the purview of the application under Section 11 of the Rent Act, Then he observed:

'Merely because the plaintiffs had made a prayer in the standard rent application for permitting them to make adjustment of the amount recovered in excess of the standard rent in future rent that was certainly not 'a matter in issue 'in that application which is now in issue in the present suit.'

It cannot be denied that an order for recovery of amount or for adjustment could not be passed under Section 11 of the Rent Act, but in fact such a prayer for adjustment, which, in effect, was for appropriating the excess amount paid was made. That prayer could not have been granted and has not been granted by the Court deciding that application because that court had no jurisdiction to grant such a claim. The matter, however, does not rest upon drawing distinctions in the real function of Section 11, but in finding out precisely whether when some other prayer was made that prayer was made in good faith and was prosecuted with diligence, and as such, when an adverse finding is obtained on the score of lack of jurisdiction it could be looked upon as sufficient to exclude the time taken in prosecuting those proceedings.

14. If the contention raised by Mr. Thatte is accepted almost always a tenant would have to file a suit under Section 20 of the Rent Act in which the relief under Section 11 may have to be claimed. It is seldom that standard rent petitions get decided in six months. It would have also one more curious result. After presenting an application for fixation of standard rent usually an interimly order under Sub-section (3) of Section 11 is passed for depositing the rent interimly fixed or paying it out and out to the landlord. In a given case, the amount so fixed interimly may happen to be in excess of the standard rent ultimately fixed, It would also be that a tenant may prefer to make payment out and out to the landlord after obtaining such order. If the standard rent proceedings last for more than 6 months, as they often so last, amount paid during the pendency of the proceedings and which happens to be in excess of the standard rent ultimately fixed, would also become non-recoverable, thus, putting a premium on the landlord's conduct of recovering excess amount. I do not think that that result was intended by the Legislature. A diligent litigant aware of his rights rushes to the Court for fixation of standard rent. In case the same is fixed quickly, he could easily obtain a relief for the excess payment made during the previous six months. On the other hand, if because of the congestion of work in Court he is unable to obtain an order, he stands to lose and that is dependent, not upon his volition but upon the exigencies of the Court. The King's Bench ruling cited above, has not looked upon such a result with favour.

15. The question for our consideration is whether the proceedings in the two actions relate to the same matter in issue so that under Section 14 of the Limitation Act, time could be extended. In the application for fixation of standard rent the Court is invited to fix the correct rent, and thus, to determine what rent was excessively charged. In the suit for recovery of overpayment, the determination of the excessively charged amount has also to be looked into before granting further relief. To my mind, to that extent, the matter in issue is the same in the two proceedings, more so, where in the application of the type, with which we are concerned, a precise prayer for adjustment, which is one of the modes of recovering of the excess payment was also made. Fixation of the standard rent always operates retrospectively. In both the proceedings, therefore, there is determination of the excessive rent charged. I feel, therefore, that the view taken by the learned Extra Assistant Judge cannot be upheld, when there was an express prayer at the time of the filing of the standard rent application to grant adjustment. It was in effect a prayer for asking back the overpayment, The same could not have been known till the proceedings lasted and immediately thereafter separate suit was filed. The matter in issue thus being the same, computation of the limitation period would be after taking into account the period spent in prosecuting the standard rent application as provided in Section 14 (1) of the Limitation Act. Consequently the decree of the trial Court will have to be restored. Hence, I pass the following order:


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