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Abasbhai Shaikh Abdul HusseIn Vs. Bhimji Malji Choksey - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai
Decided On
Case NumberO.C.J. Appeal No. 10 of 1931 and Suit No. 883 of 1928
Judge
Reported inAIR1932Bom86; (1931)33BOMLR1563
AppellantAbasbhai Shaikh Abdul Hussein
RespondentBhimji Malji Choksey
DispositionAppeal allowed
Excerpt:
.....had no application to the case, because the cause of action for the premium arose under a different contract from the cause of action for rent;;(2) that section 12 of the bombay rent (war restrictions) act, 1918, had no application to the premium paid by a tenant to the landlord;;(3) that the counter-claim was governed not by article 12c, but by article 62, of the indian limitation act, 1908, and as such was barred by limitation. - - the only two which he deals with in substance are, first of all, whether the plaintiff's claim to arrears of rent does not lie having regard to order ii, rule 2, and, secondly, whether the defendant's counter-claim, with which i will deal presently, is well founded. if a case falls clearly within the words of article 62, effect must be given to such..........premium and the cause of action for rent is in each case different. in each case there is a different contract which the plaintiff has to sue upon. in such a case order ii, rule 2, would not apply. if, on the other hand, the contract made in 1923 was that the old rent of rs. 200 per month was to be increased to rs. 300 per month, then it is quite clear that in future there would be only one cause of action for the whole of the rent, that cause of action being the later contract which increased and fixed the amount of rent. obviously in that case order ii, rule 2, would apply, as there would only be one cause of action. but then there might be a third case, because it might have been provided in 1923 that rent should be paid at the old rate of rs. 200 per month and in addition a premium.....
Judgment:

John Beaumont, Kt., C.J.

1. This is an appeal from a judgment of Mr. Justice Baker. The plaintiff is the owner of certain immoveable property which he let to the defendant on a monthly tenancy and he sues to recover possession of the property, for three months' arrears of rent at the rate of Rs. 200 per month and a further sum for use and occupation after the expiration of the notice to quit, that is to say, in effect for mesne profits. The defendant in his written statement in the first instance stated that he was not bound to quit because of a certain contract under which he was entitled to occupation till June 30, 1923, but that defence was not persisted in. By his amended written statement he takes the point that the plaintiff had already sued him in the Small Cause Court for a sura of Rs. 400 ' pagri' or premium for four months at the rate of Rs. 100 per month, and he says that that suit, having regard to the terms of Order II, Rule 2, of the Civil Procedure Code, is a bar to the plaintiff's present suit for arrears of rent. The parties framed seven issues, but the learned Judge has not in terms answered them. The only two which he deals with in substance are, first of all, whether the plaintiff's claim to arrears of rent does not lie having regard to Order II, Rule 2, and, secondly, whether the defendant's counter-claim, with which I will deal presently, is well founded.

2. Now, the first point arises in this way. There is no doubt that the property was originally let by the plaintiff to the defendant in the year 1918 and the rent payable was Rs. 200 per-month. There is also no doubt that as from May 1923 further sums have been payable--whether as rent or premium is a question which we have to decide. Further sums amounting to Rs. 1,200 per annum have been payable and have been called premium and it was for four months' arrears of this premium that the suit was brought in the Small Cause Court. Under Order II, Rule 2, it is provided that the plaintiff' must make all claims which he is entitled to make under the same cause of action, and if he omits to do so he cannot afterwards sue for the balance, and therefore the question which has to be determined in this case is whether the plaintiff'!s claim to the rent and the plaintiff's claim to premium arose under the same cause of action. The learned Judge deals with that point in this way. He says:--

The accounts will show that Rs. 300 a month is debited as rent and although the agreement to pay the premium may have been entered into on a different date from that on which the agreement to pay rent was entered into it really only represents one cause of action, viz., the right to recover the rent, the rent being raiseid from time to time by the plaintiff by threats of evicting the defendant, the actual case which the Rent Act was designed to prevent, and the attempt to make out that this premium has nothing to do with rent fails.

3. The case had been made by the plaintiff that the premiums charged were in order to induce him not to open a rival shop to the defendant, and the learned Judge held that that case was not proved. But the effect of the passage which I have read, and the judgment which was given, seems to be that the learned Judge holds that this sum which was made payable in 1923 as premium was in effect additional rent. But the learned Judge's finding is not easy to follow The learned Judge says, the obligation to pay the rent and the premium may have arisen at different dates but nevertheless there is only one cause of action. Now, the question might arise in one or other of three ways. If in fact the rent was made payable under a contract made in 1918 and a premium was made payable under a contract made in 1923, I should say that it was quite clear that the cause of action for premium and the cause of action for rent is in each case different. In each case there is a different contract which the plaintiff has to sue upon. In such a case Order II, Rule 2, would not apply. If, on the other hand, the contract made in 1923 was that the old rent of Rs. 200 per month was to be increased to Rs. 300 per month, then it is quite clear that in future there would be only one cause of action for the whole of the rent, that cause of action being the later contract which increased and fixed the amount of rent. Obviously in that case Order II, Rule 2, would apply, as there would only be one cause of action. But then there might be a third case, because it might have been provided in 1923 that rent should be paid at the old rate of Rs. 200 per month and in addition a premium of Rs. 100 per month should be payable, so that in that case we should have one contract providing for payment both of rent and of premium. I think in that case Order II, Rule 2, would apply and if the plaintiff sued only for the premium he could not afterwards sue for the reni The learned Judge has not shown us definitely into which of these categories he thinks this case falls, but from his reference to the contract for payment of premium being made at a different date from the contract to pay rent, I am rather inclined to think that he puts the case in the first category, namely, that of two distinct contracts, and, in my opinion, on the evidence that is the right view. I think that on the evidence both of the plaintiff and the defendant the only agreement which was made in 1923 was an agreement to pay a premium at the rate of Rs. 1,200 per annum and that no alteration was made in the contract of tenancy for the payment of a rent, at Rs. 200 a month. It appears from the evidence that the plaintiff had given the defendant a notice to quit in April 1923 and this agreement to pay a premium was the consideration for the plaintiff agreeing to withdraw that notice. But neither in the evidence of the plaintiff nor in that of the defendant is there any reference to any agreement affecting the payment of the rent which had been payable since 1918. It is said that the books of the parties treat this payment of Rs l,200 a year as rent. It is quite true that in the plaintiff's books it is brought in under the heading of 'shop rent', but it was not in fact treated as rent. The payments for the year 1923-24 are two payments of Rs. 500 and one of Rs, 200 and it seems to me clear that the amount was not added to the rent and treated as increased rent. In the defendant's books he also refers to it as rent, but in his account, which is Ex. 12, he brings it in as a payment on the debtor side of Rs. 1,200 and in Ex, 13, which is the one which I think the learned Judge must have had in his mind when he referred to the premium being included with the rent as one payment of Rs. 800 per month, there are payments of Rs. 800 per month entered for rent, but then there is a sub-entry in each case showing Rs. 200 for rent and Rs. 100 for 'pagdi' or premium. Therefore, I think that in fact the payment of the Rs. 1,200 a year was a premium and was not rent and that the cause of action for the premium arose under a different contract from the cause of action for rent. That being so, I think that Order II, Rule 2, has no application to the case and that the plaintiff was entitled to succeed in the action. I may point out that in any case there would seem to have been a slip in dismissing the action with costs, because the plaintiff was entitled to costs at any rate down to the date on which possession was delivered up by the defendant. The issue as to ejectment does not arise because admittedly the defendant had given up possession before the trial.

4. The other question which has to be dealt with is the defendant's counter-claim. The defendant says that in the years 1923 and 1924 he paid this premium of Rs. 1,200 per annum to the plaintiff, and that that is a payment which was forbidden by the Bombay Rent (War Restrictions) Act No. II of 1918, and that accordingly the amount is recoverable. Under Section 8 of the Bombay Rent Act it is provided that no premium may be charged and in Sub-Section (2) it is provided that where any such payment has been made the amount shall be recoverable by the tenant by whom it was made from the landlord. Then Section 12 provides for the recovery of rent overpaid, but there is a limitation in that section which provides that the claim must be made within six months. I agree with the learned Judge in thinking that Section 12 has no application to a premium and as we have held that the amount in question in this case was a premium, the limitation in Section 12 does not apply and we have to consider what Article of the Indian Limitation Act is the one applicable to the case. It is argued for the plaintiff that the Article applicable to the case is Article 62 which provides a limitation of three years for money payable by the defendant to the plaintiff for money received by the defendant for the plaintiff's use. Mr. Somji on behalf of the defendant (plaintiff in counter-claim) has strenuously contended that this sum was not paid by the defendant to the plaintiff for the use of the defendant and he has referred us to a considerable number of cases which in my view really do not affect the question. What we have got here is a sum of money paid by the defendant to the plaintiff in such circumstances that the plaintiff was bound at once to repay it to the defendant. It seems to me that that brings the case within Article 62 and that the money must be treated as received by the plaintiff for the defendant's use. Mr. Somji says that the money was payable under a statute and therefore as no other Article applies, the case falls within Article 120. It is no doubt true that a statute gave the defendant the right to recover the money (whether he would have had any right apart from the statute may be open to question), but it seems to me that once money is paid over by the defendant to the plaintiff in such circumstances that it is immediately repayable, it matters not whether the right to repayment arises under some statute or because of some rule of Jaw or of equity. The gist of the matter is that the moment the plaintiff received the money he was bound to return it to the defendant, and that being so, I think that from the inception, i.e., from the date of the receipt of the money ho held the money to the use of the defendant. In that view of the matter it is not necessary for us to consider the question discussed by the learned Judge as to whether or not under the English law an action for money had and received would lie or not. If a case falls clearly within the words of Article 62, effect must be given to such Article. But I am not prepared, as at present advised, to accept the view of the High Court of Calcutta in Anantram Bhattacharjee v. Hem Chandra Kar I.L.R. (1923) Cal. 475 that Article 62 should be construed without any reference to authorities upon actions for money had and received. That being so, I think that the counter-claim was barred by limitation, since it is admitted that it was not launched within three years of the receipt of the money by the plaintiff. I think, therefore, that the action must succeed and the counter-claim must fail.

5. Decree of the lower Court set aside.

6. Decree for Rs. 600 arrears of rent and Rs. 400 for compensation with costs of the suit and interest on decree. Counter-claim dismissed with costs. Defendant to pay the costs of the appeal. Cross-objections dismissed.

Rangnekar, J.

7. The evidence as to the agreement under which the defendant became liable to pay Rs. 1200 per year as premium or 'pagdi' is not very clear. But after going through it carefully I have come to the conclusion that during the continuance of the tenancy in 1923 the parties entered into a fresh and separate contract whereby the defendant agreed to pay the premium. In other words, there were two distinct and separate contracts, one for payment of rent, and another subsequent to the first, under which the defendant agreed to pay the premium. On this finding I am clearly of opinion that the case does not come within the provisions of Order II, Rule 2, of the Civil Procedure Code.

8. The second question relates to the counter-claim of the defendant for a sum of Rs. 2,400 which he had paid to the plaintiff as premiums in 1923 and 1921. The counter-claim was made in May 1928 and was based on the provisions of Section 8 of the Bombay Rent (War Restrictions) Act, No. II of 1918. The plaintiff contends that the counter claim is barred by limitation under Article 62 of the Indian Limitation Act. This contention was rejected by the learned Judge who held that the Article applicable to the case was Article 120 of the Act. Section 8 of the Rent Act ran as follows:-

8. (1) It shall not be lawful for any person, in consideration of the grant, renewal or continuance of a tenancy of any premises, to require the payment of any fine, premium or any other like sum in addition to the rent.

(2) Whore any such payment has been made after the first day of January 1918, the amount shall be recoverable by the tenant by whom it was made from the landlord, and may without prejudice to any other method of recovery be deducted from any rent payable by him to the landlord.

(3) Provided that noting in this section shall apply to any payment under any agreement entered into before the first day of January 1916.

9. Now, the meaning of the section is that the landlord is not entitled to recover from the tenant any premium in addition to the rent. But if he does so, the tenant can at once recover it, and this he may do in one of two ways, either by deducting it himself from the rent due or by filing an action. Sub-section (2) makes it clear that from the time the amount of the premium comes into the hand of the landlord it really belongs to the landlord, and the landlord holds it for the benefit of the tenant. In other words, he holds it in a fiduciary capacity, to use technical! language, 'to the use of the tenant'.

10. If I am right in the construction of Section 8 of the Rent Act, then it follows that the defendant's claim falls within Article 62. Mr. Somji says that Article 62 is not applicable as the right to recover premium is created only by the Rent Act, and that as there is no other specific article applicable to such a case, Article 120 would apply. Assuming that the right to recover the premium arises only under Sub-section (2) of Section 8 of the Rent Act and not under the general principles of the law of contract or equity, still it is difficult to see why Article 62 is not applicable. It is clear on the authorities that Article 62 is applicable to all cases to which the old English form of common law action for money had and received applied. An action for money had and received is, as pointed out by Lord Mansfield, maintainable where a defendant has received money which in justice and equity belongs to the plaintiff under circumstances which rendered the receipt by the defendant for the use of the plaintiff. I am supported in this view by the observations of Mookerjee J. in Mahomed Wahib v. Mahomed Ameer I.L.R. (1905) Cal. 527 which are as follows (p. 533):-

It seems to me to be clear, as pointed out by Markby J. in Raghumoni Andhikary v. Nilmoni Singh Deo I.L.R. (1877) Cal. 393 that the Article, when it speaks of a suit for money received by the defendant for the plaintiff's use, points to the well known English action in that form; consequently the Article ought to apply whereever the defendant has received money which in justice and equity belongs to the plaintiff under circumstances which in law render the receipt of it, a receipt by the defendant to the use of the plaintiff.

11. In my opinion, therefore, Article 62 applies to the case and the counterclaim is barred by limitation.


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