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J.M. Andrews Vs. Radio Engineerng Co. - Court Judgment

LegalCrystal Citation
SubjectTenancy;Limitation
CourtKarnataka High Court
Decided On
Case NumberSecond Appeal No. 675 of 1958
Judge
Reported inAIR1963Mys113; (1963)1MysLJ381
ActsLimitation Act, 1908 - Schedule - Article 110; Mysore House Rent Control Act, 1951 - Sections 6 (2)
AppellantJ.M. Andrews
RespondentRadio Engineerng Co.
Appellant AdvocateJ.D. Silva, Adv.
Respondent AdvocateH.S. Raja Iyengar, Adv.
Excerpt:
.....sum in addition to the agreed rent, unless the fair rent of a house has been determined according to the provisions of the act. in that case their lordships clearly laid down that the claim for recovery of rent or arrears thereof under the madras revenue recovery act 18s5 becomes due only when the same !s ascertained......their lordships, in which the dale at which the rent became due was held to be an entirely different date from the close of the period in respect of which that rent was payable'.5. the mysore rent control act 1951 provides for making of an application under section 4 of the act for determination of fair rent. section 6 (2) of the act provides that the landlord shall not, after the commencement of the act, claim, receive or stipulate for the payment of, any premium or other like sum in addition to the agreed rent, unless the fair rent of a house has been determined according to the provisions of the act. it is therefore clear that until the fair rent was fixed by the additional district judge on 30-9-1953, it was not open to the petitioner to have claimed any enhanced rent or to have.....
Judgment:

T.K. Tukol, J.

1. This second appeal by the plaintiff is directed against the judgment and decree passed by the Civil Judge, Bangalore, confirming the judgment and decree passed by the Munsif, Civil Station, Bangalore. The appeal raises an interesting question regarding the applicability and interpretation of Article 110 of the Indian Limitation Act.

2. The facts of the case briefly are as follows : The plaintiff is the landlord of the respondent. The latter took from him certain premises situated in Brigade Road, Bangalore. The three premises have been in the possession of the defendant. The original rent agreed between the parties was Rs. 65/- per month for each of the premises. The plaintiff filed an application before the Rent Controller for fixation of fair rent on 8-12-1949. The Rent Controller rejected that application, in the appeal filed by the present appellant, the Additional District judge enhanced the rent and fixed the same at Rs. 75/- per month with effect from the date of application. This order was passed on 30-9-1953. The present suit was filed on 21-3-1956 claiming Rs. 1806/- as the difference in the arrears of rent from 8-12-1948 to the date of suit. The claim was resisted by the respondent on. the ground that it was barred by time. The trial Judge passed a decree only for Rs. 756/- with proportionate costs, and dismissed the rest of the claim. In the appeal preferred by the appellant before the Civil Judge, Bangalore in Appeal No. 162 of 1957, the latter upheld the conclusion of the Munsiff and dismissed the appeal :

3. Being aggrieved by this decision, the appellant has brought this appeal to this Court and contended that his entire claim should have been decreed and the Courts below had erred in interpreting the scope and the meaning of Article 110 of the Indian Limitation Act.

4. it cannot be disputed that it is Article 110 which applies to the facts of the present case, that under Article 110 which provides for recovery of arrears of rent the period of limitation prescribed is 3 years and that the time from which the period begins to run as mentioned in column 3 is 'as and when arrears become due'. So the main question for determination in this case is when did the arrears of rent for the amount of difference between the agreed rate and the rate enhanced from 8-12-1948 upto the date of the order passed by District Judge become due. There is no difficulty in determining the date as to when the amount became due, in a case where recovery of rent is the subject-matter of contract. In such cases, the rent falls due on the agreed date. As has been explained by the Judicial Committee of the Privy Council in Rangayya Appa Rao v. Bobba Sri Ramulu, ILR 27 Mad 143 (FC), arrears of rent become due only when the sum is ascertained. In dealing with the scope of this article, their Lordships explained the various circumstances under which the date on which arrears fall due would be varying :

'In most cases no doubt the point of time at which rent becomes due is the close of the period in respect of which it is to be paid. But this is not necessarily always the case in India, and the Limitation Act is an Act for all India. Legislation, or custom, or express contract, or the special circumstances of any case make rent become due at a point of time different from the close of the period in respect of which it is to be paid. The case of Mt. Ranee Surno Moyee v. Shooshee Mokhee Burmonia, 12 Moo. Ind App 244 (PC), heard before this Board, is an example of a suit for rent, governed by a law of limitation substantially the same as that now before their Lordships, in which the dale at which the rent became due was held to be an entirely different date from the close of the period in respect of which that rent was payable'.

5. The Mysore Rent Control Act 1951 provides for making of an application under Section 4 of the Act for determination of fair rent. Section 6 (2) of the Act provides that the landlord shall not, after the commencement of the Act, claim, receive or stipulate for the payment Of, any premium or other like sum in addition to the agreed rent, unless the fair rent of a house has been determined according to the provisions of the Act. It is therefore clear that until the fair rent was fixed by the Additional District Judge on 30-9-1953, it was not open to the petitioner to have claimed any enhanced rent or to have instituted any suit for the difference which he has claimed. In Harinder Singh v. Anant Ram, AIR 1939 Lah 6, their Lordships held that

'The right to sue accrues only when a cause of action arises. Now for a cause of action to arise, it must be clear that the averments in a plaint if held correct should lead to a successful issue'.

In this case the right to sue for recovery of rent accrued only after the appeal was allowed by the Additional District Judge. It is only thereafter that the cause of action for the plaintiff to recover the arrears of rent at the enhanced rate accrued; it is on that date, the sum claimed in the suit became due. The question as to when the cause of action for a suit arises was agitated before the Calcutta High Court in Dwijendra Narain .Roy v. Joges Chandra De : AIR1924Cal600 and their Lordships after referring to the relevant case law laid down :

'Whenever proceedings are being conducted between the parties bona fide in order to have their natural rights and obligations in respect of a matter finally settled, the cause of action for an application or for a suit, the relief claimable wherein follows naturally on the result of such proceedings should be held to arise only on the date when those proceedings finally settle such rights and liabilities'.

6. It is obvious that in a case of the present type, the plaintiff would not have been able to institute any suit for recovery of enhanced rent, in view of the provisions of Section 6 of the Rent Control Act, until after he had obtained the order of the Additional District Judge permitting him to recover Rs. 75/- per month per block as fair rent from the date of his application.

7. That this is the legal position is confirmed by a number of other decisions that were cited for the appellant. In Nataraja Deslkar v. Govinda Rao, AIR 1923 Mad 461 the question before their Lordships was one under Article 110 of the Limitation Act. That was an appeal in a suit filed by the plaintiff as receiver. It was held that the question as to whether his right to sue for arrears of rent was barred under Article 110 of the Act would depend upon the decision as to when the time began to run against him. Their Lordships referred to the observations of the Judicial Committee quoted above and came to the conclusion that the cause of action for the plaintiff accrued from the date of his appointment as receiver and it was open to him to recover arrears of rent within 3 years from the date of his appointment. The decision in Broja Behari Sen v. Ved Prokash Kumar, : AIR1958Cal261 is a case which arose under very similar circumstances. In that case what had happened was that even though the contractual rent had fallen due at the end of every month i.e., Rs. 200/-per month, the landlord filed no suit to recover the arrears of rent which fell due after 1-1-1950. The Rent Controller fixed the standard rent at Rs. 96-4-0 per month. Finally the High Court fixed the same on 31-3-1956 at Rs. 199-10-0 in revision with effect from 1-1-1950. The landlord filed a suit on 3-7-1956 claiming the arrears of rent at the standard rate fixed by the High Court from 1-1-1950. The defendant pleaded that the claim prior to 3-7-1953 was barred by time. Section 10 of the West Bengal Premises Rent Control Act, 1950, imposed a statutory obligation on the tenant to pay standard rent from the date specified in the order fixing such rent. The Court held that in view of the statutory obligation, no portion of the claim was barred by time whether under Article 110 or Article 120 of the Indian Limitation Act. In the last decision relied upon by the appellant an identical question was raised before the Madras High Court in Ghulam Ghouse v. Shunmugum Pillai, ILR 34 Mad 438. The contention of the tenants in that case who pleaded the bar of limitation, was that the arrears had become due on the date of the judgment of the trial Court, i.e. 7th August, 1902; while the landlord contended that the arrears had not become due within the meaning of Article 110 until a later date, viz., the 24th May 1904, that being the date of the judgment by the Sub Collector in certain proceedings before the Revenue Court under the Rent Recovery Act. Their Lordships held as follows:

'Now it is beyond question that the landlord cannot get his rent until he has tendered a patta which the tenant has accepted or with regard to which the courts have held that he is bound to accept it.'

They further observed that it was anomalous that limitation should begin to run against the landlord at a date anterior to the date when he became entitled to enforce his claim for rent.

8. In the present case, the two courts below have rejected the claim of the appellant on the ground that he could have recovered the enhanced rent as and when it fell due. The reasoning is obviously erroneous since the right to recover the enhanced rent accrued to the plaintiff only when the Court passed an order under the Rent Control Act fixing the fair rent at Rs. 75/- per month per block.

9. The learned advocate for the respondent tried to support the judgments of the lower courts by relying upon three decisions; but none of them supports his contention. The decision in Hem Chandra Chowdhry v. Kali Prosanna Bhaduri, ILR 30 Cal 1033 (PC), doe not deal with any question relating to the construction of Article 110 of the Indian Limitation Act. That was a case which arose under the Bengal Cess Act of 1880. The decision in Hurro Kumar Ghose v. Kali Krishna Thakur, ILR 17 Cal 251, turned on a different set of facts altogether. In that case the plaintiff obtained a decree for payment of additional rent for excess land held by the defendant. Instead of filing a suit for recovery of rent on the strength of the decree, he instituted another suit for actual possession of the new accretions to the lands and in the alternative for an assessment of rent thereon according to the terms of defendants Kabuliat; after the rent was so fixed, he instituted a suit to recover the excess rent from 1878 to 1886. It was under these circumstances that their Lordships held that the suit to recover the arrears for the years 1878 to 1883 was barred by limitation as the right to recover those arrears of rent accrued under the decree which he had obtained in 1865. There is nothing helpful to the respondent In the decision of the Privy Council in ILR 27 Mad 143 (PC) to which I have already made a reference. In that case Their Lordships clearly laid down that the claim for recovery of rent or arrears thereof under the Madras Revenue Recovery Act 18S5 becomes due only when the same !s ascertained.

10. On a careful consideration of the facts of this case and the relevant decisions, I am of the opinion that the Courts below erred in holding that the claim of the appellant in respect of the arrears prior to 21-3-1953 had become time-barred. The right to recover these arrears accrued to the plaintiff on 30-9-1953 and he filed the suit on 21-3-1956. The entire claim was therefore in time. In the result, I allow the appeal, set aside the judgment and decree passed by the Civil Judge and modify the judgment and decree passed by the trial court by substituting that the plaintiff shall be entitled to a decree to recover the entire amount claimed in the suit together with costs of this appeal and of the Courts below. The respondent to bear his own costs throughout.


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