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israrul Haq and anr. Vs. Lala Ram and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation;Tenancy
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 13 of 1957
Judge
Reported inAIR1966All249
ActsLimitation Act, 1908 - Sections 20
Appellantisrarul Haq and anr.
RespondentLala Ram and ors.
Appellant AdvocateNarendra Kumar, Adv.
Respondent AdvocateA.K. Kirty, Adv.
DispositionAppeal dismissed
Excerpt:
tenancy - limitation - section 20 of limitation act, 1908 - tenant in arrears of rent - part payment made by tenant - landlord can appropriate part payment of rent for earlier period - liability for amount of rent for remaining months will continue - held, limitation for remaining balance will not be extended. - - jagannath, air1935all53 ,and the proposition of law enunciated therein was disapproved. --the plaintiff in a case like this is, of course entitled to appropriate the payments to the earlier items in the account but not to credit them to the entire balance due up to date in the sense of saving limitation for each and every item......and future interest. 2. admittedly defendant no. 1 took the house on rent from the plaintiffs on a monthly rent of rs. 210. defendant no 1 vacated the premises on 15-5-50. he paid rs. 2,100 by two cheques to the plaintiffs on 22-5-50. the plaintiffs had instituted the suit in appeal for recovery of rent from 1-10-48 to 15 5-1950. the defendants contended inter alia that the suit was barred by limitation. the trial court decreed the suit. the lower appellate court modifying the decree of the trial court decreed the suit only for rs. 315 holding that the claim for the rest of the amount was barred by limitation. aggrieved from the aforesaid decision of the court below the plaintiffs have come in appeal to this court. 3. the only point for consideration is whether the claim with the.....
Judgment:

S.N. Katju, J.

1. This is a plaintiffs appeal which arises out of a suit for recovery of Rs. 1,995 as arrears of rent together with pen-dente lite and future interest.

2. Admittedly defendant No. 1 took the house on rent from the plaintiffs on a monthly rent of Rs. 210. Defendant No 1 vacated the premises on 15-5-50. He paid Rs. 2,100 by two cheques to the plaintiffs on 22-5-50. The plaintiffs had instituted the suit in appeal for recovery of rent from 1-10-48 to 15 5-1950. The defendants contended inter alia that the suit was barred by limitation. The trial Court decreed the suit. The lower appellate Court modifying the decree of the trial Court decreed the suit only for Rs. 315 holding that the claim for the rest of the amount was barred by limitation. Aggrieved from the aforesaid decision of the Court below the plaintiffs have come in appeal to this Court.

3. The only point for consideration is whether the claim with the exception of Rs. 315 was barred by time. Learned counsel for the appellants contended that after the termination or the tenancy on 15-5-50, the amount due tothe plaintiffs was Rs. 4,095. The afoiesaid amount was the total amount due from the first defendant to the plaintiffs. The payment of Rs. 2,100 by two cheques was payment 'on account of a debt' within the meaning of Section 20 of the Limitation Act. It gave a fresh period of limitation of the plaintiffs. The lower appellate Court took the view that the suit related 'to the amount of arrears of rent falling due every month.' It held:--

'I, therefore, hold that the payment of Rs. 2,100 by the defendant-appellant per Ex. A-2 was not a part payment towards the entire amount of rent that was due at that time but it was payment for specified period and so has 'not the effect of extending the period of limitation or of saving the plaintiff's claim for rent for the period ending 31-3-1950 from limitation'

It further held that the plaintiff's claim for rent for the period commencing from 1-4-1950 to 15-5-1950 only was within time.

4. It may be mentioned that the receipt given to the first defendant (Ex. A-2) was not signed by the plaintiffs. It, however, mentioned that the receipt was 'on account of rent from October 1948 to July 1949 at of Rs. 210 per month.' Learned counsel for the appellants referred to Kedar Nath Mitter v. Deno Bandhu Saha, AIR 1916 Gal 580. The aforesaid case was referred to in Puttulal v. Jagannath, : AIR1935All53 , and the proposition of law enunciated therein was disapproved.

Learned counsel for the respondents relied on Abdul Aziz v. Munna Lal. AIR 1921 All 325. Ft was observed:- -

'In the case of a tradesman's account the liability to pay for each item of goods delivered, either day by day or week by week, is in the case of each item the date of delivery of that particular item'.

The aforesaid principle was approved by the Division Bench in AIR 1935 AH 53 (supra) In the aforesaid case the suit was for the recovery of the amount due to the plaintiffs on account of betel supplied to the defendant firm from time to time. It was observed:--

'The plaintiff in a case like this is, of course entitled to appropriate the payments to the earlier items in the account but not to credit them to the entire balance due up to date in the sense of saving limitation for each and every item.'

In the present case the appellants contended that the payment of Rs. 2,100 was towards the amount of arrears of rent due to the plaintiffs from the defendants. If the aforesaid amount of Rs. 4,995 could be said to be a debt within the meaning of Section 20 of the Limitation Act, the payment of Rs. 2,100 by the first defendant would undoubtedly extend the period of limitation. But if the amount of Rs. 4 995 represented separate and distinct amounts of arrears of rent due for each month then in that case all that the plaintiffs could do was to appropriate the amount of Rs. 2,100 to the amount due as rent for the earlier period and the liability for the amount of rent for the remaining months for which there had been default still continued and the period of limitation had to be calculated from the date when rent fell due for each month.

Learned counsel for the appellants strenuously argued that once the tenancy had terminated, the liability of the tenant to pay for every month had come to an end and he was only liable to pay the total amount of rent which was due from him. There is no force in this contention. The termination of the tenancy could not alter the character of the liability of the tenant to pay rent. That liability was for each month when the rent fell clue and after such period a fresh period of limitation would commence. In this view of the matter It could not be said that the amount of Rs. 4,095 did not represent separate and distinct amounts of arrears of rent falling due at the expiry of each month I, therefore, agree with me decision of the Court below that the plaintiff's claim with the exception of the claim for Rs. 315 was barred by limitation.

5. The appeal fails and is dismissed, butin the circumstances of the ease the parties willbear their own costs in this Court.


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