H.G. Mishra, J.
1. This is a revision petition directed against order passed by the Third Civil Judge Class II, Gwalior, in Civil Suit No. 108-A/1977 dated 23-9-1977, whereby the defendant-applicant herein has been ordered to deposit rent under Section 13 (2) read with Section 13 (3) of the M. P. Accommodation Control Act, 1961 (hereinafter referred to as the 'Act').
2. The facts essential for appreciating the controversy in the revision art that the defendant-applicant was inducted as a tenant by Harishchand, father of the plaintiff-non-applicant No. 1 in the suit-premises. Harishchand died on. 29-11-72. In the lifetime of Harishchand a suit for partition (C. S. No, 6-A/1968) was instituted and the same was pending at the time of death of Harishchand in the Court of Third Additional District Judge, Gwalior. In this suit a compromise was effected between the parties on 16-7-1975, whereby, inter alia, the suit-property was allotted to the plaintiff-non-applicant No. 1, Thereafter, after giving demand-cum-quit notice, the plaintiff-non-applicant No. 1 instituted the present suit for ejectment and recovery of arrears of rent on 11-5-1977.
3. In this suit the plaintiff stated that the defendant-applicant is in arrears of rent with effect from 22-11-1972. The suit is based on various grounds including the ground under Section 12 (1) (a) of the Act.
4. After service of the writ of summons on the defendant-applicant, on 22-6-1977, the defendant put in appearance and submitted an application under Section 13 (2) and 13 (3) of the Act on 11-7-1977, and filed written statement on 24-8-1977. The defendant-applicant raised the following contentions :--
(i) That he is not liable to deposit time-barred rent under Section 13 (2) of the Act;
(ii) that the character or the amount claimed by the plaintiff prior to the date of partition, i.e., 16-7-1975, is legally that of debt and not that of arrears of rent; and
(iii) that the plaintiff is not the sole landlord, since the decree of partition in absence of registration and proper stamp Is ineffective to clothe the plaintiff with the status of sole landlord, vis-a-vis, the defendant-applicant, therefore, in absence of a direction under Section 13 (3) the provisions of Section 13 (1) of the Act remain suspended.
5. These contentions were also raised by the defendant-applicant in the application dated 11-7-1977 mentioned above. This application was opposed by the plaintiff-landlord. But by the impugned order the defendant-applicant has been ordered to deposit the entire rent with effect from 22-11-1972 (including even time-barred rent).
6. Aggrieved by this order the present revision has been filed.
7. Shri M.G. Khedkar, learned counsel appearing on behalf of the applicant has reiterated the objections condensed above in para, 4.
8. Shri V.G. Vishwaroop, appearing on behalf of the plaintiff-non-applicant No. 1 supported the impugned order and relied on Khadi Gram Udyog Trust v. Ram Chandraji Virajman Mandir (1978 1 SCC 44) : (AIR 1978 SC 287). He contended that it was obligatory on the defendant-applicant to deposit the entire rent. He further argued that the dispute whether the amount claimed prior to 16-7-1975 by the plaintiff-landlord got transformed into debt or retained the character of rent is beyond the ken of Section 13 (2) of the Act. It was also argued that the defendant-applicant has not denied that the plaintiff is the landlord. In substance, the plea is that the plaintiff is one of the landlords and because the other landlords have not joined in the suit, therefore, the entire rent is not payable to the plaintiff. Such a plea does not fall under Section 13 (3) of the Act. The further argument advanced is that in compliance of the order, the defendant-applicant has deposited the entire rent, and therefore, he should not be heard in the matter and should be deemed to have waived his right to challenge the order.
9. After having heard learned counsel of both the parties, I am of the opinion that the revision deserves to be allowed, partly.
10. Now taking up the first contention of the learned counsel for the applicant, reliance is placed on the Full Bench case of Mankunwarbai v. Sunderlal Jain (1978 Jab LJ 6) : (AIR 1978 Madh Pra 54), The contention appears to be well-founded. The plaintiff has right to demand and file suit for recovery of only those arrears of rent which are legally recoverable in view of the provisions of Section 12 (1) (a) of the Act. In Section 13 (1) of the Act, it is provided that on a suit; or proceeding being instituted by the landlord 'On any of the grounds referred to in Section 12', the tenant shall deposit; in the Court to pay to the landlord an amount calculated at the rate of rent etc. By incorporating the words 'on any of the grounds under Section 12', the restriction imposed on the plaintiff's right to file a suit for ejectment is projected into Section 13 (1), and consequently, the liability of the defendant has also to be treated as conterminous with the right of the plaintiff to demand the arrears.
11. Learned counsel for the plaintiff-non-applicant places reliance on the case of (AIR 1978 SC 287) and contends that although the remedy of the plaintiff may be barred, yet the liability of the defendant to pay the time-barred rent is not extinguished. Therefore, it was and i? obligatory on the defendant to deposit the entire amount of rent. I am afraid, the dictum of the aforesaid Supreme Court case cannot be pressed into service by the plaintiff-non-applicant in view of the fact that Khadi Gram Udyog Trust case (AIR 1978 SC 287) (supra) is based on the construction of Section 20 (2) and (4) of U. P. Buildings (Regulation of Letting, Rent and Eviction) Act, 1972. In Section 20 (2) of the said Act, the right of the landlord is not confined to claiming legally recoverable arrears of rent. Similarly, in Sub-section (4) of Section 20 thereof, the obligation cast on the tenant is not confined to legally recoverable amount only, but extends to 'deposit of entire amount of rent.' This will be clear from a reference to paras, 3 and 4 of the aforesaid judgment of the Hon'ble the Supreme Court which are reproduced hereunderi-
'3. The only contention raised in this appeal is that the appellant having complied with the requirement of S, 20 (4) of the Act and deposited the entire amount of rent due, the Court ought to have passed an order relieving the tenant against his liability for eviction on that ground. Chapter IC of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act XIII of 1972 prescribes the procedure for eviction of a tenant. While S, 20 (1) bars institution of suit for eviction of a tenant from a building notwithstanding the determination of his tenancy by efflux of time or on the expiration of a notice to quit or in any other manner. Sub-section (2) enables the landlord to file a suit on any one or more of the grounds mentioned in Sub-section (2), We are concerned with Sub-clause (a) of Sub-section (2) which provides that a suit for eviction of a tenant from a building may be instituted on the ground that the tenant is in arrears of rent for not less than four months and has failed to pay the same to the landlord within one month from the date of service upon him of a notice of demand. It is not disputed that several notices were served on the appellant and that he failed to pay the rent within one month from the date of the service of the notice of demand on him. Another opportunity for payment of rent is provided to the tenant under Section 20 (4) which provides that 'In any suit for eviction on the ground mentioned in Clause (a) of Sub-section (2), if at the first hearing of the suit the tenant unconditionally pays or tenders to the landlord or deposits in court the entire amount of rent and damages for use and occupation of the building due from him together with interest thereon at the rate of 9% per annum and the landlord's costs of the suit in respect thereof, after deducting any amount already deposited by the tenant under Sub-section (1) of Section 30, the court may, in lieu of passing a decree for eviction on that ground, pass an order relieving the tenant against his liability for eviction on the ground. Under this sub-section, therefore, though the tenant has not complied with the requirement of Sub-section (2) of Section 20, if he pays at the first hearing of the suit unconditionally tha entire amount of rent the court may pass an order relieving the tenant against his liability for eviction. In this case tha appellant deposited on Feb. 13, 1975 a sum of Rs. 5972.43 being the amount of rent and damages for the period May 1, 1973 to Feb. 28, 1975 together with interest etc. The contention of the appellant is that 'entire amount of rent due' would be the rent that is recoverable and would not include the rent, the recovery for which is barred by time. According to the appellant the payment of entire amount of rent due would not in elude the rent for the period January 1, 1960 to Dec. 31, 1970 as the claim is barred by time. The district Judge who tried the suit was of the view that tha tenant ought to have deposited the time-barred arrears of rent also in order to claim benefit under Section 20 (4). The trial Court proceeded with the trial of the suit and found that the landlord had proved that tenant was in arrears of rent for not less than four months and had failed to pay the same to the landlord within one month from the date of service upon him of a notice of demand and as such satisfied the requirement of Sub-section (2) of Section 20 and is entitled for order of eviction. In the revision the High Court affirmed the view taken by the trial Court and dismissed the appeal.
4. It will be seen that under Section 20 (2) of the Act, the landlord gets a cause of action for evicting the tenant who is in arrears of rent for not less than four months, and has failed to pay the same to the landlord within one month from the date of service upon him of a notica of demand. If the tenant pays the entire arrears of rent due at the first hearing of the suit the court may relieve the tenant against eviction even though he had not complied with Section 20 (2). The tenant can take advantage of the benefit conferred by Section 20 (4) only when he pays the entire amount of rent due as required under Section 20 (4). The question that arises for consideration in this appeal is whether the entire amount of rent due would include even rent which cannot be recovered as having been time-barred. There is ample authority for the proposition that though a debt is time-barred, it will be a debt due though not recoverable, the relief being barred by limitation. In Halsbury's Laws of England (Third Edn.) Vol. 24 at p. 205, Art, 369 it is stated 'except in the cases previously mentioned, the Limitation Act, 1939 only takes away the remedies by action or by set-off; it leaves the right otherwise untouched and if a creditor whose debt is statute-barred has any means of enforcing his claim other than by action or set-off, the Act does not prevent him from recovering by those means 'The Court of Appeal in Curwen v. Milburn, (1889-42 Ch D 424), Colon L. J, said: 'Statute-barred debts are dues, though payment of them cannot be enforced by action the same view was expressed by the Supreme Court in Bombay Dyeing and . v. The State of Bombay (AIR 1958 SC 328) where it held that the statute limitation only bars the remedy but does not extinguish the debt except in cases provided for by Section 28 of the Limitation Act, which does not apply to a debt. Under Section 25(3) of the Contract Act a barred debt is good consideration for a fresh promise to pay the amount. Sec. 60 of the Contract Act provides that when a debtor makes a payment without any direction as to how it is to be appropriated, the creditor has the right to appropriate it towards a barred debt. In a Full Bench decision of the Patna High Court Ram Nandan Sharma v. Mt. Maya Devi (AIR 1975 Pat 283) Untwalia, C. J. as he then was, has stated 'There is a catena of decisions in support of what has been said by Tek Chand, J. in First National Bank v. Sant Lal (AIR 1959 Punj 328) that the Limitation Act with regard to personal actions, bars the remedy without extinguishing the right.' The law is well settled that though the remedy is barred the debt is not extinguished. On consideration of the scheme of the Act, it is clear that the statute has conferred a benefit on the tenant to avoid a decree for eviction by complying with the requirement of Section 20 (4). If he fails to avail himself of the opportunity and has not paid the rent for not less than four months and within one month from the date of service upon him of a notice of demand the landlord under Section 20 (2) would be entitled to an order of eviction. Still the tenant 'can avail himself of the protection by complying with the requirements of Section 20 (4). As he has not deposited the entire amount due the protection is no more available. We agree with the view taken by the trial Court and the High Court of Allahabad that the words 'entire amount of rent due' would include rent which has become time-barred.'
In this view of the matter, the ratio of the Supreme Court case, relied on by the learned counsel for the plaintiff-non-applicant, is not applicable to the present case. Consequently, the trial Court had no jurisdiction to order deposit of rent which was time-barred on the date of institution of the suit.
12. The second contention of the learned counsel for the applicant is that the character of the amount payable prior to the date of the passing of the decree for partition on 16-7-1975 appears to be that of rent and got transformed into debt. Learned counsel places reliance on the First proviso to Section 109 of the Transfer of Property Act and AIR 1955 Raj 167. It is urged on the strength of these cases that the amount due prior to the passing of the partition decree did not retain character of rent, therefore, the trial Judge had no jurisdiction to order deposit thereof, under Section 13 (2) of the Act.
13. So far as 1968 Jab LJ 337 is concerned, it is a case of sale in favour of the plaintiff by former landlord and the question which fell for consideration in that case was whether arrears of rent prior to the date of sale in favour of the plaintiff got transformed into debt, or retained the character of rent. The plaintiff's claim was based on the theory of assignment of claim. It was not a case of partition, therefore, will not govern the present situation. So far as the case reported in AIR 1965 Madh Pra 1 is concerned, the ratio of the case is that partition can be treated as a transfer for purposes of Section 109 of the T. P. Act. So that the person to whom the property let out has been allotted becomes sole landlord; but it is not a case on the effect of the First Proviso to Section 109, T. P, Act. In the Rajasthan case reported in AIR 1955 Raj 167 in para, 31 thereof it has been held,
'It is true that according to Section 109, T. P, Act, the transferee is not entitled to arrears of rent due before the transfer but in the present case the arrears of rent could be due only at end of the year because the tenancy was for a fixed term of one year. The plaintiff's father Ram Narayan had given to the appellant a clear notice that the plaintiff alone was entitled to rent from the beginning of the tenancy. The appellant has not taken the plea that he had paid the rent for the said period of one month and seven days to the plaintiff's father. Under the circumstances, the plaintiff could claim rent even for that period from the defendant and the Courts below have not committed any mistake in passing the decree for the entire sum of Rs. 60/- for the first year.'
14. So far as the facts of the present case are concerned, they are different, The original landlord was even on the case set up by the defendant-applicant, Harishchand, father of the plaintiff-non-applicant No, 1, Harishchand had four sons including the plaintiff. Thus, the plaintiff was entitled to a share of the rent and after the decree for partition dated 16-7-1975. On and after 16-7-1975 by virtue of the partition decree, he became exclusively entitled to the suit-shop and became entitled to the entire rent including the rent payable to his other three brothers. As to the rent of the period prior to 16-7-1975, it is alleged that the plaintiff will be entitled to recover the same. The ratio of the Rajas-than case (AIR 1955 Raj 167) cannot be pressed into service in the present case in view of this factual position.
15. At any rate the theory of transformation of the amount due prior to 16-7-1975 cannot be available to the defendant-applicant specially in view of the fact that the present plaintiff-non-applicant was prior to the date of the decree of partition, one of the landlords and thereafter he became the sole landlord of the suit shop having been allotted to him exclusively in partition. Fractional transformation of an amount into debt, the remaining amount retaining the character of rent, is not conceivable. The case reported in AIR 1976 Madh Pra 55 is also not on the point, What it lays down is that Section 109 of the T. P. Act creates a statutory attornment substituting, but retaining the same effect of a contractual attornment. The title of an assignee is complete on execution of the deed of assignment and is not postponed till the notice of the assignment. It is not a case on the point which is in controversy in the instant. Therefore, the second contention is rejected as devoid of force. The trial Court had Jurisdiction under Section 13 (2) of the Act to order deposit of the amount payable prior to the date of passing of the decree of partition on 16-7-1975. Of course, the liability of this amount due from the defendant-applicant will not travel beyond the period of limitation.
16. The third contention of the learned counsel for the defendant-applicant is that in absence of a direction under Section 13 (3) of the Act after enquiry on the point as to persons to whom rent is payable, the impugned order could not be passed. The decree for partition is admitted to be on record of the trial Court and on the basis thereof the Court had jurisdiction to pass order under Section 13 (S) of the Act. The impugned order discloses that the trial Court, had actually passed it on the basis of the decree passed in the partition suit. No particular mode of enquiry under Section 13 (3) of the Act is prescribed. The order could be passed and had been rightly passed on the basis of the decree of partition, and it had been rightly held for purposes of Section 13 (3) of the Act that the plaintiff had become the sole landlord. Therefore the third contention is, also devoid of any force.
17. This brings me to the last contention which was raised by the learned counsel for the plaintiff-non-applicant No. 1 to the effect that having deposited rent in compliance of the impugned order, the defendant-applicant should ba deemed to have waived the right to object the legality thereof. Firstly, there can be no estoppel against a statute, Secondly, in the instant case the defendant-applicant had taken precaution to deposit the rent subject to the right to object in appeal. Though the word 'appeal' has been used in the application made for the purpose of depositing the rent, yet it cannot be said that it was a voluntary deposit and cannot be construed to be an act of disentitling the defendant from challenging the impugned order by way of revision. Thirdly, compliance of an order which is illegal and without jurisdiction is no compliance in the eye of law and the principle of waiver cannot be the basis of such an order even if acted upon.
18. In view of the aforesaid discussion, the revision is partly allowed and the impugned order is set aside only to the extent it directs deposit of time-barred rent. The remaining part of the order is upheld. In view of the facts and circumstances of the case I, make no order as to costs of this revision.