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S.K. Anand and anr. Vs. Avnash Chander and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtPunjab and Haryana High Court
Decided On
Case NumberRegular First Appeal No. 156 of 1976
Judge
Reported inAIR1985P& H231
ActsCode of Criminal Procedure (CrPC) , 1973 - Sections 145; East Punjab Urban Rent Restriction Act, 1949 - Sections 13
AppellantS.K. Anand and anr.
RespondentAvnash Chander and anr.
Excerpt:
.....a default in formally communicating the order to him. allowing a party to do so would amount to placing a premium on the lack of diligence of a party, who is remiss in seeking a remedy that was available to it. therefore, knowledge whether actual or construction of the order passed by the state or regional transport authority should result in commencement of the period of limitation. thus,. in cases where the state or regional transport authority has not communicated the order of refusal passed to the persons concerned, the period of limitation for filing an appeal would commence from the date when the parties concerned acquire knowledge of passing of the said order. - moreover, the said section clearly provides that these provisions are without prejudice to any other method of..........loss of the reputation of the hotel, due to the closure of the hotel portion and for the refund of rent recovered from them through an ejectment application for the period during which the hotel remained closed, amounting to rs. 1,00,000/-.3. in the written statement filed on behalf of the defendants, it was admitted that a report was lodged by defendant no. 1 with the police on or about 19-2-1969 on the basis of which the premises were attached, but their case was that the plaintiffs were causing damage to the building and the learned executive magistrate took action on the report of the police. according to the defendants, the arrears of rent for the said period were tendered in the ejectment application and therefore, they were legally recovered.4. on the pleadings of the parties, the.....
Judgment:

1. This is defendants' appeal against whom a decree for payment of Rs. 9,150/- has been passed by the trial Court.

2. The case of the plaintiffs, briefly stated is that the plaintiffs on 18th Dec. 1968 took on rent the premises styled as Hotel Air Lines and Restaurant, situated in Main Bazar, Pathankot on a monthly rent of Rs. 1,600/- from the defendant-appellants. The rent-note was executed on 28th Dec. 1968, but the tenancy was to start with effect from 16-1-1969. There was a lot of dispute between the parties with respect to premises in dispute. However, at one stage the premises in dispute were attached under S. 145 of the Cr.P.C. at the instance of the defendants. In execution of the attachment order of the Executive Magistrate I class, the hotel premises were sealed on 21-2-1969 and thus, the plaintiffs remained out of possession thereof. Ultimately, the possession was delivered back to the plaintiffs on 20-4-1970. Meanwhile, the defendants filed an ejectment application under S. 13 of the East Punjab Urban Rent Restriction Act, 1949 (briefly the Act) in which they recovered Rs. 25,000/- as arrears of rent, including the period from 21-2-1969 to 20-4-1970 during which the plaintiffs remained out of occupation. With these allegations, along with others, with which we are not concerned at the appellate stage, the plaintiffs claimed damages suffered by them due to the loss of sale in the restaurant, due to the loss of the reputation of the hotel, due to the closure of the hotel portion and for the refund of rent recovered from them through an ejectment application for the period during which the hotel remained closed, amounting to Rs. 1,00,000/-.

3. In the written statement filed on behalf of the defendants, it was admitted that a report was lodged by defendant No. 1 with the Police on or about 19-2-1969 on the basis of which the premises were attached, but their case was that the plaintiffs were causing damage to the building and the learned Executive Magistrate took action on the report of the Police. According to the defendants, the arrears of rent for the said period were tendered in the ejectment application and therefore, they were legally recovered.

4. On the pleadings of the parties, the trial Court framed the following issues:-

1. Whether the plaintiffs are entitled to any damages? If so, to what amount? OPP

2. Whether the suit is within time OPD

3. Relief.

5. After discussing the entire evidence, the trial Court found that the defendants illegally recovered the rent for the period from 20-2-1969 to 20-4-1970 for which period the rent was assessed at Rs. 8,400/- at the rate of Rs. 600/- per mensem for the portion attached. Along with the said amount, amount of Rs. 750/- was realised by the defendants by way of interest. Thus, plaintiffs' suit was decreed for a total sum of Rs. 9,150/-.

6. Dissatisfied with the same, the defendants filed regular first appeal in this Court.

7. The only argument raised on behalf of the appellants is that in view of the provisions of S. 8 of the Act, the plaintiffs' suit was barred by time. S. 8 of the Act reads as under:-

'8. Rent which should not have been paid may be recovered--(1) Where any sum has, whether before or after the commencement of this Act, been paid which sum is by reason of the provisions of this Act irrecoverable, such sum shall, at any time within a period of six months after the date of the payment, or in the case of a payment made before the commencement of this Act, within six months after the commencement thereof, be recoverable by the tenant by whom it was paid or his legal representative from the landlord who received the payment or his legal representative, and may without prejudice to any other method of recovery be deducted by such tenant from any rent payable within such six months by him to such landlord.

(2) In this section the expression 'legal representative' has the same meaning as in the Code of Civil Procedure, 1908 and includes also, in the case of joint family property, the joint family of which the deceased person was a member'.

A perusal of the said provisions shows that S. 8 relates to the payments which are irrecoverable under the Act. Moreover, the said section clearly provides that these provisions are without prejudice to any other method of recovery. Thus, the plaintiffs were entitled to file the instant suit for the recovery of the said amount, illegally recovered from them within the ordinary law providing a period of three years. Admittedly, the rent was paid on 19-4-1971; whereas the suit was filed on 30-3-1973. The trial Court rightly held under issue No. 2 that the suit was within time after considering the provisions of S. 8 of the Act.

8. No other point was urged, nor did nay arise. Consequently, the appeal fails and is dismissed with costs.

9. Appeal dismissed.


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