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Damodar Hegadai Vs. Vittappan - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtKerala High Court
Decided On
Case NumberC.R.P. No. 348 of 1959
Judge
Reported inAIR1961Ker54
ActsLimitation Act, 1908 - Schedule - Articles 62 and 120
AppellantDamodar Hegadai
RespondentVittappan
Appellant Advocate J. Ranganatha Kamath and; R. Raya Prabbu, Advs.
Respondent Advocate V. Parameswara Menon and; P.A. Mathew, Advs.
Cases ReferredM.R. Salunke v. Rambharosesingh Zalim Singh
Excerpt:
- - therefore the decision of the madras high court in air 1956 mad 254 as well as the decision of the andhra pradesh high court reported in 1956 andh wr 928 are to the effect that in such circumstances the tenant will be entitled to get a refund of the excess amounts paid by him only within a period of six years prior to the suit only. 6. in the circumstances, in modification of the decree passed by the learned munsiff, the plaintiff will have a decree for excess amounts paid by him on and after 16-12-1951. the claim for the period anterior to 16-12-1951 is clearly barred, in view of the decisions quoted above, which i respectfully follow......for the premises on 11-9-1957. in consequence of this fixation of fair rent, the plaintiff in this suit claimed recovery of the amounts paid by him in excess of the fair rent fixed during the period mentioned above. the suit itself was filed on 16-12-1957. the trial court was of the view that article 62 of the limitation act applies and as such held that the plaintiff will be entitled to the excess amounts paid for 3 years (viz.) from 16-12-1954 to 20-12-1955 and he accordingly decreed the claim only for this amount.2. in this c. r. p., mr. ranganatha kamath, the learned counsel for the petitioner, challenges the view of the learned munsiff that article 62 of the limitation act applies. in fact, according to mr. ranganatha kamath clause (c) of section 6 of the travancore-cochin buildings.....
Judgment:
ORDER

C.A. Vaidialingam, J.

1. The plaintiff is the petitioner in this Civil Revision Petition. The suit was for recovery of excess rent stated to have been paid by him to the landlord during the period from 29-5-1950 to 20-10-1955. According to the plaintiff, he had filed an application for fixation of the fair rent in 1954 and actually fair-rent was fixed for the premises on 11-9-1957. In consequence of this fixation of fair rent, the plaintiff in this suit claimed recovery of the amounts paid by him in excess of the fair rent fixed during the period mentioned above. The suit itself was filed on 16-12-1957. The trial Court was of the view that Article 62 of the Limitation Act applies and as such held that the plaintiff will be entitled to the excess amounts paid for 3 years (viz.) from 16-12-1954 to 20-12-1955 and he accordingly decreed the claim only for this amount.

2. In this C. R. P., Mr. Ranganatha Kamath, the learned counsel for the petitioner, challenges the view of the learned Munsiff that Article 62 of the Limitation Act applies. In fact, according to Mr. Ranganatha Kamath Clause (c) of Section 6 of the Travancore-Cochin Buildings (Lease and Rent Control) Order, 1950 provides for the amounts to be refunded in such circumstances and therefore he is entitled to claim the entire amount claimed in the suit.

3. The view of the learned Munsiff, based upon the decision of the Madras High Court of Mr. Somasundaram, J., reported in 1955-1 Mad LJ 345; ((S) AIR 1955 Mad 643), Venkatarama Ayyar v. Kuppuswamy Ayyar and holding that the plaintiff is entitled to claim only excess amount for three years prior to suit cannot be accepted in view of the later Division Bench ruling of the Madras High Court reported in AIR 1956 Mad 254, Mohamed Abdulla Sons v. Dorai Avasu (Govinda Menon and Ramaswamy Goundar, JJ). Mr. Somasundaran, J. has held that in such cases it is Article 62 of the Limitation Act that applies, whereas in the Division Bench ruling referred to above, the learned Judges have differed from the view expressed by Somasundaram, J. and have come to the conclusion that Article 62 has no application and it is Article 120 that applies, i. e., the plaintiff will in such circumstances, be entitled to claim a refund of the amount paid by him within six years of suit.

The view that Article 120 applies in such circumstances has also been laid down in the decision of the Andhra Pradesh High Court (by Vishwanatha Sastry, J.) reported in 1950 Andh WR 928, Rama Rao v. Venkata Rajeswarasastry. To a similar effect is the view of the Madhya Pradesh High Court also reported in AIR 1960 Madh Pra 30, M.R. Salunke v. Rambharosesingh Zalim Singh -- (Shiv Dayal Srivastava, J).

4. In view of these later decisions referred to above, it follows that the judgment of the lower court, based upon the decision of Somasundaram J., which has been dissented from even in the Madras High Court, is erroneous. In this view the plaintiff will be entitled to claim the excess amount paid by him from 16-12-1951, because the suit has been filed on 16-12-1957. Rut the suit itself is for recovery of excess amounts stated to have been paid between 29-5-1950 and 20-10-1955. The fixation of fair rent in this case is on 11-9-1957. The parties in this matter are governed by the provisions of the Travancore-Cochin Buildings (Lease and Rent Control) Order, 1950.

5. Mr. Ranganatha Kamath the learned counsel for the petitioner, however, contended that Clause (c) of Section 6 of the said Order, provides that any sum paid in excess of the fair rent, whether before or after the commencement of the Travancore Building Rent Control Order, 1122, or the Cochin Buildings (Lease and Rent Control) Act XXIV of 1124, in respect of the use of the building after the commencement of the aforesaid Act or Order as the case may he, shall be refunded to the person by whom it was paid or at the option of such person, otherwise adjusted.

In this case there was no occasion for any adjustment, because the tenant surrendered possession of the property on 20-10-1955. The contention that is raised is that as the sub-clause referred to above gives a statutory right to the tenant in the position of the plaintiff in this action to get a refund of the excess rent paid Notwithstanding the fact that Article 120 may apply nevertheless, in a suit filed within the period mentioned covered by Article 120, the tenant is entitled to claim not only the amounts paid by him in excess within the six years prior to the suit but also even beyond that period.

I am not able to accept this contention of the learned counsel. As pointed out by Mr. Viswanatha Sastry, J., in the decision of the Andhra Pradesh High Court referred to earlier, there may be a statutory right given to a tenant to claim an adjustment or a refund, but if the relief for that refund is sought for through the medium of a court, the provisions of the Limitation Act will apply. Therefore the decision of the Madras High Court in AIR 1956 Mad 254 as well as the decision of the Andhra Pradesh High Court reported in 1956 Andh WR 928 are to the effect that in such circumstances the tenant will be entitled to get a refund of the excess amounts paid by him only within a period of six years prior to the suit only.

6. In the circumstances, in modification of the decree passed by the learned Munsiff, the plaintiff will have a decree for excess amounts paid by him on and after 16-12-1951. The claim for the period anterior to 16-12-1951 is clearly barred, in view of the decisions quoted above, which I respectfully follow. To this extent the plaintiff will have an additional relief in this court.

7. In all other respects the plaintiff's suit willstand dismissed. The parties will bear their costsin the Civil Revision Petition in this court.


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