1. The petitioner in this Civil Revision Application is the original defendant-tenant. The opponent is the original plaintiff. The plaintiff filed Regular civil suit No. 268 of 1964 for recovery of possession of the suit premises. Rs. 240/- as arrears of rent and future mesne profits etc. It was the plaintiff's case that the monthly rent was Rs. 20/- that the tenant had not paid rent for 15 months and therefore she had terminated the tenancy by giving notice dated 28th September 1964; that after the service of the notice mesne profits for a period of one month became due and payable by the tenant. Against that the tenant paid a sum of Rs. 80/- by two money orders each of Rs. 40/- and taking into account the amount received, Rs. 240/- remained due. The tenant thus being in arrears of rent for a period of more than six months, she was entitled to possession. The tenant filed a written statement and raised a number of contentions. For the purpose of this Civil Revision Application, it would be sufficient to note that it is pleaded that prior to the filing of the present suit, the landlord had filed civil suit No. 78 of 1958 against the tenant for recovery of possession, arrears etc. The said suit however was dismissed and it was held that the tenant was entitled to recover from the landlord Rs. 111/- being the amount or expenses incurred for repairs of the suit premises. The Court in the said previous suit ordered that a sum of Rs. 40/- should be deducted and that a balance of Rs. 71/- should be deducted from future rent. It was his further case that thereafter between 1958 and 1964 he had spent in all Rs. 1013.76 Ps. on account of repairs. However as he had not given notice in respect of a part of that amount, the tenant claimed that he was entitled from the landlord to a sum of Rs. 944.54P. Adding to that the amount which he was entitled under the previous suit to deduct, the total amount that he was entitled to from the landlord at the date of the suit in question was Rs. 1015.54 Ps. According to him under law he was entitled to recover from the landlord a sum equal to nine months' rent for a period subsequent to the decree passed in civil suit No. 78 of 1958. Under the circumstances he was not in arrears for a period of more than six months at the time of giving of the notice as well as at the time of filing of the suit by the landlord. Further that he has deposited the amount of balance and as such he was not in arrears at all and the landlord had no legal right to evict him. The trial Court held that except for a sum of Rs. 60/- spent by the tenant on account of repairs in the year 1964, the petitioner was not entitled to deduct any amount spent by him for repairs and even if the said amount was given credit to the tenant, he was in arrears for a period of more than six months.
2. The trial Court further held that the tenant was entitled to deduct a sum of Rs. 71/- as per the decree passed in civil suit No. 78 of 1958 and a sum of Rs. 117.75 Ps. spent by the petitioner on account of repairs in the year 1959. He further held that the tenant was not entitled to claim any amount by way of expenses for the repairs for the years 1960-61 and 1962-63 as no notice was given by the petitioner as contemplated by law. However the learned Judge took the view that in respect of the amount of Rs. 71/- and 117.75 the claim for deduction was barred by limitation and accordingly a decree in favour of the landlord was passed.
26th November, 1969.
Being aggrieved by this decision, the petitioner filed civil appeal No. 150 of 1965 in the Court of the District Judge at Surendranagar. In the said appeal the trial Court's decision was confirmed. The appellate Court held that the petitioner tenant was entitled to deduct a sum of Rs. 71/- as per the decree in the old suit No. 78 of 1958 and also a sum of Rupees 117.75 Ps. for the expenses incurred by him for the repairs in the year 1959. Thus in all a sum of Rs. 188.75 were held to be due to the tenant on account of expenses for repairs. But at the same time the learned Judge took the view that the said amount had not been deducted till the filing of the suit and as the time for deduction had expired, the tenant had no right to demand the said amount being credited and if that amount was not taken into account, the clear position was that he was in arrears of rent for a period of more than six months. Now it may be noticed that in coming to this conclusion, the appellate Court, though no appeal had been preferred by the landlord against the decree passed by the trial Court, in respect of the amount of repairs incurred in the year 1964 and the said amount having been held by the trial Court to be due to the tenant, the learned District Judge reversed that finding of the trial Court and held that the tenant was not entitled to deduct any amount on account of repairs for the year 1964. This civil Revision Application arises out of the judgment of the appellate Court confirming the trial Court's decree awarding possession to the landlord.
3. Mr. B.R. Shah, the learned Advocate for the petitioner - tenant challenged the judgment of the appellate Court on the following grounds: -
I. The finding of fact arrived at by the appellate court is that the petitioner -tenant was entitled to deduct Rs.188.75 and yet he erred in law in holding that the tenant was not entitled to deduct the said amount while considering the question as to whether he was in arrears of rent for more than six months, as the said amount was time barred.
II. The appellate Court erred in law in any event in holding that the said amount was time-barred on the basis that Article 23 of the Limitation Act (old Article 61 of the Act of 1908) applies and not Article 113 (old Article 120).
III. Assuming that the period of limitation for recovering by the tenant of the amount spent for repairs is three years, even then on the facts of the case and on proper interpretation of Section 23 of the Rent Act, the petitioner - tenant's right was not time barred.
Ground No. I.
4. This ground is based on the effect of the proviso of Section 23 of the Saurashtra Rent Control Act, 1951 (hereafter referred to as 'the Saurashtra Act') which admittedly applied to the suit premises till the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 was applied to Saurashtra on the 31st of December 1964 (as applied to Gujarat State) (hereinafter referred to as 'the Bombay Act'). Section 23 of the Saurashtra Act reads as under: -
'23. Landlord's duty to keep premises in good repair. (1) Notwithstanding anything contained in any law for the time being in force and in the absence of an agreement to the contrary by the tenant, every landlord shall be bound to keep the premises in good and tenantable repair.
(2) If the landlord neglects to make within a reasonable time, after a notice is served upon him by post or in any other manner, any repairs which he is bound to make under sub-section (1), the tenant may make the same himself and deduct the expenses of such repairs from the rent or otherwise recover them from the landlord.
Provided that the amount so deducted or recoverable in any year shall not exceed one-twelfth of the rent payable by the tenant for that year.'
Even under Section 23 of the Bombay Act (as applied to Gujarat) a similar proviso exists with this difference that in spite of permitting the tenant to deduct one month's every year, it permits three months' rent to be deducted towards the expenses made by him for repairs in one year. It was argued by Mr. Shah that it is implicit in this provision under Section 23 of the Act that the deductions will spread over a period longer than the period provided in the Limitation Act. The object of sub-section (2) is to enable the tenant to carry out tenantable repairs which the landlord has failed to carry out which he was bound to do under sub-section (1), an extraordinary remedy is provided by the Legislature to the tenant to reimburse himself by resorting to the process of Court of law. The period of limitation ordinarily applies only to the proceedings to be taken in a Court of law under the Civil Procedure Code and it will not apply to the remedy of the nature provided by S. 23 for deduction of the amount. It is further urged that Section 23 itself does not lay down any period of limitation for such deductions nor does any other provision prescribe any period of limitation for resorting to this mode of remedy. It was submitted that so far the remedy of deduction is concerned, no consideration of the period of limitation arises and so long as rent is payable, he can always resort to the remedy subject to the restriction placed by the proviso. It was further urged that his submission receives support from Section 3 of the Limitation Act (Act No. 36 of 1963).
5. It is obvious that Section 3 does not apply to a remedy of the nature of the right to deduct as it lays down that subject to the provisions contained in Sections 4 to 24 (inclusive), every suit instituted, appeal preferred and application made after the prescribed period shall be dismissed although limitation had not been set up as a defence. At first blush the other part of the arguments advanced by Mr. Shah may appear to be plausible but a careful consideration of the legal position shows that the argument cannot stand scrutiny. Sub-section (1) of Section 23 of the Act casts an obligation of the landlord to keep the rented premises in good and tenantable repairs. If he fails to do so, sub-section (2) gives the tenant the right to do so after giving the landlord reasonable notice. It further gives him the right to double remedy. He can recover the amount either by going to a court of law or he may do so by deducting the amount from the amount of rent subject of course to the limits laid down by the proviso. So the second remedy of deduction is nothing more than the second mode of recovery of the amount due for repairs. It is not possible to construe this right of recovery as something based on a higher pedestal than the right to recovery by a suit in the matter of period of limitation within which it could be recovered. If the tenant's right to recover the amount by filing a suit gets barred under the period prescribed by the Limitation Act, on a fair and reasonable construction, it must be held that his right to recover it by other mode viz., by deduction also gets barred. I do not find it necessary to discuss this matter any further on my own as the question stands concluded in my view by the Supreme Court in the decision reported in : 1SCR58 (Maganlal v. Chandrakant) and also by : (1956)58BOMLR680 (Sohrab Tavaria v. Jafferali) which is approved of by the Supreme Court. In the Supreme Court case, the question was whether rent was in arrears or whether it could be treated as paid by adjustment or deduction of the over payments. Therefore, in the case before the Supreme Court as well as before the Bombay High Court, the right of a tenant to recover the overpaid rent came in for consideration and consequently Section 20 of the Rent Act had to be construed. Section 20 gives the tenant a general right to recover the over-paid rent within six months from the date of payment. Without prejudice to any other mode of recovery it also gives him the right to deduct over payments from any rent payable by him to the landlord. The Supreme Court has observed that this deduction is one mode of recovery. If the amount is incapable of recovery because of the bar of limitation, it could not be recovered by deduction. In other words, the right of recovery by deduction is barred at the same time as right of recovery by suit. Now so far as the provisions of Section 20 are concerned, on the point with which we are concerned, they are in pari materia with the provisions of Section 23 and this decision of the Supreme Court therefore concludes the question that has arisen before me also. In : (1956)58BOMLR680 (supra) before the Bombay High Court also a similar question had arisen wherein a claim for deduction was made by the tenant under Section 8 (2) of the Bombay Rent Control Act (Bom. VII of 1944) in respect of a premium paid by the tenant to the landlord. The claim was barred by limitation but the tenant contended that the bar of limitation did not apply to the claim as it was in the nature of a claim for equitable set-off between the lessor and the lessee between whom a fiduciary relationship existed. Rejecting this contention it was held that the claim for equitable set-off was barred by limitation as there was no fiduciary relationship and no accountability between the landlord and the tenant. In the course of the judgment Gajendragadkar J., as he then was, has made certain observations which may be usefully referred to:
'In our opinion, this distinction would not be of any assistance to Mr. Desai in the matter of construing Section 8, sub-section (2). As I have already mentioned. Mr. Desai himself has conceded that the recovery of the premium by filing a suit is subject to the law of limitation, so that it really does not make a substantial difference that the period of limitation has not been prescribed by Section 8 (2) itself. It is true that Section 12 (1) itself prescribed a period of six months; but that does not mean that the period of limitation is not prescribed by Limitation Act for the recovery of premium under Section 8 (2).'
This part of the observations also answers a part of the contention raised before me by Mr. B. R. Shah. Later on the learned Judge has further observed:
'While construing Section 8 (2), it is therefore, necessary to bear in mind that the first right given to the tenant to recover the premium paid by him is governed by the period of limitation prescribed under the Limitation Act. Section 8 (2) really provides for two remedies or methods of recovery to the tenant. The first method of recovery is to institute a suit for recovering the amount in question; and the second method of recovery is to claim deduction from the rent payable by him. There can be no doubt on this point because in referring to the claim for deduction the section in terms says that the claim for deduction can be made by the tenant 'without prejudice to any other method of recovery'. In other words, the claim for deduction is obviously one method of recovery and this method has been provided without prejudice to any other method of recovery under the law.'
Then again the learned Judge has further observed:
'Now, if Section 8 (2) provides for the benefit of the tenants, two methods of recovery of premium paid by a tenant and if one of the methods is admittedly and obviously subject to the law of limitation, it would appear to be unreasonable prima facie that the other method should be entirely free from the law of limitation........IN other words, the amount which has become irrecoverable under the first right given by the section can still be indirectly recovered by the tenant by claiming deduction from the rent payable of him. In our opinion, on a fair and reasonable construction, Section 8 (2) seems to provide that both the methods of recovery are subject to the same law of limitation. The right to recover the amount and the right to claim deduction can be exercised by the tenant so long as both the rights are alive under the law of limitation. If one right is extinguished by lapse of time, the other right automatically ceases to be effective.........We are therefore disposed to hold that, on a fair and reasonable construction of Section 8 (2), it would not be possible to hold that the right to recover the amount is subject to limitation, but that a claim for deduction of the said amount from the rent payable by the tenant is not subject to any law of limitation'.
With respect, I agree with these observations and there is hardly any need for any further discussion on the point. The first submission of Mr. Shah therefore, cannot be sustained.
Ground No. 2: -
6. It was contended that if it is held that the period of limitation for recovering the amount spent by the tenant for repairs is six years and not three years as held by the appellate Court, the arrears of rent would not be for a period of six months or more and the landlord would not be entitled to recover possession on that ground. Article 23 (Article 61 of Act IX of 1908) reads as follows: -
__________________________________________________________________________________Description of suit. Period of Time from which periodlimitation. begins to run.__________________________________________________________________________________23. For money payable to the Three When the money isplaintiff for money paid for the years. paid.defendant.__________________________________________________________________________________
On behalf of the petitioner-tenant it was argued that this Article would apply only in cases where the money was payable by the defendant to the third party either under a contract or under a statutory liability and not otherwise. In the case where the tenant gets the premises repaired under the right given to him by Section 23 of the Rent Act and pays for it, he does not pay for the landlord because there is not contractual or statutory liability as between the landlord and the third person to pay the amount for the repairs to that third person. No doubt the liability of the landlord to pay to the tenant does exist and the tenant has the right to recover the amount but that is because of the statutory right given to him. All the same he cannot be said to be entitled to recover it on the ground that he had paid that amount for the landlord. On the other hand Mr. P. M. Raval for the opponent-landlord argued that there need not be any privity of contract or statutory liability of the defendant to the third person to whom money is paid by the plaintiff to attract the application of Art. 23 of the Limitation Act. The principle underlying the said provision of the Limitation Act, according to the learned Advocate, is that there should be a liability to pay to the person in carrying the cost. In the case of landlord and tenant there is a primary statutory liability on the landlord to repair and if he fails to do so and the tenant is forced to discharge that liability and in that process has to pay to the third person, the tenant must be held to have paid for the landlord. It was further urged by Mr. Raval that in any case the liability of the landlord to pay to the tenant for the repairs would be covered by Section 70 of the Contract Act and such a case would also fall within the purview of Article 23 of the Limitation Act. These are the rival contentions of the parties and for reasons that I have mentioned hereafter, I find that the better view to take is that Article 113 (Article 120 of the Act of 1908) of the Limitation Act would apply to the case and not Article 23 (Article 61 of the Act of 1908).
7. The question is what is the proper construction to be placed on the words: 'for money paid for the defendant' in Article 23. When can money be said to be paid for the defendant. In my view, implicit in these words is the requirement of the existence of some legal liability on the part of the defendant to pay to the third person. Unless the defendant was under some legal liability to pay to the third party, it cannot be said that the money was paid for the defendant. Such legal liability may be either statutory or contractual. Now in the case where the tenant pays for the repairs that he gets done, there is no contractual or statutory liability as between the landlord and the person who actually executed the repairs. The liability to pay to that third person is only of the tenant based on contract between him and the third person. The liability of the landlord to pay is only to the tenant under the statute. The third party has no right to enforce his claim for the repairs against the landlord. Unless the third party can claim the amount from the landlord, when the tenant pays the third party, it cannot be said that he paid for the landlord. He paid the third party on his own behalf. No one can question the tenant's right then to recover the said amount from the landlord under either of the two modes provided by Section 23 of the Rent Act. But the question is when would that right to recover get time barred under the provisions of the Limitation Act. The answer in my view is that it would not be barred under Article 23 as the case does not fall within its purview as pointed out here above.
8. In the view that I am taking, I am supported by decisions of various Courts and I would like to refer to a few of them. In (1960) 64 Cal WN 773 (Balai Chand Das Adhikary v. Sudharani Debi) the question arose whether Art. 120 of the Limitation Act 1908 was applicable to a suit for recovery of costs for repairs of premises or whether Article 61 applied. The Calcutta High Court agreed with the finding of the appellate Court holding that the only Article which was applicable to the case was Article 120 of the Limitation Act and not Article 182 or Article 61. It was contended before the High Court on behalf of the defendant petitioner that Article 61 was applicable and the suit having been filed after the expiry of the period of three years from the date when the money for repairs was paid, it was time barred. Rejecting the said contention the learned Judge observed that the said Article did not in terms apply to a case of that nature. The tenant had brought that suit for a certain sum which he had to pay by way of cost of repairs. Though by virtue of the order of the Rent Controller that amount was ultimately recoverable from the landlord defendant, the suit could not be said to be a suit for money payable to the plaintiff for money paid for the defendant. As between the landlord and the parties to whom the payment was made by the plaintiff for costs of repairs, there was no privity and it was only the plaintiff to whom those persons could look for payment of what was due to them for the repairs undertaken by them under her orders. On this reasoning, the judgment of the appellate Court had been confirmed. The facts of the case with which we are concerned are very similar and the reasoning of the learned Judge dealing with the case in the High Court of Calcutta clearly supports the view that I have taken.
9. In Rajeswara v. Mahalinga, AIR 1919 Mad 31 (2), the Madras High Court was concerned with the following facts: -
10. A suit was filed by the landlord to recover from the tenant the cess actually paid by him under Section 73 of the Madras Local Boards Act. Under the said section, the landlord was primarily liable to Government and the tenant was liable only to the landlord in respect of the portion of cess which the landlord had actually paid and contingently on his having made the payment. In this view of the position of law, the learned Judges held that Article 61 of the Limitation Act would not apply to such a case as it applies only to cases of money paid by the plaintiff on behalf of the defendants. In the case before them the plaintiff's case was not of that description. It was therefore, held that the only Article that would apply to the facts of that case was Article 120. The view taken in the said case clearly therefore supports the conclusion that I have taken.
11. The next case is: Seenayya v. Ramalingayya, AIR 1934 Mad 12. In the said case a partner had paid his share of the loss incurred in the partnership and he had sued his sub-partner for portion of such a loss by virtue of contract as between them. A question arose as to which Article would apply to a case of that nature, and the Court came to the conclusion that the suit was governed by Article 120 and it could not be governed either by Article 106 or Art. 61. While coming to the conclusion that Article 61 would not apply, the learned Judge observed that when the main partner pay his share of the loss, he cannot be deemed to be paying it for or on behalf of his sub-partner. He made that payment on his own behalf and the fact that he could recover a proportion of what he had paid from the sub-partner under contract between themselves was no reason for holding that he had paid the amount on the latter's behalf. The same principle which has appealed to me has been followed in this decision of the Madras High Court also.
12. The Bombay High Court in Parnamchand Chandiram v. Kashinath Deoram, AIR 1922 Bom 257 (1) were concerned with the following facts: -
13. The defendant had used the plaintiff's land without his permission for non-agricultural purposes and in consequence thereof the plaintiff had to pay a fine to the Government. Plaintiff then sued the defendant for recovery of that amount. A question arose whether Article 61 or Article 120 of the Limitation Act would apply. The High Court held that the suit did not directly come within Article 61, or any other Article and only Article that would apply would be Article 120. They further observed that the plaintiff did not pay this money for the defendant. The plaintiff was the occupant of the land and was liable to the Government for having used the land for non-agricultural purposes. The Government however was not concerned with the question whether such land was used by the occupant or by tenants or by trespassers. Under law the plaintiff had become directly liable and no question of contract arose on the pleadings as there was no contractual relationship between the plaintiff and the defendants who were using the land as their own. Manifest in these observations is the principle that under such circumstances the amount cannot be said to have been paid for the defendant.
14. Mr. Raval however urged that there are certain other decisions of the Madras High Court and also of the Bombay High Court which would support his submissions, and cited before me the following two decisions. It is therefore necessary to see whether they can help the construction canvassed for by Mr. Raval.
15. The first decision relied upon by him in Kandaswamy Pillai v. Avayambal, (1911) ILR 34 Mad 167. In the said case the plaintiff was the defendant's agent under a power of attorney. His suit was for recovery of payments made by him for the expenses on certain litigations deducted by him on behalf of the defendant. The Courts below held that the suit was barred under Article 61 of the Limitation Act. The appellant before the High Court urged that Article 116 would apply which related to a suit for compensation for breach of a contract in writing registered. However, we are not concerned with this discussion and we would turn to the part of the judgment which deals with Article 61. The observation that we find is as follows: -
'We think however that the Courts below were right in applying Article 61 to this case. That relates to a suit for money payable to the plaintiff for money paid to the defendant. It was argued that this Article was confined to cases where the defendant was under a legal liability to make a payment. We see no reason for limiting the scope of the article. Cases falling under Section 70 of the Contract Act are certainly covered by the language of this Article.'
It is clear that the learned Judges in applying Article 61 only disallowed the contention that Article 61 would apply exclusively in cases where the defendant was under a legal liability to pay to the plaintiff and that it would also apply to cases which would be covered under Section 70 of the Contract Act. I shall point out a little later that even if it is assumed that the cases falling under Section 70 of the Contract Act would be covered by Article 61 the present case does not fall within the purview of Section 70 of the Contract Act. Apart from that it is obvious that there is no discussion whatever in this case as to why the learned Judges agreed with the lower Court that the case was governed by Article 61. As a matter of fact, as we have seen in the case of the High Court of Madras to which we have referred, they have taken a contrary view. Over and above that it is also to be noticed that in the Madras case the agent had paid on behalf of the principal under the general law of agency. The agent always contracts on behalf of the principal and therefore his liability is as good as of the principal. In my view therefore this case is no authority that in a case of the nature with which we are concerned. Article 61 would apply.
16. The next decision relied upon by Mr. Raval is Ali Mahomed v. Fatima Mahomed, AIR 1919 Bom 37. In the said case the suit was by a divorced wife of a Mahomedan who had married again for the maintenance expenses of her minor daughter by the first husband. The question arose whether the maintenance was payable for the whole time covered by the decree or whether it must be limited according to the provisions of Article 61 of the Limitation Act. The learned Judges dealing with this question observed that they were of the opinion that the payments claimed by the plaintiff fell within the scope of that Article. The learned Judges have not given any reasons for supporting their opinion except that they have referred to English decisions wherein it was held in England that where a person paid the funeral expenses of his deceased daughter during her husband's absence, the husband was liable upon a count for money paid by the plaintiff for the defendant. These English decisions have not been cited before me and I find that the Bombay decision, as observed hereabove, gives no reasoning. Mr. Raval however submitted that this conclusion must have been based on the principle to be found under Section 70 of the Contract Act. Even if that be so, the decision cannot be of any help to the landlord because the present case would not fall under Section 70 of the Contract Act as discussed hereafter.
17. The last decision on which reliance was placed by Mr. Raval is: Karnavan v. Narayana, AIR 1935 Mad 594. In the said case a receiver was appointed by a court. The suit was filed by the plaintiff to recover money spent by his deceased father who was a receiver. It was held that when a Receiver or Manager was appointed by the Court, he was appointed on behalf of all persons interested in the property. Hence the expenses incurred by the receiver of an estate in instituting a suit to recover money due to the estate are incurred by him on behalf of and for the person who owns the estate and they are 'money payable to the plaintiff for money paid for the defendant' within the meaning of Article 61, Limitation Act. Therefore, a suit by the quondam receiver to recover the amount spent by him in instituting a suit on behalf of the estate is governed by Article 61, and not by Article 83 or 120. Limitation Act. The circumstance that the receiver was also benefited by the suit did not make the suit any the less a suit on behalf of the owner of the estate and take it out of the purview of Article 61. Now it is obvious that in the said case as the receiver in the eye of law represents only himself and his estate, any thing done by him and incurring expenditure in that act is in the eye of law an act of the owner himself. In my view, having regard to this special position of the receiver in law, this decision nor its reasoning on any analogy can apply to the facts of the present case.
18. These were all the decisions cited by Mr. Raval and in my view neither of them dislodge the view that I have taken. Now I would like to point out that the present case would not fall within the purview of Section 70 of the Contract Act. Section 70 appears in Chapter V of the Contract Act with the heading 'Of Certain Relations Resembling Those Created by Contract'. Section 70 reads as follows: -
'70. Where a person lawfully does anything for another person, or delivers anything to him, not intending to do so gratuitously, and such other person enjoys the benefit thereof, the latter is bound to make compensation to the former in respect of, or to restore, the thing so done or delivered.'
This provision of law has mainly two ingredients:
(i) Some person does something for another not intending to do so gratuitously; (ii) that other person enjoys the benefit thereof. The principle underlying this provision of law makes the person who enjoys the benefit thereof, liable to make compensation to the former person. The group of sections in which Section 70 appears, as the heading shows, are not concerned with contracts proper. They can have certain relationship resembling those created by contracts but as in the case of contracts the consent of the person who enjoys the benefit is presumed. One more fundamental principle which must be kept in mind in deciding whether in a given case Section 70 would apply or not, is that a person who is tried to be held responsible must have had the opportunity or option to accept or not to accept the benefit. Without going into greater details I would rest satisfied merely by referring to certain comments under Section 70 by D.F. Mulla, Indian Contract Act, English Edition. The first of it is to be found at page 424 where it is stated that a man is not to pay for that which he has not the option of refusing. Then again at page 427 the following passage is give:
'But where the plaintiff had a seven eighths share in the property and the defendant only one-sixteenth and the plaintiff had incurred expenses for repairs without consulting the defendant it was held that he was not entitled to compensation in the absence of proof that the defendant was in a position, after the execution of the repair works, to exercise the option whether or not to avail himself of the benefit.' Then at page 430 it is stated that:
'But payment made against the will of the defendant and in the course of a transaction which in one event would have turned out highly profitable to the plaintiff and extremely detrimental to the defendant could not be said to have been made for the defendant, though in the event which took place it may have proved beneficial to him.' It is further stated that:
'It is quite clear that where the object of the payment is to benefit the plaintiff himself, the payment cannot be said to have been made 'for' the defendant'. Lastly at page 431, the following passage is to be found:
'In a later Madras case it was laid down by Munro and Sankaran Nair JJ, that Section 70 does not apply when the party sought to be made liable for compensation had no option but to enjoy the benefit.' This would clearly show that in a case of the nature with which we are concerned, the landlord has no option whatever to accept the benefit. If at all it can be said that he would have benefits by the repairs carried out by the tenant, Section 70 cannot apply. Again the other ingredient of Section 70 that there must be at least consent and the intention to enjoy the benefit, cannot and does not exist because of the very nature of the transaction namely here the tenant actually carried out the repairs against the wishes of the landlord. Therefore, examining from any aspect, a case where the tenant exercises the right given under Section 23 of the Rent Act, he can never fall within the purview of Section 70 of the Contract Act.
19. Having regard to the position of law and the discussion made hereabove, I hold that any action to recover the amounts spent for repairs by the tenant would be governed by Article 113 of the Limitation Act and not by Article 61. Now it is to be noticed that Article 113 which is equivalent to the old Article 120 prescribes the period of only three years unlike the period of six years which was prescribed by Article 120. Now if Article 113 therefore is read by itself, it is not likely to help the tenant at all because the period of limitation under Article 23 equal to 61 is also three years. But there is another provision in the Limitation Act of 1963 which requires to be taken into account and that is Section 30. Section 30 provides:
'Notwithstanding anything contained in this Act,
(a) any suit for which the period of limitation is shorter than the period of limitation prescribed by the Indian Limitation Act, 1908, may be instituted within a period of five years next after the commencement of this Act or within the period prescribed for such suit by the Indian Limitation Act, 1908, whichever period expires earlier;
(b) xxx xxx xxx'
Under this provision, the period available would be the period of six years as was prescribed by Article 120 of the Limitation Act of 1908 because the period so applied will expire earlier. Having regard therefore to this provision of law, the period available for the recovery of the amount spent for repairs by a tenant would be six years from the date of the payment of him for the repairs.
20. Mr. Raval, however, urged that even if it is held that the period of limitation for recovery or deduction of the amount due for repairs is six years, even then it would not be helpful to the tenant to establish that the amount of arrears of rent due was not for a period of six months or more. This submission was based on the argument that admittedly at the date of the notice that is on the 28th of September 1964, the amount due by the tenant on account of repairs carried out by him was Rs. 280/-. Now even if it is assumed that under the proviso to Section 23 of the Rent Act, the tenant was entitled to deduct only Rs. 20 per year which was the monthly rent, starting from the year 1959 up to the date of notice he would only be entitled to deduct Rs. 120/- which would still leave a balance of Rs. 160/- as amount which would be equivalent to eight months' rent and therefore again the decree passed in favour of the landlord cannot be disturbed.
21. Now I find that there is a fallacy in this argument advanced on behalf of the landlord at least on two grounds. Firstly that the Bombay Act as applied to Gujarat was extended to the Saurashtra region on the 31st December 1963. The proviso as pointed out hereinabove to Section 23 of the extended Act enables deduction of an amount equivalent to three months' rent in every year in place of an amount equivalent to only one month's rent under the Saurashtra Rent Act. The result of this is that in the years 1963 and 1964 the tenant would be entitled to deduct not only the amount equivalent to one month's rent but amount equivalent to three months' rent. Consequently the tenant is entitled at the date of the notice on this calculation to deduct four more months' rent and on that ground he would be entitled to deduct Rs. 80/- more which would leave only a balance or Rs. 80/- as arrears of rent. This would clearly disentitle the landlord from recovering possession on the ground that the tenant was in arrears of rent for a period of six months and more.
22. The other point which also arises for consideration is that in the previous suit No. 78 of 1958 between the parties, the Court had held that the tenant was entitled to deduct Rs.71/- on account of expenses incurred for repairs. Obviously as the suit was filed in 1958, under any circumstances the expenses were incurred in the year 1957. Having regard to this fact, again the tenant would be entitled to a deduction of Rs. 20/- more for that one year 1957. To that extent again the arrears of rent would be reduced and the arrears of rent would be only for three months. In this aspect of the matter, the second submission advanced on behalf of the petitioner has to be accepted and the decree passed in favour of the landlord will have to be reversed.
23. In the light of this conclusion of mine on the second ground. I need not decide the third contention raised by Mr. Shah. But as both parties have argued at length on this point also, I deem it proper to deal with it shortly. Mr. Shah urged that assuming that the period of limitation for recovery of the amount spent by the tenant for effecting the repairs is three years, even then on the facts of the case, the tenant would be entitled to deduct an amount which would reduce the arrears of rent to less than six months. In order to support this argument, Mr. Shah pointed out that Rs. 71/- were held to have become due by the previous suit in the year 1959. Over and above that the court held that the tenant was entitled to Rs. 117.75 for repairs made by him in October 1959. The total therefore comes to Rs. 188.75. Mr. Shah then urged that the proviso to Section 23 says that the amount cannot be deducted all at once and not more than one-twelfth of the amount can be deducted every year. Therefore, only Rs. 20/- every year could be deducted by the tenant for the repairs made by him. On this basis, out of Rs. 188.75 due to him, first Rs. 20/- of the year 1959 would become time barred in the year 1962 and the amount of Rs. 20/- which were due to be deducted in 1960 would get time barred in the year 1963. Therefore, out of this total amount of Rs. 188.75 on the date of the notice Rs. 40/- would be time barred and the remaining amount of Rs. 148.75 would be within time on the date of the notice. Mr. Shah conceded that if this was the only amount due, then on the assumption, the period of limitation being three years, the amount due for arrears of rent would exceed the period of six months. But he urged that the appellate court had erred in respect of two amounts which if added to this amount of Rs. 148.75 will reduce the amount of the rent due to the arrears of rent of less than six months. The first of these two amounts. Mr. Shah pointed out, is Rs. 60/- which the trial court held the tenant was entitled to deduct for repairs in the year 1964. But the appellate court held that the trial court had committed an error in allowing this amount to the tenant. The learned Advocate submitted that the learned District Judge had erred in doing so and he put forward two grounds to support his submission; (i) factually the appellate court was wrong in holding that no notice as required by Section 23 was given by the tenant in respect of repairs; (ii) the appellate court could not have disallowed this amount as no cross- objections had been filed by the landlord against the finding of the trial court in respect of Rs. 60/-.
24. Dealing with the first ground. Mr. Shah tried to urge that the reasoning of the District Judge that no notice is proved because neither a copy of the alleged notice dated 23rd September 1964 or any acknowledgment thereof had been produced and proved, is erroneous. He pointed out that the postal acknowledgment exists on the record which is its No. 76 on the list Exhibit 10. He further pointed out that though no copy of the notice dated 23rd September 1964 exists on the record, in Exhibit 23 dated 30th October 1964 which is a reply given by the defendant to the notice of the landlord, he has specifically referred to the notice dated 23rd September 1964. Therefore, ample proof on the record is there that such a notice had been given to the landlord for making the repairs in the year 1964. This submission of Mr. Shah however cannot bear any fruit in this court. It is true that there is an acknowledgment which may reasonably be said to be in respect of a notice given on the 23rd September 1964 by the tenant but in the absence of a copy of that notice it cannot be conclusively said that in the said notice a demand for carrying out tenantable repairs was made by the tenant. But apart from that, there is one very definite hitch in his way and that is in cross-examination the defendant himself has categorically admitted that after 1961 he had not given any notice for repairs to the landlord. Therefore, in any case it becomes a pure question of appreciation of evidence and if the appellate court has relied upon this categorical admission of the defendant, it would not be open to me sitting in revision to re-appreciate the evidence on that point. It cannot therefore, be said that there was no evidence to come to that conclusion nor can it be said that the conclusion is perverse.
25. The second ground also cannot avail the tenant. The submission was that the appellate court should not have decided the point regarding this amount because here it is not merely a question of a ground held against the plaintiff by the trial court but it is a case of defendant's claim for deduction of an amount on account of repairs done by him in the year 1961. That is the claim of the defendant was in the nature of a counter claim and if a part of that claim has been allowed by the trial court, it could be challenged in the appellate court only by filing cross-objections. I do not agree with Mr. Shah. In the trial court the plaintiff had succeeded and possession was awarded to him on the ground that the tenant was in arrears of rent for a period of more than six months. The landlord with the decree in his favour could not have gone in appeal and said that though the decree is in his favour the trial court was wrong in allowing Rs. 60/- to be deducted by the tenant. When the tenant himself filed the appeal it was open to him to support the conclusion reached by the trial court by pointing out that the trial court had erred in allowing Rs. 60/- to be deducted thus reducing the amount of arrears of rent. In my view what the court is concerned with in the present case is to see the relief claimed and the nature of the suit as a whole. The suit was for possession on the ground of arrears of rent or more than six months. Therefore, if for any reason alleged by the tenant and accepted by the lower court the arrears fall short of the rent of six months, it is only an item for consideration for arriving at the amount of arrears of rent and it could not be put on a footing of a counter claim. A counter claim is almost placed on the basis of a counter suit and the defendant pays court fees. The plaintiff gets a right to file a written statement to the counter claim. Then the court decides that counter claim and either allows the counter claim or rejects the counter claim. If it is allowed by the trial court, naturally the plaintiff has then either to appeal or if the defendant goes in appeal, he can challenge that decision on the counter claim by way of cross objections. Under the circumstances, I find that the appellate court was not in error in disallowing that amount of Rs. 60/-. Therefore, the effort to add Rs. 60/- to the claim of the tenant fails.
26. The second attempt was in respect of an item of Rs. 48.59 claimed as repairs for the year 1961. The trial court had rejected this claim on the ground of want of notice and the appellate court had upheld that finding of the trial court. Mr. Shah argued that though this is a finding of fact, it is apparently erroneous. Ex. 37 is the reply dated 30th October 1961 by the plaintiff to the defendant in which she admits receipt of letter dated 16th October 1961 and the contents of this reply themselves, according to Mr. Shah, show that the defendant had given a notice to repair. Here again it is difficult to say without entering into the question of appreciation of evidence that there is an admission of a notice of any specific tenantable repairs to be done in the year 1961. It is possible to read the portion of Ex. 37 on which reliance was tried to be placed by Mr. Shah to mean landlord approaching that as the tenant had once done in the past, he was likely to again carry out unnecessary repairs in this year also and therefore he warned the tenant not to act as he did in the past. Therefore, it is not possible to say unless one enters into the appreciation of the evidence that there is any categorical or unambiguous and clear admission on the point of such a notice having been given. Under the circumstances, the tenant is not in a position to take advantage of that amount of Rs. 48, 59.
27. The result is that as the tenant gets the advantage of the longer period of six years to deduct the amount spent by him for repairs the amount due as arrears of rent is for a period less than six months. The suit must therefore fail.
28. As a last ditch attempt on the part of Mr. Raval, he made an effort to urge that the matter should be remanded on the ground that the courts below had not given any attention or consideration to the very important aspect as to whether the amount which the tenant claimed and which the courts found were due to him as amount spent by him for repairs, could in law be said to have been incurred for making tenantable repairs. According to him, unless and until the tenant establishes that fact, he would not be entitled to any amount on the score of repairs. Now I find it really very difficult to assent to this submission of Mr. Raval for various reasons. In the first place, I find that no such point has been raised in the appellate court. If such a point had been raised, we would certainly have found some discussion on the point. Then again it would not be right to say that the trial court did not give any attention to this aspect of tenantable repairs as a matter of fact while allowing or rejecting the various items claimed by the tenant on the ground of repairs having been made by him, the learned trial Judge has applied his mind and even where notice had been given, he allowed only such items as could be considered to be tenantable repairs. Therefore, even on facts, this submission cannot be accepted. The trial court having dealt with the subject, it is now not open to the landlord to urge that the matter must be sent back for a finding on this question. I have no hesitation therefore in rejecting this last submission on behalf of the landlord.
29. The result is that the Civil Revision Application succeeds. The decree passed by the Lower Courts in favour of the landlord for possession is reversed. Having regard to the special facts of this case and the technicalities on which the petitioner succeeds, I pass no order as to costs.
30. Application allowed.