1. I find myself unable to reconcile the decision of the learned Judge with the decision in Periyanayagam Piliai v. Virappa Naikan 7 M.H.C.R. 51 and that in Easwara Doss v. Subbaraya Naicken Civil Revision Petition No. 136 of 1891 (unreported), to which Mr. Justice Muttusami Ayyar was a party. These decisions do not appear to have been brought to his notice. It is stated that plaintiff's father had tendered pattas for the fasli years for which the rent is now claimed. Having done so he was in a position, under Section 71 of the Rent Recovery Act, to sue for the rent notwithstanding that a suit to determine the terms of the tenancy was pending. The pendency of that suit did not prevent the accrual of the cause of action, though the determination of the suit for rent might have to await the decision in the suit brought to determine the terms of the patta. The period of limitation began to run on the dates on which the rent fell due and the obligation arose on the tender of the patta. The pendency of the other suit could not either postpone the obligation (the patta tendered being correct), or prevent the accrual of the cause of action. The landlord was in a position to sue, though the decision of the suit might possibly have to be postponed. I would set aside the order of the learned Judge and dismiss Civil Revision Petition No. 51 of 1892 with all costs in this Court,
2. Letters Patent Appeals Nos. 11 to 14 follow.
3. The question for decision in all these appeals is the same, namely, whether the suits are barred under Article 110 of schedule II of the Limitation Act? The rent sued for in each case is due for faslis which admittedly ended more than three years prior to the institution of these suits and the Court of First Instance held in each case that the suit was time-barred. But the learned Judge of this Court, before whom the cases came for revision under Section 25 of Act IX of 1887, has held that the period of limitation must be calculated from the date on which were finally decided the suits brought by the landlord under Section 92 of Act VIII of 1865 (Madras) for enforcement of acceptance by the tenants of pattas tendered, which they had refused to accept.
4. No doubt Section 7 of the Act makes the tender of a patta such as the tenant was bound to accept, a condition precedent to a suit for recovery of the rent except in cases in which there has been mutual exchange of patta and muchalka, or an agreement to dispense with such.
5. But this condition does not appear to me to warrant the holding that when a suit is brought to enforce acceptance of such patta, institution of a suit for the rent to which it relates must or can be deferred till disposal of that suit. It seems to me that the landlord is in a position to sue for the rent as soon as he has tendered a proper patta, and it is clear from Section 143 of the Act that rent becomes an arrear and due 'at the time when according to any written agreement or the custom of the country it ought to have been paid' and that is not later than the end of the fasli for which it is due.
6. I agree, therefore, in setting aside the learned Judge's order and restoring the decrees of the Court of First Instance in each of these cases.
7. Each of these appellants is entitled to his costs in this Court both of the present appeals and of the revision petitions.
Section 7: No suit brought, and no legal proceedings taken to enforce the terms of a
tenancy, shall bo sustainable unless puttahs and muchalkas
No suit to be brought un- have been exchanged as aforesaid, or unless it be proved that
less puttahs and much- the party attempting to enforce the contract had tendered such
alkas have been exchanged, a puttah or muchalka as the other party was bound to accept,
or tendered, or dispensed or unless both parties shall have agreed to dispense with
with. puttahs and muchalkas. Such tender shall be sufficiently
evidenced by such proof of service as is provided for by
Section 39 in the case of notices. But it shall not be necessary to send duplicates of such
documents to the Collector.
Sectuin. 9: When a tenant shall, for one month after demand, have refused to accept
such a puttah as the landholders specified in Section 3 are
Refusal to receive put- entitled to impose, and to grant his muchalka in exchange, it
tahs. shall be lawful for such landholders to proeeed by a summary
suit before the Collector to enforce acceptance of the puttah.
Section 14: When rent shall remain unpaid at the time
Arrear of rent. when, according to any written agreement or the custom of
the country, it ought to have been paid, the amount remaining
May be recovered by unpaid shall be deemed an arrear of rent. It shall be lawful for
distress. landholders to distrain, upon their own responsibility, the crops
and moveable property of their tenants for the recovery of arrears
of rent due by them.