1. This revision arises out of a suit filed by the tenant to recover the excess amount paid by him. The petitioner in this case is the landlord. The respondent was the tenant. The tenancy commenced on 15-5-1947 with the payment of Rs. 60 as advance rent and the monthly rent was agreed at Rs. 30. Subsequently the tenant filed a petition before the Rent Controller for the fixation of fair rent. On 7-6-1948 by an order of the Rent Controller, the rent was fixed at Rs. 6-4-0. It was taken up in appeal by the landlord and by an order dated 17-11-1948 the rent was fixed at Rs. 8-15-0.
The suit is now filed on 13-11-1951 for recovering the excess amount that he paid. In the lower Court it was agreed that the period for which the excess amount was to be recovered was from 15-5-1947 to 27-5-1948. Among the several pleas that were taken by the landlord one was the plea of limitation. It was contended before thp lower Court that Article 62, Limitation Act, applied to the case under which the limitation is three years from the date the money is received. The lower Court has held that it was not Article 62 but Article 120 that applied to the case.
2. Mr. Srinivasa Ayyar appearing for the petitioner, that is, the landlord contends that the proper Article that is applicable is Art, 62 and not Article 120, Limitation Act. In support of his contention he relied on a Bench decision of this Court reported in -- 'India Sugars and Refineries Ltd. v. Municipal Council, Hospet AIR 1943 Mad 191 (A), which has been followed and approved, in --Amritsar Municipality v. Amar Dass', (R).
3. In the Madras case the facts were that a company was started to build a sugar factory in October 1933 and profession tax was levied on the company from the half year ending 31st March 1934 onwards and the plaintiff company did not start the manufacture of sugar till the beginning of 1935. Profession tax was levied by the Municipal Council from October 1933 to September 1937. It was held that so far as the tax levied for the first half year ending 31st March 1934, it was barred by limitation applying Article 62, Limitation Act. Wadsworth and Patanjali Sastri JJ. observed:
'Article 62 is intended to apply to all actions for money had and received to the use of the plaintiff whether they be actions which may be deemed strictly to be based on implied contracts or whether they be merely to enforce an equitable claim to the return of the money had and received. We therefore agree with the learned District Judge that the claim, in so far as it relates to the first year's profession tax is barred by limitation. We may add that a similar view has been taken in -- 'Taluk Board of Devakottah v. Chockalingam Chettiar', 1932 MWN 1089 (C), following the reasoning in -- 'Municipal Council, Dindigul v. Bombay Co., Ltd.', AIR 1929 Mad 409 (D).'
This decision has been followed in the Punjab High Court reported in -- (B), Kapur J, after referring to -- 'Mahomad Wahib v. Mohamed Ameer', 32 Cal 527 (E), has quoted the observations of Mookerjee J. viz,
'It seems to me to be clear as pointed out by Markby J. in -- 'Raghumoni Audhikari v. Nilmoni Singh Deo', 2 Cal 393 (F), that the Article when it sepaks or a suit for money received by the defendant for the plaintiff's use, points to the well known English action in that form; consequently, the Article ought to apply wherever the defendant has received money which in justice and equity belongs to the plaintiff under circumstances which in law render the receipt of it, a receipt by the defendant to the use of the plaintiff.
As pointed out by Lord Mansfield C. J. in --'Moses v. Macferlan', (1760) 2 Burr 1005 (G), this form of action lies for money paid by mistake or upon a consideration which happens to fail, or for money got through imposition (express or implied) or extortion or oppression or an undue advantage taken of the plaintiff's situation contrary to laws made for the protection of persons under those circumstances (underlining is mine (here in ' ')) in other words, this form of action would be maintainable in cases in which the defendant at the time of receipt, in fact or by presumption or by fiction of law receives the money to the use of the plaintiffs.'
4. In this case it is clear that the landlord has undoubtedly taken an undue advantage of the plaintiff's situation contrary to the laws contained in the House Building (Lease and Rent Control) Act which was meant for the protection of the tenants. It will therefore fall within the scope of the observations cited above and the defendant must be held to have received the money for the plaintiff's use. The Article that would be applicable is, therefore, Article 62, Limitation Act, and not Article 120. The suit is barred by limitation and is therefore dismissed.
5. The civil revision petition is allowed with costs here and in the lower Court.