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Sunil Kumar Basu Vs. Smt. Nagendra Bala Devi Choudhurani and anr. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtKolkata High Court
Decided On
Case NumberA.F.O.D. No. 222 of 1955
Judge
Reported inAIR1962Cal238
ActsLimitation Act, 1908 - Section 14 - Schedule - Article 110; ;Calcutta Thika Tenancy Act, 1949
AppellantSunil Kumar Basu
RespondentSmt. Nagendra Bala Devi Choudhurani and anr.
Appellant AdvocateP.N. Mitra and ;Abinash Chandra Bose, Advs.
Respondent AdvocateJ.K. Sen Gupta, ;Sudhansu Kumar Sen and ;Sovendra Madhab Basu, Advs.
DispositionAppeal dismissed
Cases ReferredAjit Kumar Paul v. Sadhan Chandra Paul
Excerpt:
- .....restoration of the suit to the file. ultimately, on 19-5-53, after the enactment of the calcutta thika tenancy (amendment) act, 1953, the plaint was returned by the subordinate judge, as that act made it clear that of defendant is a thika tenant and that the provisions of the thika tenancy act, 1949 as amended, would govern the proceedings and, therefore, the proceeding for ejectment was not maintainable in the ordinary civil court, but had to be filed before the controller appointed under the thika tenancy act the plaintiff did not, however file the plaint as an application for ejectment under section 5 of the thika tenancy act, before the controller, but instead, treated the tenancy as subsisting and instituted the present suit on 19th june, 1953, claiming arrears of rent for 5 years.....
Judgment:

Sen, J.

1. This is an appeal by the defendant against a decree passed by the Subordinate Judge, 3rd Court. Alipore for Rs. 8000/- on account of arrears of rent for a plot of land. The defendant Sunil Kumar Basu is a tenant under the plaintiff-respondent Sm. Nagendra Bala Devi Choudhurani in respect of 6 Kathas of land, at 1776. Lansdowne Road at a monthly rent of Rs. 150/-. Treating, him as a tenant under the Transfer of Property Act, the plaintiff served a notice of ejectment on the appellant on 14-248, requiring him to quit the land on the expiry of the last day of March 1948. The appellant not having quitted the land, an ejectment suit was instituted, namely, T. S. 45 of 1949, in which the plaintiff prayed for ejectment and arrears of rent for 2 months, namely, February and March. 1953 and mesne profits for use and occupation of the land beginning from April, 1948, till the date of delivery of possession. The suit was contested by the defendant. It was decreed ex parte on two occasions, but on both the occasions by filing applications the defendant managed to obtain restoration of the suit to the file. Ultimately, on 19-5-53, after the enactment of the Calcutta Thika Tenancy (Amendment) Act, 1953, the plaint was returned by the Subordinate Judge, as that Act made it clear that of defendant is a Thika tenant and that the provisions of the Thika Tenancy Act, 1949 as amended, would govern the proceedings and, therefore, the proceeding for ejectment was not maintainable in the ordinary Civil Court, but had to be filed before the Controller appointed under the Thika Tenancy Act The plaintiff did not, however file the plaint as an application for ejectment under Section 5 of the Thika Tenancy Act, before the Controller, but instead, treated the tenancy as subsisting and instituted the present suit on 19th June, 1953, claiming arrears of rent for 5 years 4 months from February, 1948, to May, 1953. Rent for 5 years 4 months at Rs. 150/- per month comes to Rs. 9600/-. Out of this, the plaintiff allowed a deduction of Rs. 2000/- stating that in the cause of an execution proceeding of the ex parte decree which she had obtained at one stage in T. S. 45/1949 the defendant had deposited Rs. 2000/-to save delivery of possession in execution, and this amount had been permitted to be withdrawn by the plaintiff and the plaintiff appropriated it towards arrears of rent. The balance is Rs. 7600/-; but the plaintiff claimed Rs. 400/- on account of damages. So the total claim in the suit was laid at Rs. 8000/-.

2. The defendant contested the suit, contending that part of the claim was barred by limitation and that the suit could be decreed only for rent for 3 years before the suit. The defendant further claimed that he was entitled to an adjustment in respect of Rs. 2051-11-6 as cost of asbestos sheets and fitting which he had supplied to the plaintiff in 1946 and a cost if labour which he had also supplied to the plaintiff to put up the asbestos sheds for her at her premises at 168 Lands-downe Road. A further defence was taken, that damages could not be claimed in respect of a thika tenancy.

3. The learned Subordinate Judge held that the claim for arrears of rent for the 2 years and 4 months which had accrued more than 3 years before the institution of the present suit, was saved under Section 14 of the Limitation Act, because between 24-2-49 and 19-5-53 the plaintiff was diligently prosecuting another proceeding in ejectment as well as for recovery of arrears of rent and mesne profits for the use and occupation of the land. The learned Subordinate Judge disallowed the defendant's claim for adjustment on account of the price of asbestos sheets, cement and labour supplied by the defendant He also held that damages could be allowed. Accordingly the suit was decreed in full.

4. Mr. P.N. Mitra, appearing for the appellant, has urged the three points over again. The most important point is whether in view of the fact that the claim includes rent which is prima facie barred by limitation in terms of Article 110 of the Limitation Act, the entire claim can be decreed. Mr. Mitra has urged that Section 14 of the Limitation Act on which the learned Subordinate Judge relied, has no application, as the cause of action is different. Section 14 (1) provides that in computing the period of limitation prescribed for any suit, the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in the Court of first instance or in the Court of appeal, against the defendant, shall be excluded where the proceeding is founded upon the same cause of action and is prosecuted in good faith in a Court which from defect of jurisdiction and other cause of like nature is unable to entertain it. The main cause of action in the previous suit was the determination of the tenancy by service of a notice and the failure of the defendant to quit in terms of the notice on the determination of the tenancy. The cause of action of the present suit is the failure of the defendant to pay rent which has accrued in respect of the land which is admittedly held in tenancy by the defendant under the plaintiff. The cause of action, therefore, must be deemed to be different, even though in the previous suit arrears of rent for February and March, 1948 and mesne profits for the use and occupation of the land from April, 1948 until delivery of possession, were claimed. The cause of action can be deemed to be identical only in respect of the claim for rent for February and March, 1948, but not in respect of the claim for rent for the subsequent months beginning from April, 1948. Accordingly, we must agree that so far as the rent for 2 years and 2 months from April, 1948, is concerned, the defence of limitation cannot be saved by resorting to section 14 of the Limitation Act and it is necessary to consider whether limitation is saved by other principles of law. Mr. J. K. Sen Gupta, appearing for the respondent, has referred us to the Special Bench decision, Midnapore Zemindary Co. v. State of West Bengal : AIR1961Cal353 (SB). In that case one of the questions referred to the Special Bench was whether apart from the statute, there may be suspension of limitation or extension of the prescribed period of limitation. The Special Bench unanimously gave the following reply to the question;-

'Yes. Subject to the clarification that cases of satisfaction or cancellation of the cause of action may in appropriate instances be dealt with as cases of new or fresh causes of action falling under the particular Articles of the Indian Limitation Act, rendering unnecessary application of the theory of suspension of limitation.'

Mr. Mitra has referred to a decision of the Judicial Committee, Hurro Pershad Roy Chowdhury v. Gopal Chunder Duti; 9 Ind App 82 (PC). In that case it was held by the Judicial Committee that the limitation prescribed by the Bengal Tenancy Act is not prevented from running in favour of the tenant during the period that a suit in ejectment is pending against him. In that case the defendant held certain tenure called 'Chukdari' tenure within the plaintiff's Zamindary. The plaintiff at one stage sued the defendant for ejectment and was met by the defence that he was holding on the strength of the Chukdari tenures and the ejectment suit was, therefore, dismissed. Subsequently, the plaintiff instated suits for rent of the Chukdari tenures. It was held that only rents not barred by limitation under the provisions of the Bengal Tenancy Act could be claimed and that limitation would not be saved from running on account of the pendency of the previous ejectment suit against the defendant This decision of the Judicial Committee is one of the decisions which was considered by the Special Bench which decided the case cited above, namely, : AIR1961Cal353 (SB). The Special Bench relief on the distinction which was drawn by the Judicial Committee in Hurro Pershad Roy Choudhury's case, 9 Ind App 82 (PC), between the reasons for decision in that case and the reasons for decision in an earlier case Ranee Surnomoyee v. Shooshee Mokhee Burmania, 12 MOO Ind App 244 (PC). In Ranee Surmoyee's case, 12 MOO Ind App 244 (PC), the Zemindar brought a Putni Taluk to sale, and the purchaser was put in possession of the Putni Taluk, and out of the purchase-money arrears of rent were satisfied. Subsequently the sale was set aside, and the Zemindar had to refund the purchase-money, and the Putnidar also obtained mesne profits for the time during which he had been ousted. In the circumstances the Judicial Committee observed that the Putnidar having recovered possession together with mesne profits, it was equitable that he should pay the amount of rent which was in arrears; but that amount of rent did not accrue until the sale of the Putni had been set aside and therefore, until that time the statute could not run. Hurro Per-shad Roy Chaudhury's case, 9 Ind App 82 (PC) was distinguished because it was observed that if the plaintiff in that case had made a proper enquiry, he might have ascertained whether the Chukdari tenures existed, but he chose to ignore them and sued the defendants improperly for khas possession. It was held that in the meantime, as the Chukdari tenures were in existence, it was open to the Zemindar to institute suits for rent and therefore, it could not be said that only on the dismissal of the suit for recovery of khas possession, the rent became due and time began to run.

5. Mr. Mitra has urged that the present case is analogous to Hurro Pershad Roy Choudhury's case, 9 Ind App 82 (PC) and that it should be held that the running of time was not suspended during the period that the ejectment suit was being prosecuted by the plaintiff. But the distinction between the two suits, as pointed out by the Judicial Committee itself, and as further elucidated by the Special Bench in : AIR1961Cal353 (SB), is that when it is open to the plaintiff to institute a suit for rent in spite of the pendency of the previous suit, operation of the law of limitation would not be suspended; but if during the pendency of the ejectment suit the plaintiff could not legally bring a suit for rent, then operation of the law of limitation will remain suspended until the ejectment suit has been finally disposed of. It is further clear that where the plaintiff under some erroneous idea or illegally chooses to bring a suit for ejectment or for obtaining khas possession and thereafter refrains from filing any suit for rent, he cannot claim suspension of the running of time against him; but it is found that the plaintiff was acting legally and in good faith and during the pendency of the ejectment suit he could not bring a suit for rent, then he can claim suspension of running of time against him. In this case, as has already been observed, the plaintiff instituted an ejectment suit namely, T. S. 45/1949 in the 2nd Court of the Subordinate Judge at Alipore on 24-2-49 and at that time the Thika Tenancy Act, 1949 had not yet come into force that Act came into force 4 days later, namely, on 28th February, 1949. It is true that the Calcutta Thika Tenancy Ordinance, 1948 which had come into force on the 28th October, 1948, was then in force, but it did not contain any provision as to the filing of a proceeding in ejectment, The only essential provision of the Ordinance was that

'Notwithstanding anything contained in any other law, no decree or order for ejectment of a Thika Tenant shall be executed during the continuance of the operation of the Ordinance.'

When the Thika Tenancy Act, 1949 came into force on the 28th of February, 1949, it no doubt prescribed in Sec. 5 that application for ejectment of a Thika tenant could only be made before a Controller appointed under the Thika Tenancy Act, and Section 29 of the Act as it was originally enacted also provided that the Thika Tenancy Act, 1949 would apply to all pending suits, with the saving that the provisions contained in Section 4 as to notice, would not apply, and a notice determining the tenancy under Section 106 of the Transfer of Property Act would be sufficient. At that stage, however, the definition of a Thika tenant was somewhat defective, and it could be claimed by many landlords that no system of Thika Tenancy having been established, the defendant was not a thika tenant. Presumably, in the present case also, the same plea was taken by the plaintiff, and that is why the suit was decreed ex parte on two occasions, although on each occasion it was ultimately restored to the file. It was only when the Thika Tenancy (Amendment) Act of 1953 came into force, that the definition of Thika tenant' was amended so as to include all cases like the present one within the scope of the Thika Tenancy Act. Under the amended definition of Thika tenant' it could no longer be doubted that the defendant was a thika tenant. Further, the amending Act of 1953 omitted Section 29 from the original Act, so that the provision contained in the original Act that the provisions as to notice, as contained in Section 4 of the Act, would not apply to pending suits, was no longer operative, with the result that even pending suits had to satisfy the conditions of a notice laid down in Section 4 of the Act, as was indeed, decided by a Bench of this Court in Ajit Kumar Paul v. Sadhan Chandra Paul, : AIR1956Cal654 . In the present case, the plaintiff, when the plaint was returned to her, did not re-file it as an application for ejectment under Section 5 of the Thika Tenancy Act, because she found that she could not obtain a decree for ejectment in view of the terms in Sections 3 and 4 which she had to satisfy. Therefore, she chose to treat the tenancy as continuing and, as she stated in her deposition, on account of the change of law, she had to drop the ejectment suit and filed the present suit for arrears of rent for the whole period for which it was due. So long as the ejectment suit was pending, after the notice which had determined the tenancy, the plaintiff naturally could not claim arrears of rent. It is only under the terms of the amending Act of 1953 which had come into force on 14-3-53, that the plaintiff found that she could no longer get any relief in the ejectment suit which she had filed and she, therefore, chose not to try her luck before the Controller under the Thika Tenancy Act. In the circumstances, it can rightly be held in the present case that the plaintiffs right to claim rent arose on 19-5-53 when the plaint was returned to her and her cause of action for the ejectment suit became cancelled or it arose at the earliest on the 14th of March, 1953 when the Thika Tenancy (Amendment) Act, 1953 came into force. Even from 14-3-53, the claim for the entire period in the suit would be within limitation.

6. Mr. Mitra, appearing for the appellant, has sought to distinguish the present case from the case which was decided by a Bench of this Court in : AIR1956Cal654 by pointing out that in that case only 15 days' notice had been given, whereas in the present case more than a month's notice had been given ; for the notice was served on 14th February 1948 and the defendant was asked to quit on the expiry of the last day of March 1948 (vide the recital in paragraph 4 of the written statement which has not been contradicted by the plaintiff in her deposition). Mr. Mitra has urged that the notice would be sufficient in tour of the six circumstances mentioned in Section 3 as the circumstances in which the landlord may obtain ejectment and that, therefore, there was no reason for the plaintiff to omit to 6Ie the plaint which had been returned to her, before the Controller under the Thika Tenancy Act, for obtaining ejectment and that being so, the plaintiff cannot urge that from the date of return of the plaint or from the date of coming into force of the amending Act of 1953 her cause of action in the ejectment suit stood cancelled and she has a fresh starting point for limitation in respect of the arrears of rent Now, it is true that n the present case, more than a month's notice was given, as opposed to only about 15 days' notice in the case of Ajit Kumar Paul, : AIR1956Cal654 but then in order to obtain an ejectment decree, the plaintiff must satisfy one of the six conditions laid down in Section 3 of the Thika Tenancy Act. It does not appear from the evidence on record that the case would satisfy any of the six conditions. Clause (i) of Section 3 enables ejectment in a case where the tenant has failed to pay an arrear of rent. Such arrear of rent must necessarily have been due before the notice to quit was served. But the notice to quit was served on 14th February 1948, and in the subsequent suit filed on 24-2-49 arrears of rent were claimed for February and March 1948, showing that there was no arrear of rent at the time when the notice to quit was served. Clause (i), therefore, would not apply. As regards Clause (ii), there is no allegation that the defendant had used the land in a manner which rendered it unfit for the purpose of the tenancy. He took lease of the open land in order to starting of workshop for his asbestos sheets, cement and steel business and he is still carrying on that business there. Clause (iii) has no application, because there is no question for enhancement of rent under Section 25 of the Act. Clause (iv), namely, that the landlord requires the land for his own occupation or for the purpose of building does not also apply, because the plaintiff her got two other premises, namely, 18, Ashutosh. Mukherjee Road were she lives and 168 Lands-downe Road where huts were put up in 1946, and she could hardly maintain that she requires the land at 176 Landsdowne Road for her own occupation or for the purpose of building in any case, the could not avail of Clause (iv), as it requires three months' notice. Clause (v) also does not apply as the defendant has been using the land for the purpose for which it was let out. Clause (vi) also does not apply as there is no registered lease. In the circumstances it is clear that the plaintiff was right in thinking that she could get no relief once the Thika Tenancy Act, as amended, was held to be applicable. In the circumstances, in view of the law, as affirmed by the Special Bench in 64 Cal WN 1081 : (AIR 1961 Cal 244) (SB), it must be field that the plaintiff is, entitled to suspension of the running of the limitation against her, her cause of action in the ejectment suit being cancelled by this change of law; it can be held that rents became due only when the plaint in the ejectment suit was finally returned to the plaintiff and the plaintiff found that she could not continue the suit. Therefore, the claim for the entire period is within limitation.

7. Next there is a point that the defendant is entitled to an adjustment in respect of a sum of Rs. 2051-11-6 which is the total of three bills submitted by him to the plaintiff after he had supplied asbestos sheets and labour for putting up asbestos sheds at her premises at 168 Landsdowne Road. The three bills were proved in the case and Mr. Mitra has drawn our attention to some of the correspondence which passed between the parties, particularly, Ext. 1/k dated 25-2-48 and Ext. 1/j dated 10-8-48, in which claim was made for the sum of Rs. 2051-11-6 and it was stated that unless the amount was paid, the amount would be adjusted against rents which were due from the defendant. It has already been mentioned that materials were supplied and work was done by the defendant for the plaintiff in 1946 and bills were also submitted in July 1946. The evidence of Sm. Nagendra Bala Devi Choudhurani, the plaintiff who was examined on commission, is that the amounts of the bills were paid in full and that no amount was adjusted against rent for the period in suit. No doubt, the plaintiff spoke of cash payment and was unable to produce any receipt. From the correspondence there appears to be reason to think that the bills were really adjusted against rent for an earlier period. In this connection reference may be made to the letter--Ext. 1/m which is a letter from the defendant to the plaintiff's lawyer dated 13th January 1947. In this letter the defendant stated as follows :

'We have duly received your letter regarding arrears of rent. In the meantime Sm. Nagendrabala Debi Choudhurani held a discussion with us at our godown and suggested settlement of the account as below :

Rent for the months of July to

December '46 for six mouths @

Rs. 150/- p.m. Rs. 900Against Bill Rs. 2,051-11-6 Now after adjustment a sum of Rs. 1151-11-6 is still due which may kindly be paid at an early date..............'

It is clear therefore, that by 13th January, 1947 Rs. 900/- out of the bill had already been adjusted against rent for July to December 1946. Although there is no further letter on the record showing adjustment of the remaining amount against rent as it fell due, it is reasonable to assume that once adjustment of the bills against rent was agreed upon and was carried out from July to December, 1946, the balance must also have been adjusted in the same way, and rent for a little over 7 2/3 months more would be sufficient to cover the balance of the bills. Thus the entire amount must have been adjusted by September, 1947. There is no reason to think that the amount was left outstanding until February 1948. The letters Ext. 1 (k) and 1 (j) were written after the notice for ejectment, and a false claim appears to have been made therein. In the circumstances, we have no hesitation in agreeing with the learned Subordinate Judge that the claim for adjustment of the defendant's bills cannot be allowed against the rent for the period in suit.

8. Lastly, there is a point that the Thika Tenancy Act does not provide for any damages on arrears of rent. It is true that the Thika Tenancy Act does not make any provision for damages in lieu of interest, but Section 23 of the Act does provide for interest on arrears of rent @ 61/4%. If interest on the arrears of rent is calculated @ 61/4% it would come to more than Rs. 400/- which is the consolidated amount claimed as damages by the plaintiff. This amount may be regarded as the consolidated claim on account of interest which is legally payable under Section 23 of the Thika Tenancy Act. Thus the points urged by Mr. Mitra on behalf of the appellant fail.

9. This appeal is, therefore, dismissed with costs.

Bijayesh Mukherji, J.

10. I shall not go over the facts again. I confine myself to 'limitation' only.

11. Mr. Sen Gupta appearing for the respondent invites us to make a most liberal construction of Section 14 of the Limitation Act. We are prepared to do so, but not in disregard of the key words occurring there: cause of action and relief. Cause of action for suit for rent and cause of action for a suit for damages for use and occupation are not the same. One presupposes the relationship between the landlord and the tenant. The other does not. Causes of action differing, the reliefs claimed must differ too. One relief is rent. The other is damages. So Section 14 of the Limitation Act must be ruled out

12. But statute apart, there may be suspension of limitation in an appropriate case, as held by the Special Bench reported in : AIR1961Cal353 (SB). The question, therefore, is : could the plaintiff respondent have realized rent for the period--February 24, 1949 to May 19, 1953? February 24, 1949 is the date of institution of the earlier suit--Title Suit No. 45 of 1949. And May 19, 1953 is the date of institution of the instant suit out of which this appeal arises. The answer cannot be in doubt. She could not have. The reason is plain. The tenancy was determined under the law of the land. Realization of rent after determination of the tenancy was accordingly out of the question. Indeed, there was then no cause of action for arrears of rent. Necessarily, time could not have run against a claim for which no cause of action existed.

13. In Hurro Pershad Roy Chaudhurys case, 9 Ind App 82 (PC), there was no period of time in which the rent could not have been recovered.The case here is just the reverse. From February 24, 1949 to May 19, 1953, the plaintiff respondent could not have realized the rent. After the amendment of the Calcutta Thika Tenancy Act, 2 of 1949, the amendment having received effect from March 14, 1953, a live suit, namely, T. S. No. 45 of 1949, becomes a dead one. True it is, as pointed out by Mr. Mitra appearing on behalf of the appellant, that the plaint of the earlier suit is not here. Still appearances are very much in favour, for reasons pointed out by my Lord, of that suit having proved infructuous by the change of the law of the land for which the plaintiff respondent is not in any way answerable.

14. Mr. Mitra invites our attention to a striking passage in the High Court's judgment reproduced in 9 Ind App 82 (PC) (supra) at page 83. The passage reads :

'Take the ordinary case of a landlord giving his ryot notice to quit, and at the expiration of that notice bringing a suit to eject him. The ryot sets up a right of occupancy; and the landlord after a litigation extending over four or five years, is eventually defeated upon that ground. Could the landlord, under such circumstances, sue to recover rent from the ryot, which accrued four years previously, and contend that he was not bound by time, because he could not pursue his claim, for rent and his claim for ejectment at the same time? In our opinion, certainly not.'

But this passage does not stand by itself. It must be read with what goes before :

'If that were so, any man who mistakes his proper rights and remedies, might, with equal justice, claim exemption from these provisions.'

15. Here there has been no mistake on the part of the plaintiff respondent. All that has happened is a change in the law.

16. I, therefore, agree that this appeal should be dismissed.


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