Skip to content


Bijoy Ranjan Dey Vs. AtIn Kumar Ghosh - Court Judgment

LegalCrystal Citation
SubjectTenancy;Limitation
CourtKolkata High Court
Decided On
Case NumberA.F.A.D. No. 822 of 1960
Judge
Reported inAIR1963Cal531
ActsLimitation Act, 1908 - Schedule - Articles 110 and 120; ;West Bengal Premises Rent Control (Temporary Provisions) Act, 1950 - Sections 10 and 17(3); ;West Bengal Premises Rent Control (Temporary Provisions) Act, 1948
AppellantBijoy Ranjan Dey;atIn Kumar Ghosh
RespondentAtIn Kumar Ghosh;bijoy Ranjan Dey
Advocates:Basanta Kumar Panda, ;Chaitanya Charan Mukherjee and ;Chandidas Roy Choudhury, Advs.
DispositionAppeal partly allowed
Cases ReferredBrojo Behari v. Ved Prakash
Excerpt:
- .....period, from march 1, 1949 upto may 31, 1949, nor does the plaintiff seek to recover in the suit standard rent for the aforesaid period. the only obligation of the defendant to pay rent for the aforesaid period is contractual and the suit in so far as it seeks to impose that contractual obligation is barred by the law of limitation. the learned judge, therefore, erroneously decreed the plaintiff's claim for rent for the aforesaid period. it is no longer contended that the period of limitation for this claim is extended by reason of section 14 of the indian limitation act or by reason of any acknowledgment within the meaning of section 19 and 20 of the act.4. the plaintiff has also not established any ground for allowing him any interest. the decree of the learned judge in so far.....
Judgment:

Bachawat, J.

1. This is a second appeal by the defendant tenant from a decree for arrears of rent in Money Suit No. 70 of 1957. In March, 1949 the defendant became a monthly tenant of premises No. 12,Dwarik Mukherjee Road, Behala under the plaintiff landlord at a monthly rent of Rs. 65/-. In May, 1949 the defendant applied to the Rent Controller for fixation of standard rent. The Controller fixed the standard rent at Rs. 20/- per month, but on appeal by the landlord this order was set aside and the case was remanded for a fresh hearing. At the rehearing the Controller fixed the rent at Rs. 25/- per month, but on fresh appeal by the landlord the District Judge, Alipore finally fixed the standard rent at Rs. 56/11/-annas with effect from 1st June, 1949. In April, 1954 the landlord instituted against the defendant Title Suit No. 348 of 1954 for ejectment and mesne profits. On or about January 26, 1955 the defendant vacated the premises. On July 21, 1955 the landlord obtained a decree for mesne profits from April 1, 1954 to January 26, 1955 in Title Suit No. 348 of 1954. On May 10, 1956 the plaintiff filed money suit No. 79 of 1957 claiming arrears of rent from March 1, 1949 upto May 31, 1949 at Rs. 65/- per month and from June 1, 1949 upto March 31, 1954 at Rs. 56/11/- annas as also interest amounting to Rs. 57/- less Rs. 1341/- deposited by the defendant with the Controller on account of rent for the aforesaid period. The learned Munsif passed a decree for arrears of rent from May, 1953 to March, 1954 amounting to Rs. 403/9/- only. On appeal the learned Subordinate Judge has decreed the plaintiff's claim in full. The defendant contended that the suit was barred by Order 2, Rule 2, C. P. C. 1908 but that plea is now abandoned. The principal defence to the suit now is that the claim is barred by the law of limitation. In our opinion the learned Judge rightly held that the claim for rent at the rate of Rs. 56/11/- per month for the period from June 1, 1949 upto March 31, 1954 is not barred by the law of limitation.

2. The proceedings for fixation of rent were instituted while the West Bengal Premises Rent Control (Temporary Provisions) Act, 1948 was in force. After the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950 came into force those proceedings were continued under Sub-section (3) of Section 17 of that Act and the standard rent was finally fixed in accordance with that Act. In my opinion Section 10 of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950 imposed a statutory obligation on the tenant to pay standard rent as from the date specified in the order fixing the standard rent and the cause of action to enforce this statutory obligation arose on the making of the order. I have come to this conclusion for the reasons given in my judgment in Brojo Behari v. Ved Prokash : AIR1958Cal261 . In this case the standard rent under the 1950 Act was finally fixed by the order of the District Judge dated the 16th February 1954. In view of that order the tenant was under a statutory obligation to pay the standard rent at the rate of Rs. 56/11/- annas as from June 1949. This statutory obligation came into existence on February 16, 1954 when the standard rent was finally fixed and the cause of action to enforce this statutory obligation arose on that date. Consequently whether Article 110 or Article 120 of the Indian Limitation Act applies to the case, the claim of the plaintiff for the standard rent at the rate of Rs. 56/11/- for the period from June 1, 1949 upto March 31, 1954 is not barred by the law of limitation,

3. In my opinion, however, the claim of the plaintiff for arrears of rent for the period from March 1, 1949 to May 31, 1949 is barred by limitation. The plaintiff seeks to recover for this period contractual rent at the rate of Rs. 65/-per month. This contractual rent fell due from month to month. The suit to enforce the claim for contractual rent is governed by Article 110 of the Indian Limitation Act. The cause of action to enforce the claim for the contractual rent arose at the end of every month. The period of limitation for recovery of this rent has expired long prior to the institution of the suit. The order of the District Judge dated February 16, 1954 fixed the standard rent as from June, 1949. No standard rent was fixed for the anterior period, from March 1, 1949 upto May 31, 1949, nor does the plaintiff seek to recover in the suit standard rent for the aforesaid period. The only obligation of the defendant to pay rent for the aforesaid period is contractual and the suit in so far as it seeks to impose that contractual obligation is barred by the law of limitation. The learned Judge, therefore, erroneously decreed the plaintiff's claim for rent for the aforesaid period. It is no longer contended that the period of limitation for this claim is extended by reason of Section 14 of the Indian Limitation Act or by reason of any acknowledgment within the meaning of Section 19 and 20 of the Act.

4. The plaintiff has also not established any ground for allowing him any interest. The decree of the learned Judge in so far as it allows interest is also erroneous and must be set aside.

5. The result is that we find that the learned Judge has erroneously decreed a sum of Rs. 195/- on account of three months' rent for the period -- March 1, 1949 upto May 31 and Rs. 57/- on account of interest, in all Rs. 252/-.

6. The appeal is allowed in part. The decree passed by the learned Subordinate Judge is modified and is reduced to the extent of Rs. 252/-. The plaintiff will be entitled to proportionate cost in the courts below and the decree for costs passed by the court below will stand modified accordingly. Each party will pay and bear his own cost of the appeal in this Court.

Chatterjee, J.

7. I agree with my Lord and I have nothing to add so far as the claim for rent for the months from March to May, 1940 nor so far as interest thereon is concerned. I shall add a few words regarding the question of limitation with regard to the claim for rent from June, 1949.

8. The suit was instituted on the 10th May, 1956 for realisation of rent for the period from March 1949 to March 1954 together with interest thereon. The defence was that the claim for rent for any period beyond May 1953 would be barred by Article 110 of the Indian Limitation Act. According to Mr. Panda appearing on behalf of the appellant defendant, the rent for each month during the period in question became due on the 1st of each succeeding month and the suit, so far as the claim for rent before May 1953 not being instituted within a period of three years from the date on which the rent accrued due, would be barred by limitation.

9. Under Section 10 of the West Bengal Premises Rent Control Act of 1950 the standard rent is to be fixed by the Controller and the Controller is to specify the time from which the rent so fixed shall become payable. There was an order of the Controller fixing standard rent but the order of the Controller was set aside by the District Judge in appeal on the 16th February1954 and he further directed that the standard rent would be payable with effect from 1st June 1949.

10. Mr. Panda says, if standard rent is effective from June 1949, it would nonetheless become in arrears with effect from the first of each succeeding month and thus all claim which thus accrued due before May 1953 would be barred by the same Article of the Limitation Act.

11. Let me suppose Article 110 of the Limitation Act applies. The question is : --when did the arrears of standard rent become payable? Section 10 of the Premises Rent Control Act specifically says that in fixing the standard rent the Controller shall specify in his order the time from which the rent so fixed shall become payable. According to Mr. Panda the standard rent became due as they fell in arrears; as they were fixed with effect from June 1949 or, in other words, as the standard rent would be deemed to be effective from June 1949, it would be deemed to have fallen in arrears on the first of each succeeding month and, therefore, it would be barred by limitation.

12. But the standard rent was ascertained and fixed by the District Judge on the 16th February 1954. No defined sum can be in arrears unless it is ascertained; the standard rent was ascertained on the 16th Feb. 1954. Hence, any amount as standard rent could not be in arrears before it was ascertained. The ascertained rent in June 1949 was the contractual rent and if the suit had been filed for such rent, it would certainly be barred by limitation. But the suit was not filed with regard to the contractual rent which was then in force and the suit has been filed for realisation of the standard rent which was not ascertained at any time before the 16th February 1954. The standard rent not being ascertained in June 1949 or for the matter of that at any time beyond 16th February 1954, it could not have been in arrears before that date. It was ascertained on the 16th February 1954 as being payable with effect from June 1949 and as it was ascertained with retrospective effect, the entire sum then due from June 1949 would be in arrears with effect from that date and could not be considered to be in arrears at any date before it was so ascertained.

13. We may consider the same matter from another aspect. If Article 120 applies, the limitation would run from the date of the cause of action. The question is, when did the cause of action for arrears of standard rent from 1-6-1949 accrue? The action is for arrears of standard rent and not for the arrears of contractual rent. The cause for the action is non-payment of the standard rent that fell due; but that cause would not arise unless and until the standard rent would be fixed. Every tenancy is liable to a fixation of standard rent. After the application for standardising rent was filed in May 1949, the rent of the premises in question was liable to be standardised and some standard rent might be fixed. But as long as no definite standard rent is fixed, no defined sum can be in arrears. But no actual standardisation having been made at any date prior to 16-2-1954, there would be no cause of action for suing for such rent. The standard rent being fixed with effect from June 1949, the same could be considered to be in arrears but not before it is actually ascertained. The cause for this action was that standard rent due had not been paid and the standard rent would not be due unless it was fixed. Therefore, there would be no cause of action for the suit till 16-2-1954. The suit being instituted within three years from that date, the suit is not barred by limitation.

14. The view that we are taking is supported by the decisions of the Judicial Committee and of our own Court. I may refer to the decision reported in Mt. Ranee Surno Moyee v. Shooshee Mokhee Burmonia, 12 Moo Ind App 244 (PC). In that case a putni was sold for arrears of rent. The defaulting tenant instituted a suit for setting aside the sale. The sale was set aside and after the sale was set aside, the landlord instituted a suit for rent for the period during which the sale had stood valid against the tenant who defaulted. The suit was instituted after a period of more than three years from the date of the sale and, therefore, it was urged that all claims at a period beyond three years from the date of the suit for rent would be barred by limitation. The Judicial Committee overruled that contention and held as follows :

'That upon setting aside of the sale and the restoration of the parties to possession they took back the estate subject to the obligation to pay the rent and that the particular arrears of rent claimed in this action must be taken to have become due in the year in which that restoration to possession took place.'

Similarly, we are saying here that the arrears on account of standard rent must be taken to have become due only on fixation of the standard rent on the 16th February, 1954.

15. The next case to be considered is reported in 9 Ind App 82, Hurroprosad Roy v. Gopal Chandra. The Judicial Committee considered the earlier decision reported in 12 Moo Ind App 244 (PC) and came to the conclusion that the amount of rent due did not accrue until the sale of the putni had been set aside and until that time the statute could not run. Similarly, we are saying that the amount of standard rent did not accrue and could not accrue unless and until the standard rent was fixed and until then the statute could not run.

16. The principle underlying the aforesaid decisions is that the statute of limitation would not run until the cause of action accrued and as the cause of action accrued or as the arrears became due within a period of three years, the suit was not barred by limitation.

17. But the Judicial Committee has considered the same matter from another point of view. A landlord instituted a suit for a declaration that rent of a particular property was liable to be enhanced. Thereafter, he filed a second suit for enhancement and for realisation of arrears on the basis of the enhanced rent. The same plea of limitation was taken. The matter arose before the Judicial Committee in 30 Ind App 177 (PC), between Hem Chandra v. Kali Prosunno and their Lordships held,

'In the opinion of their Lordships the proceedings in the earlier suit stayed the operation of the law of limitation; and as the appellant claimed the arrears of 1298 in that suit, but his claim was then disallowed as premature, he is now entitled to the benefit of the decree for enhancement and to recover the arrears at the enhanced rate.'

The Judicial Committee was of opinion that the 'earlier suit stayed the operation of the law of limitation'. We may similarly say here that during the period there was no fixation of standard rent, but proceedings for fixation were pending, the operation of the law of limitation would be stayed. The proceedings for fixation started sometime in May 1949, and terminated on 16th February, 1954. If the operation of the law of limitation stood stayed during that period, the suit would not be barred by limitation. I may now refer to a decision of this High Court reported in : AIR1942Cal222 , between the Official Trustee of Bengal v. Bejoy Chand. It is sufficient to say, the principle underlying the aforesaid case of 12 Moo Ind App 244 (PC), was followed in that case and it was held by this Court that there would be no question of limitation as limitation did not begin to run until the sale was set aside and during the time the sale was effective there was no relationship between the parties as landlord and tenant. The relationship arose only when the Patni sale was set aside and as soon as sale was set aside the original position of landlord and tenant revived and the arrears would then become due and could not have become due earlier. Similarly, even though there was relationship of landlord and tenant, the rent itself was liable to be revised and unless it was actually revised, the landlord would not be in a position to claim any particular amount and it was only when it was ascertained and fixed that the landlord could sue for the same and the arrears would accrue then and the cause of action would accrue then.

18. Hence, I most respectfully agree with the view expressed by my Lord Bachawat, J., in the earlier case between Brojo Behari v. Ved Prakash reported in : AIR1958Cal261 and I agree with the order proposed by my Lord.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //