STATE OF TAMIL NADU Vs. M KAZIM KHALEELI

JUDGEMENT

(1.) THE above two appeals are against a common judgment of the learned single Judge in C. S. No. 146 of 1981 and C. S. No. 276 of 1983 respectively dated 7. 10. 1985. O. S. A. No. 176 of 1986 is against C. S. No. 146 of 1981. THE defen-dant-the State of Tamil Nadu , represented by the Collector of Madras (Accommodation Wing), is the appellant. THE respondents herein are the plaintiffs. THE plaintiffs filed a suit against the defendant-the State of Tamil Nadu , for recovery of a sum of Rs. 43,66,959 with subsequent interest and costs. It is averred in the plaint that the premises known as,' 'Rushkeyrum' 'bearing New Door No. 149, Mount Road , Madras , belongs to the plaintiffs 2 to 8, who are the sons and daughters of the first plaintiff. THE first plaintiff was the power of attorney agent of the plaintiffs 2 to 7 and property guardian appointed by the court of the eighth plaintiff who is a non-compose-mentis. THE premises bearing New Door No. 149, mount Road, Madras, was taken over by the Accommodation Controller under Sec3 of Madras Buildings (Lease and Rent Control)Act 1949 on 24. 11. 1956 and the same was allotted to the Director of Industries and Commerce, on a Provisional Rent of Rs. 2,617. 50 per month subject to fixation of fair rent. THE Accommodation controller subsequently revised the provisional rent and fixed it at Rs. 4,000, subject to fixation of fair rent with effect from 1. 4. 1961. THE Director of industries and Commerce vacated the premises, which was then re-allotted to the tamil Nadu Electricity Board, in 1973. THE State of Tamil Nadu is thus the statutory tenant of the premises in question. THE plaintiffs filed a petition before the Rent Controller, Madras on 2. 1. 1974 for fixation of fair rent under the Tamil Nadu Buildings (Lease and rent Control) Act, 1960. THE Rent Controller fixed the fair rent of the premises on 22. 4. 1978 at Rs. 28,000 per month. THE plaintiff and the defendant preferred separate appeals in H. R. A. No. 483 of 1970 respectively. THE appellate authority dismissed the appeal filed by the defendant, but reduced the fair rent in the appeal filed by the first plaintiff to Rs. 21,943. THE plaintiff thereafter preferred a revision before this Court in C. R. P. No. 756 of 1980. Pending disposal of the revision petition, the plaintiffs filed the above suit for recovery of the difference between the fair rent as fixed by the appellate authority and the tentative rent fixed by the Accommodation Controller after giving notice under Sec. 80, C. P. C

(2.) . The case of the plaintiff before the trial court was that the fair rent in respect of the building taken over by the Accommodation controller has retrospective operation from the date of taking over of the building and hence the plaintiffs were entitled to claim the difference between the fair rent and the provisional rent fixed by the Accommodation Controller, from 24. 11. 1956 when the building was taken over. However, they restricted the claim from 1. 10. 1960 when the Tamil Nadu Buildings (Lease and Rent Control)Act, 1960 under which the fair rent has been fixed came into force. The difference in rent from 1. 10. 1960 till 31. 12. 1980 came to Rs. 43,72,584 and deducting the sum of Rs. 5,625 towards the maintenance and repairs from the plaintiffs' 'claim of Rs. 43,66,959. The plaintiffs further reserved their right to file a separate action after the disposal of c. R. P. No. 756 of 1980. C. R. P. No. 756 of 1980 was allowed on 29. 10. 1981 and the fair rent of Rs. 28,000 per month was restored and thereafter, the plaintiff filed the second suit, viz. , C. S. No. 276 of 1983, claiming a sum of Rs. 15,18,288 with subsequent interest and costs thereon.

(3.) IN a well-considered judgment, learned single Judge has held that the plaintiffs were entitled to a decree as prayed for in both the suits and rejected the contentions of the defendant With regard to Issue no. 1 in C. S. No. 146 of 1981 and C. S. No. 276 of 1983, the learned Single Judge following the rulings of this Court in Second Appeal No. 1615 of 1969 in dr. S. S. David v. State of Madras represented by The District Collector, coimbatore and the ruling reported in State of Tamil Nadu v. K. N. Dhanasekaran, 93l. W. 207, held that the fair rent fixed for the building taken over by the government, as a statutory tenant is payable retrospectively from the date of the tenancy subject to Law of Limitation. With regard to the question of limitation, the learned Single Judge, following the rulings of Privy Council reported in Mt. Bolo v. Mt. Koklan, 59 M. L. J. 621: A. I. R. 1930 P. C. 270: 127 1. C. 737: 57 L. A. 825 and Rangayya Appa Rao v. Bobba Sriramuhi, I. L. R. 27 Mad. 148 (P. C.) and also the ruling reported in J. M. Andrews v. Radio Engineering Company, a. I. R. 1963 Mys. 113, has held that no part of the claim is barred by limitation. With regard to Issue No. 2, in both the suits, whether the suit claims barred under O. 2, Rule 2, Civil Procedure Code, since no submissions were advanced by the defendant, the learned single Judge has held that it was not shown as to how the suit is barred under the above provisions of Civil procedure Code. The said issues in both the suits were also found against the appellant-defendant. Accordingly, the learned single Judge decreed the suit in c. S. No. 146 of 1981 for a sum of Rs. 43,66,957 with subsequent interest and costs and decreed the suit in CS. No. 276 of 1983, for a sum of Rs. 21,77,229 with interest and costs. Aggrieved by the above common judgment, the State of Tamil nadu have filed the above two appeals.