ASHWANI TRIVEDI Vs. BHUMI VIKAS BANK JABALPUR

JUDGEMENT

(1.) This is an appeal, against the judgment and decree dated 15.4.1997, passed by 11th Additional District Judge to the Court of District Judge, Jabalpur, in Civil Suit No. 7-B/96, dismissing the suit for arrears of rent amounting to Rs. 96,400/ -, filed by the appellants, on the ground of limitation.

(2.) The undisputed facts of this case are that the appellants are successors-in-title of shri A.K. Trivedi, who had let out House No. 1553/ 3 to the respondent. The appellants, after his death, became owners and the landlords of the house let out by Shri A.K. Trivedi. The house in question was initially let out at the rate of Rs. 400/- per month by way of agreement between the landlord and the tenant and, thereafter, by a subsequent agreement, the rent was enhanced to Rs. 500/-. However, Shri A.K. Trivedi was not satisfied with the agreed rent and, therefore, he applied to the Rent Controlling Authority for fixation of standard rent and lawful increase of the rent under Sections 7 and 8 of the M.P. Accommodation Control Act, 1961 (henceforth 'the Act'). The Rent Controlling Authority, by order dated 12.10.87, fixed the standard rent at the rate of Rs. 3,000/- per month with effect from 1.10.1987. It is obvious that the appellants became entitled to receive rent with effect from 1/10/1987 on the passing of the order of the Rent Controlling Authority. However, the respondent' filed an appeal against the order dated 12.10.1987 before the District Judge, which was registered as Miscellaneous Civil Appeal No. 3/88. It was decided on 1.8.1990, as is clear from the record. The appeal, filed by the respondent was dismissed. The respondent filed a Miscellaneous Second Appeal No. 59/ 91, which was dismissed as withdrawn on 21.4.1994. Thereafter, the appellants filed a civil suit for recovery of balance of rent due to them at the rate of Rs. 2,500/- per month as they were receiving Rs. 500/- per month as agreed between the parties. Therefore, in effect, the suit appears to be for recovery of balance of arrears of rent and it should be governed by Article 52 of the Limitation Act or by residuary article under Article 113 of the Limitation Act. It is not necessary in this case to decide which of the two articles will govern the suit because in case of application of either of the articles, the decision in this appeal shall rest on the question if the cause of action arose after the decision of the High Court dated 21.4.1994 or if it accrued on the date of decision of the Rent Controlling Authority dated 12.10.1987. In this case, no advantage can be derived by the appellants of the provisions of Section 15(1) of the Limitation Act, as there was no stay or injunction order restraining the appellants from recovering the rent was passed by any Court. However, learned Counsel for the appellants argued that even though there is no stay or injunction order, he is entitled to say that the cause of action arose on 21/4/ 1994 and not on 12.10.1987 as held by the Court below. In this connection, learned Counsel for the appellants drew the attention of this Court to the decisions in the case of Broja Behari Sen v. Ved Prakcash Kumar, in the case of Basappa and Others v. Shrishai/appa Shiuappa and Others2, in the case of Bij'oy Ranjan Dey v. Atin Kumar Ghosh3, and in the case of J.M. Andrews v. Messrs. Radio Engineering Co.4. Learned counsel for the respondent, however, relied on the decision in the case of Anandilal and Another v. Ram Narain and Others5. It is now necessary to reproduce the two relevant Articles 52 and 113 of the Limitation Act for deciding the controversy between the parties.________________ Art 52 "For arrears of rent. Three years. When the arrears become due." Art. 113. "Any suit for which no period of limitation is provided elsewhere in this schedule. Three years. When the right to sue accrues." In Article 52, it would be readily seen from its fair reading, that the suit for recovery of arrears of rent has to be filed when arrears become due. So far as Article 113 is concerned, the suit has to be filed when the right to sue accrues. In either case, the point from which the limitation has to be counted is from the date of cause of action arose for recovery of the amount prayed for. Therefore, the main question is whether it can be said that the Rent Controlling Authority finally determined the question regarding the liability of the respondent to pay the rent at the rate of Rs. 3,0007 - per month as standard rent. It may be readily seen that even the order of the Rent Controlling Authority is not final. It is subject to an appeal under Section 31 of 'the Act'. Under Section 31 of 'the Act', an appeal lies to the District Judge or Additional District Judge against every order passed by the Rent Controlling Authority. Section 32 of 'the Act' provides an appeal to High Court against the order passed by the District Judge or Additional District Judge The grounds for interference from the order passed in first appeal by the District Judge or analogous to those which were provided by Section 100 of the Code of Civil Procedure prior to its amendment in the year 1976. Thus, the combined reading of Sections 31 and 32 of 'the Act' shows that the order of the Rent Controlling Authority is not conclusive as it is subject to first appeal as well as second appeal. The question that arises is, if it can be said, that filing of an appeal against the order of Rent Controlling Authority, the conclusion of the order of the Rent Controlling Authority remains in abeyance till the appeal is finally disposed of. In the opinion of this Court, the appeal from the order of the Rent Controlling Authority u/ouid be nothing, but the continuation of the initial application and therefore, till the appeal is finally disposed of,, there shall be pendency of the lis between the parties. On further scrutiny, the first Appellate Authority and the second Appellate Court are entitled to reverse the order under appeal passed by the Rent Controlling Authority In this particular case, under Section 31 of 'the Act', the District Judge has full authority to reverse the finding of the Rent Controlling Authority on a question of fact as well as on question of law. So far as the High Court is concerned, it has power to reverse the order of the District Judge or Additional District Judge only on questions of law. Therefore, the ultimate order is to be passed by the Appellate Authority if an a'ppeal is filed. It cannot be said that there is final adjudication until a pending appeal is decided. In absence of final adjudication, a party cannot determine, if it has to pay an arrear. The opposite party cannot know the amount to which it shall be entitled. The arrears become due within the meaning of Article 52 of the Limitation Act on final determination by the Appellate Authority. It can there be said that the cause of action arose under Article 113 of the Limitation Act only when the ultimate Appellate Court determined the arrears of rent. In this case, the arrears of rent would be deemed to be determined when the High Court decided the appeal on 21 4.1999. Under the facts and circumstances of the case, this Court comes to the conclusion that .the right to sue does not accrue till the matter is finally decided in a pending appeal by the last statutory or constitutional authority as the case may be. Therefore, the pendency of appeal in the High Court suspended the cause of action and the order passed by the Rent Controlling Authority would be incohate in the sense that, it is awaiting confirmation or reversal by the Appellate Authority. It cannot be said, therefore, that the cause of action arose when the Rent Controlling Authority passed the order. The view of this Court is supported by a decision of learned Single Judge of Calcutta High Court in the case of Broja Behari Sen, (supra). In that decision, learned Single Judge held that the statutory obligation to pay the standard rent came into existence when the standard rent was finally fixed in appeal and the cause of action to enforce statutory right could only arise when the rent was finally fixed. In this case, learned Single Judge has taken the view that right to receive the rent is a statutory obligation because the Rent Control Act bars receiving of rent more than that is prescribed. It has been held that the standard rent has to be fixed under the statute by the Rent Controlling Authority who would specify the date from which the standard rent would be recoverable. Learned Single Judge was of the view that a new cause of action arises when the Rent Controlling Authority determines that the landlord is entitled to receive more than the agreed rent. This Court agrees with the conclusion of the learned Single Judge of the Calcutta High Court because there are similar provisions in 'the Act'. A learned Single Judge of Mysore High Court in the case of J.M. Andrews (supra), and another learned Judge of that Court in the case of Basappa and Others (supra), have taken a similar view. In the latter case, the learned Single Judge has referred to a decision in the case of Rangayya Appa Rao v. Bobba Sriramu/u and Ors.6. The decision of the Privy Council, referred to above, held that no rent would become due within the meaning of the Limitation Act unless the rent was settled by .the Collector under the Rent Recovery Act (Madras Act No. 8th of 1985). The following observations of the Privy Council, bring out the meaning of their Lordships, at page 151 : "Under this procedure it seems clear that as long as proceedings are pending before the Collector and, on appeal from him, before the Civil Courts, the rate of rent is in suspense, for no one can say what it will prove to be, and that there- fore no arrear of rent can be said to have become due within the meaning of the Limitation Act/' The learned Single Judge has followed the decision of the Privy Council for coming to the conclusion reached by him. This Court is in respectful agreement with his view, which is based on the aforesaid decision of their Lordships of the Privy Council.

(3.) The decision cited by learned Counsel for the respondent in the case of Anandilal and another (supra) relates to Section 15 of the Limitation Act. It has already been held that the appellants cannot and do not claim the benefit of Section 15(1) of 'the Act' and, therefore, the question of applying Section 15(1) of 'the Act' does not arise.