BALAI CHAND DAS ADHIKARY Vs. SUDHARANI DEBI

JUDGEMENT

(1.) IN this revisional application at the instance of the defendant petitioner the only question that arises for decision is whether the suit instituted by the latter for recovery of a certain sum is barred by limitation. On the 16th December 1953 the Rent Controller passed an order in favour of the plaintiff opposite party who was a tenant under the defendant petitioner under section 38 (3) of the West Bengal Premises Rent Control Act, 1950 permitting the tenant to carry out certain repairs at a cost not exceeding Rs. 60/8/ -. It appears that the repairs were done between 6th April, 1954 and the 9th April, 1954. An appeal was preferred by the landlord, namely, the present defendant petitioner, against the order of the Rent Controller dated the 16th December 1953 and this appeal was dismissed on the 13th May 1955. The present suit was filed by the plaintiff (tenant) on 17-9-57 for recovery of Rs. 60/8/- plus Rs. 8/-for costs. This suit was dismissed by the Judge, Small Causes Court, Calcutta, 6th Bench, upon the finding that the plaintiff's claim so far as recovery of costs is concerned was barred by limitation. Against this decision there was an application under section 38 of the Presidency Small Causes Court by the plaintiff and the appellate Bench was of the opinion that the suit was not barred by limitation and that the plaintiff was entitled to a decree for Rs. 60/8/ -. A decree was passed accordingly.

(2.) IT is against the decision of the appellate Bench that the defendant has come up before this Court by way of revision, and the only point for decision now is whether the learned Judges of the appellate Bench were right in deciding that the suit was not barred by limitation. The suit was filed more than three years after the repairs had been done. The contention on behalf of the plaintiff is two-fold. The first contention is that as the appeal against the decision of the Rent Controller was not disposed of before the 13th May 1955 and as the present suit had been filed within the period of limitation counting from that date it was not time-barred. This contention was also urged before the Court of first instance but did not find favour with it in view of the fact that though the appeal was pending against the order of the Rent Controller at the time when the repairs were effected there was nothing to prevent the plaintiff from filing a suit for recovery of the amount of cost of repairs, there being no stay order by the appellate Court. To this the answer on the side of the plaintiff is that so far as the recovery of the cost of repairs was concerned her cause of action arose definitely only on the 13th May 1955 on which date the appeal against the order of the Rent Controller was dismissed. It has been contended further that if the suit had been filed before the appeal against the decision of the Rent Controller had been disposed of it would have been dismissed in the event of the success of the landlord defendant in the appeal which had been preferred by the latter against the decision of the Rent Controller. Alternatively, it has been argued on behalf of the plaintiff that if it be held that the plaintiff is not entitled to the benefit of Article 182, clause 2 of the Limitation Act and it may be mentioned incidentally that the learned Judges of the appellate Bench are of opinion that upon the true construction of Article 182 of the Limitation Act, limitation runs from the date of the final decree of the appellate Court, the plaintiff is entitled to fall back upon the residuary Article, namely, Article 120, according to which the suit is within the period of limitation, the period of six years not having expired when the suit was filed.

(3.) IT has been contended before me on behalf of the defendant petitioner that so far as Article 182 of the Limitation Act is concerned, the plaintiff is not entitled to the benefit thereof because the present suit is not one for the execution of the decree or order passed by the appellate Court. In my opinion, there is substance in this contention and strictly speaking Article 182 is not in terms attracted. In answer to the contention urged on behalf of the plaintiff that Article 120 is applicable, it has been urged before me on behalf of the defendant petitioner that Article 61 is applicable and this suit having been filed after the expiry of the period of three years from the date when the money, that is, the cost of repairs, was paid, it is time-barred. In my opinion, this contention cannot be upheld and this Article does not in terms apply. The plaintiff has brought the present suit for a certain sum which she had to pay by way of cost of repairs. Though by virtue of the order of the Rent Controller that amount was ultimately recoverable from the landlord defendant, the present suit cannot be said to be a suit for money payable to the plaintiff for money paid for the defendant. As between the landlord defendant and the parties to whom the payment was made by the plaintiff for cost of repairs, there was no privity and it was only the plaintiff to whom those persons could look for payment of what was due to them for the repairs undertaken by them under her orders. In my opinion, so far as the question of limitation is concerned, none of the Articles of the relevant schedule of the Limitation Act are directly applicable and one has to fall back upon the residuary Article, namely, Article 120. I would, therefore, hold that the learned Judges of the appellate Bench are right in holding that the suit is not barred by limitation. The Rule is discharged accordingly with costs.