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1966 DIGILAW 188 (KER)

RENGANATHA PAI v. PARUKUTTY AMMA ALIAS THANKAMMA

1966-07-25

M.S.MENON, P.GOVINDA NAIR

body1966
Judgment :- 1. This civil revision petition is by the plaintiff in S. C. S. No. 400 of 1962. The suit was dismissed by the Additional Munsiff, Ernakulam, on the ground that it was barred by limitation. 2. The plaintiff was the tenant of a building of the defendant. The suit was instituted on 17121962. It was for the recovery of the rent paid by the plaintiff to the defendant in excess of the fair rent during the period from 27-3-1949 to 29 51951. 3. The fair rent was fixed under the Kerala Buildings (Lease and Rent Control) Act, 1959, on 23121959. The plaintiff's contention, which has been negatived, is that the period of limitation should be calculated from 23121959 as his right to use arose only on that date and cannot be considered as having arisen at any time prior to that date. 4. There can be no doubt that the article applicable is Art.120 of the Indian Limitation Act, 1908, which provides six years as the period of limitation and specifies the time from which that period begins to run as the time when the right to sue accrues. It is impossible to say that the right to sue for the recovery of the rent paid in excess of the fair rent fixed on 23121959 will accrue on any date prior to that date, and it must follow that the fixation in this case having been on 23121959 and the suit having been instituted on 17121962, the suit was clearly within time and not barred by limitation as held by the court below. 5. The judgment under revision followed a decision of Vaidialingam, J. in Damodar Hegadi v. Vittappan, 1960 KLT. 67. In that case the learned judge held: "There may be a statutory right given to a tenant to claim an adjustment or a refund, but if the relief for that refund is sought for through the medium of a court the provisions of the Limitation Act will apply. Under Art.120 a tenant will be entitled to get a refund of the excess amounts paid by him only within a period of six years prior to the suit. The claim for an anterior period is clearly barred." (Head-note) 6. Under Art.120 a tenant will be entitled to get a refund of the excess amounts paid by him only within a period of six years prior to the suit. The claim for an anterior period is clearly barred." (Head-note) 6. That was a case in which the fair rent was fixed on 1191957 and a suit for the recovery of the excess for the period from 29 51950 to 20101955 was filed on 16121957. The suit was therefore clearly within time and should have been decreed in full and in terms of the plaint. 7. The decision to the contrary cannot be supported. It was apparently due to a non-emphasis of the time from which the period of limitation begins to run under Art.120, namely, the time when the right to sue accrues. It is the fixation of the fair rent below the contract rent that postulates an excess, and provides the cause of action for its recovery. 8. As stated by the Privy Council in Mt. Bolo v. Mt. Koklan, AIR. 1930 P. C. 270 a case dealing with Art.120 "there can be no right to sue until there is an accrual of the right asserted in the suit". There can be no excess over the contractual rent, and no accrual of any right for the recovery of any excess until the fair rent is fixed under the Act. 9. Damodar Hegadi v. Vittappan, 1960 KLT. 679, purports to follow the decision of the Madras High Court in Mohammed Abdulla Sons v. Dorai Avasu AIR. 1956 Madras 254. That decision is no authority for the conclusion reached by Vaidialingam, J. 10. In the Madras case the tenancy commenced on 14 11943. The fair rent was fixed on 16 11951. The suit was instituted on 22 11952. It was for the recovery of the excess paid by the tenant over the fair rent fixed for the period of 96 months from 1411943 to 16 11951. 11. The High Court held that the claim for the period from 1101946 to 1611951 alone was sustainable and that the claim for the period from 1411943 to 1101946 should be rejected. The rejection, however, had nothing to do with Art.120 of the Limitation Act. It was based on S.6 of the Madras Buildings (Lease and Rent Control) Act, 1949 (Act 25 of 1949). 12. The rejection, however, had nothing to do with Art.120 of the Limitation Act. It was based on S.6 of the Madras Buildings (Lease and Rent Control) Act, 1949 (Act 25 of 1949). 12. S.6 of the Madras Act as it stood at the relevant time provided that when the Controller had determined the fair rent of a building, any sum paid in excess of the fair rent, whether before or after the 1st October, 1946, in respect of the use of the building after that date, shall be refunded to the person by whom it was paid, or, at the option of such person, otherwise adjusted (the underlining is ours). There can be no doubt that S.6 was the basis of the disallowance for the recovery of the excess for the period from 14 11943 to 110 1946. This is clear from Para.2 of the judgment which reads as follows: "On the date of the fixation of the fair rent, namely, 16 11951, the Act that was in force was Act 25 of 1949, which provided by S.6 that when the Controller had determined the fair rent of a building, any sum paid in excess of the fair rent, whether before or after 110 1946, in respect of the use of the building after that date, shall be refunded to the person by whom it was paid, or, at the option of such person, otherwise adjusted. Under that provision then in force, it was open to the plaintiff to claim a refund of any sum paid in excess of the fair rent from 1101946." . 13. There is a similar provision in the Kerala Buildings (Lease and Rent Control) Act, 1959. Under S.8 of that Act any claim for the recovery of payments in excess of the fair rent determined is confined to "a period of three years immediately before the institution of any proceedings for such determination". In this case the application for the determination of fair rent was filed on 30 61959 and the claim, therefore, for the period from 27 31949 to 29 51951 has to be sustained. 14. It follows that we must overrule Damodar Hegadi v. Vittappan, 1960 KLT. 679, to the extent indicated above and hold that the suit from which this revision petition arises is not barred by limitation. 14. It follows that we must overrule Damodar Hegadi v. Vittappan, 1960 KLT. 679, to the extent indicated above and hold that the suit from which this revision petition arises is not barred by limitation. It is agreed that if such is our conclusion, the amount for which the decree should be passed is Rs. 152/-with interest at four per cent per annum from the date of suit till the date of decree and at the same rate from the date of decree till the date of realisation. We decide accordingly and allow - the civil revision petition. In the circumstances of the case, however, there will be no order as to costs. Allowed.