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1978 DIGILAW 134 (KER)

MUHAMMEDKUTTY v. AHAMEDKUTTY

1978-06-09

P.JANAKI AMMA

body1978
Judgment :- The revision petitioner is the respondent in a petition for eviction under S.11(2) of the Kerala Buildings (Lease and Rent Control) Act, 1965. The building which was the subject-matter of the petition was taken on rent by the petitioner from one AH, the father of respondents 1 to 5 here and the grand-father of respondents 6 to 10. It is the admitted case that due to the pendency of certain proceedings in the civil courts, there was default in payment of rent from 1961. R. C. O. P. 22/73 was filed by the landlord for eviction of the revision petitioner on the ground of arrears of rent. A contention was raised that the tenant was not liable to pay rent prior to the three years preceding the petition. The Rent Control Court upheld the contention. A conditional order for eviction was passed granting a month's time for deposit of arrears of rent. Aggrieved by the order refusing rent beyond the period of three years, the respondent-landlord preferred C. M. A. 7 of 1974 before the Subordinate Judge, Ottappalam. The Subordinate Judge allowed the appeal and held that the tenant was liable to pay the full arrears including the portion thereof which had become barred for getting the order of eviction vacated. The tenant preferred C.R.P. 11/75 before the District court, Palghat challenging the above order. The District Court confirmed the order of the Appellate authority. The objection regarding sufficiency of the notice to quit, though taken, was overruled by the Rent Control Court and also in appeal and revision. It does not arise for consideration by this Court. The Appellate Authority and the District Court omitted to make mention of any extended period within which the tenant could deposit the arrears of rent. In the present revision petition, the tenant-petitioner has taken up the following points: (1) Under the general law a landlord is entitled to receive only arrears of rent for three years. The Appellate Authority and the District Court omitted to make mention of any extended period within which the tenant could deposit the arrears of rent. In the present revision petition, the tenant-petitioner has taken up the following points: (1) Under the general law a landlord is entitled to receive only arrears of rent for three years. The portion of the rent which fell due prior to the period of three years has already become barred and the landlord is not entitled to recover the same for getting the order of stay vacated, (2) The Appellate authority having modified the order of the Rent Control Court and having found that the petitioner should pay enhanced amount by way of arrears of rent should have allowed the tenant time for deposit of the full arrears. 2. S.11(2)(b) of the Kerala Buildings (Lease and Rent Control) Act 2 of 1965 directs that the Rent Control Court shall make an order for eviction of the tenant in cases where the tenant has not paid or tendered the rent due by him in respect of the building within the time specified in the section.S.11(2)(b) does not make mention of arrears of rent. It is clear that every time there is default to pay the rent due within the time specified, the landlord becomes entitled to get an order of eviction in his favour. It is only S.11(2)(c) that makes mention of deposit of arrears of rent. Here again, it is not specifically mentioned that for getting the order of eviction vacated, the tenant should deposit the whole arrears including the portion which is barred or is otherwise irrecoverable. In the absence of special mention about the deposit of barred arrears of rent, whether the Statute contemplates deposit of such arrears as a condition for vacating the order of eviction has to be decided on general principles. 3. S.11(2)(b) is in the nature of forfeiture of tenancy for non-payment of rent and S.11(2)(c) provides relief against forfeiture similar to that contained in S.114 of the Transfer of Property Act. 3. S.11(2)(b) is in the nature of forfeiture of tenancy for non-payment of rent and S.11(2)(c) provides relief against forfeiture similar to that contained in S.114 of the Transfer of Property Act. Under S.114 of the Transfer of Property Act, where a lesse of immovable property is determined by forfeiture for non-payment of rent and if at the hearing of the suit for ejectment, the lessee pays or tenders the rent in arrear, the Court may in lieu of making a decree for ejectment pass an order relieving the lessee against forfeiture. The expression'rent in arrear' in S.114 has been interpreted by the different High Courts to take in even time-barred arrears. In Vasudeva v. Krishna Udpa (ILR. 44 Madras 629), it was held that though in a suit for rent, the landlord cannot recover arrears for more than three years, yet in a suit for ejectment by the landlord on the ground of forfeiture of the lease owing to the non-payment of rent, the Court can relieve the tenant against the forfeiture only on condition of his paying the full arrears of rent, though it is for a longer period than three years. The High Court observed: "The principle is that under the Limitation Act only the remedy is barred and not that the right of the landlord to rent beyond the period specified in the Act is extinguished." See also Vellathi v. K. K. Thayatnmal (AIR. 1958 Madras 232), Dhurrumtolia Properties v. Dhunbai (AIR. 1931 Cal. 457), and NarsingDas v. Peremshwari Das (AIR. I962 All. 65). In Dhurrumtolia Properties v. Dhunbai (AIR. 1931 Cal. 457), Mitter, J. has explained how the provision relating to relief against forfeiture happened to be enacted: "The true ground of the relief against penalties is from the original intent of the case where the penalty is designed only to secure money, and the Court gives him all that he expected and desired. This was pointed out in the leading case of Peachy v. The Duke of Somerset (1724) 1 Str. 447-2 WE & Tud. 979). This was pointed out in the leading case of Peachy v. The Duke of Somerset (1724) 1 Str. 447-2 WE & Tud. 979). In notes to that leading case, the learned editor points put that the result of the examination of the authorities show that from a very early period, equity would, at any indefinite time after the tenant had incurred forfeiture and had been ejected for non-payment of rent at a particular time under the stipulation in his lease, relieve him upon his paying to the lessor the rent accrued due, interests and costs; upon this principle that, as the right of entry was intended merely as security for the rent, the lessor thereby received full compensation and was put in the same situation as if the rent had been paid to him when it was originally due." 'The purpose of this section", according to Beg J. in Narsingh Das v. Permeshwari Das (AIR. 1962 All. 65) "appears to be to extend a special indulgence in favour of a tenant who is prepared to purge himself of his conduct as a persistent defaulter by making a honest offer to clear off his entire liability. His unconditional readiness to wipe off his legal dues is, therefore, made a condition precedent to his prayer that the Court might invoke this section in his favour. A more reasonable construction of this section would, therefore, be to interpret the word "rent" in such a manner as to include in it the entire amount which the tenant would be liable to pay to the landlord by way of rent up-to the date of tender. In other words, his liability for rental dues will be determined on the supposition that he had continued to remain as tenant and the forfeiture of his rights following the purported determination of his tenancy had not taken place." 4. In Palaniswamy v. Kandappa Goundar (AIR. 1968 Madras 96), a Division Bench of the Madras High Court had occasion to consider the applicability of the principles followed in the above decisions in connection with the deposit of arrears of rent under S.3(4) of the Madras Cultivating Tenants Protection Act. Under S.3(2) and S.3(3) of the Act, a cultivating tenant was liable to be evicted for non-payment of rent due after the commencement of the Act within a month after the date on which the rent accrued due. Under S.3(2) and S.3(3) of the Act, a cultivating tenant was liable to be evicted for non-payment of rent due after the commencement of the Act within a month after the date on which the rent accrued due. S.3(4)(b) enabled the Revenue Divisional Officer to give time to deposit the arrears of rent and costs. The question arose whether the Revenue Court had jurisdiction to call upon the tenant to deposit the entire arrears of rent including the amount which was time-barred. After referring to the principles laid down by the Chancery Courts in England and the cases under S.114 of the Transfer of Property Act, Sadasivan J. overruled the objection based on Art.137 of the Limitation Act saying: "The cause of action to apply for eviction is the default in payment of rent up to the date of the application and it is really immaterial whether such arrears is for three years, or less, or more." It was also recalled that even though the right to demand rent prior to three years may get barred by virtue of the Limitation Act, the barred arrears of rent could form valid consideration for a contract under S.25 of the Contract Act. 5. The Supreme Court had occasion to decide a similar question in K. G. U. Trust v. Shri Ram Chandraji Mandir (AIR. 1978 SC. 287). The decision arose under the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act of 1972. Under S.20(4) of the Act a tenant who keeps rent in arrears, against whom proceedings for eviction are undertaken is entitled to remain in the property provided that he deposits the "entire amount of rent due". The question arose whether the expression would include barred arrears. The Sup: erne Court answered in the affirmative. Reliance was placed on the following passage in Halsbury's Laws of England, 3rd Edn. Vol. 24 at page 205: "Except in the cases previously mentioned, the Limitation Act, 1939 only takes away the remedies by action or by set off; it leaves the right otherwise untouched and if a creditor whose debt is statute-barred has any means of enforcing his claim other than by action or set-off, the Act does not prevent him from recovering by those means." The Supreme Court also quoted the remarks of Cotton, L. J. in Curwen v. Milburn (1889) 42 Ch. D. 424: "Statute-barred debts are dues, though payment of them cannot be enforced by action." After referring to the decision in Bombay Dyeing and Manufacturing Co. Ltd. v. The State of Bombay (AIR. 1958 SC. 328) and some other rulings of the High Courts, the Supreme Court proceeded to say: "On consideration of the scheme of the Act, it is clear that the statute has conferred a benefit on the tenant to avoid a decree for eviction by complying with the requirement of S.20(4). If he fails to avail himself of the opportunity and has not paid the rent for not less than four months and within one month from the date of service upon him of a notice of demand, the landlord under S.20(2) would be entitled to an order of eviction. Still the tenant can avail himself of the protection by complying with the requirements of S.20(4). As he has not deposited the entire amount due the protection is no more available. We agree with the view taken by the trial Court and the High Court of Allahabad that the words "entire amount of rent due" would include rent which has become time-barred." Although S.11(2)(c) uses the words "the arrears of rent" and omits the word "entire", the principle underlying the section is the same as that in the case before the Supreme Court. It is to be noted that every default on the part of the tenant to pay rent gives a fresh cause of action for eviction. The omission on the part of the landlord to avail of the default on earlier occasions does not deprive him of the right to receive the full arrears of rent with interest and cost of proceedings irrespective of the period of limitation. The Appellate authority and the District Court were, therefore, correct in holding that the tenant was bound to deposit the whole arrears. 6. The next point urged on behalf of the petitioner is that no opportunity was given to him to deposit the enhanced amount as directed in the order of the appellate court. It is pointed out that the Rent Control Court having excluded the arrears prior to the period of three years, it was the Appellate authority who, for the first time, directed the tenant to deposit the full arrears. It is pointed out that the Rent Control Court having excluded the arrears prior to the period of three years, it was the Appellate authority who, for the first time, directed the tenant to deposit the full arrears. The case put forward is that under the circumstances, the Appellate authority should have extended the time for making the deposit. Reference is made to the decision in Kanakamma v. Sivasanharan Nair (1976 KLT. 911). The principle is not disputed, but it is pointed out by the respondent that no objection based on the omission to grant time was raised before the District Court. The failure to raise objection, however, is not very material since the defect can be rectified even by this Court. For the reasons mentioned, the revision petition will stand dismissed. The petitioner will deposit the arrears of rent with interest and cost of proceedings within a period of one month from this date or within such extended period as may be ordered by the Rent Control Court under S.11(2)(c) of the Act. The parties will bear respective costs in this Court.