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2005 DIGILAW 286 (MAD)

N. Chandramohan v. K. Ram Mohan

2005-02-16

R.BALASUBRAMANIAN

body2005
Judgment :- With the consent of the learned counsel on either side, the second appeal is taken up for final disposal. When the second appeal was admitted, the following substantial questions of law were framed: 1. When the Court has found that the proceedings initiated by the respondent for fixing of fair rent for suit property and the order in the said proceedings has not become final and actually a C.R.P. No. 2377 of 1996 was pending in this Honble Court at the time when the respondent filed the suit O.S. No. 79 of 1989, whether the conclusion of the Court below that the suit is maintainable in the light of the decision reported in 1996 2 Law Weekly 849, is sustainable in law? 2. Whether the conclusions of the Court below rejecting the additional evidence and the suit is barred by limitation and Balasubramaniam is not necessary party are correct in the facts and circumstances of the case? 3. It is not in dispute that there is a landlord-tenant relationship between the parties to the suit. The plaintiff is the landlord and the defendant is the tenant. The tenancy is covered by the Tamil Nadu Rent Control Act. Fair rent for the building in question was fixed by the Rent Controller, exercising powers under Section 4 of the Tamil Nadu Rent Control Act. The plaintiff filed a suit for recovering arrears of rent based on such fixation of fair rent. The suit was decreed and it was affirmed on appeal and hence the present second appeal. It is not in dispute that the fair rent fixed by the Rent Controller was challenged before the appellate Court and was confirmed. At the instance of the tenant, a civil revision petition came before this Court, challenging the above referred to order fixing the fair rent. 4. Mr. N. Vanchinathan, learned counsel appearing for the appellant, relying upon a Division Bench Judgment of the Court reported in 1996 2 L.W. 849 ( J. Visalakshi Ammal v. T.B. Sathyanarayana ), would contend that till such time the fair rent fixed by the Rent Controller reaches finality in a manner known to law, the suit filed to recover such arrears of rent would be premature. In other words, according to him, till a finality is reached in the fair rent proceedings, the landlord has no cause of action at all to file a suit for recovering the difference between the contractual rent and the fair rent, treating it as arrears of rent. As already stated, he heavily relies on the judgment referred to above. Heard the learned counsel appearing for the respondent. 5. I went through the above referred to judgment carefully. In that case fair rent was fixed at the instance of the landlady. Thereafter, the landlady filed a petition for eviction complaining wilful default in payment of rent based on the fair rent fixed earlier. The tenant had taken a defence that the petition for eviction was not maintainable since the fair rent fixed by the Rent Controller was in challenge at his instance before the High Court by way of a revision. The Rent Controller ordered eviction, which was reversed on appeal by the Appellate Authority on the ground that the eviction petition is pre-mature. In 100 Law Weekly Pg.708, the former Chief Justice of this court held that wilful default in payment of rent means agreed rent only and not the fair rent fixed and therefore non-payment of the fair rent fixed would not amount to wilful default in payment of rent. Another learned Judge of this court, who was not inclined to agree with the law laid down in 100 Law Weekly Pg. 708, referred the case for a decision by a larger Bench and that is how the above referred to judgment namely, 1996 2 L.W. Pg. 849 came up for consideration before the Division Bench of this Court. On facts in the above referred to judgment considered by the Division Bench, the order fixing fair rent had also reached finality. In deciding that case on the facts available therein, the Division Bench held that the difference of amount between the fair rent and the agreed rent becomes due atleast from the date the order fixing the fair rent becomes final. In deciding that case on the facts available therein, the Division Bench held that the difference of amount between the fair rent and the agreed rent becomes due atleast from the date the order fixing the fair rent becomes final. In other words, according to the law laid down by the Division Bench in that judgment, the landlord would be definitely entitled to bring a case for eviction of his tenant on the ground of wilful default in payment of rent namely, the difference between the fair rent and the agreed rent, once the order fixing the fair rent becomes final. In my respectful opinion, that judgment must be considered only in the light of the facts available therein. The learned Judges of the Division Bench did not lay down the law that the cause of action to file a suit for recovering the difference in amount namely, between the fair rent and the agreed rent, would also arise only after the order fixing the fair rent becomes final. 5. The claim in the present suit is governed by Article 52 of the Limitation Act. Under that Article, the right to sue arises when the arrears becomes due. Once fair rent is fixed, then the landlord has a right to recover the same by moving the civil court. Under section 9 of the Limitation Act, once time starts running, then it can be stopped only in a manner known to law and not otherwise. Pendency of either an appeal or a civil revision petition challenging the order fixing the fair rent by itself, in my considered opinion, would not stop the running of the time, which already had started from the date the Rent Controller fixes the fair rent. Probably, if the order fixing the fair rent remains stayed pending appeal or revision, then it may postpone the cause of action available to the landlord to file a suit. But that is not the case here. Once the fair rent is fixed by the Rent Controller, unless there is an express provision excluding the appeal period or the revision petition period from computing the period of limitation, the right to sue, which had already arisen for the landlord, would continue to run. But that is not the case here. Once the fair rent is fixed by the Rent Controller, unless there is an express provision excluding the appeal period or the revision petition period from computing the period of limitation, the right to sue, which had already arisen for the landlord, would continue to run. If that is so and if the argument of the learned counsel for the tenant is accepted that cause of action to file a suit would arise only after the fair rent proceeding reaches a finality, then the substantial portion of the landlords claim on the fair rent fixed would be barred by limitation. Therefore I have no difficulty at all in answering question of law No. 1 against the appellant. 6. The point arising on the second question of law is discussed as hereunder: Fair rent was fixed by the Rent Controller on 30.01.1989; the suit was filed on 30.03.1989; the arrears claimed in the plaint had become due by order dated 30.01.1989 and that arrears had become payable from the date of the petition. Therefore the cause of action for the plaintiff to file a suit had arisen only on 30.01.1989 and therefore the suit filed on 30.03.1989 for claiming the amount due under that order is well within the period mentioned under Article 52 of the Limitation Act. The entire amount due to the plaintiff had become crystalised only on 30.01.1989 and therefore, to contend that, that a portion of the claim which is beyond the period of three years from the date of filing of the suit is barred, is legally not sustainable. Accordingly, I find that the claim in the suit is not barred by limitation and therefore the second question of law is also answered against the appellant. 7. For all the reasons stated above, the second appeal fails and it is dismissed with no order as to costs. Consequently, connected C.M.P. No. 10898 of 2004 is also dismissed.