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PATNA HIGH COURT
N.L.Untwalia, K.B.N.Singh and S.K.Jha JJ.
Ram Nandan Sharma
Versus
Maya Devi
Civil Revision No. 1314 of 1970 ;
Decided On : SEPTEMBER 10, 1974
Per full Bench
That, the expression arrears of rent occurring in Sec. 11A must be interpreted to mean arrears of rent falling due during the pendency of the suit-To permit the expression to embrace within its ambit arrears of rent which has accrued due prior to the institution ·of the suit will be highly unjust unreasonable and incongruous.
(Para 13)
Per Untwalia, C.J.
Held, that it is a fundamental, well-known and well established principle of law that the Statute of Limitation merely bars a particular remedy, but docs not extinguish the debt or right to recover it by some other method. The debt remains lawfully payable. It may not be lawfully recoverable by action. Any amount of rent which is lawfully payable whether it is barred by the Statute of Limitation or not can be realised or recovered in any other manner. No tenant can be compelled to pay any amount of rent which is not lawfully payable by him. Nor Order II Rule 2 of the Code in terms will apply to an application under section 11A of the Bihar Act as it applies to a suit only. Merely because by a second suit that amount cannot be recovered, it can not make the arrears of rent as not lawfully payable. It may not be lawfully recoverable by a suit. I am, therefore, of the view that the expression "arrears of rent" occurring in section 11A of the Bihar Act either must be allowed to have its full play covering all arrears of rent which had fallen due prior to the institution of the suit, whether bared by limitation or whether claimed in the suit or not; or, the expression must be confined to the period of pendency of the suit. I see no justification for striking out a via media and to take the view as taken by the Bench in Sashadhar Dass Case.
(Para 8)
Per K, B.N. Singh, J.
No arrears in respect of any period prior to the institution of the suit can be directed to be deposited under Section 11A... Filing of an application under Section 11A of the Act is not circumscribed by any period of limitation and all arrears of rent accruing during the pendency of the suit which expression in certain circumstances may mean pendency of appeal or appeals, can be ordered to be deposited. Such an application is not governed by Article 52 of the Limitation Act which applies to suits only and an application under Section 11 A of the Act is not a suit.
(Para 21)
Per S.K. Jha, J.
The term "arrears of rent" being confined to the period after the institution of the suit and during the pendency or the litigation does not warrant the principles of Or. 2 R. 2 of the Code of Civil Procedure standing as a bar to grant of such interim relief in cases where no c1aim for recovery of arrears of rent has been made in the suit itself.
(Para 26).
Code of Civil Procedure 1908, Or. 2 R.2-Suit for eviction on grounds of arrears of rent-No claim made for arrears of rent prior to institution of suit - Claim whether barred.
Per Untwalia, C.J:
Held, that a landlord, when he institutes a suit for eviction of the tenant is, obliged to frame his suit under Or. 2 R. 1of the Code so as to afford grounds for final decision upon the subjects in dispute and to prevent further litigation concerning them. On the date of the suit he can claim recovery of such amount of arrears of rent under Article 52 of the Limitation Act 1963 as has fallen due within 3 years of the institution of the suit and not beyond that, If he does not make any claim for any arrear in the suit on payment of the necessary court fees his second suit would be barred under Or. 2 R. 2 of the Code,
(Para 8)
UNTWALIA, J.
1. These two Civil Revision Applications, in the first instance, came up for hearing before a learned Single Judge of this Court. He referred them for disposal by a Division Bench. When they were placed before two of us for hearing, we doubted the correctness of the Division Bench decision of this Court in Sashadhar Das V/s. Harihar Prasad (AIR 1973 Pat 361) and desired constitution of a larger Bench for disposal of these two civil revision applications. Since the points involved in the two cases are common and identical, they were heard together and are being disposed of by this Judgment.
2. Civil Revision No. 856 of 1971 filed by the tenant-defendant proceeded to hearing ex parte as the plaintiffs-landlords-opposite party did not appear to contest it. The plaintiffs filed a suit on the 1st August, 1970 for eviction of the defendants out of whom the main contesting defendant is the petitioner. During the pendency of the suit, the plaintiffs filed an application on the 22nd May, 1971, under Sec.11-A of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947 (hereinafter called the Bihar Act) for a direction to the defendants to deposit arrears of rent due in respect of the suit premises with effect from the 1st April, 1964 till the date of institution of the suit, at the rate of Rs. 80 per month. It is somewhat unusual to find in this case that no prayer was made in the application under Sec.11-A of the Bihar Act for deposit of rent which had accrued due during the pendency of the suit and rent month by month. It may be stated that no decree for arrears of rent for any period was asked for in the suit. The application was resisted by the petitioner on the short plea that he had taken the suit premises, namely, two shops, from the father of the plaintiffs on a monthly rental of Rs. 34 and not on a monthly rental of Rs. 40 each shop, as stated by the plaintiffs. The entire rant had been duly paid till the institution of the suit, but no receipt was granted either by the father of the plaintiffs or by the plaintiffs. The learned Munsif, prima facie, believed the case of the plaintiffs that the two shops were let out at Rs. 80 per month and rent was due with effect from the 1st April, 1964. Accordingly, he directed full arrears of rent to be deposited within fifteen days of the date of the order, from 1-4-1964 to 1-8-1970, at the rate of Rs. 80 per month.
3. Mr. S. K. Mazumdar, learned counsel for the petitioner challenges this order on the following grounds:-
(1) That no arrear of rent in respect of any period prior to the institution of the suit could be directed to be deposited under Sec.11-A of the Bihar Act;
(2) That the claim for arrears of rent prior to the institution of the suit was barred under Order II, Rule 2 of the Code of Civil Procedure (hereinafter called the Code), inasmuch as no decree in this respect having been asked for in the suit, recovery under Sec.11-A of the Bihar Act was barred;
(3) That in any view of the matter, no direction for deposit of rent in respect of a period beyond three years of the date of institution of the suit could be given under Sec.11-A of the Bihar Act. In other words, direction could be given for deposit of arrears of rent only from 1-8-1967 and not from 1-4-1964.
In support of all the three points learned counsel relied upon the observations and decision of the Bench in Sashadhar Dass case. (AIR 1973 Pat 361) (supra).
4 The facts of Civil Revision No. 1314 of 1970 are as follows. The plaintiffs-opposite party instituted a suit against the defendant-petitioner on the 20th August, 1968 for his eviction on the ground of non-payment of rent, the rent of the suit premises being Rs. 7 per month. In the suit, a decree for arrears of rent to the tune of Rs. 252 was asked for, for the period 31-8-1965 to 31-8-1968 at the rate of Rs. 7 per month. The petitioner filed a written statement on the 22nd December, 1969 and contested the suit for eviction on several gro
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