Allahabad High Court
Mahadeo Prasad vs Sarvar Jahan on 23 August, 2013
Author: Pankaj Mithal
Bench: Pankaj Mithal
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Reserved Case :- CIVIL REVISION No. - 320 of 1993 Revisionist :- Mahadeo Prasad Opposite Party :- Sarvar Jahan Counsel for Revisionist :- V. Singh Counsel for Opposite Party :- Navin Sinha,S.M.Iqbal Hasan Hon'ble Pankaj Mithal,J.
Heard Sri V. Singh, learned counsel for the defendant revisionist. Sri Manish Tandon and Sri S. M. Iqbal Hasan, learned counsel have appeared for the plaintiff respondent.
The suit of the plaintiff respondent for arrears of rent and eviction of the defendant revisionist from the shop in question has been decreed by the Additional District Judge exercising powers of the Judge of Small Causes Court vide impugned judgment and order dated 11.5.1993.
The dispute is regarding a shop which was let out in the year 1968 at a rent of Rs.80/- per month with the stipulation that after one year the rent would stand increased to Rs.85/- per month. The plaintiff respondent vide notice dated 15.2.1974 which is said to have been served upon the defendant revisionist on 22.2.1974 determined his tenancy and required him to vacate the said shop on the allegation that he had failed to pay rent for the period 1.6.1972 till the last date of January, 1975.
On the basis of the aforesaid notice, original suit No.48 of 75 claiming arrears of rent from 1.6.1972 to 31.1.1975, damages and for eviction was instituted in the court of Munsif. On 5.8.1978 the plaint was returned for want of jurisdiction for presentation before the Civil Judge. It was represented in the court of Civil Judge and was numbered as original suit No.23 of 1979. Again the plaint of the suit was returned for want of jurisdiction from the court of Civil Judge on 17/19.4.1986 for presentation before the court of small causes. Thereafter, it was presented in the court of small causes and was registered as SCC Suit No.2 of 1986.
The suit has been decreed by the impugned judgment and order dated 11.5.1993 for arrears of rent amounting to Rs.6687/- for damages w.e.f. 15.12.1978 @ Rs.85/- per month and for eviction within a period of one month. The court below in decreeing the suit held that the provisions of U.P. Act No.13 of 1972 are not applicable to the shop in question, the notice was duly served upon the defendant revisionist, he is in arrears of rent as claimed in the plaint and that the suit is not barred by limitation.
In assailing the aforesaid judgment and order, in this revision under Section 25 of the Small Causes Court Act, the submission of Sri V.Singh, counsel for the defendant revisionist is that the claim for the arrears of the rent from 1.6.1972 to 15.12.1978 had become barred by time and could not have been decreed in a suit instituted in the year 1986.
Sri Manish Tandon, in defence has submitted that the suit is not barred by limitation as it was presented in 1975 and when the tenancy stood determined, the defendant revisionist cannot escape the liability of eviction.
The findings regarding the shop being outside the purview of U.P. Act No.13 of 1972 and the service of notice have not been assailed.
In view of the aforesaid facts and circumstances and the rival submissions made by the counsel for the parties the following three points arise for determination.
(1) Whether the suit would be deemed to be instituted in 1975 or in 1986;
(2) Whether the claim of arrears of rent for the period 1.6.1972 to 31.1.1975 or 15.12.1978 is barred by time; and (3) Whether despite the claim for arrears of rent being barred by time, the decree of eviction could be maintained.
Point No.1 Order IV Rule 1 C.P.C. provides for the institution of the suit by presenting a plaint to the court. The "Court" therein means the proper court of jurisdiction. Therefore, when a plaint of a suit is presented in a wrong court and it is returned for presentation to proper court it would not amount to institution of the suit. It is only on representation of the plaint to the court of proper jurisdiction it will be deemed that the suit had been instituted. Thus, the presentation of the plaint in the proper court of jurisdiction would be the date of institution of the suit.
The earliest decision on the point appears to be of the High Court of Calcutta U. Hedlot Khasia and another Vs. Karan Khasiani and others 13 Indian Cases 377. In the said case their Lordships of the court clearly ruled that a suit is to be treated as instituted when a returned plaint is presented in a competent court.
In Ramdutt Ramkissen Dass Vs. E.D. Sassoon and Co. AIR 1929 Privy Council 103 it was laid down that where a suit is instituted in a wrong court having no jurisdiction and it becomes necessary to file a fresh suit in the proper court, the second suit would not be regarded as continuation of the first suit even though the parties and the subject of the suit matter happens to be the same.
The three Judges Bench of the Supreme Court in Amar Chand Inani Vs. Union of India AIR 1973 SC 313 held presentation of a plaint in proper court after it is returned by an earlier court is not a continuation of a suit which was instituted in the wrong court. The court observed that the word "court" means a proper court which has jurisdiction to entertain the suit.
In Hanamanthappa and another Vs. Chandrashekharappa and others (1997) 9 SCC 688 the plaint was returned for presentation to proper court. It was then presented in the proper court of jurisdiction. The High Court treated the said plaint to be a fresh plaint and not a continuation of the earlier one which was returned. The Supreme Court in the above circumstances held that the High Court rightly treated it to be a fresh plaint subject to limitation, pecuniary jurisdiction and payment of court fees.
In view of above legal position, the institution of the suit would be on the presentation of the plaint in the proper court of jurisdiction and it would not reckon with the date when it was initially presented to the court having no jurisdiction.
In the instant case the plaint of the suit was presented to the court of proper jurisdiction only in 1986. Therefore, the institution of the suit would be of the year 1986 and would not relate back to the date of its initial filing of 1975.
Point No.2 The plaintiff respondent had claimed arrears of rent for the period 1.6.1972 till 31.1.1975. The limitation for instituting a suit for recovery of arrears of rent under Article 52 of Part I of the Limitation Act, 1963 is three years from the date when the arrears became due.
In view of the limitation provided above, the demand of arrears of rent for the period 1.6.1972 to 31.1.1975 became barred by time on the date the suit was instituted. Accordingly, the court below could not have decreed the suit for arrears of rent for the above period.
Point No.3 There is no dispute that the shop was outside the purview of U.P. Act No.13 of 1972. It is well settled that where a building is not covered by the above Act, the termination of lease and eviction will be governed by the provisions of the Transfer of Property Act, 1882. The suit was based upon the notice dated 15.2.1974. The said notice was a composite notice determining the tenancy and for demand of arrears of rent. The tenancy was determined under Section 106 of the Transfer of Property Act, 1882.The notice makes clear that the plaintiff respondent does not want to keep the defendant revisionist as tenant and therefore, requires him to deliver possession. A notice which requires a tenant to vacate the accommodation and handover possession to the landlord within 30 days is a valid notice determining the tenancy. The validity of the said notice is not even under challenge. It has not been disputed before me. Therefore, there is dispute that the tenancy stood determined by the said notice. The default in paying the rent or that the defendant revisionist is in arrears of rent or arrears, if any are not recoverable being barred by time, are not relevant considerations for eviction where the tenancy has been validly determined.
The limitation of instituting a suit to recover possession from the tenant under Article 67 Part V of the Limitation Act, 1963 is 12 years from the date of determination of the tenancy. The tenancy was determined vide notice dated 15.2.1974 and the suit on its basis was instituted in the year 1986. It appears that the said suit was within 12 years of the determination of the tenancy, though no exact date of its institution has come on record. It is not the case of the defendant revisionist that the suit for recovery of possession was also barred by time. Thus, apparently the suit for recovery of possession is within time. Accordingly, notwithstanding that the suit for arrears of rent could not have been decreed there is no flaw in decreeing the suit for eviction and awarding damages for its use and occupation after the determination of tenancy.
In view of the aforesaid facts and circumstances, the decree of arrears of rent as passed by the court below is set aside and that with regard to eviction and damages is maintained.
The revision is allowed in part. No costs.
Order Date :- 23.8.2013 piyush