Punjab-Haryana High Court
Kharaiti Lal vs Bhagwan Sarup on 3 December, 1985
Equivalent citations: AIR1986P&H256, AIR 1986 PUNJAB AND HARYANA 256, (1985) 88 PUN LR 690, (1986) 1 RENCR 564, (1986) 1 CURLJ(CCR) 297, (1986) 1 RENCJ 325, 1986 HRR 119
Author: M.M. Punchhi
Bench: M.M. Punchhi
JUDGMENT
1. This is a matter which evidence variegation of judicial thought pertaining to the interpretation of S. 8 of the East Punjab Urban Rent Restriction Act, 1949 (hereinafter referred to as 'the Act'). Though it has been given by the appellants counsel a colour of conflict, yet it appears to me that the so-called conflict is illusory and does not tend to obstruct the course of justice, as would seem from the discussion hereafter.
2. The appellant herein is a landlord. He filed an application for ejectment of the tenant-respondent before the Rent Controller, Rupnagar, on 15th June, 1982. One of the grounds taken was that the tenant had not paid rent since Mar. 1977 to date and thus was in arrears of rent. The rent claimed was Rs. 200/- per mensem. The tenant denied the rate of rent and instead pleaded that it was at the rate of Rs. 100/- per mensem and that rent at that rate had been paid by him till 14th Nov., 1980 and regarding rent he showed his inclination to pay on the first date of hearing. However, the tenant opted for paying on the first date of hearing the entire sum claimed at the rate of Rs. 200/- per mensem in order to frustrate the designs of the landlord to have him summarily ejected. Since the parties were inter-gripped over the rate of rent, the Rent Controller framed issue No. 2 as: "What is the rate of rent?" and placed onus of it on the parties. The landlord having pocketed substantial amount of rent, abandoned the proceedings and consequently the Rent Controller dismissed the petition for default on 3rd May, 1983. Just about a month thereafter, the tenant on 12th June, 1983, filed the present suit for recovery of Rs, 15,080/- on the premises that the landlord had charged him extra in the earlier rent proceedings. The landlord raised the plea of limitation on the strength of S. 8 of the Act. The trial Court treated the plea as preliminary and decided it against the tenant-plaintiff. The lower appellate Court, however, on appeal took a different view. It held that the suit was within limitation, as it could have been filed within a period of three years from the date of excess payment. On such view, the case was sent back for trial to the learned Subordinate Judge. Aggrieved against the said order, the landlord has approached this Court by means of this appeal.
3. The plea of limitation is built on the language of S. 8(1) of the Act, which may well be reproduced here:--
"(1) Where any sum has, whether before or after the commencement of this Act, been paid which sum is by reason of the provisions of this Act irrecoverable, such sum shall, at any time within a period of six months after the date of the payment, or in the case of a payment made before the commencement of this Act, within six months after the commencement thereof, be recoverable by the tenant by whom it was paid or his legal representative from the landlord who received the payment or his legal representative, and may without prejudice to any other method of recovery be deducted by such tenant from any rent payable within such six months by him to such landlord."
It is discernible from the provision that the sum in question must have been paid by the tenant to a landlord, which sum by reason of the provisions of the Act is irrecoverable. In other words, it is a sums which the law does not permit the landlord to have from the tenant. When such sum has been paid or the tenant has been made to pay it, two options under the Act are open to him. The sum is recoverable by instituting recovery proceedings under S. 8 or this sum can be deducted by the tenant from any rent payable. The period for both purposes is six months after the date of the unwarranted payment. The title to the section, which is by no means an academic exercise and is rather a positive legislative act, suggests that rent which should not have been paid may be recovered. The legislature thus was conscious that situations may arise when the tenant, may by one reason or the other, be constrained to make more payment of rent than was due from him and that an easy, inexpensive and timely remedy be available to him, under the Act itself for the recovery or adjustment of the rest. A Division Bench of this Court in Bhim Sain v. Laxmi Narain, AIR 1982 Punj & Har, 155, took a positive view that the excess rent paid by the tenant is recoverable by him under the provisions of the Rent Act and that an action by way of suit is also not barred. Both these remedies under the Act as well as the civil law being available, the question regarding limitation whenever brought up before this Court, led to different answers in the context of the facts of individual cases. And these are period wise as follows:
Chief Justice D. Falshaw in Dhani Ram v. Pt. Ghasita Ram, (1963) 65 Pun LR 295, took the view that where a tenant seeks to recover rent illegally paid either by deduction from such rent or by separate action he must do so within six months from the date of payment. That cause arose out of a suit. Even in face of that view, P. C. Pandit, J. in Bhagat Panju Ram v. Ram Lal, (1968) 70 Pun LR 409 steered a different course. Section 8 of the Act was held to apply to those sums which were irrecoverable from the tenant and the sums recoverable from the tenant were held to be those which were mentioned in Ss. 6 and 7 of the Act. In that context, it was held that where the landlord under a threat of ejectment recovers from the tenant for the period for which he had already received rent, double payment of rent for the same period, the recovery of such an amount by the tenant does not fall within the provisions of S. 8 of the Act. Rather it was held that the provisions of the Act had nothing to do with such a recovery because the amount was illegally recovered by the landlord from the tenant by making a wrong representation and that a suit to recover such an amount could be instituted within a period of three years. It would thus not be wrong to assume that P. C. Pandit, J. did not differ from the view expressed in Dhani Ram's case (1963-65 Pun LR 295) (supra) and rather conscious of its strength and efficacy put the case in his hand outside its purview.
4. In Nauhar Chand v. Thakar Dass, 1977 Cur LJ (Civ) 251, R. N. Mittal, J. relying upon the aforequoted decision of P.C. Pandit, J. in Bhagat Panju Ram's case (supra) held a suit for recovery of excess rent to be within limitation, the period being three years.
5. In Sh. Sham Singh v. Darshan Singh, (1984) 1 Rent LR 97, R. N. Mittal, J. again when confronted with such a problem was persuaded to adopt the view of Chief Justice D. Falshaw in Dhani Ram's (supra) and unfortunately was not apprised of his view taken in Nauhar Chand's case (1977cur LJ (Civ) 251) (supra) in which he was persuaded to adopt the view of P. C. Pandit, J in Bhagat Panju Ram's case (1968-70 Pun LR 409) (supra).
6. Lastly, J. V. Gupta, J. in. S. K. Anand v. Avnash Chander, AIR 1985 Punj & Har 231, held a suit of the same kind by the tenant to be within limitation, it having been filed within a period of three years under the general law. The ratio adopted was that S. 8 of the Act itself provided that the provisions were 'without prejudice to any other method of recovery'. The view taken was that the remedy under S. 8 of the Act was only an alternative remedy available to the tenant and it did not bar a suit to recover the same in ordinary Courts of law. However, the attention of the Hon'ble judge was not specifically invited to Chief Justice D. Falshaw's view in Dhani Ram's case (1963-65 Pun LR 295) (supra) where the expression "without prejudice to any other method of recovery" was specifically noticed but not given the due weight, for, a similar provision in the corresponding Act in Saurashtra was not given due weight by a Division (Bench) of the Saurashtra Court in Mahipatram Dolatram v. Bal Anjwali Sabur, AIR 1956 Saurashtra 87.
7. In Bhim Sain's case, (AIR 1982 Punj & Har 155) (supra), a judgment which was authored by me, a passing reference was made that remedies under the Act and the suit can be availed within a period of six months of such excess payment, but without the point having been specifically raised. This decision carries not the point any further.
8. In the light of the above authority, when it is settled that S. 8 of the Act does not oust the jurisdiction of the Civil Court to entertain a suit, it requires to be determined whether the suit is to be governed by the limitation of six months provided in S. 8. Suit is a remedy for all causes which fall within the ambit of S. 9 of the Civil P.C. Limitation regarding those suits is provided in the schedule to the Limitation Act. Wherever the Legislature has provided a remedy in substitution of the suit and given a different period of limitation therefore, it is that period of limitation therefor, it is that period of limitation which governs the specific remedy and nowhere does itaffect the limitation provided for the suit,. What is valid in the case of substitution is equally valid when parallel remedy is provided. The language of S. 8 makes it obvious that it by no means is comprehensive enough to cover up each situation. Limitation for a suit was thus left intact designedly. to take an illustration, if the rent due for six months was Rs. 600/- and the landlord had by some means deprived the tenant of Rs. 6000/-, would it be reasonably and factually possible for the tenant to adjust those Rs. 6000/- within six months towards the rent. The answer is an obvious 'no'. The law only permits deduction up to Rs. 600/- if the tenant so chooses. Equally, the law cannot prohibit the tenant from claiming Rs. 5400/- the balance remaining after adjustment. Another illustration, which would prove the point, is the case of a tenant who, on the first date of hearing made extra payment of Rs. 6000/- whereas he should have only paid Rs. 600/- if correctly claimed. The law permits the tenant to raise an issue in that regard by raising an appropriate plea as held in Bhim Sain's case (supra). Now suppose the decision on the issue itself takes two years and goes in favour of the tenant, then in a suit for recovery of excess payment, would the tenant be confronted with the bar of limitation of six months from the date of payment? If the tenant is to be non-suited on this score, it seems to me that the law will develop a malicious sting a construction which must at all costs be avoided. What is unfair for the landlord to have taken away from the tenant cannot be allowed on an unfair interpretation to be retained by him. Rent control legislation has always been construed liberally towards tenants. The interpretation which would rather lean in favour of rectifying a wrong done to the tenant would be the one which would be most acceptable. Therefore out of the two strains I would opt for the suit for recovery for such excess payment to be governed by the period of three years under the genenral law. On that analysis the view taken by the lower appellate Court does not seem to me wrong requiring any rectification at this end. Additionally payments as envisaged under Ss. 6 and 7 of the Act have never in the instant case been fixed. And even if I opt for the view of P. C. Pandit, J. in Bhagat Panju Ram's case, (1968-70 Pun LR 409) (supra) the excess payment is outside the scope of S. 8. But this is a view in addition and not in support of the earlier one.
9. For the foregoing reasons, the appeal fails and is hereby dismissed, but without any order as to costs.
10. Appeal dismissed.