Balwant Kaur and Ors. Vs Tilak Raj etc.

Th e present Regular Second A ppeal has been filed by the appellants/defe n dants challenging the concurr e nt findings recorded by both the Courts below w hereby the suit of the plaintiff-Tilak Raj for refund of excess r ent has been decr e ed. The judgment and decree dated 08.02.1990 passed by the learned trial Co u rt, as well as the judgment dat e d 01.02.1993 passed by the lear n ed Lower Appellat e Court, are under challenge.

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Brief Facts

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Th e brief facts of the case are that the plaintiff filed a suit against the defendants for r ecovery of ₹7,440/– being the e x cess rent paid by him in respe c t of the premises in dispute. It was pleaded that the p laintiff was inducted as a tena n t in the demised pr e mises by late Balraj Singh, w hose legal representatives are the present defendants. The plaintiff was inducted a s a tenant at the rate of ₹500/– per month vide lease deed dated 02.12.1975.

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Ba l raj Singh, during his lifetim e , filed an ejectment applica t ion against the plai n tiff on various grounds, includi n g non-payment of rent. In the s aid proceedings, B a lraj Singh claimed arrears of re n t at the rate of ₹2000/– per mo n th, whereas the act u al agreed rent between the par t ies was ₹500/– per month. In o r der to avoid the ris k of ejectment, the plaintiff tend e red arrears of rent for three mo n ths at the rate of ₹ 2 00/– per month along with inte r est on 05.04.1982. However, w h ile doing so, the pl a intiff reserved his right to clai m refund of the excess rent recei v ed by Balraj Singh.

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Th e said ejectment petition was ultimately dismissed by the R ent Controller, Kap u rthala, on 14.12.1984, and it w as held that the rate of rent set t led between the pa r ties was ₹500/– per month. Du r ing the pendency of the eject m ent petition, Balraj Singh died and the present def e ndants were impleaded as his l e gal representatives, having inherited the property i n dispute. It was further pleaded t hat the defendants h ad used the excess rent amou n t for their own personal use, and therefore the p l aintiff was also entitled to int e rest thereon at the rate of 1% per month. The pla i ntiff also asserted that at the ti m e of tender, he had paid ₹150/ – as interest on ₹4,5 0 0/–, and therefore he was entitl e d to refund of that amount as w ell. 5. Th e matter was carried further in a ppeal by the defendants before t his Court, but the same was ultimately dismisse d on 14.11.1985. Despite repe a ted requests, the de f endants failed to refund the ex c ess amount received by them. L eft with no option , the plaintiff filed the present suit seeking recovery of ₹7,4 4 0/– along with interest 6. Upon notice, the defendants appeared and filed written state m ent alleging that th e rate of rent as per lease deed d ated 03.12.1975 was ₹2,000/– per month and not ₹ 500/– per month as pleaded by t he plaintiff. It was pleaded that the

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parties were bo u nd by the terms of the lease d e ed and not by any other docum e nt. It was admitted that they had filed an ejectment application against the plaintiff and that the plaintif f had correctly tendered the ren t at the rate of ₹2,000/– per mo n th. According to t h e defendants, the plaintiff had u nconditionally made tender in the said applicatio n and therefore could not subseq u ently claim refund of any amo u nt. It was further pleaded that the dispute regardi n g the rate of rent was still pen d ing and it was never finally settled that the rate of r ent was ₹500/– per month. He n ce, the suit was lia b le to be dismissed.

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Fr o m the pleadings of the parties, t h e following issues were frame d by the learned trial court:

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Whether the plaintiff is entitled to recover any amount from the de f endants? If so, to what extent? O PP 2. Whether the present suit i s liable to be stayed as allege d in pr e liminary objection No. 4 of the w ritten statement? OPD 3. Whether the plaintiff is deb a rred from filing the present sui t by his act and conduct? OPD 4. Whether the suit is not withi n time? OPD

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Whether the defendants are n ot liable to pay any amount to the pl a intiff? OPD 6. Relief.

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In a ddition, the following addition a l issues were also framed: 5 A . Whether the Rent Controller had no jurisdiction to entertai n or adjudicate upon the ejectment app l ication filed by the landlord B a lraj Si n gh against Tilak Raj? OPD

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5B. Whether the judgment date d 14.12.1984 and all proceed i ngs be f ore the Rent Controller are without jurisdiction and void? OPD 9. Th e parties led their respective evi d ence.

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Findings of the trial Court

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Th e reafter, the learned trial Cour t heard counsel for the parties and carefully examined the evidence on record. T h e plaintiff had produced copie s of the judgment E x . P5 passed by the Rent Cont r oller in the ejectment proceedi n gs. From this judg m ent, it was proved that the rate of rent of the premises was hel d to be ₹500/– per month, which finding was also upheld by the Appellate C o urt. Learned counsel for the plaintiff further relied u pon 1986 (1) RCJ 42, wherein this, while deciding appeal arising out of ejectment proceedings, had held that the r ate of rent of the p remises in dispute was ₹500 / – per month and that the rat e of ₹2,000/– per month claimed by the landlord w as in the nature of penal rent and therefore illegal.

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Re l ying upon the aforesaid judgm e nt and the evidence produced, the learned trial Co u rt held that the rate of rent sto o d proved at ₹500/– per month, but the defendants h ad in fact recovered rent at th e rate of ₹2,000/– per month al o ng with interest. T h erefore, the plaintiff was entitl e d to recover the excess amount of ₹7,440/– along with the interest paid by him at the time of tender in the eject m ent proceedings.

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As regards additional issues 5A a n d 5B, the learned trial Court h eld that there was no evidence that Balraj Singh ha d rented out the premises along w ith the machinery t o the plaintiff so as to oust the jurisdiction of the Rent Contro l ler. The rent note E x . D1 did not support the plea o f the defendants. The Court fur t her held that if the d efendants intended to raise an objection regarding the jurisdic t ion

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of the Rent Co n troller, they ought to have do n e so in the ejectment proceedings themselves. Since no such objection was taken , the defendants could not raise the same in the pre s ent civil suit. Accordingly, bot h these issues were decided against the defendants w ith a finding that the Rent Co n troller had the jurisdiction and the order dated 14.12.1984 passed by the Rent C o ntroller holding the rate of ren t as ₹500/– per mon t h was valid and binding.

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In t he light of these findings, the s uit of the plaintiff for recover y of ₹7,440/– with costs was decreed against the defendants by the learned Senior S ub Judge, Kapurth a la, vide judgment and decree d a ted 08.02.1990.

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Findings of the Lower Appellate Court

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Fe e ling aggrieved by the aforesaid judgment and decree passed by the learned trial C ourt, the defendants preferred an appeal against the l e gal representatives of the plaintiff challenging the judgment and decree d a ted 08.02.1990.

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Th e learned Lower Appellate C o urt, after hearing counsel for the parties and per u sing the record, observed that i n the present case, the rate of r ent had already be e n held to be ₹500/– per mont h in the ejectment proceedings by judgment Ex.P 5 passed by the Rent Controll e r. It was admitted that the ap p eal against the said judgment was dismissed by the Appellate Authority on 30.05.1 9 85 and the revisio n petition filed before this Court was also dismissed on 14.11.1 9 85. Thus, the findi n g that the rate of rent was ₹500/– per month had become final and binding.

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Th e learned Appellate Court furt h er referred to Ex. D1, the cop y of the rent deed, w herein the rate of rent was me n tioned as ₹500/– per month wi t h a stipulation that if the tenant failed to vacate t h e premises after the expiry of f ive TRIPTI SAINI 2025.09.11 11:09 I attest to the accuracy and integrity of this document

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years, the rent w ould stand increased to ₹2,000 / – per month. It was held that it is a settled principl e of law that there can be no e stoppel against statute and pa r ties cannot contract themselves out of statutory pro v isions. Clause No. 5 of Ex. D1 w as therefore void b eing contrary to the provisio n s of the East Punjab Urban R ent Restriction Act.

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It w as also noticed that in order t o save himself from ejectment, the plaintiff had te n dered an amount of ₹6,230/– at the rate of ₹2,000/– per m o nth along with ₹2 0 0/– as interest, which had be e n received by the landlord u n der coercive pressu r e in the ejectment petition. Th u s, the landlord had received ex c ess to the tune of ₹ 4 ,500/– and further ₹150/– as in t erest. The learned Lower Appel l ate Court held that the plaintiff/tenant was entitle d not only to refund of this ex c ess amount but als o to interest on such excess p a yment. Accordingly, the clai m of ₹7,440/– filed by the plaintiff was held to be va l id. 18. Th e objection of limitation raised b efore the learned Lower Appel l ate Court was also c onsidered. The Court held that a suit for recovery of excess re n t is to be governed by the provisions of the India n Limitation Act. Since there i s no specific Article relating to such a claim und e r the head of contract, the m a tter would fall und e r the residuary Article 137 of t h e Limitation Act, which prescr i bes limitation of th r ee years from the date when th e right to sue accrues. In the pre s ent case, the eject m ent petition was decided by the R ent Controller on 14.12.1984, and it was only on t h is date that it was finally held t hat the rate of rent was ₹500/– per month and no t ₹2,000/– per month. There f ore, limitation would start f r om 14.12.1984. Th e present suit having been filed on 19.05.1987 was held to be w ell within limitatio n .

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In v iew of these findings, the learned Lower Appellate Court affir m ed the judgment a n d decree of the learned trial C o urt and dismissed the appeal o f the defendants by j u dgment and decree dated 01.02 . 1993.

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Fe e ling aggrieved by the concur r ent findings recorded by both the courts below, t h e defendants have preferred the present Regular Second Appeal . 21. Notice of the appeal was issued o n 26.07.1993. Initially respond e nts contested the a p peal, but later on no one appe a red on behalf of the respondent s to contest the app e al.

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Findings of this Court

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I h a ve carefully considered the su b missions of learned counsel for the appellants and examined the record. The pi v otal issue in the present cas e is whether the s u it filed by the plaintiff for r ecovery of excess rent is wi t hin limitation.

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Th e reliance placed by the appel l ants on the judgment of Hon ’ ble Supreme Court in the case of Jamnadas Harkchand v. Narayanlal Bansilal, AIR 1970 RCR (Rent) 244 , is well supported. T h e Hon’ble Supreme Court, w h ile interpreting Se c tion 20 of the Bombay Rents , Hotel and Lodging House R a tes Control Act, 19 4 7, categorically held that if a t e nant has paid excess rent, the s a me may be recover e d either by way of deduction fr o m rent subsequently payable o r by filing a suit, bu t in either case such recovery m u st be made within six months f r om the date of pa y ment. If the tenant fails to a c t within this period, the righ t of recovery is bar r ed by limitation. The Court ob s erved that the right to sue and the right to deduct are co-extensive, and both are e xtinguished once the period o f six months expires.

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Th i s legal position was reiterated b y a Division Bench of this Cou r t in Bhim Sain v. L axmi Narain, AIR 1982 P&H 1 55. In para 9 of the judgment, the Court observed as under:

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“9. It is undisputed that the e xcess rent paid by the tenan t is re c overable by him under Section 7 of the Act and that an actio n by wa y of suit is also not barred. The r emedies can be availed of with i n a pe r iod of six months of such exces s payments as provided in Sectio n 7. Th e twin question is whether the t e nant should file a separate su i t to claim refund of the excess payme n ts or can he claim an issue in the evi c tion petition itself since an ev e nt occurring therein gave him the ca u se of action. ”

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Th u s, both the Hon’ble Supreme C ourt and this Court have held that a claim for refun d of excess rent is specifically governed by Section 7 of the E ast Punjab Urban R ent Restriction Act and must b e filed within six months of the d ate of such excess p ayment.

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Applying the above principles to t h e facts of the present case, it is not disputed that t h e plaintiff tendered arrears of rent on 05.04.1982 at the rat e of ₹2,000/– per m o nth along with interest, in orde r to avoid ejectment. If the plai n tiff intended to se e k refund of the excess so p a id, his cause of action arose on 05.04.1982 itself. The limitation for filing su c h a claim under Section 7 w o uld therefore expir e on 05.10.1982. The subsequen t dismissal of the ejectment peti t ion by the Rent Co n troller on 14.12.1984, dismiss a l of the appeal on 30.05.1985, and dismissal of th e revision petition by this Cour t on 14.11.1985, do not extend the period of limit a tion. The starting point of li m itation is the date of paymen t of excess rent and not the date of final adjudicatio n of the ejectment proceedings.

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Ev e n if, for the sake of argumen t , it is assumed that the limita t ion period of three years under Article 137 of the L imitation Act applies, the star t ing point would sti l l be 05.04.1982, the date on w hich the excess rent was tende r ed. Counting three years from that date, the limit a tion would expire on 05.04.1 9 85. The present sui t having been instituted only on 19.05.1987 is, therefore, hopele s sly time-barred. Th e plaintiff cannot claim that lim i tation begins from the date of fi nal adjudication of the ejectment petition, since t h e cause of action for recover y of excess rent ari s es on the date of actual paym e nt and not on subsequent judicial determination o f the agreed rent.

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Th e present suit was thus filed f a r beyond the period of limitat i on, whether reckon e d under the special statute (si x months under Section 7) or e v en under the resid u ary provision (three years und e r Article 137). The findings of the courts below, t reating the claim as within li m itation, are contrary to law and unsustainable a n d are thus liable to be set aside.

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Conclusion

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In view of the discussion m a de herein-above, the impug n ed judgments and decrees dated 08.02.1990 and 01.02.1993, passed by the lear n ed trial Court and learned Lower Appellate Court , respectively, are hereby set as i de. The present Re g ular Second Appeal is allowed.

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Pe n ding application(s), if any, also stands disposed of.

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September 10, 2 025 (MANDEEP PANNU) tripti JUDGE W h ether speaking/non-speaking : Speak i ng W h ether reportable : Yes/N o .

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Balwant Kaur and Ors. v. Tilak Raj etc.

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Balwant Kaur and Ors. v. Tilak Raj etc.

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