Decided on November 01,1968



- (1.) LITIGATION for recovery of arrears of rent of agricultural holdings in Kerala looks like a forensic exercise in futility thanks to the repeated legislative programmes progressively staying and reducing and staying and further reducing what can be recovered by a landlord from a tenant in the shape of rent in arrear. The present second appeal, which certainly must have involved both parties in some expense, is therefore likely to prove a shadow boxing. Nevertheless, parties have chosen to indulge in that game and it is my duty to adjudicate on the legal question as to limitation that has been raised by the tenant. If the proposed amendments to the Land reforms Act in the offing were to become law there is many a slip between the cup and the lip the point under decision will become academic, for the arrear may be statutorily wiped out. The plaintiff-landlord sued for arrears of rent for a period of one year before 11-4-1957 and for the subsequent years till 114 1951. The trial Court decreed the suit and the appellate Court confirmed it. The only point engaging me is as to whether any part of the claim is barred by limitation. It is the Limitation Act of 1908 that governs the case. The suit was instituted on 20-11-1961 and the Article of the Limitation Act then in force, applicable to the case of recovery of arrears of rent, was Art. 110 providing for 3 years from the date the arrears became due. Admittedly the rent under the lease in this case falls due in Chingom and Makaram which would be about the 15th of August and the 11th of February of each year. If that be so, the rent which fell due on a date earlier than 3 years from the date of the institution of the suit would be clearly barred. Act I of 1957 does not forbid institution of suits but only stays such suits so that there is no bar to filing suits and the plaintiff cannot therefore prolong the period of limitation by reliance on a statutory interdict against institution of an action for recovery of arrears of rent. Thus, it may well be that atleast the rent upto 15 81958 would be barred.
(2.) HOWEVER, various contentions have been put forward by Shri kammath counsel for the respondent, to extricate his claim from the clutches of limitation. According to him, even if the remedy is barred, the debt is alive and since all arrears of rent due to a landlord by a tenant carries a charge under the Kerala Land Reforms Act, I of 1964, the arrears of rent sued for can be treated as due when Act I of 1964 came into force and he can enforce the charge since a 12 year period is available in that behalf. I am inclined to think that this argument has force and must succeed. It is trite law that ordinarily the right is not extinguished even if the remedy is barred by limitation. Of course, there are special cases provided for under the limitation Act where the extinguishment of the remedy operates to annihilate the right itself. HOWEVER, the claim for arrears of rent or, for that matter, for a debt does not come within that category. When a debt is barred, can it be said that it is due? I think we can. "due" merely means owing, as distinguished from payable or enforceable and a debt is due even if it is not recoverable,for it is still viable if I may say so for certain purposes. It serves as good consideration for a fresh promise; it is available for an equitable set off. Indeed under the Compensation for Tenants Improvements Act "any sum of money due by the defendant to the plaintiff for rent " shall be available for set off against the value of improvements due to the tenant and the question has arisen as to whether arrears of rent barred by limitation could be treated as a sum of money due by way of rent and it has been often held that such arrears can be set off. See Peedi Kavilakath Kunni v. Thayyil Kunhai Amma (AIR. 1921 Madras 144) and Harihara Mangalath v. Ibrayan kutty (1917 MWN. 275 ). Therefore, it may be right to say that "a debt is still 'due' notwithstanding that the statute of Limitation may have run against it, for that statute only bars the remedy and does not extinguish the debt" (Ramanatha Aiyar's Law Lexicon of British India, quoting from Exparte cawley, 34 SJ. 29 ). I agree that the personal remedy is barred because the sands of time have run out so far as that remedy is concerned. The other remedies by way of adjustment or set off may still be available Likewise, if there exists a charge for the arrears of rent the remedy by way of enforcement of that charge is admittedly not barred. The only question is whether, under s. 31 of Act IV of 1961 and S. 42 of Act I of 1964, a charge can be claimed by a landlord to whom rent is due, as I have earlier explained or would it apply only to cases of rents accruing after the Act came into force? S. 42 is in the following terms: "arrears of rent due to the landlord, together with interest thereon, shall be a charge on the interest of the tenant, from whom they are due, in the holding and shall, subject to the priority of the rights of the Government and any local authority for arrears of land avenue, tax, cess or other dues, be a first charge on such interest of the tenant. " For the section to apply there must be arrears of rent due and that is present in the case. It is not necessary, according to the provisions in S. 42, that such arrears of rent should have accrued due after the coming into force of the Act. In this view, the plaintiff-landlord is entitled to a charge and a charge is enforceable under Art. 132 of the Limitation Act within 12 years of the accrual of the cause of action, which period admittedly has not expired, luckily for the plaintiff who has brought the suit also on the basis of a charge, because by the time he brought the suit Act IV of 1961 had already been passed and there was a provision similar to S. 42 therein. In short, while the personal remedy is barred to the limited extent indicated above, the remedy by way of enforcement of the charge is alive. Therefore, a decree for the whole amount claimed in the suit for sale of the tenancy right for the arrears of rent due will be granted. Now that the bar of limitation has been put out of the way, the decree-holder has to face the next hurdle of the moratorium of execution on rent decrees enacted by Act IX of 1967. In obedience to S. 5 of that Act the execution of the decree may have to be stayed, which means that this has proved to be a pyrrhic victory. The balance sheet of this litigation thus leaves little room for cheer for the plaintiff; nevertheless he has, the satisfaction that the appeal against his decree is being largely dismissed. A decree for sale in enforcement of the charge for arrears of rent will be passed but a personal decree will be refused for the period upto what fell due on or before 15 81958. In the circumstances of the case, the parties will bear their costs.;

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