Decided on November 29,1961

Smt. Nagendra Bala Devi Choudhurani Respondents


SEN, J. - (1.) THIS is an appeal by the defendant against a decree passed by the Subordinate Judge, 3rd Court. Alipore for Rs. 8000/ - on account of arrears of rent for a plot of land. The defendant Sunil Kumar Basu is a tenant under the plaintiff -respondent Sm. Nagendra Bala Devi Choudhurani in respect of 6 Kathas of land, at 1776. Lansdowne Road at a monthly rent of Rs. 150/ -. Treating, him as a tenant under the Transfer of Property Act, the plaintiff served a notice of ejectment on the appellant on 14 -248, requiring him to quit the land on the expiry of the last day of March 1948. The appellant not having quitted the land, an ejectment suit was instituted, namely, T. S. 45 of 1949, in which the plaintiff prayed for ejectment and arrears of rent for 2 months, namely, February and March. 1953 and mesne profits for use and occupation of the land beginning from April, 1948, till the date of delivery of possession. The suit was contested by the defendant. It was decreed ex parte on two occasions, but on both the occasions by filing applications the defendant managed to obtain restoration of the suit to the file. Ultimately, on 19 -5 -53, after the enactment of the Calcutta Thika Tenancy (Amendment) Act, 1953, the plaint was returned by the Subordinate Judge, as that Act made it clear that of defendant is a Thika tenant and that the provisions of the Thika Tenancy Act, 1949 as amended, would govern the proceedings and, therefore, the proceeding for ejectment was not maintainable in the ordinary Civil Court, but had to be filed before the Controller appointed under the Thika Tenancy Act The plaintiff did not, however file the plaint as an application for ejectment under Section 5 of the Thika Tenancy Act, before the Controller, but instead, treated the tenancy as subsisting and instituted the present suit on 19th June, 1953, claiming arrears of rent for 5 years 4 months from February, 1948, to May, 1953. Rent for 5 years 4 months at Rs. 150/ - per month comes to Rs. 9600/ -. Out of this, the plaintiff allowed a deduction of Rs. 2000/ - stating that in the cause of an execution proceeding of the ex parte decree which she had obtained at one stage in T. S. 45/1949 the defendant had deposited Rs. 2000/ -to save delivery of possession in execution, and this amount had been permitted to be withdrawn by the plaintiff and the plaintiff appropriated it towards arrears of rent. The balance is Rs. 7600/ -; but the plaintiff claimed Rs. 400/ - on account of damages. So the total claim in the suit was laid at Rs. 8000/ -.
(2.) THE defendant contested the suit, contending that part of the claim was barred by limitation and that the suit could be decreed only for rent for 3 years before the suit. The defendant further claimed that he was entitled to an adjustment in respect of Rs. 2051 -11 -6 as cost of asbestos sheets and fitting which he had supplied to the plaintiff in 1946 and a cost if labour which he had also supplied to the plaintiff to put up the asbestos sheds for her at her premises at 168 Lands -downe Road. A further defence was taken, that damages could not be claimed in respect of a thika tenancy. The learned Subordinate Judge held that the claim for arrears of rent for the 2 years and 4 months which had accrued more than 3 years before the institution of the present suit, was saved under Section 14 of the Limitation Act, because between 24 -2 -49 and 19 -5 -53 the plaintiff was diligently prosecuting another proceeding in ejectment as well as for recovery of arrears of rent and mesne profits for the use and occupation of the land. The learned Subordinate Judge disallowed the defendant's claim for adjustment on account of the price of asbestos sheets, cement and labour supplied by the defendant He also held that damages could be allowed. Accordingly the suit was decreed in full.
(3.) MR . P.N. Mitra, appearing for the appellant, has urged the three points over again. The most important point is whether in view of the fact that the claim includes rent which is prima facie barred by limitation in terms of Article 110 of the Limitation Act, the entire claim can be decreed. Mr. Mitra has urged that Section 14 of the Limitation Act on which the learned Subordinate Judge relied, has no application, as the cause of action is different. Section 14 (1) provides that in computing the period of limitation prescribed for any suit, the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in the Court of first instance or in the Court of appeal, against the defendant, shall be excluded where the proceeding is founded upon the same cause of action and is prosecuted in good faith in a Court which from defect of jurisdiction and other cause of like nature is unable to entertain it. The main cause of action in the previous suit was the determination of the tenancy by service of a notice and the failure of the defendant to quit in terms of the notice on the determination of the tenancy. The cause of action of the present suit is the failure of the defendant to pay rent which has accrued in respect of the land which is admittedly held in tenancy by the defendant under the plaintiff. The cause of action, therefore, must be deemed to be different, even though in the previous suit arrears of rent for February and March, 1948 and mesne profits for the use and occupation of the land from April, 1948 until delivery of possession, were claimed. The cause of action can be deemed to be identical only in respect of the claim for rent for February and March, 1948, but not in respect of the claim for rent for the subsequent months beginning from April, 1948. Accordingly, we must agree that so far as the rent for 2 years and 2 months from April, 1948, is concerned, the defence of limitation cannot be saved by resorting to section 14 of the Limitation Act and it is necessary to consider whether limitation is saved by other principles of law. Mr. J. K. Sen Gupta, appearing for the respondent, has referred us to the Special Bench decision, Midnapore Zemindary Co. v. State of West Bengal : AIR1961Cal353 (SB). In that case one of the questions referred to the Special Bench was whether apart from the statute, there may be suspension of limitation or extension of the prescribed period of limitation. The Special Bench unanimously gave the following reply to the question; - 'Yes. Subject to the clarification that cases of satisfaction or cancellation of the cause of action may in appropriate instances be dealt with as cases of new or fresh causes of action falling under the particular Articles of the Indian Limitation Act, rendering unnecessary application of the theory of suspension of limitation.' Mr. Mitra has referred to a decision of the Judicial Committee, Hurro Pershad Roy Chowdhury v. Gopal Chunder Duti; 9 Ind App 82 (PC). In that case it was held by the Judicial Committee that the limitation prescribed by the Bengal Tenancy Act is not prevented from running in favour of the tenant during the period that a suit in ejectment is pending against him. In that case the defendant held certain tenure called 'Chukdari' tenure within the plaintiff's Zamindary. The plaintiff at one stage sued the defendant for ejectment and was met by the defence that he was holding on the strength of the Chukdari tenures and the ejectment suit was, therefore, dismissed. Subsequently, the plaintiff instated suits for rent of the Chukdari tenures. It was held that only rents not barred by limitation under the provisions of the Bengal Tenancy Act could be claimed and that limitation would not be saved from running on account of the pendency of the previous ejectment suit against the defendant This decision of the Judicial Committee is one of the decisions which was considered by the Special Bench which decided the case cited above, namely, : AIR1961Cal353 (SB). The Special Bench relief on the distinction which was drawn by the Judicial Committee in Hurro Pershad Roy Choudhury's case, 9 Ind App 82 (PC), between the reasons for decision in that case and the reasons for decision in an earlier case Ranee Surnomoyee v. Shooshee Mokhee Burmania, 12 MOO Ind App 244 (PC). In Ranee Surmoyee's case, 12 MOO Ind App 244 (PC), the Zemindar brought a Putni Taluk to sale, and the purchaser was put in possession of the Putni Taluk, and out of the purchase -money arrears of rent were satisfied. Subsequently the sale was set aside, and the Zemindar had to refund the purchase -money, and the Putnidar also obtained mesne profits for the time during which he had been ousted. In the circumstances the Judicial Committee observed that the Putnidar having recovered possession together with mesne profits, it was equitable that he should pay the amount of rent which was in arrears; but that amount of rent did not accrue until the sale of the Putni had been set aside and therefore, until that time the statute could not run. Hurro Per -shad Roy Chaudhury's case, 9 Ind App 82 (PC) was distinguished because it was observed that if the plaintiff in that case had made a proper enquiry, he might have ascertained whether the Chukdari tenures existed, but he chose to ignore them and sued the defendants improperly for khas possession. It was held that in the meantime, as the Chukdari tenures were in existence, it was open to the Zemindar to institute suits for rent and therefore, it could not be said that only on the dismissal of the suit for recovery of khas possession, the rent became due and time began to run.;

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