LAKHA KHAN Vs. SHRI KISHAN
HIGH COURT OF RAJASTHAN
Click here to view full judgement.
(1.) THIS is a revision application by the landlord-defendant against an order of the appellate court fixing the standard rent of a shop owned by him at Rs. 22. 8. 0 per month on the suit of the tenant-plaintiff under sec. 6 of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950. The revision application has been contested on behalf of the tenant.
(2.) THE facts found by the appellate court, which cannot be challenged in this revision application, are these. THE tenant took the shop on an agreed rent of Rs. 50/- on 21. 4. 53. He instituted the present suit for fixation of standard rent on 4. 4. 62 on the ground that the agreed rent is excessive as it is more than 2 times the basic rent. It was alleged that the basic rent of the shop, that is the rent in 1943, was Rs. 9/- per month. THE contention on behalf of the landlord is that the suit is barred under Art. 120 of the Limitation Act and the cause of action accrued to the tenant at the very commencement of the tenancy namely 21. 4. 53 when he took the shop on an agreed rent of Rs. 50/- per month. As the agreed rent was excessive being more than 2 1/2 times the basic rent, the tenant could have avoided the agreement by bringing a suit under sec. 6 soon after taking the shop on rent. Reliance was placed on the decision of a Division Bench of the Gujarat High Court in Bai Manchha vs. Md. Baker-el Edrus (l ). THE plaintiffs of that case who were the cultivators of suit lands and in possession of the same at all material times alleged that in 1923 the defendant demanded from the cultivators double the rate of rent under threat and coercion and gave them a Hobson's choice of either signing a Kabuliat agreeing to pay the enhanced rate of rent or to vacate the lands and that the plaintiffs executed the Kabuliat and had been paying the enhanced rent year after year. THE suit was brought for a declaration that they were the tenants on a fixed rate of rent. THE cause of action for the suit was alleged to arise when the defendant wrongly demanded the enhanced rate in 1923 and it continued to subsist day after day till 1951 when the defendant filed an application to the Mamlatdar for recovering the enhanced assessment for the current year. It was held that sec. 23 of the Limitation Act had no application and the suit was barred under Art. 120 of the Limitation Act. THE injury caused to the plaintiff was complete the moment the act of execution of the Kabuliat under a threat of compulsion was done and the demands for enhanced rate made year after year in pursuance of that act was merely the effect of that wrong and did not make it a continuing wrong. THE right to sue accrued within the meaning of Art. 120 Limitation Act when the plaintiffs' right was effectively invaded for the first time in 1923 and the filing of applications to the Mamiatdar in 1951 did not constitute a fresh and independent invasion of the right of the plaintiffs as occupants or permanent tenants so as to give them a fresh right to sue.
On behalf of the tenant it was contended that the right to get standard rent fixed under sec. 6 is a recurring right and there was a fresh cause of action every month whenever the rent fell due.
Sec. 6 (1) provides that where no rent has been agreed upon or where for any reason the rent agreed upon is claimed to be excessive, the landlord or the tenant may institute a suit in the lowest court of competent jurisdiction for fixation of standard rent for any premises. Sub-sec. (5) runs - "in every case in which the Court determines the standard rent of any premises under this section it shall appoint a date from which the standard rent so determined shall be deemed to have effect : Provided that such date shall, in the case of a tenant who institutes a suit under this section after the expiration of six months from the commencement of his tenancy on the ground of the rent agreed upon being excessive, be the date of the institution of such suit or such later date as the Court may in the circumstances of the case deem reasonable. "
Sec. 8 (2) lays down that any agreement for the payment of rent as such in excess of the standard rent shall be null and void and shall be construed as if it were an agreement for payment of the standard rent only. Under sec. 3 (vi) 'standard rent' is defined as rent determined in accordance with the provisions of the Act. Under sec. 5 the rent payable for any premises shall be ordinarily such as may be agreed upon between the landlord and the tenant. In my opinion the agreement to pay rent which was entered into between the parties on 21. 4. 53 cannot be regarded as a voidable contract within the meaning of sec. 19 of the Contract Act. The agreement in the Gujarat case was a voidable agreement. Under the Act the landlord is not prohibited from entering into an agreement with a tenant for the payment of rent in excess of the limits laid down under sec. 6. The agreement dated 21. 4. 53 was therefore a valid agreement. This agreement only becomes void after the court fixes standard rent. It is true however that the tenant could have instituted a suit for the fixation of standard rent soon after he took the shop on rent on 21. 4. 53. In my opinion the cause of action for getting standard rent fixed is a recurring one which is analogous to the cause of action accruing to a co-sharer for getting his property partitioned. In Abdul vs. Pathummal Bivi (2) the observations made in Mohabharat Shaha vs. Abdul Hamid Khan (3) to the following effect were approved "if we are called upon to decide the question namely, whether the provisions of the Limitation Act do or do not apply to suits for partition, administration, construction of wills, public charities, and apportionments of rent, we might possibly hold that such suits are not beyond the scope of the Limitation Act, but that in each case, the right to sue accrues every moment during the whole of the time, that the right to the property continues to exist; for instance, the liability to be partitioned is one of the incidents of joint property and a co-owner has the right to sue for partition at every moment of the whole period during which he continues to be co-owner. Indeed, it has been held in more than one case to be found in the books that Art. 120 and sec. 23 may have to be simultaneously applied to determine whether or not a suit is barred by limitation. "
Sec. 23 of the Limitation Act runs as follows - "in the case of a continuing breach of contract and in the case of a continuing wrong independent of contract, a fresh period of limitation begins to run at every moment of the time during which the breach or the wrong, as the case may be, continues. "
The above section in terms is not applicable to a suit for fixation of standard rent. For it is strictly neither a case of a breach of contract nor of a wrong independent of contract. In my opinion a fresh cause of action for instituting a suit for fixation of standard rent arises every month whenever rent falls due. The suit for fixation of standard rent by a tenant cannot therefore become barred by limitation under Art. 120 so long as the tenancy continues.
I accordingly hold that the present suit for fixation of standard rent instituted on 4. 4. 62 was not barred by limitation. The revision application is therefore dismissed. In the circumstances of the case, I leave the parties to bear their own costs of this revision application. .
Copyright © Regent Computronics Pvt.Ltd.