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CASE NO.: Appeal (civil)  2152-2153 of 1999

PETITIONER: Raichurmatham Prabhakar & Anr.

RESPONDENT: Rawatmal Dugar

DATE OF JUDGMENT: 12/04/2004

BENCH: R.C. LAHOTI & ASHOK BHAN.

JUDGMENT: J U D G M E N T

R.C. Lahoti, J.

       There are two cases relating to two premises, both being part of  the same building, owned by the same owners but held on tenancy by  two tenants.  The two premises are described as Door Nos.11-45-60  and 11-45-60/A situated at Thavvavari Street of Vijayawada.  The  tenants in the two premises were holding each at a monthly rent of  Rs.250/- under the appellant-landlords.  For convenience sake we  would refer to the parties only as ’landlord’ and ’tenant’.           The landlord initiated proceedings for recovery of possession  over the tenancy premises alleging that the same were required bona  fide by the landlord for the immediate purpose of demolishing and  such demolition was to be made for the purpose of erecting new  building on the site of the building sought to be demolished, a ground  contemplated under Clause (b) of sub-Section (1) of Section 12 of the  A.P. Buildings (Lease, Rent and Eviction) Control Act, 1960  (hereinafter ’the Act’, for short).  The landlord was successful in both  the proceedings and vide the order dated 21.2.1986, the Rent  Controller directed the two tenants to put the landlord in possession of  the tenancy premises within one month from the date of the order.   The tenants preferred appeals which were dismissed on 5.2.1987.    The time appointed for compliance by the tenants was extended by  one month.  The tenants delivered possession over their respective  shops to the landlord on 5.3.1987.  The landlord gave an undertaking  to the effect that on completion of the work of repairs and alteration  etc. in the building the same will be offered to the tenants.  

The work was completed by the landlord within six months. On  3.9.1987, the landlord sent an offer to each of the two tenants to  occupy the rebuilt premises subject to payment of Rs.2400/- p.m. by  each of the two tenants. The area of the two shops in question before  renovation was 27 ft. x 11 ft. = 297 sft. each. It appears that the  building continues to be non-residential as before but it has undergone  structural alterations of far-reaching character.  It is clear from the  description of premises contained in the offer in writing made by the  landlord on 03.09.87, relevant parts whereof read as under:__ "You are aware that in my building D.no.11-45- 60/A in Tavvavari Street, Vijayawada-1, in front of the  Room (which was leased to you previously), a new shop  room measuring about 11 x 12 feet has been constructed  with the concrete Pillers, RRC roofing and iron shutter  facing the northern side.  The previous room which is now  situated inside of this newly constructed shop room, is  completely altered by removing the wooden door,  window, walls, middle piller, arches, and partition walls,  and by putting new iron beams (girders) in the place of

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partition walls and by constructing new walls, by  removing wooden beams (girders) in their places, by  carrying out new cement planting to all walls, and raising  height of the ground floor to one foot and putting new  cuddappha stone slab flooring.  All these rooms including  newly constructed front shop room are being completely  altered constructed with new additional constructions in  order to make one big shop measuring about 40 x 11 feet  with decent appearance as suitable for the offices, or  wholesale shops.              x x x

I offer this newly constructed shop/hall (with iron  shutter) measuring about 40 x 11 feet (including newly  constructed front shop room) to you for lease for the rent  of Rs.2400/- Rupees two thousand four hundred only per  month, and this rent is according to the market rate of  the rents prevailing in this important business area."   

The tenants did not reply. On 15.12.1987, the tenants filed two  execution petitions seeking enforcement of the undertaking given by  the landlord and recovery of possession to the tenants from the  landlord.  By order dated 6.1.1989, the executing Court directed the  execution petitions to be dismissed solely on the ground that they  were barred by limitation as they were filed on 15.12.1987 and not  within six months from the date of the appellate orders i.e. 5.2.1987  (as required by Rule 23, quoted hereinafter).  The tenants preferred  two revision petitions before the High Court which have been disposed  of by a common order.  The revision petitions have been allowed.  The  landlord has been directed to restore possession to the tenants.  The  High Court has left it open to the landlord to take necessary steps for  claiming fair rent from the tenants by approaching the Rent Controller  for the purpose.  Feeling aggrieved the landlord has come up in  appeals by special leave.

       Two questions arise for decision:- (1)     Whether a new tenancy comes into existence, between the  parties, on possession being restored to the tenant over the newly  erected building or any part thereof, which would entitle the landlord  to settle the rent and other terms of lease afresh?

(2)     What is the period of limitation for filing an application by the  tenant seeking enforcement of the order of the Rent Controller made  under Section 12 of the Act?

       Both the abovesaid issues call for construing the provision  enacted in Section 12 of the Act.

       The Andhra Pradesh Buildings (Lease, Rent and Eviction) Control  Act 1960 (Act No.15 of 1960) was enacted to replace former two State  enactments namely the Madras Buildings (Lease and Rent) Control  Act, 1949 (Madras Act XXV of 1949) and the Hyderabad Houses (Rent,  Eviction and Lease) Control Act, 1954 (Hyderabad Act XX of 1954)  which were operating in two areas of the State namely the Andhra  area and Telangana areas respectively.  It seems that in the  predecessor legislation there was no provision similar to the one  contained in Section 12 of the Act of 1960.  The Statement of Objects  and Reasons states inter alia that new Act was introducing some  important new provisions and one of them being ___ "to make a  provision empowering the Rent Controller to direct the tenant to hand  over possession of a building to the landlord to enable him to  reconstruct or renovate the old building subject to certain safeguards".          Section 12 of the Act with which we are concerned reads as under:- "12.    Recovery of possession by landlord for  repairs, alterations or additions or for

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reconstruction:-

(1)     Notwithstanding anything in this Act on an  application made by a landlord, the Controller may,  if he is satisfied:

(a)     that the building is reasonable and bona fide  required by the landlord for carrying out  repairs, alterations or additions which cannot  be carried out without the building being  vacated; or  

(b)     that the building consists of not more than  two floors and is reasonable and bona fide  required by the landlord for the immediate  purpose of demolishing it and such  demolition is to be made for the purpose of  erecting a new building on the site of the  building sought to be demolished,  

pass an order directing the tenant to deliver  possession of the building to the landlord  before a specified date.

(2)     No order for recovery of possession under this  Section shall be passed unless the landlord gives  an undertaking that the building on completion of  the repairs, alterations or additions or the new  building on its completion will be offered to the  tenant, who delivered possession in pursuance of  an order under sub-section (1), for his occupation  before the expiry of such period as may be  specified by the Controller in this behalf.

(3)     In case the tenant, to whom the building or the  new building, as the case may be, is offered under  sub-section (2) by the landlord does not want to  occupy it the landlord shall give notice of vacancy  in writing to the authorized officer under sub- section (1) of Section 3.

(4)     Nothing in this Section shall entitle the landlord,  who has recovered possession of the building for  repairs, alterations or additions or for  reconstruction to convert a residential building into  a non-residential building or a residential building  unless such conversion is permitted by the  Controller at the time of passing an order under  sub-section (1)."   

       In exercise of the power conferred by Section 30 of the Act,  rules have been framed by the Government of Andhra Pradesh, called  the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Rules,  1961.  The relevant part of Rule 23, with which we are concerned, is  extracted and reproduced hereunder:- "23. (1) Every application for the execution of orders  passed under this Act shall be in writing signed  and verified by the decree-holder and filed  before the Controller within six months from the  date of the order accompanied by a certified  copy of the order concerned together with the  necessary process fee:                 Provided that an application may be  admitted after the specified period if the  applicant satisfied the Controller that he has

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sufficient cause for not preferring the  application within such period.         (2) On receipt of an application for the execution of  order as provided by sub-rule (1), the Controller  shall ascertain whether all the requirements  have been complied, and if they have not been  complied, the Controller may reject the  application or may allow the defect to be  remedied within the time to be fixed by him.         (3) & (4)       xxx             xxx             xxx         (5) An order of eviction passed under Sections 10,  12, and 13 shall be executed by evicting the  persons against whom the order was passed or  any other persons bound by the said order and  by delivering the vacant possession of the  building in regard to which the order was  passed either to the person in whose favour the  order was passed or to such person as he may  appoint to take delivery on his behalf.          (6) to (8)      xxx             xxx             xxx"

         The leases of immovable property and the relationship  between landlord and tenant are governed by Chapter V of the  Transfer of Property Act, 1882.  The rights and liabilities of lessor and  lessee are stated in Section 108 of the T.P. Act which apply subject to  the contract or local usage to the contrary.  Under Clause (b) and (c)  thereof, not only the lessor is bound on the lessee’s request to put him  in possession of the property but there is also an implied covenant for  peaceful possession and enjoyment of the leased property by the  tenant.  So long as the lessee pays the rent reserved by the lease and  performs the obligations cast on him by the contract of lease, he is  entitled to hold and enjoy the property without interruption by anyone  including the lessor.  Under Clause (l) the lessee is bound to pay or  tender, at the proper time and place, the premium or rent to the  lessor.         There has developed what is known as the doctrine of  suspension of rent based on principles of justice, equity and good  conscience.  If the lessee is dispossessed by the lessor from the leased  property the obligation of the lessee to pay rent to the lessor is  suspended.         In V. Dhanapal Chettiar Vs. Yesodia Ammal ___ AIR 1979  S.C. 1745, the Seven-Judges Bench of this Court examined the impact  of Rent Control Legislations on the provisions of the Transfer of  Property Act in the context of the issue whether for the purpose of  seeking an eviction of tenant under the provisions of the rent control  law, it was still necessary for the landlord to terminate the tenancy by  giving a notice under Section 106 of the T.P. Act.  Certain observations  made by this Court during the course of its judgment are relevant for  our purpose and may be noticed.  The State Rent Acts have, to a very  large extent, encroached upon the field of freedom of contract.  The  right of re-entry controlled by Section 111 of the T.P. Act is further  restricted and fettered by the provisions of the Rent Restriction Act.  In  spite of the contract of lease having expired or terminated, the tenant  ___ lessee continues in possession under the protective wing of the  Rent Restriction Act until the lessee loses that protection.  The lessee  is not bound to vacate nor can the lessor-landlord exercises his right of  re-entry unless a ground entitling him to do so within the meaning of  the Rent Act has been made out and established in a court of law.  The  landlord-tenant relationship stands snapped and the tenancy comes to  an end only on a decree or order in that regard being passed by a  competent court.  Thus, the contractual lease may have come to an  end and the landlord-tenant relationship may have ceased to exist  under the contract or the T.P. Act, yet the same continues to exist for  the purpose of Rent Act.   With this much prefatory statement we proceed to examine the

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provisions of the A.P. Act.         The Heading given to Section 10 of the Act  is ___ ’Eviction of  tenants’.  It confers a protection on the tenant to occupy the tenancy  premises by providing that the tenant shall not be evicted whether in  execution of a decree or otherwise except in accordance with the  provisions of Section 10 or Sections 12 and 13.  Sub-section (2) of  Section 10 enumerates the grounds on the availability whereof the  tenant becomes liable to be evicted.  The provision opens by enacting  that a landlord who seeks to evict his tenant shall apply to the  Controller for a direction in that behalf.  If the Controller, after hearing  both the parties, is satisfied of the availability of any one or more of  the grounds specified in sub-section (2) being made out, the Controller  shall make an order directing the tenant to put the landlord in  possession of the building.  The Headings given to Sections 12 and 13  speak of ’Recovery of possession by landlord for repairs, alterations or  additions or for reconstruction’ of buildings.   The view is now settled that the Headings or Titles pre-fixed to  sections or group of sections can be referred to in construing an Act of  the Legislature.  But conflicting opinions have been expressed on the  question as to what weight should be attached to the Headings or  Titles.  According to  one view, the Headings might be treated as  preambles to the provisions following them so as to be regarded as  giving the key to opening the mind of the draftsman of the clauses  arranged thereunder.  According to the other view, resort to Heading  can only be taken when the enacting words are ambiguous.  They  cannot control the meaning of plain words but they may explain  ambiguities.  (See: Principles of Statutory Interpretation by Justice  G.P. Singh, Ninth Edition, 2004, pp.152,155).  In our opinion, it is  permissible to assign the Heading or Title of a section a limited role to  play in the construction of statutes.  They may be taken as very broad  and general indicators of the nature of the subject-matter dealt with  thereunder.  The Heading or Title may also be taken as a condensed  name assigned to indicate collectively the characteristics of the  subject-matter dealt with by the enactment underneath; though the  name would always be brief having its own limitations.  In case of  conflict between the  plain language of the provision and the   meaning  of the Heading or Title, the Heading or Title would not control the  meaning which is clearly and plainly discernible from the language of  the provision thereunder.   In the present case, Sections 10 and, 12 and 13 are placed in  close proximity and yet assigned different titles which is suggestive of  the legislative intent that the subject-matter dealt with under the two  headings, differently named, is different.   A comparative reading of  Section 10 with Sections 12 and 13 shows that while sub-section (2) of  Section 10 contemplates the tenant being directed to put the landlord  in possession of the buildings consequent upon a ground for eviction of  tenant having been made out and the landlord having succeeded in  making out a case for eviction of his tenant.  And so, the delivery of  possession by tenant to landlord is in effect eviction of tenant by  landlord.  The tenancy itself is determined.  Under Sections 12 and 13   the Controller orders the tenant  to deliver possession of the buildings  to the landlord for a specific purpose and according to a calendar of  events which binds the landlord and the tenant both.  In other words,  under Sections 12 and 13 the tenant is not evicted; the tenancy does  not come to an end; the lease continues to survive; and yet the tenant  ceases to be in actual possession of the building which is placed in  possession of the landlord for a specified purpose.  Under Clause (a) of  sub-section (1) of Section 12 the purpose is "for carrying out repairs,  alterations or additions which cannot be carried out without the  building being vacated".  Under Clause (b) of sub-section (1) the  purpose is "the immediate purpose of demolishing it and such  demolition is to be made for the purpose of erecting a new building on  the site of the building sought to be demolished."  The provision seeks  to achieve a multi-purpose.  The tenant is protected because his  tenancy does not come to an end and his right to re-occupy the

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building ___ repaired, altered, added or erected ___ continues to survive.   The landlord is benefited because but for the tenant having been  directed to deliver possession to him he could not have carried out  such repairs, etc. or rebuilding.  The public interest is served as the  buildings are kept in good state and habitable and new building  activity continues to be carried on.         Under Section 12, as we have already stated, the lease does not  come to an end, nor the tenancy is terminated, merely on account of  possession of the building having been delivered to the landlord; nor  does it come to an end nor extinguished because the old building has  been demolished and a new building has been erected.  The tenant,  when he re-enters into possession, does so under the original tenancy  which stands statutorily protected under the Act and he has not been  evicted nor held liable to be evicted.  In spite of the building having  been repaired, altered, added to or re-erected, the tenant shall re- enter to occupy the premises on the same terms and conditions on  which he was occupying the building on the date on which he delivered  possession to the landlord, pursuant to the order of the Controller.   The rent for the period between the date of delivery of possession by  tenant to landlord and the date of tenant’s re-entry shall remain  suspended because during that period it was not the tenant but the  landlord who was in possession of the building.  On the tenant’s re- entry into possession of the building, his obligation to pay the same  rent which he was paying on the date of delivery of possession by him  to the landlord, shall stand revived.  If the law permits a revision of  rent or fixation of standard rent afresh, the landlord would be at liberty  to invoke that provision and revise the rent consistently with such  provisions. But the revision of rent cannot be insisted on by the  landlord as a condition precedent to re-entry by the tenant.           Therefore, the landlord in the present case was not justified in  offering the premises to the tenants for re-entry by qualifying the offer  for payment of a higher rate of rent.         In Kondeti Suryanarayana and Ors.  Vs.  Pinninti Seshagiri  Rao __ (1995) 2 Andh. L.T. 100, a learned Single Judge of the High  Court of Andhra Pradesh noticed G.O.M. No.636, G.A.D. dated  29.12.1983 which exempted newly constructed buildings from the  operation of the Act, with effect from 26.10.1983, for a period of 10  years from the date on which their construction is completed.  The  Notification was issued in exercise of the power conferred by Section  26 of the Act.  In the opinion of the learned Single Judge, inasmuch as  the newly constructed building would remain exempted for a period of  10 years from the operation of the Act, it was not necessary for the  landlord to give an undertaking as contemplated by sub-section (2) of  Section 12 of the Act and the right of re-induction of the tenant  remained suspended for a period of 10 years from the date of  completion of the construction of building.  This judgment was put in  issue in appeal by special leave before this Court.  A Division Bench of  this Court by its judgment dated 04.11.1999 (reported as Kondeti  Suryanarayana and Ors.  Vs.  Pinninthi Seshagiri Rao ___ AIR  2000 Supreme Court 70) set aside the judgment of the  Andhra  Pradesh High Court and held that where a landlord requires a building  to be demolished necessarily he has to reconstruct the building on the  same site of the building and on reconstruction of new building the  tenant has to be allowed to re-enter in the said premises.  If an  interpretation, as given by the learned Single Judge of the Andhra  Pradesh High Court, was to be accepted then it would encourage any  unscrupulous landlord to get eviction of tenant on the ground of  demolition of the building which would be repugnant to the object of  the Act, said this Court.  We may hasten to add that the judgment of  the Andhra Pradesh High Court reversed by this Court suffered from  the fallacy of reading Section 12, as providing a ground to the landlord  for evicting the tenant which it is not.         A perusal of Section 12 of the Act shows the order being passed  by the Controller directing the tenant to deliver possession of the  building to the landlord before a specified date, subject to the

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Controller being satisfied of the availability of the ground for making  such an order.         An order for recovery of possession under Section 12 cannot be  passed unless the landlord gives an undertaking for offering the  building back to the tenant on the expiry of such period as may be  specified by the Controller in this behalf.  If the tenant does not avail  the offer still the landlord cannot occupy the building.  He has to notify  the vacancy in writing to the authorized officer  under Section (1) of  Section 3.  The nature of user after reconstruction must remain the  same as it was before, that is to say, a residential building must  continue to be a residential building and a non-residential building  must continue to be a non-residential building on re-erection unless  permitted otherwise by the Controller.  Section 12 empowers the  Controller to specify time or appoint the dates for three purposes: (i)  the date by which the tenant has to deliver possession of the building  to the landlord, (ii) the date by which the landlord has to complete the  work, and (iii) the date by which the landlord shall offer the building to  the tenant.  The controller can also specify the date or time before the  expiry of which the tenant must give response to the offer made by  the landlord.  ’Such period as may be specified by the Controller in this  behalf’ ___ the expression as employed in sub-section (2) of Section 12  qualifies all the events within the scope of that provision.   Once these  dates have been specified there will be no difficulty of implementation.

Having reconstructed the premises totally anew, should the rent  remain static?  We can understand the premises being just repaired or  only essential repairs having been carried out by the landlord in  discharge of his obligation to secure peaceful enjoyment and  possession of the tenancy premises by the tenant for the purpose for  which the tenancy was created.  So long as the premises remain the  same, one can understand and assume that the rent appointed for the  premises either by agreement or as fair rent has already taken care of  the obligation of the landlord of maintaining the premises in good and  habitable condition.  In such cases, it may not be necessary to revise  the rate of rent.  However, when the premises have been added to,  improved, altered or rebuilt consequent upon the satisfaction of the  Controller having been arrived at in that regard, it will be  unreasonable and capricious to keep the premises tied down to the old  rate of rent which was being paid for premises which were ____ may be  ____ dilapidated or not worthy of human habitation.  Such a provision, if  contained in any Legislation, would be liable to be struck down as  unconstitutional on account of being arbitrary, capricious and  unreasonable.  However, so far as the Act is concerned, care has been  taken by Section 5 thereof which provides as under:-         "5.  Increase in fair rent in what cases  admissible:-(1) When the fair rent of a building  has been fixed under this Act, no further increase  in such fair rent shall be permissible except in  cases where some addition, improvement or  alteration has been carried out at the landlord’s  expense and if the building is then in the  occupation of a tenant, at his request:

       Provided that the increase shall be calculated  at a rate per annum not exceeding six per cent of  the cost of such addition, improvement or  alteration carried out and the fair rent as increased  under this sub-section shall not exceed the fair rent  payable under this Act for a similar building in the  same locality with such addition, improvement or  alteration:

       Provided further that, any dispute between  landlord and the tenant in regard to any increase  claimed under this sub-section, shall be decided by

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the Controller."

       Sub-Section (1) of Section 12 contemplates delivery of  possession by the tenant to the landlord for repairs, alterations,  additions and demolition and reconstruction.  Out of these four  situations, Section 5 permits revision of rent in cases of alterations,  additions and repairs amounting to improvements.  A reconstruction  carried out pursuant to order of Controller made under Section 12(1)  of the Act is included within the meaning of the expression ’addition,  improvement or alteration’ which, in our opinion, seems to have been  used in wider sense.  In such cases, it will be permissible to have the  rent  fixed consistently with the principles laid down in the proviso to  sub-Section (1) of Section 5.  In the cases covered by Section 12,  Section 5 is available for fixation of fair rent by way of revision over  the rate of rent at which it was being paid previously.  The opening  part of sub-Section (1) of  Section 5   is  divisible   into two parts,  comprehending two situations, as under :   

(i) Where the fair rent of a building has been fixed under  this Act, no further increase in such fair rent shall be  permissible;  except in cases

(ii)    where some addition, improvement or alteration  has been carried out at the landlord’s expense and if the  building is then in occupation of a tenant, at his request.  

The next following two provisos respectively lay down the  formula for calculating the revision in rent and confer exclusive  jurisdiction on the Controller to decide the dispute.

       Sections 4, 5 and 6 are parts of one scheme.  What first clause  of sub-Section (1) of Section 5 provides is that the fair rent of a  building having been fixed under Section 4 the same cannot be re- fixed once again.  It is the rule of one-time fixation of fair rent.  This  rule does not apply to any case of addition, improvement  or alteration  having been carried out as stated in the later clause.  It is an  exception to ’one-time fixation of fair rent’ rule. In spite of fair rent of  building having been fixed already, the fair rent can be fixed again as  per formula laid down in the proviso on an addition, improvement or  alteration having been carried out.  Such cases are excepted from the  prohibition of ’no further increase’.         Now arises for determination  the question of limitation for filing  of  execution petition by the landlord or by the tenant.  Here again, a  perusal of the scheme of Section 12 shows that the provision  contemplates passing of an order directing the tenant to deliver the  possession of the building to the landlord before a specified date under  sub-section (1) of Section 12. Sub-Section (2) does not contemplate  an order for re-entry by tenant into possession being made by the  Controller; what the Controller does is to accept the undertaking given  by the landlord without which an order for delivery of possession by  the tenant in favour of the landlord under sub-section (1) shall not be  passed.  The specification of dates by the Controller is dependant on  and consequent to the undertaking given by the landlord as condition  precedent to the passing of the decree.  If the landlord does not give  the undertaking contemplated by sub-section (2), there shall be no  order for recovery of possession under sub-section (1).

       Where the tenant fails to deliver possession on or before the  specified date to the landlord, the landlord may execute the order of  the Controller by filing an execution petition which will be governed by  Rule 23 and hence shall have to be filed within a period of six months  from the date of the order.  The application is by landlord who is a  decree-holder having an executable order in his favour in his hands.  A  tenant exercising his right of re-entry is neither a decree-holder nor

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seeking execution of any order in his favour; he is seeking  enforcement of a solemn undertaking given by the landlord but for  which  the Controller would not have made an order under sub-section  (1) of Section 12 of the Act.  The tenant’s application is not an  application for execution and hence does not attract applicability of  Rule 23.  It would be governed by Article 137 of the Limitation Act,  1963; it being an application for which no period of limitation is  provided elsewhere and the period of three years shall begin to run  when the right to apply accrues.  The right to apply will accrue on the  date specified by the Controller under sub-section (2) in this behalf.   The period of limitation prescribed by Rule 23 may become otiose if  applied to tenant as the period for completion of building by landlord  may itself be more than six months and the period of limitation for  tenant if governed by Rule 23 would have already expired by that  time. An application filed before Rent Controller can attract  applicability of Limitation Act, 1963 (See \026 Mukri Gopalan Vs.   Cheppilat Puthanpurayil Aboobacker \026 (1995)  5  SCC  5.   There  are three single-Judge Bench decisions of Andhra Pradesh High Court,  namely, K.S. Hanumantharayappa Vs. A.N. Vittal Rao \026 1987 (1)  ALT 474, K.Manik Rao and Ors. Vs. Smt. M. Bikshapamma & Anr.  \026 1987 (2) ALT (Notes on Cases) 15 and Navin Chandra Vs. Smt.  Prema Bai Pitti \026 1992(3) ALT 181, taking the view that the  limitation for application by tenant seeking restoration of possession to  him is governed by Rule 23.  These decisions do not lay down the  correct law and are overruled.

       However, we hasten to add that the tenant must exercise his  right to recover possession within the time appointed by the Controller  for the purpose or if no such time is appointed then within a  reasonable time and promptly on receiving offer from the landlord in  that regard failing which the right of the tenant to seek restoration of  possession shall be lost.  The tenant who has allowed the time  appointed by the Controller to lapse or failed to avail the offer  made  by landlord within a reasonable time need not be allowed relief by the  Controller in spite of his application being within limitation under  Article 137 of the Limitation Act.  The limitation of three years is the  outer limit of time available  to tenant seeking recovery of possession  when the landlord has defaulted.         Hence, in the present case, the application filed by the tenant  for enforcing the right of re-entry pursuant to the undertaking given  by the landlord, whether incorporated in the order of the Controller or  not, cannot be said to be barred by limitation.  It is futile to determine  the question of limitation by reference to Rule 23 above said.  The  High Court has rightly allowed the revision petitions holding the  application filed by the teant to be within limitation and rightly held  that it was open to the landlord to take necessary steps for claiming  fair rent.  However, we clarify that the landlord shall be entitled to  claim fair rent as is permitted by law and till then the tenant shall be  liable to pay the rent at the same rate at which it was being paid.          Before parting we notice that when the revisions filed by the  tenant were allowed by the High Court on 16.10.1998 it was brought  to the notice of the High Court by the landlord, at the time of  pronouncement of the judgment, that the reconstructed building had  already been leased out to some other persons, and therefore, the  High Court directed the operation of its judgment to remain stayed for  approaching this Court.  As to when and in what circumstances third  persons have been inducted into possession of re-built building, are  not known as the same are not discernible from the record.  Before  giving effect to the order of the High Court, the Controller shall have to  give notice to such third parties who are presently in possession and  they shall have to be heard.  It is difficult for us to anticipate what  these third persons in possession may have to say and, therefore, we  make no observation on their rights, if any, and leave it open to be  determined by the Controller.         Subject to the above said cautionary observation, the appeals

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are dismissed.