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PETITIONER: KAMALA BAKSHI

       Vs.

RESPONDENT: KHAIRATI LAL

DATE OF JUDGMENT:       30/03/2000

BENCH: S.N.Phukan, S.S.M.Quadri

JUDGMENT:

     SYED SHAH MOHAMMED QUADRI,J.

     This appeal of landlady, by special leave, is directed against  the order of the High Court of Delhi in C.R.No.1002 of  1996 dated November 28, 1996.  This case had a chequered career.   The  present  controversy is an off-shoot  of  the earlier  litigation between the parties.  To appreciate  the question  involved in this case, it will be necessary to set out  briefly the facts giving rise to this appeal.  On March 2,  1960, the respondent who is a tailor, occupied  premises No.26,  Faiz Bazar, Darya Ganj, Delhi (hereinafter  referred to  as the suit premises) of H.S.Sharma, the father of the appellant.   The said Sharma and the respondent entered into an  arrangement  pursuant to which he executed  a  document, Ext.P-1, on March 28, 1960 (Ext.P-1, however, bears the date June  28,  1960),  purporting  to join  as  Manager  of  the tailoring business said to be of H.S.Sharma, which was being carried on in the suit premises.  The said arrangement could not  continue  for long.  On June 10, 1966, the said  Sharma filed  a  suit  claiming mandatory  injunction  against  the respondent  on the ground that he was a licensee in the suit premises  in  the  capacity of Manager,  which  having  been terminated  he  had no right to remain there and that he  be directed  to remove himself from the premises and further to restrain  him  from  entering into the suit  premises.   The respondent  contested  the  suit  denying   that  he  was  a licensee.   He pleaded that he was carrying on his tailoring business  therein as a tenant on a monthly rent of  Rs.30/-. Ext.P-1,  it  was  alleged, was executed to  circumvent  the provisions  of  the Delhi Rent Control Act, 1958 (for  short the  Act) and that it was not a valid document.  The Trial Court  accepted the case of H.S.Sharma and decreed the suit, as prayed for, on December 21, 1974.  The respondent went in appeal  before  the learned District Judge who reversed  the decree  of the Trial Court believing the case set up by  the respondent  that  he was a tenant of the suit premises on  a monthly  rent  of Rs.30/-.  Challenging the judgment of  the learned  District Judge dated April 16, 1979, Rajinder Kumar Sharma  son of H.S.  Sharma filed R.S.A.No.29 of 1980 in the High  Court  of Delhi.  The finding of the  Appellate  Court that the said Sharma was the landlord and the respondent was the  tenant,  was upheld but the quantum of rent payable  by the respondent was modified to Rs.140/- by the High Court on September  5, 1991.  In the meanwhile, the said Sharma  died

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leaving  the appellant and her brother Rajinder Kumar Sharma as his legal representatives.  The appellant claims title to the  suit premises on the basis of a family settlement.   On August  19,  1992  the  appellant   issued  notice  to   the respondent demanding rent for the period from March 28, 1960 to  July 28, 1992 amounting to Rs.54,320/-.  The  respondent paid  rent  for the period of three years prior to  1.9.1992 and  disowned  his liability to pay arrears for the  earlier period.  The appellant filed petition under Section 14(1)(a) of  the  Act  for eviction of the respondent from  the  suit premises  for  non-payment of arrears of rent for  the  said period  in  the  court of the  Additional  Rent  Controller, Delhi.   The respondent pleaded that the arrears of rent for the  period of three years immediately preceding the  demand notice  dated  August  19,  1992 were paid  by  him  to  the appellant;   with  regard to the rest of the period, it  was pleaded,  that the arrears were not legally recoverable.  By its  order  dated  September 4, 1996,  the  Additional  Rent Controller  dismissed  the  petition  holding  that  as  the respondent  had paid arrears of rent at the rate of Rs.140/- per  month  for  the  period   of  three  years  immediately preceding  the demand notice and the arrears of rent for the rest of the period was not legally recoverable, there was no cause  of  action  for the appellant to file  the  petition. Against the said order dated September 4,1996, the appellant filed  C.R.No.1002 of 1996 in the High Court of Delhi, which was  dismissed on November 28, 1996.  It is the  correctness of  that  order of the High Court that is canvassed in  this appeal.   Ms.Rachna  Joshi Issar, learned counsel  appearing for  the  appellant, strenuously argued that for  the  first time  the rent of the suit premises @ Rs.140/- per month was determined by the High Court on September 5, 1991 so earlier to  that  judgment the appellant could not have claimed  the rent as such the rent legally payable would be the arrears from  March  28,  1960, the date of Ext.P-1, but not  for  a period of three years prior to the date of the said judgment of  the High Court.  The Additional Rent Controller and  the High  Court, submitted the learned counsel, erred in holding the  arrears of rent from the date of Ext.P-1 till September 1989 to be barred by limitation.  Mr.Sudhir Chandra, learned senior  counsel appearing for the respondent, contended that the  cause of action for recovering the rent accrued to late Sharma  each  month  after March 1960 when the  rent  became payable  and  that  once the period  of  limitation  started running it would not stop, therefore, the claim for recovery of  rent  from  March 28, 1960 till September  1,  1989  was barred  by  limitation and as such not legally  recoverable; the  learned  Additional Rent Controller and the High  Court committed  no error in law in dismissing the petition of the appellant.  The short question that arises for consideration in  this appeal is :  what is the meaning of the  expression legally recoverable arrears of rent in Section 14(1)(a) of the  Act?   It will be useful to refer to  Section  14(1)(a) here  :   14.  Protection of tenant against eviction -  (1) Notwithstanding  anything  to the contrary contained in  any other  law or contract, no order or decree for the  recovery of  possession of any premises shall be made by any court or Controller in favour of the landlord against a tenant :

     Provided  that  the Controller may, on an  application made  to him in the prescribed manner, make an order for the recovery of possession of the premises on one or more of the following grounds only, namely

     (a)  that the tenant has neither paid nor tendered the

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whole  of  the arrears of the rent legally recoverable  from him  within  two  months of the date on which  a  notice  of demand for the arrears of rent has been served on him by the landlord  in  the  manner  provided in Section  106  of  the Transfer of Property Act, 1882 (4 of 1882).

     A  perusal  of the provision shows that it  postulates making  an  order  of eviction by  any  Court/Controller  in favour  of the landlord and against a tenant for non-payment of  arrears of rent legally recoverable within two months of the  service  of notice of demand, claiming the  arrears  of rent,  on the tenant by the landlord.  It may be pointed out that  if the claim of the appellant for recovery of  arrears of  rent  was not enforceable in a court of law  for  having become  barred  by  limitation,  the  amount  ceases  to  be legally  recoverable.  Here the appellant will be entitled to  recover only that much of the arrears of rent for  which she  can sue in a court of law.  For recovery of arrears  of rent  Article  52 of the Indian Limitation Act prescribes  a period  of three years from the date the arrears become due. Now,  the question is narrowed down to this :  when did  the rent of the suit premises become due?  In the absence of any contract  to  the  contrary the rent of a  building  payable monthly  will become due at the end of each month.  Ms.Issar did not join issue on that.  She, however, vehemently argued that  before the determination of the rent by the High Court in  the Second Appeal at the rate of Rs.140/- per month, the appellant could not have recovered any rent;  therefore, the rent  of  the  suit premises from the  commencement  of  the tenancy  became due only on the date of the judgment of  the High Court.  She relied on the decision of the Privy Council in  Rangayya  Appa Rao vs.  Bobba Sriramulu & Ors.  [27  ILR Madras  143].  That was a case where the landholders granted a  patta of agricultural land to the tenant at a  particular rate  of  rent.  But Section 7 of the Madras  Rent  Recovery Act,  1865 enacted, inter alia, that no suit brought and  no legal  proceedings  taken to enforce the terms of a  tenancy shall  be  sustainable  in a civil court unless  pattas  and muchilkas  have  been exchanged or patta has  been  tendered which the tenant was bound to accept, or unless both parties had  agreed to dispense with such document.  If a patta  was tendered and the tenant refused to accept it, the landholder had  the  option  to proceed in a summary  suit  before  the Collector  for the acceptance of the patta.  In such a suit, it  was  for  the Collector to settle the terms  of  tenancy including  the  rent in accordance with the principles  laid down   in  the  Act.   An   appeal  was  provided  from  the Collectors  decision  to the Civil Court.  It was on  those facts  the Privy Council held that it was necessary for  the landholder  to  take proceedings under the said Act to  have the  proper  rate  of  rent ascertained, so  the  period  of limitation  in a suit for arrears of rent would run from the date  of the final decree determining the rent, and not from the  close of the fasli year for which the rent was payable. The  learned  counsel  sought  to derive  support  from  the judgment  of  the Delhi High Court in Ram Sarup & Anr.   Vs. Smt.Raj Dulari [AIR 1974 Delhi 23].  In that case during the pendency  of the proceedings for eviction of the tenant, the court  fixed  the  interim rent at the rate  less  than  the contracted  rent.   The eviction petition was  dismissed  in default.   Thereafter,  the  landlord   claimed  the  amount representing  the difference in the contractual rent and the interim  rent  fixed by the court.  It was held by the  High Court  that  so long as the interim order was in  force  the landlord   could  not  have  recovered   the  rent  at   the

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contractual  rate, therefore, the cause of action to recover the  arrears  of  rent  arose  on  the  termination  of  the proceedings.   The other decisions of the High Courts  cited by the learned counsel also laid down the same principle and it  is  futile  to  multiply the  decisions  here.   Learned counsel  also  cited the judgment of this Court in  Maimoona Khatun  &  Anr.  Vs.  State of U.P.  & Anr.  [1980  (3)  SCR 676].   That case related to claim of arrears of salary.   A Government  employee was dismissed from service.  After  his reinstatement,  he  did not receive his salary and while  in service   he  died.   In  the   suit  filed  by  his   legal representatives  for the recovery of the arrears of  salary, the  Trial Court held that the employee was entitled to  his pay  for  the period in question.  The decree of  the  Trial Court  was  confirmed  by the Appellate Court but  the  High Court  found that the claim was barred by limitation, though it  upheld  the  findings that the  employee  was  illegally prevented  from  discharging  his duty.  On appeal  to  this court  it  is  held that where an employee is  dismissed  or removed  from  service  and  is  reinstated  either  by  the appointing  authority or by virtue of the order of dismissal or removal being set aside by a civil (competent) court, the starting point of limitation will be the date when the right has  actually accrued.  Such a right accrues on the date  of the  reinstatement  by the appointing authority;   where  no suit  is filed or the date of the decree if a suit is  filed and  decreed.   And till that stage is reached the right  to recover  arrears  of  salary does not accrue at  all  as  no question  of suing for the arrears of salary will arise.  It may be pointed out that in Rangayya Appa Raos case (supra), the  right to recover the rent did not accrue till the  rent was determined by the Collector.  So also in the case of Ram Sarup  & Anr (supra), the right to recover the difference of rent  stood suspended during the pendency of the proceedings by  virtue  of the order of the court, so the right did  not accrue  till  the  proceedings   terminated.   In  the  last mentioned  case on his dismissal from service the Government employee  lost  the  right to claim the salary and  that  he became  entitled  to  claim salary only after the  order  of termination  of  his services was set aside by  this  court. Those  cases  are clearly distinguishable from  the  instant case.  A distinction must be drawn between cases in which by virtue  of an order of the court a right accrues to a  party to  the  lis, and cases in which the court merely lays  bare the  truth well within the knowledge of the parties.  In the former  category the cases referred to above fall and in the latter  cases  of the kind of the instant case  fall.   What happened  here  is that the parties actually entered into  a transaction  of tenancy but camouflaged the relationship  of landlord  and  tenant by executing a document purporting  to create  a  relationship of employer and employee and in  the litigation  that ensued between the parties the court had to discern the truth and declare the real position in which the parties  stood  to one another.  Such a declaration  by  the court  relates back to the date on which the parties entered into the arrangement/agreement under which the suit premises was put in possession of the respondent.  It is true that in this  case during the operation of the judgment of the trial court,  holding  that  the respondent is a  trespasser,  the appellant  could not have claimed any rent till the same was set aside by the appellate court holding that the respondent was a tenant of the suit premises which was confirmed by the High  Court in Second Appeal on September 5, 1991.  But that was  the  making  of the appellants father himself  in  the earlier  round  of  litigation.  This case presents  a  good

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example  of  how  an  arrangement  made  to  circumvent  the provisions of the Act to deprive the respondent of his legal rights thereunder rebounded to disable the appellant of what she  could otherwise be legally entitled to.  Here the cause of action has accrued to the appellants father to claim the rent  from the respondent from the inception of the  tenancy on  the  basis  of  the true state  of  affairs  which  they camouflaged but which was finally discovered and declared by the  court.  In the result, we hold that the judgment of the High  Court,  under  appeal,  does   not  suffer  from   any illegality.   The  appeal  is without any merit  and  it  is accordingly dismissed.  There shall be no order as to costs.