Full Judgment Text
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PETITIONER:
KHADI GRAM UDYOG TRUST
Vs.
RESPONDENT:
SHRI RAM CHANDRAJI VIRAJMAN MANDIR SARSAIYA GHAT,
DATE OF JUDGMENT28/11/1977
BENCH:
KAILASAM, P.S.
BENCH:
KAILASAM, P.S.
UNTWALIA, N.L.
CITATION:
1978 AIR 287 1978 SCR (2) 249
1978 SCC (1) 44
ACT:
U.P. Urban Buildings (Regulation of Letting, Rent and
Eviction) (U.P. Act XIII), 1972, sec. 20(4), scope
of--Whether the words "entire amount of rent due" occurring
in s. 20(4) would include time--barred rent.
HEADNOTE:
Section 20(1) of the U.P. Urban Buildings (Regulation of
Letting, Rent and Eviction) Act XIII of 1972 bars
institution of a suit for eviction of a tenant from a
building, notwithstanding the determination of his tenancy
by efflux of time or on the expiration of a notice to quit
or in any other manner. Sub-s. (2) of s. 20 enables the
landlord to file a suit on any one or more of the grounds
mentioned in that sub-section. Sub-cl. (a) of sub-s. (2)
provides that a suit for eviction of a tenant from a
building may be instituted on the ground that the tenant is
in arrears of rent for not less than 4 months and has failed
to pay the same to the landlord within one month from the
date of service upon him of a notice of demand. Section 24
provides "In any suit for eviction on the ground mentioned
in cl. (a) of sub-s. 2, if at the first hearing of the suit
the tenant unconditionally pays or tenders to the landlord
or deposits in court the entire amount of rent and damages
for use and occupation of the building due from him
together with interest thereon at the rate of 9 per cent per
annum and the landlord’s costs of the suit in respect
thereof after deducting any amount already deposited by the
tenant under sub-s. (1) of s. 30, the court may in lieu of
passing a decree for eviction on that ground pass an order
relieving the tenant against his liability for eviction on
that ground" thus, giving another opportunity for payment of
rent to the tenant.
The respondent, owner of premises No. 49/4 General Ganj,
Kanpur, served a notice on the appellant who was a tenant of
a shop in the premises on a monthly rent of Rs. 200/- from
1958 demanding payment of arrears of rent as well as to quit
the premises. Several notices were also served earlier on
the appellant and he failed to pay the rent within one month
from the date of the service of the notice of demand on him.
The last notice was served on 9th of July 1973.
Subsequently, the respondent filed a suit No. OS 5/73 before
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the District Judge, Kanpur relinquishing his claim for rent
for the period 1-1-1963 to 31-12-1970 as the relief was
time-barred. On the appellant’s paying the rent for the
period from 1-1-1971 to 30-4-1973, the respondent restricted
his claim for the period 1-5-1973 to 8-8-1973 for Rs, 3200/-
as damages and Rs. 322 93 as water tax alleging to be
already due and Rs 50/- as water tax tentatively due
pendentelite and future water tax and also for ejectment of
the appellant/defendant from the suit premises. The
appellant filed the written statement stating that he had
paid the entire amount due; that he was not a defaulter as
the rent for the period 1-1-1963 to 31-12-1970 was barred by
time and was, therefore, not liable to be evicted from the
suit premises u/s. 24. The appellant also deposited a sum of
Rs. 5972.43 in the court being the amount of rent and
damages for the period 1-5-1973 to 28-2 1975 together with
interest, costs etc. as required by s. 24 of the U.P Act of
1972. The suit which was transferred to the court of sixth
Additional District Judge was decreed in favour of the
respondent/plaintiff on 11-11-1975 and the appellant/
defendant was directed to vacate the suit premises. The
entire amount deposited by the appellant/defendant in the
court u/s. 20(4) of the Act was ordered to be paid to the
respondent/plaintiff. The District Judge was of the view
that the tenant ought to have deposited the time-barred
arrears of rent also in order to claim benefit u/s. 24. The
Trial Court found that the landlord had proved that tenant
was in arrears of rent for not less than 4 months and had
failed to pay the same to the landlord within one month from
the date of service
250
-upon him of a notice of demand and, as such, satisfied the
requirement of sub-s. 2 of s. 20 and is entitled for order
of eviction. The appellant filed a revision petition u/s.
25 of the Small Causes Court Act in the High Court of
Allahabad which was dismissed.
Dismissing the appeal by special leave the Court,
HELD : (1) Under s. 20(2) of the Act, the landlord gets a
cause of action for evicting the tenant when the tenant is
in arrears of rent for not less than four months, and has
failed to pay the same to the landlord within one month from
the date of service upon him of a notice of demand. If the
tenant pays the entire arrears of rent due at the first
hearing of the suit the court may relieve the, tenant
against eviction even though he had not complied with s.
20(2). The tenant can take advantage of the benefit
conferred by a. 20(4) only when he pay- the entire amount of
rent due as required u/s 20(4). Under sub-s. (4) of s 2-0
though the tenant has not complied with the requirement of
sub-s. (2) of s. 20, if he pays at the first hearing of the
suit unconditionally the entire amount of rent, the court
may pass an order relieving the tenant against his liability
for eviction. [252C; G]
(2)The statute of limitation only bars the remedy but does
not extinguish the debt, except in cases provided by s. 28
of the Limitation Act which does not apply to a debt. [253B]
Curwen v. milburn (1889) 42 Ch. D. 424, quoted with
approval
Bombay Dyeing and Manufacturing Co. Ltd. v. The State of
Bombay & Others [1958], S.C.R. 1122, applied.
Ram Nandan Sharma and Anr. v. Mt. Maya Devi and Ors.
A.I.R, 1975 Pat. 283, approved.
(3)On consideration of the scheme of the Act, it is clear
that the statute has conferred a benefit on the tenant to
avoid a decree for eviction by complying with the
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requirement of s. 20(4). If he fails to avail himself of
the opportunity and has not paid the rent for not less than
four months and within one month from the date of service
upon him a notice of demand the landlord under s. 20(2)
would be entitled to an order of eviction. Still the tenant
can avail himself of the protection by complying with the
requirements of s. 20(4). The ’words "entire amount of rent
due" would include rent which has become time-barred,
In the instant case as the appellant has not deposited the
entire amount due, the protection u/s. 20(4) is no More
available. [253-D-F]
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1313 of
1977.
Appeal by Special Leave from the Judgment and Order dated
20-5-77 of the Allahabad High Court in Civil Revision No.
2217 of 1975.
Hardayal Hardy, K. L. Taneja and S. K. Sabharwal for the
Appellant.
I.N. Sinha, Badri Das Sharma and S. R. Srtvastava for the
Respondents.
The Judgment of the Court was delivered by
KAILASAM, J.-On November 8, 1977 when the hearing of the
appeal was concluded we pronounced an order dismissing the
appeal with costs stating that a reasoned judgment would
follow. We now proceed to give our reasons.
251
This appeal by special leave is preferred by Khadi Gram
Udyog Trust, the tenant against the judgment of the
Allahabad High Court passed in Civil Revision No. 2217 of
1975 directing its eviction. The respondent Shri Ram
Chandraji Virajman Mandir, Sarsaiya Ghat, Kanpur, the owner
of premises No. 49/4 General Ganj, Kanpur, served a notice
on the appellant who was a tenant of a shop in the premises
on a monthly rent of Rs. 200/- from 1958 demanding payment
of arrears as well as to quit the premises. The notice
was served on 9th July, 1973. Subsequently the respondent
filed the suit No.O.S.5 of 1,973 before the District
Judge, Kanpur, restricting its claimfor recovery of
arrears of rent from 1-5-1973 to 8-8-1973 for Rs. 3200/as
damages and Rs. 322.93 as water tax alleged to be already
due and Rs. 50 as water tax tentatively due pendente lite
and future, water tax and for ejectment of the petitioner
from the suit premises. In this suit the respondent
relinquished his claim for rent for the period 1.1.1963 to
31.12.1970 as the relief was time-barred. The appellant
paid the rent for the period 1.1.1971 to 30.4.1973 and
thereafter respondent restricted his claim for the period
1.5.1973 to 8.8.1973. The appellant filed the written
statement stating that lie had paid the, entire barred by
time,he pleaded that he was not a defaulter and was
therefore not liableto be evicted from the suit
premises. The appellant deposited a sum of Rs. 5972.43 in
the Court being the amount of rent and damages for the
period 1.5.1973 to 28.2.1975 together with interest, cost
etc. as required by section 20(4) of the U.P. Act 13 of
1972. The suit was transferred to the Court of 6th Addl.
District Judge, Kanpur, who on 11. 11. 1975 decreed the suit
of the respondent and directed the appellant to vacate the
suit premises and ordered that the entire amount deposited
by appellant in the Court under section 20(4) of the Act
shall be paid to’ the plaintiff-respondent. The appellant
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filed a revision petition under section 25 of the Small
Causes Courts Act in the High Court of Allahabad. The High
Court dismissed the revision petition by its judgment and
order dated 19.4.1977. The present appeal is filed by
special leave granted by this Court.
The only contention raised in this appeal is that the
appellant having complied with the requirement of section
20(4) of the Act and deposited the entire amount of rent
due, the Court ought to have passed an order relieving the
tenant against his liability for eviction on that ground.
Chapter IV of the U.P. Urban Buildings (Regulation of
Letting, Rent and Eviction) Act XIII of- 1972 prescribed the
procedure for eviction of a tenant. While section 20(1)
bars institution of suit for eviction of a tenant from a
building, notwithstanding the determination of his tenancy
by efflux of time or on the expiration of a notice to quit
or in any other manner, sub-section (2) enables the landlord
to file a suit on any one or more of the grounds mentioned
in sub-section (2). We are concerned with sub-clause (a) of
sub-section (2) which provides that a suit for eviction of a
tenant from a building may be instituted on the ground that
the tenant is in arrears of rent for not less than four
months and has failed to pay the same to the landlord within
one month from the date of service upon him of a notice of
demand. It is not disputed that several notices
252
were served on the appellant and that he failed to pay the
rent within one month from the date of the service of the
notice of demand on him. Another opportunity for payment of
rent is provided to the tenant under section 20(4) which
provides that "In any suit for eviction on the ground
mentioned in clause (a) of sub-section (2), if at the first
hearing of the suit the tenant unconditionally pays or
tenders to the landlord or deposits in Court the entire
amount of rent and damagesfor use and occupation of the
building due from him together with interest thereon at the
rate of 9 per cent per annum and the landlord’- costs of the
suit in respect thereof, after deducting any amount already
deposited by the tenant under sub-section (1) of section 30,
the court may, in lieu of passing a decree for eviction on
that ground, pass an order relieving the tenant against his
liability for eviction on the ground. Under this sub-
section, therefore, though the, tenant has not complied with
the requirement of sub-section (2) of section 20, if he pays
it the first hearing of the suit unconditionally the entire
amount of rent the court may pass an order relieving the
tenant against this liability for eviction. In this case
the appellant deposited on 13-2-1975 a sum of Rs. 5972.43
being the amount of rent and damages for the period 1.5.1973
to 28.2.1975 together with interest etc. The contention of
that is recoverable and would not include the rent, the
recoveryfor which is barred by time. According to
the appellant the payment of entire amount of rent due
would not include the rent for the period 1.1.1960 to
31.12.1970 as the claim is barred by time. The District
Judge who tried the suit was of the view that the tenant
ought to have deposited the time-barred arrears of rent also
in order to claim benefit under section 20(4). The trial
Court proceeded with the trial of the suit and found that
the landlord had proved that tenant was in arrears of rent
for not less than 4 months and had failed to pay the same to
the landlord within one month from the date of service upon
him of a notice of demand and as such satisfied the require-
ment of sub-section (2) of section 20 and is entitled for
order of eviction. In the revision the High Court affirmed
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the view taken by the trial Court and dismissed the appeal.
It will be seen that under section 20(2) of the Act, the
landlord gets a cause of action for evicting the tenant when
the tenant is in arrears of rent for not less than four
months, and has failed to pay the same to the landlord
within one month from the date of service upon him of a
notice of demand. If the tenant pays the entire arrears of
rent due at the first hearing of the suit the court may
relieve the tenant against eviction even though he had not
complied with section 20(2). The tenant can take advantage
of the benefit conferred by section 20(4) only when he pays
the entire amount of rent due as required under section
20(4). The question that arises for consideration in this
appeal is whether the entire amount of rent due would
include even rent which cannot be recovered as having been
time-barred. There is ample authority for the proposition
that though a debt is time-barred, it will be a debt due
though not recoverable, the relief being barred by
limitation. In Halsbury’s Laws of England (3rd Ed.) Vol. 24
at p. 205, Article 369, it is stated "except
253
in the cases previously mentioned, the Limitation Act, 1939
only takes away the remedies by action or by set off; it
leaves the right otherwise untouched and if a creditor whose
debt is statute-barred has any means of enforcing his claim
other than by-action or set-off, the Act does not prevent
him from recovering by those means. The Court of Appeal in
Curwen v. Milburn (1889) 42 Ch. D. 424 Cotton, L. J. said :
"Statute-barred debts are dues, though payment
of them cannot be, enforced by action."
The same view was expressed by the Supreme Court in Bombay
Dyeing and Manufacturing Co. Ltd. v. The State of Bombay &
Others(1) where it ’held that the statute of limitation only
bars the remedy but does not extinguish the debt, except in
cases provided for by section 28 of the Limitation Act,
which does not apply to a debt. Under section 25(3) of the
Contract Act a barred debt is good consideration for a fresh
promise to pay the amount. Section 60 of the Contract Act
provides that when a debtor makes a payment without any
direction as to how it is to be appropriated, the creditor
has the right to appropriate it towards a barred debt. In a
full Bench decision of the Patna High Court Ram Nandan
Sharma and Anr. v. Mi. Maya Devi and Others(2), Untwalia,
C. J. as he then was, has stated "There is a catena of
decisions in support of what has been said by Tek Chand,
p.330 paragraph 12) that the Limitation Act with regard to
personal actions, bars the remedy without extinguishing the
right." The law is well-settled that though the remedy is
barred the debt is not extinguished. On consideration of
the scheme of the Act, it is clear that the statute has
conferred a benefit on the tenant to ’avoid a decree for
eviction by complying with the requirement of section 20(4).
If he fails to avail himself of the opportunity and has not
paid the rent for not less than four months and within one
month from the date of service upon him of a notice of
demand, the landlord under section 20(2) would be entitled
to an order of eviction. Still the tenant can avail himself
of the protection by complying with the requirements of
section 20(4). As he has not deposited the entire amount
due the protection is no more available. We agree with the
view taken by the trial court and the High Court of
Allahabad that the words "entire amount of rent due" would
include rent which has become time-barred
In the result the appeal is dismissed. There will be no
order as to costs.
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S.R.
Appeal dismissed.
(1) [1958] S.C.R. 1122.
(2) A.T.P. 1975 Pat. 283.
254