Sobhanadri Appa Rau vs Chalamanna And Ors. on 12 September, 1893

Madras High Court
Sobhanadri Appa Rau vs Chalamanna And Ors. on 12 September, 1893
Equivalent citations: (1894) ILR 17 Mad 225
Author: M Ayyar
Bench: M Ayyar


Muttusami Ayyar, J.

1. In Civil Revision Petition No. 42 of 1892.–The plaintiff is a minor zamindar under the care of the Court of Wards and the defendant is his tenant. The present suit was brought on the small cause side of the District Munsif’s Court of Bezwada to recover the balance of sist due for fasli 1296. It was admitted by both parties that according to the kistbandi rent was payable every year in instalments from October to March of each fasli. The plaintiff’s father tendered patta for fasli 1296, but the defendant refused to accept it, Thereupon the plaintiff’s father instituted a suit in the Revenue Court to enforce acceptance of the patta and the parties joined issue on the question whether the patta tendered was proper or such as the tenant was bound to accept. It was only in May 1888 that the summary suit instituted in 1886 before the Head Assistant Collector was dealt with by the District Judge on appeal. He held that the patta tendered was not a proper one and passed a decree under Section 10 of Act VIII of 1865. In accordance with the provisions of that section, he declared the terms of the patta which ought to be offered, and passed a judgment ordering the defendant to execute a muchilka in accordance with it. The plaintiff then brought this suit to recover the difference between the rent due according to the patta as amended by the decree and the payments made on account of rent by the defendant previous to the decree. The defendant resisted the claim and pleaded, inter alia, that it was barred by limitation. The District Munsif upheld the defendant’s contention and dismissed the suit with costs. It is argued in revision that the suit was not barred by limitation and, in support of the contention, reliance is placed on the decisions in Court of Wards v. Darmalinga (I. L. R., 8 Mad., 2), Kullayappa v. Lakshmipathi (I. L. R., 12 Mad., 467) and Appayasami v. Subba (I. L. R., 13 Mad., 463).

2. As observed by the District Munsif, the petitioner is not entitled to any deduction of time under Sections 14 and 15 of the Limitation Act. The cases contemplated by those sections are those in which a former suit failed from defect of jurisdiction or other cause of a like nature, or the former suit was stayed by injunction or order. In the case before me, the summary suit did not fail but was adjudicated upon. Nor was the cause of action or the relief claimed in the former suit the same as in the present suit. The District Munsif is also right in holding that the suit to recover arrears of rent is governed by article 110 of the Limitation Act, which prescribes three years from the time when the arrears become due. The substantial question, therefore, is when did the arrears become due and whether it was from the date when they should be paid according to the kistbandi, or from the date on which the plaintiff was in a position to sue for rent.

3. In Court of Wards v. Darmalinga (I. L. R., 8 Mad., 2), it was held that the landholder is not bound to tender a patta for acceptance as amended by the decree before suing to enforce the terms thereof, and no question of limitation arose in that suit. The point determined in Kullayappa v. Lakshmipathi (I. L. R., 12 Mad., 467) was that a landlord could not attach the

saleable interest of a defaulting tenant under Section 38 of Act VIII of 1865 until the expiry of the current revenue year. The decision in Appayasami v. Subba (I. L. R., 13 Mad., 463) is only, an authority for the proposition that the unit for the special rule of limitation prescribed by the Rent Recovery Act, Section 2, for proceedings by the landlord was the aggregate rent in arrears at the end of the fash. This is not a suit falling under Section 2 of Act VIII of 1865, and none of the cases cited appear to me to be in point.

4. The real question, as already observed, is when did the arrears of rent claimed by petitioner become due. By Section 7 no suit can be sustained to recover rent until a patta is tendered and accepted or a proper patta is tendered, and the tender of a proper patta is a condition precedent to the contract between the parties becoming actionable. It is a contradiction in terms to say that rent is due before the landlord is in a position to sue. When the landlord may sue for rent must depend on the terms of the contract in each case, and when the Legislature renders any contract actionable only on the occurrence of a particular event, no obligation can arise till that event occurs. By Section 10 the amended patta relates back to the date of the suit brought for the enforcement of acceptance of the patta. In cases in which the landlord sues in time to enforce the acceptance of a patta, the landlord is not in a position to sue for rent until the decree passed under Section 10 either amends the patta or declares it to be a proper patta. Otherwise a suit to enforce the acceptance of a proper patta may be pending in a Revenue Court for several years, and the claim for rent may be barred before the landlord acquires a right of action.

5. I am therefore of opinion that this suit is not barred. I set aside the decree of the District Munsif and remand the case for disposal on the merits. The costs hitherto incurred will abide and follow the result and be provided for in the revised judgment.

6. Civil Revision Petitions Nos. 43 to 50 follow.

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