C. Mothaliyandan Chettiar vs K. Ranganathan and others

Anantanarayanan, C.J.—An interesting question of law has arisen in this revision proceeding with regard to the interpretation of Sec. 11 of

(1) of Madras Act 18 of 1960. Sec. 11 (1) states that the tenant is not entitled to contest an application before the Controller under that section, or

to prefer any appeal under S. 23 unless the tenant makes a deposit of all arrears of rent due in respect of the building upto the date of payment of

deposit. We are not now concerned with the other parts of the section. The, question is, can the tenant contend that though it is true that the

arrears of rent are very considerable, because they have not been paid for several years, in this case from (sic) December 1957 to 31st December

1963, nevertheless he is under no legal obligation to deposit that part of the arrears, which in time-barred, according to the law of limitation. The

answer to this, to my mind, must be decidedly the negative. The intendment of Legislature is very plain from the (sic) of S. 11 (1) and the principle

(sic) therein, namely the embargo imposed on the defence that the tenant desires to set up the application for eviction, unless the tenant makes

prima facie satisfaction in respect of all arrears of rent due by a deposit.

Sec. 11 (1) indeed goes further, and specifies that the tenant must continue to pay or deposit any rent which subsequently becomes due for the

building, until the termination of the proceedings. Therefore, the landlord obtains a right to an order his eviction application, without consideration

of the defence or the counter-statement by the tenant, unless the tenant makes a deposit of all arrears up to date. Normally, that should be

considered to imply all arrears really due, irrespective of (sic) of limitation does not extinguish any debt but merely bars the remedy of the creditor.

It is sufficient to point out that this was the price view taken by a Full Bench of the Punjab High Court in Rulliaram v. Fateh Singh AIR 1962 P&H.

286 on the East Punjab Urban Rent Restriction Act 3 of 1949; The learned counsel for the tenants (respondents) urges that Act is different in

several of its terms from the Madras Act, and that the Madras Act does not provide that on deposit of all such arrears, the application for eviction

itself shall he dismissed it only states that the defence may be considered. But the paint is not (sic). The ratio of the Fall Bench decision encantialed

in paragraph 10 is the principle that I have already referred to, that the law of limitation does not extinguish the debt or demand, but merely the

remed.

Again, it may be pertinent to point out that in Gurpur Vamana Pai Vs. Venkatu (Venkatesh) Naika, Venkatarama Rao J. considered the words

arrears of rent"" as occurring in S. 114 of the Transfer of Property Act, to include the rent which the lesser may be unable to recover by reason of

the bar of limitation. The point was very elaborately considered again with regard to Sec. 3 (b) of the Madras Cultivating Tenants Protection Act,

1955, by Srinivasan J. and Sadasivam J. in Palaniswami Gurukkal v. Kandappa Gounder 80 L.W. 305. The learned Judges cited Barrat v.

Richardson and Croesswell (1930) 1 K.B. 686 and held that the principle was that where in order to obtain relief, the party is required to pay or

tender amounts due, that would include arrears outside the period of limitation. Indeed any contrary view would involve very great difficulties for

the simple reason that a bar of limitation is a provision of statue mechanically curtailing the remedy, and not any part of the law of contract itself,

extinguishing the liability.

I must, therefore, hold that the courts below were in error in coming to the conclusion that the tenants (respondents) were under no obligation in

law to deposit the entire arrears due for the period, irrespective of limitation, as urged by the landlord. The tenants seem to have set up no other

defence. But, nevertheless, I must now permit the parties to have the amount duly quantified on the data available, and the tenants should be given

an opportunity to deposit the amount, failing which the application of the landlord has to be adjudicated upon without the counter statement of the

tenants. The learned appellate authority would also appear to be in error in holding that no appeal lay to him under S. 23 of the Act, for the order

of the Rent Controller certainly affected the right of the landlord, and the landlord could claim that he was a person aggrieved by such en order,

within the meaning of S. 23 (1) (b) of the Act. Learned Counsel for the respondents, now brings to my notice that in his submission the eviction

proceeding itself is merely some ruse on the part of the landlord to recover arrears which were otherwise irrecoverable. He contends that the

landlord must draw out the amounts deposited under S. 11 (5)of the Act, only of an application made to court, of which the tenants should have

notice. Learned Counsel for the landlord has no objection. If the deposit is made to file such an application and give notice. The revision is

accordingly allowed and the entire proceedings remitted to the Court of the learned Rent Controller for further disposal according to law. No costs

here.