Narpat Singh vs Mahidhar Jha

Fazl Ali, J.—This appeal arises out of a suit for arrears of rent for the years 1320 to 1330 Fasli. The Courts below have decreed the suit so far as the arrears of rent for the years 1327 to 1330 are concerned and have dismissed the suit in respect of the arrears for the years 1320 to 13-26 on the ground that the claim is barred by limitation. It is conceded before us that the claim for rent up to the third quarter of 1323 Fasli is barred but it is argued that the plaintiff is entitled to a decree for the arrears of the last quarter of 1323 Fasli and of the years 1324 to 1326.

Now, in order to understand the arguments advanced in this respect it will be necessary to refer to a few facts. It appears that the plaintiff brought a suit against the defendants for recovery of rent for the years 1316 to 1319. He got an ex parse decree on 1st May 1913 and in execution of the decree the entire holding was sold and purchased by him on 6th July 1916. It also appears that the plaintiff at one time contended that he had also taken delivery of possession in respect of the holding through the civil Court.

On 25th May 1921, the defendants applied to have the ex parte decree set aside on the allegation that they had absolutely no knowledge of the suit and the execution proceedings and that they had continued to be in possession of the lands in spite of the sale and the alleged delivery of possession. On 16th January 1922, the Munsif of Madhipura allowed the application and set aside the decree. He found that the summons had been fraudulently suppressed, that the plaintiff never got possession of the lands as alleged by him and that the defendants who were, all along in possession had been deliberately kept by him in ignorance of the decree and the execution proceedings.

On 16th March 1923, the plaintiff brought the present suit and although previously his case had been that the defendants were out of possession since the date of dakhaldehani and the plaintiff had inducted new tenants on the land, he now proceeds on the basis that the defendants were all along in possession as found by the Munsif and claims rent from the defendants since the date of the sale. The plaintiff now says that as he purchased the holding on 6th July 1916, he could not afterwards sue the defendants for rent and therefore his claim for rent from the date of the purchase onwards cannot be barred by limitation as the cause of action arose after the ex parte decree and the sale in his favour were set aside. He relies in this connexion on Ranee Surno Moyee v. Shooshee Mokhee Brumonia [1868] 12 M.I.A. 244. The two Courts below, however, have tried to distinguish the facts of the present case from those of Surno Moyee''s case [1868] 12 M.I.A. 244 and have held that the plaintiff cannot be permitted to take advantage of his own fraud. The only question with which we are concerned in this appeal is as to whether the Subordinate Courts have taken a correct view on the question of limitation and whether the present case is or is not covered by the authority of the Privy Council decision relied on by the plaintiff.

In Sumo Moyee''s case [1868] 12 M.I.A. 244 a patni taluk was sold for arrears of rent under Act 8 of 1819. It was sold for a sum greatly in excess of the rent in arrears and the purchaser was put in possession of the taluk. Out of the purchase money the arrears were paid and the balance remained in the Collector''s hands for the benefit of those who wore entitled to it. A suit was then brought to set aside the Kale of the patni taluk on the grounds of irregularity and the sale was ultimately sot aside. The result was that the zamindar had to pay back the purchase money to the purchaser with interest and that the patnidars wore again put into possession of the taluk and they recovered the mesne profits for the period during which they were out of possession from the purchaser. The zamindar then brought a suit for the recovery of the arrears of rent which had accrued before and during the time the patnidars were out of possession. The High Court decided that the suit, not being brought within three years from the time the rent first became due, was barred by Section 32, Act 10 of 1859. The decree of the High Court was reversed in appeal by the Judicial Committee and it was held that the claim was not barred. Sir James Colvile who delivered the judgment in that case observed as follows:

Their Lordships'' view of the case is this: that, upon the setting aside of this sale, and the restoration of the, parties to possession, they took back the estate, subject to the obligation to pay the rent; and that the particular arrears of rent claimed in this action must be taken to have become duo in the year in which that restoration to possession took place. It follows, that upon the language of Section 32, Act 10 of 1859, the appellant was not barred from her remedy. Their Lordships further authorise me to say, that they do not concur in the view taken by the High Court, that the appellant can be said to have committed an act of trespass, because, when she pursued the remedy, which was clearly competent to her if it had been regularly pursued, she inadvertently omitted one of the formalities prescribed by the Act, and that her proceedings, therefore, became inoperative. Their Lordships cannot treat this as an act of trespass, or hold with the High Court, that in bringing this suit she is a person seeking to take advantage of her own wrong. They must also respectfully dissent from another statement of the learned Judges of the High Court, to the effect that the appellant might have sued for these arrears pending the proceedings to set aside the sale of the putnee. It is clear, that until the sale had been finally set aside, she was in position of a person whose claim had been satisfied and that her suit might have been successfully met by a plea to that effect.

Now, the facts of the present case are somewhat different from those of Surno Moyee''s case [1868] 12 M.I.A. 244. In Surno Moyee''s case [1868] 12 M.I.A. 244 the putnidar had been actually dispossessed and after possession was restored to him, the zamindar had to pay back the amount which he had received out of the sale proceeds to satisfy his claim for arrears of rent and the putnidar also recovered mesne profits from the purchaser for the years he had been out of possession. These facts, however, standing by themselves, would not have probably made very great difference. It is, however, to be noted that in Sumo Moyee''s case [1868] 12 M.I.A. 244 the decree and the sale were set aside because as their Lordships of the Judicial Committee pointed out:

The zamindar had, in pursuing the remedy which was clearly competent to her inadvertently omitted one of the formalities prescribed by law and that in bringing the suit she was by no means seeking to take advantage of her own wrong.

In the present case however, it has been found by both the Courts below that the decree and the sale obtained by the plaintiff were obtained by fraud and that was the ground on which those proceedings were set aside. Keeping these facts in view let us now turn to Article 2, Schedule 3, Ben. Ten. Act. This Article provides three years as the period of limitation for a suit by the landlord for the recovery of arrears of rent and it also provides that this period will run from the last day of the agricultural year in which the arrear fell due. The critical question then is whether any arrears can be held to have fallen due after the holding had been sold and the plaintiff had purchased it or whether the cause of action should be held to have been suspended till the ex parte decree was set aside. It is urged on behalf of the appellant that as a result of the sale the defendants no longer remained tenants of the holding and the rent cannot be said to have fallen due so long as the sale subsisted; but the plaintiff''s cause of action arose and the obligation to pay rent revived as soon as the decree and the sale were set aside. It is to be remembered, however, that in the proceedings under Order 9, Rule 13, the plaintiff definitely alleged that the defendants were not in possession since he had obtained delivery of possession and that he had inducted new tenants on the land. If, therefore, these allegations had any truth, it is clear that the plaintiff would not have been entitled to any rent for the period during which the defendants were out of possession according to the plaintiff. The plaintiff''s case, however, was not believed by the Munsif who set aside the ex parte decree and the plaintiff now proceeds on the admitted case of the defendant that they have all along been in possession. Now, the defendants no doubt admit that they were never dispossessed but they also say that they were all along treated as tenants of the land and the plaintiff never allowed them to know about the decree, sale or delivery of possession.

The lower appellate Court has also definitely held that the plaintiff went on issuing invitation letters to the defendants even after the sale asking them to attend the Punia ceremony in 1918, 1920 and 1921. The question now is whether in these circumstances the plaintiff should be permitted to say that the claim for rent is not barred, that they did not sue for rent because there was no cause of action and their cause of action should be held to have been suspended till the decree and the sale were set aside. It is true that in Sumo Moyee''s case [1868] 12 M.I.A. 244 such a plea was allowed but as I have already sufficiently indicated that case is clearly distinguishable from the present case. In that case the patnidar had been dispossessed in execution of the rent decree and when the decree was set aside he got back the patni with mesne profits and the landlord was compelled to pay back the amount which ho had received out of the purchase money in satisfaction of the arrears of rent. In these circumstances it was considered only fair to hold that he took back the estate subject to the obligation to pay rent to the landlord, their Lordships of the Judicial Committee observing that if a contrary view was taken it will be:

a very unfortunate result and a result which will work great injustice, for the patnidars have got back the patni and have at the same time relieved themselves from the obligation of paying for that period the very rent upon which they held it.

Their Lordships further took care to point out that the zamindar:

in bringing the suit for rent was not a person seeking to take advantage of her own wrong.

To my mind, therefore, if the plaintiff in this case with a fraudulent decree and sale in his pocket attempts to argue on their strength that by virtue of the sale in their favour the defendants had ceased to be tenants and so he could not sue as long as the decree and the sale subsisted, the simple reply to this is that if the plaintiff chooses to say that the defendants were not his tenants between the date of the sale and the setting aside of the ex parte decree, he has no right to sue them for rent at all and he cannot maintain the present claim which is based on the assumption that they were such tenants. In other words, either his claim is barred by limitation or he cannot sue the defendants for rent for a period during which if they ceased to be his tenants at all, they ceased to be so in consequence of his own fraud.

The learned advocate for the appellant has referred us to three other cases namely, Lakshan Chandra Sen v. Madliu Sudan Sen [1908] 35 Cal. 209 Midnapur Zamindary Co. v. Jaga Nath Sarangi [1920] 59 I.C. 314, and Muthu Korakkai Chetty v. Madar Animal [1920] 43 Mad. 185. These decisions, do not carry us any further than Surno Moyee''s case [1868] 12 M.I.A. 244, and only re-affirm the principle that in certain cases there will be a suspension of cause of action when it would be infructuous to sue on the original cause of action and also that in certain special circumstances time will not run against a suitor. There is no doubt that the rule laid down in Sumo Moyee''s case [1868] 12 M.I.A. 244, has been applied in a number of cases but there are also on the other hand a number of cases in which the limitations of the rule have been pointed out and emphasised. In Hurro Prasad v. Gopaul Das Dutt [1878] 3 Cal. 817, where a landlord ignoring the rights of the tenants brought a suit for khas possession and having failed sued for arrears of rent, their claim was held to be barred. In distinguishing that case from Surno Moyee''s case [1868] 12 M.I.A. 244, it was pointed out by Garth, C.J., that no man can take advantage of his own mistake to get rid of the operation of the Limitation Act. This case went up to the Privy Council and Sir Robert Collier who delivered the judgment of the Judicial Committee held that the appellant''s case did not come:

within the exception to the operation of the statute established in the case of Ranee Sumo Moyee [1868] 12 M.I.A. 244.

Again in Mohamed Majid v. Mahomed Ahsan [1896] 23 Cal. 205. [1896] 23 Cal. 205 when a landlord ejected the tenants unlawfully and compelled them to institute proceedings by which they recovered possession and afterwards he sued them for rent, a Division Bench of the Calcutta High Court hold that the decision in Surno Moyee''s case [1868] 12 M.I.A. 244 was not applicable and dismissed the suit on the ground that no man should be allowed to take advantage of his own illegal action, their Lordships'' observations in this respect being as follows:

In the present case the plaintiffs throughout acted illeglly. They made it necessary for the defendants to bring the suit for recovery of possession in consequence of their unlawful act in dispossessing them and, therefore, in endeavouring to avoid the law of limitation in the words of their Lordships of the Privy Council they were seeking to take advantage of their own wrong.

Again, in a number of cases decided u/s 14, Lim. Act, it has been pointed out that the section has no application when bad faith is established. In my opinion the Courts below have taken a correct view of the case and the appeal must be dismissed. As, however, the respondents did not appear in this Court there will be no order for costs.

Das, J.

I agree.