Civil Revision No. 4366 of 2008 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No. 4366 of 2008 Date of decision: 23.09.2009 Mrs. Rukhsana A. Rein and another ....Petitioners Versus J.L. Arora ....Respondent CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: - Petitioner No. 2 in person. Mr. Rohit Ahuja, Advocate, for the respondent. ***** VINOD K. SHARMA, J The petitioners have invoked the jurisdiction of this Court, though said to be under Section 115 read with Section 151 of the Code of Civil Procedure, but, in fact, is a revision under Article 227 of the Constitution of India, vide which the petitioners have challenged the order dated 7.1.2008 passed by the learned Additional Civil Judge (Senior Division), Faridabad, restoring the suit filed by the plaintiff/respondent, which was dismissed in default on 8.11.2002. The petitioners have also challenged the order dated 2.8.2008 passed by the learned Civil Judge (Senior Division), Faridabad, vide which the application moved by the petitioners for rejection of plaint under Order 7 Rule 11 of the Code of Civil Procedure, was ordered to be dismissed. At the time of hearing of this case, learned counsel for the petitioners withdrew his challenge to order dated 7.1.2008 i.e. the order Civil Revision No. 4366 of 2008 -2- restoring the suit to its original number. The plaintiff/respondent filed a suit for rendition of accounts with with a consequential relief of recovery of arrears of rent on the pleadings, that the plaintiff/respondent was owner of one residential building bearing H. No. 432, Sector 16-A, Faridabad. The house in question was rented out to defendant No. 1Mrs. Rukhsana A. Rein on 1.2.1989, on a monthly rent of Rs.2,500/- (Rupees two thousand five hundred only) exclusive of water and electricity charges. The rent deed was executed between the parties on 30.2.1989. It was the case of the plaintiff/respondent, that defendant No. 1 never paid rent after May, 1989. Defendant No. 2 was impleaded as party being husband of defendant No. 1, who was a practicing lawyer in the Hon'ble Supreme Court of India. It was also pleaded in the plaint, that at the behest of defendant No. 2, defendant No. 1 instead of paying the rent started harassing plaintiff/respondent on one pretext or the other. The case set up further was, that only Rs.7,500/- (Rupees seven thousand five hundred only) was paid to the plaintiff/respondent by defendant No. 1 i.e. rent from February, 1989 to April, 1989, at the time of taking possession of the house, and thereafter no rent was paid. It is the pleaded case of the plaintiff/respondent, that a suit for permanent injunction was filed against the plaintiff/respondent seeking injunction against illegal dispossession. The plaintiff/respondent thereafter filed an eviction petition against both the defendants, though defendant No. 2 was not his tenant. Two more petitions were also filed for eviction on the ground of non-payment of rent. It was the pleaded case, that in spite of adjournment having Civil Revision No. 4366 of 2008 -3- been taken, the rent was not deposited by defendant No. 1 before the learned Rent Controller. Eviction order was, therefore, passed against the defendant/petitioners by the learned Rent Controller, Faridabad on 6.6.1992. The defendant/petitioners filed appeal against eviction order, which was also dismissed on 24.1.1994 by the appellate authority, Faridabad. The plaintiff/respondent further pleaded, that defendants were directed to deposit rent with the learned Rent Controller by the appellate authority in the appeal, and certain amount was deposited, but details thereof were not disclosed to the plaintiff/respondent. The defendants had shown certain receipts of the amount deposited with the learned Rent Controller, but they were not taken on file formally. The order of appellate authority attained finality, and in pursuance thereto, possession of the house was taken on 10.5.1994. It was claimed that no rent was paid from May, 1989 to 10.5.1994 @ Rs.2,500/- (Rupees two thousand five hundred only) per month and interest @ 18% per annum on amount due was also claimed in the suit. The suit for rendition of accounts was filed on the ground that the plaintiff/respondent was not able to get the details from the Court regarding the amount deposited by the defendant/petitioners. It was claimed that there was continuous cause of action to recover the arrears of rent, therefore, the suit was said to be within limitation. The court fee on the amount claimed was not paid on the plea, that the actual court fee would be paid at the time of passing of final decree. The Civil Revision No. 4366 of 2008 -4- plaintiff/respondent, therefore, prayed for a preliminary decree for rendition of accounts for directing the defendant/petitioners to render accounts with regard to amount of rent @ Rs.2,500/- (Rupees two thousand five hundred only) per month from May, 1989 to 10.5.1994 along with complete details of the amount deposited with the learned Rent Controller. Interest @ 18% per annum was claimed thereon, as noticed in the earlier part of this judgment. The petitioners on notice filed application under Order 7 Rule 11 of the Code of Civil Procedure for rejection of the plaint for want of court fee, and also on the ground that no suit for rendition of accounts was not maintainable between the landlord and the tenant. The stand was also taken that suit was time barred. Application was contested. The learned trial Court was pleased to dismiss the application by holding, that the plaintiff/respondent filed a suit for rendition of accounts on 27.9.2000. The learned trial Court held, that as no particulars were mentioned regarding deposit of rent with the learned Rent Controller nor written statement was filed, the maintainability of the suit could only be decided after filing of written statement, and by framing preliminary issues. The application was dismissed. The learned counsel for the petitioners has challenged the impugned order on the plea, that the learned trial Court committed an error in rejecting the application moved under Order 7 Rule 11 of the Code of Civil Procedure for want of written statement. The contention of the learned counsel for the petitioners was, that for adjudicating the application under Order 7 Rule 11 of the Code of Civil Procedure, Civil Revision No. 4366 of 2008 -5- normally the pleadings and documents attached with the plaint are required to be taken into consideration and not the defence of the defendant. The very basis of rejection of application under Order 7 Rule 11 of the Code of Civil Procedure could not, therefore, be sustained in law. The learned counsel for the petitioners also contended, that the reading of the plaint showed that the plaintiff/respondent claimed rent from May, 1989 to 10.5.1994 @ Rs.2,500/- (Rupees two thousand five hundred only) per month along with interest @ 18% per annum. The contention, therefore, was that even if the averments made in the plaint were taken to be on their face value, the suit was barred by limitation, as it was filed on 27.9.2000. It was also the contention of the learned counsel for the petitioners, that merely by terming a suit for recovery to be that of rendition of accounts, could not absolve the plaintiff/respondent to pay the court fee on the amount claimed, as the amount claimed was determined sum i.e. rent @ Rs.2,500/- (Rupees two thousand five hundred only) per month from May, 1989 to 10.5.1994. By describing the suit to be a suit for rendition of accounts, the plaintiff/respondent could not avoid the payment of court fee, as it is well settled law that by clever drafting, the party cannot avoid the payment of court fee. It is was the contention of the learned counsel for the petitioners, that suit for rendition of accounts by landlord against the tenant was not competent, as there was no relationship of principal and agent between the parties. The suit for rendition of accounts itself was Civil Revision No. 4366 of 2008 -6- not competent. In the written arguments, the learned counsel for the petitioners also raised the plea that suit was barred under the provisions of Order 2 Rule 2 of the Code of Civil Procedure, as plaintiff failed to claim the rent before the learned Rent Controller in the eviction proceedings. This argument deserves to be noticed to be rejected straightaway, as the learned Rent Controller or the appellate authority were not the Court where the suit for recovery of rent was competent. The non-payment of rent is only a ground of eviction, therefore, non- claiming of rent before the learned Rent Controller, could not be a bar to the suit under Order 2 Rule 2 of the Code of Civil Procedure. This contention stands rejected. In support of the contention, that the suit filed by the plaintiff/respondent was time barred, learned counsel for the petitioners placed reliance on Article 5 of the Limitation Act, 1963, which reads as under: - Art. No Description of suits Period of Limitation Time for which period begins to run 5. For an accounts 3 years The date of the dissolution & a share of the profits of a dissolved partnership. 52. For arrears of rent 3 years When the arrears become due. Learned counsel for the petitioners placed reliance on the judgment of the Hon'ble Supreme Court in New-Delhi Municipal Committee Vs. Kalu Ram and another, AIR 1976 Supreme Court 1637, wherein the Hon'ble Supreme Court was pleased to lay down as under: - Civil Revision No. 4366 of 2008 -7- “The word “payable” in Section 7, in the context in which it occurs, means “legally recoverable.” If the recovery of any amount is barred by the law of limitation, it is difficult to hold that the Estate Officer could still insist that the said amount was payable. When a duty is cast on an authority to determine the arrears of rent, the determination must be in accordance with law. Section 7 only provides a special procedure for the realisation of rent in arrears and does not constitute a source or foundation of a right to claim debt otherwise time-barred.” Reliance was also placed on the judgment of the Hon'ble Supreme Court in Kamla Bakshi Vs. Khairatilal, AIR 2000 SC 1808, wherein the Hon'ble Supreme Court was pleased to lay down as under: - “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.” Learned counsel for the petitioners in support of his contention, that the suit for rendition of accounts between the landlord and the tenant was not competent, placed reliance on the judgment of the Hon'ble Supreme Court in K.C. Skaria Vs. Govt. of State of Kerala & another, AIR 2006 Supreme Court 811, wherein the Hon'ble Supreme Court has been pleased to lay down as under: - “13. Order 21 Rule 13 CPC provides that in administration suits, a preliminary decree directing Civil Revision No. 4366 of 2008 -8- accounts can be made. Order 21 Rule 15 provides that in a suit for dissolution of partnership or taking of partnership accounts, the court before passing a final decree may pass a preliminary decree declaring the proportionate shares and directing accounts to be taken. Order 21 Rule 16 provides that "in a suit for an account of pecuniary transactions between a principal and an agent, and in any other suit not hereinbefore provided for, where it is necessary, in order to ascertain the amount of money due to or from any party, that an account should be taken, the court shall, before passing its final decree, pass a preliminary decree directing such accounts to be taken as it thinks fit." We may clarify that Order 20 Rule 16 does not create or confer any substantive right to seek rendition of accounts in any particular type of cases, nor in all types of cases. It merely refers to a rule of procedure and would apply where there is an existing right to seek rendition of accounts having regard to the relationship between the parties.” “16. To summarise, a suit for rendition of accounts can be maintained only if a person suing has a right to receive an account from the defendant. Such a right can either be (a) created or recognized under a statute; or (b) based on the fiduciary relationship between the parties as in the case of a beneficiary and a trustee, or (c) claimed in equity when the relationship is such that rendition of accounts is the only relief which will enable the person seeking account to satisfactorily assert his legal right. Such a right to seek accounts cannot be claimed as a matter of convenience or on the ground of hardship or on the ground that the person suing did not know the exact amount due to him, as that will open the floodgates for converting several types of money claims into suits for accounts, to avoid payment of court fee at the time of Civil Revision No. 4366 of 2008 -9- institution.” The Hon'ble Supreme Court in K.C. Skaria Vs. Govt. of State of Kerala & another (supra) was pleased to lay down, that a contractor engaged to execute work could not file a suit for accounts against the employer merely because the contract provided for payment on the basis of measurement to be done by the employer. Mr. Rohit Ahuja, learned counsel, appearing on behalf of the respondent, on the other hand challenged the maintainability of the revision petition by claiming that an order passed under Order 7 Rule 11 of the Code of Civil Procedure Code refusing to reject the plaint falls under category of preliminary judgment, therefore, the impugned order is appealable. In support of this contention, the learned counsel for the respondent placed reliance on the judgment of the Hon'ble Supreme Court in Liverpool and London S.P. And I Association Ltd. Vs. M.V. Sea Success I and another, 2005(1) SLJ 801, wherein the Hon'ble Supreme Court was pleased to lay down as under: - “128. As by reason of an order passed under Order 7, Rule 11 of the Code of Civil Procedure, the rights conferred upon the parties are determined one way or the other, stricto sensu it would not be an interlocutory order but having regard to its traits and trappings would be a preliminary judgment. 129. It is true that in Shah Babulal Khimji (supra) it is stated that an order rejecting the plaint would be appealable but does not expressly state that an order refusing to reject would not be appealable. Therein this Court gave 15 instances where an order would be appealable which are only illustrative in nature. Civil Revision No. 4366 of 2008 -10- 130. Such observations have to be understood having regard to the concept of finality which are of three types: (1) a final judgment (2) a preliminary judgment and (3) intermediary or interlocutory judgment. 131. In our opinion the order refusing to reject the plaint falls in the category of a preliminary judgment and is covered by the second category carved out by this Court. 132. It is trite that a party should not be unnecessarily harassed in a suit. An order refusing to reject a plaint will finally determine his right in terms of Order 7 Rule 11 of the Code of Civil Procedure.” There is no force in this contention. The judgment passed by the Hon'ble Supreme Court was on the facts of the particular case, as an order under Order 7 Rule 11 of the Code of Civil Procedure rejecting the application does not amount to passing of a decree. The appeal under the Code of Civil Procedure is competent only against a decree of the Court. Therefore, it cannot be said that the impugned order was appealable, as contended by the learned counsel for the respondent. It is further pertinent to notice here, that the Hon'ble Supreme Court was interpreting the powers of the Hon'ble High Court under Letters Patent and not under the Code of Civil Procedure. Under the Letters Patent, appeal is competent even against an order or judgment, whereas under the Code of Civil Procedure, the appeal is only competent against a decree. The reliance of the learned counsel for the respondent on the judgment of the Hon'ble Supreme Court in Liverpool and London S.P. And I Association Ltd. Vs. M.V. Sea Success I and another (supra) is, thus, mis-conceived. The contention of the learned counsel for the respondent, that Civil Revision No. 4366 of 2008 -11- challenge to order dated 7.1.2008 was liable to be rejected on account of delay, deserved to be merely noticed, as the learned counsel for the petitioners had withdrawn his challenge to the order of restoration of the suit, which was dismissed in default. It was also the contention of the learned counsel for the respondent, that the suit filed was not barred under Order 2 Rule 2 of the Code of Civil Procedure. This plea of the respondent already stands accepted for the reasons given in earlier party of this judgment. The contention of the learned counsel for the respondent, that the court fee was properly paid, as it was specifically pleaded, that the court fee would be paid at the time of passing of final decree, deserves to be noticed to be rejected. The suit for recovery cannot be filed in the garb of the suit for rendition of accounts. When the amount could be easily determined, the deposit of amount with the learned Rent Controller was of no consequence, as the plaintiff/respondent was entitled to recover the rent by filing a suit for recovery, it was for the defendant/petitioners to pay the amount, but the suit could not be filed claiming rendition of accounts from the tenant. On consideration, I find force in the contentions raised by the learned counsel for the petitioners. The suit for rendition of accounts by landlord against the tenant is not maintainable, as there is no agency created, specially when the rent and the period for which it was claimed, was well within the knowledge of the plaintiff. The suit filed by the plaintiff/respondent was otherwise not maintainable as proper court fee has not been affixed on the amount Civil Revision No. 4366 of 2008 -12- claimed by drafting the suit in a way to be one for rendition of accounts, which was not admissible. The averments made in the plaint even if taken on its face value, clearly show that the suit was hopelessly barred by law of limitation, as the rent claimed was from May, 1989 to 10.5.1994, whereas the suit was filed on 27.9.2000. The limitation prescribed for recovery of rent is three years from the date of cause of action accrues. The cause of action for recovery of rent accrues on the date when it falls due. Even if the cause of action to the plaintiff to recover the rent is taken to be from the date of order passed by the appellate authority, still the suit was barred by limitation. For the reasons stated above, this revision is allowed, the impugned order is set aside. The application moved by the defendant/petitioners under Order 7 Rule 11 of the Code of Civil Procedure, stands allowed, but with no order as to costs. Revision allowed. (Vinod K. Sharma) Judge September 23, 2009 R.S.