CR No.6744 of 2007 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CR No.6744 of 2007 (O&M) Date of decision: 20.07.2009 Om Parkash (dead) through L.Rs. ..Petitioner Versus Babu Ram Sharma ...Respondent CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: Mr.R.K.Verma, Advocate, for the petitioner. Mr.Vikram Singh, Advocate, for Mr.Manu K.Bhandari, Advocate, for the respondent. --- 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in Digest? --- CR No.6744 of 2007 2 VINOD K. SHARMA,J. CM No.24791-CII of 2007 Allowed as prayed for. The petitioner is exempted from filing the certified copy of judgment. CM No.24790-CII of 2008 & CR No.6744 of 2007 The petitioner has invoked the jurisdiction of this court under Article 227 of the Constitution of India to challenge the judgment and decree dated 21.09.2007 passed by the learned lower appellant court vide which appeal filed against the judgment and decree dated 21.9.2004 passed by the learned Additional Civil Judge (Sr.Division), Bahadurgarh stands allowed. The petitioner herein filed a suit for recovery of Rs.19,674/- (Ninteen thousand six hundred and seventy four only) along with interest from the defendant/landlord on the pleadings that the defendant/respondent, was the owner of the shop, which was under the tenancy of the petitioner/plaintiff. It was claimed that the rent was being paid regularly to the landlord. The defendant/landlord filed a rent petition No.5/2 dated 27.5.1996 on the ground of non-payment of rent for 3 years w.e.f. 1993 to 1996 alleging the rate of rent to be Rs.400/- (four hundred only) per month. The plaintiff/ petitioner appeared and deposited the demanded rent to avoid his ejectment as the receipts were not issued by the landlord. It was the case of the plaintiff that a total sum of Rs.16,774/- including interest and costs was paid though the rent stood already paid up to June, 1996. The plaintiff/ petitioner claimed that a sum of Rs.16,774/- (sixteen thousand seven CR No.6744 of 2007 3 hundred and seventy four only) was deposited in excess to which the defendant/respondent was not entitled at all. The defendant/respondent filed another petition on 31.7.1998 and demanded rent w.e.f. August, 1996 to July, 1998 at the rate of Rs.400/- per month. The plaintiff/petitioner again had to pay the rent in the above said facts and circumstances, whereas the actual entitlement was only Rs.300/-(three hundred only) per month. It was claimed that excess payment of Rs.2600/- (Two thousand and six hundred only) demanded and accepted by the defendant/respondent was dishonest. In order to avoid further harassment the plaintiff again paid rent w.e.f. October, 1998 to March, 1998 at the rate of Rs.400/- (four hundred only) per month i.e. Rs.600/- (six hundred only) in excess. Rent petition was finally dismissed wherein it was held that the rate of rent was Rs.300/- (three hundred only) per month and that the payment up to June, 1996 stood deposited. On notice, the defendant/respondent contested the suit by taking preliminary objections regarding the jurisdiction, and the suit being time barred. Other pleas were also taken. It was asserted that he rate of rent was to be enhanced, with the consent of the parties, and rent was raised to Rs.400/- (four hundred only) per month. It was also pleaded that the payment of rent at the rate of Rs.400/- (four hundred only) per month was made against receipts from October, 1998 to February, 1999. Plaintiff/petitioner was alleged to be a defaulter. Learned trial court decreed the suit. In appeal learned lower appellate court held that the suit was CR No.6744 of 2007 4 time barred. Finding recorded by the learned lower appellate court reads as under:- “10. Ld. Counsel for the defendant contended that the suit of the plaintiff is time barred. The plaintiff should have filed the suit within six months from the date of deposit. During the course of arguments, he referred to Darshan Singh of Chandigarh Vs. Shri Sham Singh Ram Steel Industries, 14, 20- A, Chandigarh Maganlal Chhotabhai Deasi Vs. Chanderkant Moti Lal AIR 1969 (Supreme Court), 37, On the other hand, learned counsel for the plaintiff contended that the matter regarding rate of rent was finally decided by the learned Appellate Authority, Jhajjar, on 21.9.99 and the plaintiff could file the suit within three years from that date. The suit is not time barred as he is seeking remedy of recovery under General Law and not the Rent Act. During the course of arguments, he referred to Smt.Alka Vinayak Pendse and other Vs., K.V.Kirpekar, 1997 AIR 314 and in case Hari Shankar Vs.Smt.Kailasho and others 1986 (2) CLJ(C.&Cr.) 484, and in ase Bhagatpanju Ram and others Vs. Ram Lal, PLR 1968 Vol.LXX 409. The excess amount was paid on 3.8.96 in petition No.5/2 of 1996 and on 12.9.98 in rent petition No.21/2 of 1998. The rent petition No.5/2 of 1996 was finally decided by the learned Appellate Authority on 21.9.99 and the period which was spent in litigation before the L. Rent Controller, and the Ld. Appellate Authority to get the rent decided has to be CR No.6744 of 2007 5 excluded. In Hari Shankar's case (supra), a division bench of our own Hon'ble High Court, wherein, authority of Madan Lal Chote Lal Dessi referred to by the learned counsel for the defendant was also discussed; it was held that where the excess amount is beyond contemplation of Section 7, the period of limitation to recover his three years under section 13 of the Limitation Act. In view of the law laid down in Hari Shankar's case (Supra), the suit cannot be said to be barred by limitation. The authority in Darshan Singh, case is of Single Bench,whereas Hari Shankar's case is of Division Bench. Hence, this issue is decided in favour of the plaintiff and against the defendant.” Mr.R.K.Verma, learned counsel appearing on behalf of the petitioner placed reliance on the judgment of this court in the case of Hari Shankar Vs. Smt.Kailasho and Ors. 1986 (2) CLJ (C&Cr.) 484 to contend, that during the pendency of ejectment application, the suit filed by the tenant for recovery of money, alleged to have been paid in excess in ejectment proceedings by alleging that the rate was less than the one realized by the landlord, is of civil nature. The cognizance by the civil court is not barred. Further that, the tender on the first date of hearing, did not debar the tenant from claiming issue on quantum of rent, as the written statement by the tenant is inbuilt protest against the demand of higher rent. This court in Hari Shankar Vs. Smt.Kailasho and Ors. (supra), was pleased to hold that the suit for recovery of rent, paid in CR No.6744 of 2007 6 excess was not barred by principle of res judicata, if an issue with regard thereto is neither heard or finally decided. This plea of the learned counsel for the petitioner cannot be accepted. The suit of the plaintiff, as referred to above has not been dismissed on the ground of res judicata or jurisdiction, but on the ground, of it being time barred. The Hon'ble Supreme Court in the case of Maganlal Chhotabhai Desai Vs. Chandrakant Motilal AIR 1969 SC 37 has been pleased to lay down as under:- “6. Thus up to August 4, 1954 the defendant paid Rs.14,169/2/- on account of rent due up to that date at Rs.300 per month. The payment were in excess of the standard rent. He did not pay the rent falling due after August 4, 1954. The question is whether the rent was in arrears or whether it should be treated as paid by adjustment or deduction of the overpayments. The right of a tenant to recover the overpaid rent is regulated by Section 20. That section reads: “Any amount paid on account of rent after the date of the coming into operation of this Act shall, except in so far as payment thereof is in accordance with the provisions of this Act, be recoverable by the tenant from the landlord to whom it was paid or on whose behalf it was received or from his legal representative at anytime within a period of six months from the date of payment and may without prejudice to any other remedy for recovery,, be deducted by such tenant from any rent CR No.6744 of 2007 7 payabel by him to such landlord.” 7. The section gives the tenant a general right of recovery of the overpaid rent within six months from the date of payment. Without prejudice to any other mode of recovery, he may deduct the overpayment from any rent payable by him to the landlord. Deduction is one mode of recovery. If the amount is incapable of recovery because of the bar of limitation,it cannot be recovered by deduction. In other words, the right of recovery by deduction is barred at the same time as the right of recovery by suit. If the tenant seeks recovery of the overpaid amount he must bring the suit or make the deduction within six months.” Section 7 of the Haryana Urban (Control of Rent & Eviction) Act, 1973 is para materia with section 20 of Bombay Rents, Hotel and Lodging House Rates Control Act which was the subject-matter of consideration before the Hon'ble Supreme Court. This Court in the case of Sham Singh, Ram Steel Industries, Chandigarh Vs. Darshan Singh 1984 HRR 89 has been pleased to lay down as under:- “4. .....It is true that he was entitled to recover it but he could do so under section 8 of the East Punjab Urban Rent Restriction Act, within a period of 6 months from the date of tender. In the above view I am fortified by the observation of this Court in Dhani Ram and others Vs. Pt.Ghasita Ram, 1963 PLR 295, wherein it was observed that where a tenant seeks to recover rent illegally paid either by deduction from such rent or by CR No.6744 of 2007 8 separate action he can do so within six months from the date of payment. That case has been followed by me in the judgment of even date between the parties (See Darshan Singh Vs. Sham Singh RSA No.491 of 1981). Consequently I am of the view that the tenant is not entitled to the adjustment of the said excess. Therefore, the tender made by the tenant was not proper.” In view of the settled law no ground is made out to interfere with the judgment and decree passed by the learned lower appellate court dismissing the suit of the petitioner as time barred. No merit. Dismissed. (Vinod K.Sharma) 20.07.2009 Judge rp