RSA No. 4039 of 2006 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No. 4039 of 2006 Date of Decision: July 09, 2009 M/s Varinder Kumar Surinder Mohan ...... Appellant Versus Gurdarhsn Singh and others ...... Respondents Coram: Hon'ble Mr. Justice Ajay Tewari Present: Mr.Gaurav Chopra, Advocate for the appellant. Mr. Vijay Lath, Advocate for the respondents. **** 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Ajay Tewari, J. This appeal has been filed against the judgment of the learned lower Appellate Court reversing that of the trial court and consequently decreeing the suit for possession filed by the respondents. The facts are that respondent-landlords had filed a suit for evicting taking the ground that the appellant was in arrears of rent since the year 1986. The second ground taken was that he required the premises for his own use. The appellant appeared and on the first date paid the arrears of rent for a period of three years. Learned trial Court held that this was RSA No. 4039 of 2006 2 adequate tender and dismissed the suit for eviction. It is against the reversal of that decision by the learned lower Appellate Court that the appellant- tenant is before this Court. Learned counsel has proposed the following substantial questions :- i) Whether the Appellant/Defendant was liable to pay the arrears of rent which were barred by the Law of Limitation as having been sought to be recovered beyond the statutory period of 3 years as specified in Article 52 of the Limitation Act, 1963? ii) Whether the rent claimed is to be construed as meaning all the rent due up to the date of relief or is the same subject to the Law of Limitation? iii) Whether the time barred arrears of rent can be sought to be recovered by instituting a suit for the recovery of arrears of rent under the auspices of Transfer of Property Act, 1882? iv) Whether the phrase “ rent in arrear”, as mentioned in Section 114 of the Transfer of Property Act,1882 also includes the rent which is legally not recoverable on account of having become time barred as per the provisions of the Limitation Act? v) Whether the lease of the demised premises could be determined by forfeiture for non-payment of rent in the event of the lessee having tendered the rent in Court along with the interest accrued thereupon on at the hearing of the suit? RSA No. 4039 of 2006 3 vi)Whether the lower Appellate Court has erred in failing to correctly apply the settled rule of law to the facts and circumstances of he case while decreeing the suit for possession filed by the respondents-plaintiffs? All the questions proposed are overlapping and are covered by question No. (i). Learned lower Appellate Court has held that Section 114 of the Transfer of Property Act envisages payment of full arrears and that the bar of limitation would be attracted only in a suit for recovery. Learned counsel for the appellant has relied upon Smt. Mankunwar Bai and others v. Sunderlal Jain reported as AIR 1978 Madhya Pradesh 54. I find that in para 15 the Hon'ble Full Bench has held as follows:- “15. It appears to us that in Abdul Gafoor v. Abdeali, 1973 MPLJ 179 (supra), the Division Bench concentrated its attention to a case of a defaulter and was then influenced by the considerations, such as, the moral obligation of the tenant to pay,when he was in occupation of the accommodation also during the period for which the rent became barred by time and also by S.114 of the T.P. Act. If the illustrations for eviction on grounds other than that contained in clause (a) of S. 12(1) are taken into consideration, a flood of light is thrown on the expression 'period for which the tenant may have made default'. The Division Bench relied on Rullia Ram v. Fateh Singh, AIR 1962 Punj. 256(F.B.). It can be seen from the discussion contained in paragraphs 5 and 6 of that decision that the learned Judges of Punjab High RSA No. 4039 of 2006 4 Court were influenced by the expression “rent due by him” when neither the words 'legally due' nor the word 'recoverable' were used. It was observed in that decision:- “In order to accept the contention of the learned counsel for the petitioner, namely, that only that rent is due or is in arrears which is legally recoverable, one has to read something extra in this legislative provision.” These observations now do not hold good in view of their Lordships' decision in New Delhi Municipal Committee v. Kalu Ram, AIR 1976 SC 1637 (supra). In this view of the matter the judgment, far from supporting the case of the appellant actually goes against him. Further I find myself bound by the Full Bench decision of this Court in Rullia Ram v. Fateh Singh reported as AIR 1962 Pb. 256 which deals with the same provision and is referred to in the case of Mankunwar Bai (supra) . Learned counsel has also cited State of Kerala and others v. V.R. Kalliyanikutty and another reported as AIR 1999 SC 1305 and Kamla Bakshi v. Khairaiti Lal reported as AIR 2000 SC 1808. I find that both these judgments would not apply to the facts of the present case. The statute interpreted in State of Kerala and others v. V.R. Kalliyanikutty and another (supra) was Kerala Revenue Recovery Act while in Kiamla Bakshi's case (supra) the words in the statute were 'arrears of rent legally recoverable'. In the circumstances I hold the questions of law proposed against the appellant. Consequently this appeal is dismissed. However, I grant the appellant a period up to 31.12.2009 to vacate the premises provided he furnishes the usual undertaking in this Court, pays up-to-date arrears and continues to pay the rent regularly in advance by the first of RSA No. 4039 of 2006 5 every month. The undertaking be filed and the arrears be paid within 10 days from the date of receipt of a certified copy of this order failing which the landlord-respondent would be entitled to execute the decree. (AJAY TEWARI) JUDGE July 09, 2009 sunita