IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 19TH MAY 2010 / 29TH VAISAKHA 1932 AS.No. 139 of 1999(D) --------------------- OS.483/1995 of III ADDL.SUB COURT, KOZHIKODE .................... APPELLANT/(DEFENDANT): --------------------------------------- DR.P.K.RAJAGOPALAN, S/O.P.V.PILLAI, MEDICAL PRACTITIONER, RESIDING AT HOUSE NO.25/2043-A, KUTTYIL THAZHAM ROAD, MANKAVU, CALICUT-673007 BY ADV. SRI.R.RAMADAS RESPONDENT(S): -------------------------- T.SREEDHARAN, S/O.PEACHUNNI, HOUSE NO.3/709(OLD NO.3.270) KATCHERI AMSOM, KUMMBRAKKATTUSSERY DESOM, KOZHIKODE TALUK. ADV. SRI.C.P.MOHAMMED NIAS FOR R1 THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 19/05/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: A.S.NO.139/99 ORDER IN C.M.PNO.1125/1999 IN AS.NO.139/1999 DISMISSED SD/- 19.5.2010 M.N.KRISHNAN,JUDGE. //TRUE COPY// PA TO JUDGE M.N.KRISHNAN,J. ====================== A.S.No.139 OF 1999 ====================== Dated this the 19th day of May 2010. JUDGMENT This is an appeal preferred against the judgment and decree in O.S.No.483 of 1995 of the Subordinate Judge's Court, Kozhikode. The suit is one for arrears of rent. The plaintiff has claimed arrears of rent for a period of 149 ½ months and had claimed Rs.1,07,831/- as the amount due. The defendant would contend that admittedly the last payment was only on 5.9.1991 and thereafter there has been no acknowledgment in writing nor payment of any rent in order to save the limitation and therefore the plaintiff would be entitled to claim arrears of rent only from 14.7.1992 i.e 3 years prior to the date of institution of the suit. I am afraid that the learned Subordinate Judge had not considered the matter properly. It is true that there were two proceedings between the parties. One was with respect to the contention whether the document evidences A.S.No.139 OF 1999 2 a mortgage or a lease. Then, there was also petitioner moved before the Rent Control Court for eviction under Section 11(2) and 11(3) of the Building (Lease and Rent Control) Act, 1965. It was found that the transaction was a lease. It was also found by the Rent Control Court that the rent per month is Rs.700/-. Just because Rent Control Proceedings were initiated under Section 11(2) of the Rent Control Act, it does not give right to the party to claim arrears of rent beyond period of limitation. Limitation for arrears of rent is governed by Article 52 of the Indian Limitation Act. As per Article 52, the arrears of rent has to be claimed within three years when the arrears become due. A perusal of para 14 of the lower court judgment would reveal that the last payment was effected on 5.9.1991. It is true that the provisions of Section 18 and 19 of the Limitation Act can be made applicable to arrears of rent proceedings as well. It has to be stated that in a claim for arrears of rent provisions of Section 18 and 19 would apply and wherever there is an acknowledgment or part payment of the rent, arrears of rent can be claimed within three A.S.No.139 OF 1999 3 years from that date. So, when there is an acknowledgment as contemplated or payment of rent, then, claim can be made for three years from that date. Now going by the materials available, the last payment is on 5.9.1991. Had the suit been instituted on 5.9.1994 most probably the plaintiff would have saved the limitation. But unfortunately the plaintiff had instituted the suit only on 14.7.1995. So the plaintiff will be entitled to claim arrears of rent for three years prior to 14.7.1995, i.e, it will commence from 14.7.1992 or in other words the plaintiff will be entitled to claim only 36 months arrears of rent in the case. The initiation of a rent control proceedings or a suit will not come to the rescue of plaintiff to save limitation. It is clearly barred under Article 52 of the Indian Limitation Act. So I find at the rate of Rs.700/- per month for 36 months arrears of rent would come to Rs.25,200/-. 2. While answering issue No.5, the learned Subordinate Judge has noted there was an arrears of electricity charges of Rs.4,259/- for the period from November 1994 to May 1995. The room was vacated only on 4.4.1995. Therefore, A.S.No.139 OF 1999 4 the court found that he is entitled to get that amount which was paid as electricity charges that was due from the defendant in the case. So that amount would come to Rs.4,259/-. Thus the plaintiff will be entitled to an amount of Rs.29,459/-. In the result, the appeal is partly allowed and a revised decree is passed as follows:- The plaintiff is given a decree for the realisation of Rs.29,459/- with 6% interest on the said sum from the date of suit till realisation with proportionate cost. The parties in the appeal are directed to bear their respective costs. M.N.KRISHNAN,JUDGE. mns