S.E Mohamed Abdulla ... v. T.K Dorai Abasu And ...

1. This revision is filed by the plaintiff in S.C.S. No. 638 of 1952 on the file of the Principal Small Cause Court, Madurai, to recover from two defendants, the respondents to this revision petition, a sum of Rs. 480 claimed as refund of the excess rent paid by the plaintiff at Rs. 5 per month over and above the fair rent determined by the Rent Controller. The house-property in question belong d to the defendants and the plaintiff became a tenant under the second defendant with effect from 14th January, 1943, on a monthly rent of Rs. 35. The plaintiff was paying rent at that rate to defendant 2 till October, 1948, when a partition took place between the second defendant and her son, defendant 1, in which the property in question was allotted to the share of defendant 1; and thereafter, the plaintiff was paying the rent only to defendant 1 at the said rate. Then, in 1950, the plaintiff filed an application M.B.P. 195 of 1950 for fixation of fair rent; and on that application, the Rent Controller fixed the fair rent at Rs. 30 a month that is, by reducing the agreed rate of rent by Rs. 5 a month. The plaintiff gave a notice on 14th February, 1951, to the first defendant, claiming refund in pursuance of Madras Act XXV of 1949 (Buildings Lease and Rent Control Act). In the meantime, the plaintiff preferred an appeal against the order of the Rent Controller, praying for further reduction of the rent as fixed by the Rent Controller. The appeal was not eventually pressed, and accordingly, it was dismissed on 2nd November, 1951. Thereafter, the plaintiff commenced this action and claimed a sum of Rs. 480, being the excess rent paid by him at the rate of Rs. 5 a month from the date of the tenancy, namely, 14th January, 1943, to the date of the fixation of the fair rent, namely, 16th January, 1951, for a period of 96 months.

2. On the date of the fixation of the fair rent, namely, 16th January, 1951, the Act that was in force was Act XXV of 1949, which provided by Section 6 that when the Controller had determined the fair rent of a building, any sum paid in excess of the fair rent, whether before or after 1st October, 1946, in respect of the use of the building after that date, shall be refunded to the person by whom it was paid, or at the option of such person, otherwise adjusted. Under that provision then in force, it was open to the plaintiff to claim a refund of any sum paid in excess of the fair rent from 1st October, 1946. Of course, his claim as from the date of the tenancy, namely, 14th January, 1943, was clearly untenable. But it must be remembered that the plaintiff preferred an appeal against the order of the Rent Controller fixing the fair rent and that appeal was dismissed on 2nd November, 951. By that time the amending Act (Madras Act VIII of 1951), had been passed, and it came into force on 1st May, 1951. The Amendment Act provided that where the Controller had determined the fair rent of a building, any rent paid in addition to or in excess of such fair rent, whether before or after the commencement of that Act, shall be refunded by the landlord to the person by whom it was paid, or, at the option of such person, shall be otherwise adjusted by the landlord. That amendment embodies a Proviso to the effect that where before the determination of the fair, rent the rent had been paid in excess thereof, the refund or adjustment shall be limited to the amount paid in excess for a period of one year immediately before such determination. Relying on that Proviso the learned trial Judge held that the refund can be claimed by the plaintiff only in respect of the amount paid in excess of the fair rent for a period of one year. He fixed that period of one year prior to 2nd November, 1951, the date of dismissal of the plaintiff's appeal against the order fixing the fair rent. The learned Judge thought that though the order fixing the fair rent was passed under the provisions of the earlier act of 1949 and therefore the plaintiff's right to claim refund had accrued with effect from 1st October, 1946, as under that Act, by reason of the amendment of 1951, the plaintiff could not claim refund for more than the said period of one year, because, by Section 20 of the Amendment Act VIII of 1951, any application made, appeal preferred or other proceeding instituted under the said Act of 1949 and pending at the commencement of the Amendment Act shall be disposed of as if the Amendment Act had been in force at the time when such application, appeal or proceeding was made, preferred or instituted. The learned Judge thought that the decision as regards the fixation of the fair rent became final only on the dismissal of the appeal on 2nd November, 1951. We have no doubt that the learned Judge was erroneous in that view, if it is remembered that the appeal was one preferred by the plaintiff and not by the defendants and which related to a further reduction of the rent as the plaintiff was not satisfied with the reduction of Rs. 5 ordered by the Rent Controller. In other words, the appeal had no relation to the reduction of Rs. 5 already made by the Rent Controller, and that was not the subject-matter of the appeal, so that, so far as the reduction of Rs. 5 ordered by the Rent Controller was concerned, his order, dated 16th January, 1951, was final. The learned Counsel for the respondents contended that when once the appeal was preferred, the entire matter was at large and that it became as well the duty of the appellate Court to fix the fair rent. But Section 12(3) of the Act which defines the powers, of the appellate Court only states that the appellate authority shall send for the records of the case from the Controller, and after giving the parties an opportunity of being heard, and, if necessary, after making such further enquiry as he thinks fit either personally or through the Controller, shall decide the appeal; that is to say, the appellate authority has only to decide the subject-matter of the controversy covered by the appeal and not fix the fair rent even to prejudice the tenant when no appeal has been preferred by the landlord. We therefore hold that the plaintiff was entitled to a refund of the excess rent paid by him for the period commencing from 1st October, 1946, and that right which had accrued to him before the Amendment Act of 1951 came into force cannot be taken away, as we were not shown any provision in the said Act expressly or by implication taking away such a right. In fact, Section 6(1)(b) only provides for refund of excess paid

"in consideration of the grant, continuance or renewal of the tenancy of the building after such a commencement"

3. If therefore the plaintiff is entitled to claim refund from 1st October, 1946 and as the present suit was filed on 22nd January, 1952, the question is, what is the article of the limitation act applicable to claims of this kind? This question was not considered by the learned trial Judge as in his view it must be restricted only to a period of one year prior to the date of the dismissal of the plaintiff's appeal. When this revision came up in the first instance before the Hon'ble Chief Justice, he referred this question to a Bench in view of the decision of a single Judge of this Court reported in Venkatarama Ayyar v. Kuppuswami Ayyar (1955) 1 M.L.J. 345. That was also a case of a revision arising out of a suit filed by the tenant to recover excess rent paid by him, and one of the pleas taken by the landlord was one of limitation. The lower Court held that Article 62 of the Limitation Act did not apply, but that the article that applied was the general article, Article 120. The learned Judge Somasundaram, J., relying on the decision of this Court reported in India Sugars & Refineries Ltd. v. Municipal Council, Hospet (1942) 2 M.L.J. 663 : I.L.R. (1943) Mad. 521, and the observations of Mookerjee, J., in Mahomed Wahib v. Mahomed Ameer (1905) I.L.R. 32 Cal, 527, was of opinion that the landlord had taken an undue advantage of the tenant's situation contrary to the laws contained in the Buildings Lease and Rent Control Act which was meant for the protection of the tenants, and so, the article that would be applicable was Article 62 of the Limitation Act and not Article 120; and he accordingly dismissed the tenant's suit. The opinion apparently proceeded on the assumption that even at the time when the landlord received rent at the agreed rate, he had no-right to do so and the excess rent over and above the fair rent which was subsequently fixed was received for the tenant's use. With great respect to the learned Judge, we consider that assumption was erroneous on the provisions of the Buildings Lease and Rent Control Act. Our attention was not drawn to any provisions in the Act, declaring that the tenant would be liable, whether the fair rent is fixed or not, to pay only the fair rent as may be fixed subsequently, and not the agreed rate. On the other hand, the Act contemplates the regular payment of the agreed rate of rent by the tenant to the landlord, and if there should be any default in the payment of the rent, the tenant would render himself liable for eviction. Section 7(2) provides for eviction of the tenant if he had not paid or tendered the rent due by him within 15 days after the expiry of the time fixed in the agreement of the tenancy. The rent contemplated by the section is the agreed rate and not the fair rent; nor is the rent defined in the Act as meaning only the fair rent. It will be seen that under Clause 5 of Section 3 of the Act, when the building is required for the purpose of the State or for occupation of any officer of the Government, the State Government shall be deemed the tenant of the landlord, and the rent payable shall be the fair rent, if any, fixed for the building, and if no fair rent has been so fixed, such fair rent as may be determined by the Court in accordance with the provisions of the Act. It is significant that there is no similar provision in regard to other classes of tenancies. Having regard to the provisions of the Act, we must hold that when the excess rent was paid by the plaintiff, the landlord had a right to receive it for his own use, and that such payment cannot, in any sense, be regarded as money received by the defendant for the plaintiff's use within the meaning of Article 62 of the Limitation. Act. It was only by the subsequent fixation of the fair rent that the plaintiff became enabled to claim a refund of the excess under the provisions of the statute, and not that the landlord, as and when he received the rent including the excess, was not entitled to receive the excess in his own right. We think that as the real character of the liability under the provisions of the Act was not brought to the notice of the learned Judge, he was persuaded to take that view, which would be perfectly correct if even at the time when the landlord received the excess rent he had no right to do so.

4. The action for money had and received as stated in Article 62 of the Limitation Act, is according to the law of England, founded on an implied contract. It is now well established that under the English law an action for money had and received lies for money paid by mistake, or upon a consideration which happens to fail, or for money got through imposition, extortion, deceit or oppression or for money improperly received and wrongfully detained. The nature of the Common Law action of money had and received has been fully discussed by the House of Lords in Sinclair v. Brougham L.R. (1914) A.C. 398, where it was pointed out that the action was really one of assumpsit founded on an implied or imputed contract and dependent on the waiver of tort committed and on the correlative affirmance of a contractual relation. The nature of this action was also considered by a Bench of this Court in Ramaswami Naidu v. Muthuswamy Pillai (1918) 35 M.L.J. 581 : I.L.R. 413 Mad. 92. In that case, the plaintiff was a decree-holder against defendants 2 to 4 and in execution of that decree he attached certain moneys in the hands of the first defendant, alleging that the latter had collected certain amounts from the debtors of the said defendants. The debt collected by the first defendant was due to a partnership, of which the said defendants 2 to 4 and one Rajappa were partners. On the adjudication of Rajappa, the Official Receiver put up for sale the whole of the outstandings due to the partnership and the same was purchased by the first defendant. He thought that he had purchased the entire partnership interest and not merely the interest of the insolvent, and so, he collected the entire amount due to the partnership. The result was that the first defendant who was unconnected with the partnership had collected certain moneys from a debtor of the partnership, including the shares of defendants 2 to 4 which the plaintiff had attached. In other words, the defendant had collected from a third party a debt which that third party owed to the plaintiff, and there being no privity of any contractual relationship between the plaintiff and the defendant, it was held that no action lay for recovery of the money collected by the defendant. But there was no question of limitation raised in that case and except for the discussion as to what an action for money had and received implies, it is not helpful so far as the present case is concerned.

5. One of the earliest decisions of this Court on this question is reported in Baiznath Lala v. Ramadoss (1914) 27 M.L.J. 640 : I.L.R. 39 Mad. 62, where it was held that a suit for money under Section 73(2), Civil Procedure Code, on the ground that the plaintiff and not the defendant was entitled to receive the same in proceedings in execution of a decree for rateable distribution is governed by Article 62 and not by Article 120, the cause of action arising on the date of the wrongful payment to the defendant. It was further held in that case that Article 62 ought to apply wherever the defendant had received the money which in justice and equity belonged to the plaintiff in the circumstances which in law rendered the receipt of it by the defendant a receipt for the use of the plaintiff. It is true that under the Common Law of England, action for money had and received would rest upon an implied or imputed contract to return the money to the person to whom it was proved properly to belong. Lord Mansfield in Moses v. Macferlane (1760) 2 Burr. 1005 : 97 E.R. 676, had rested it on an equitable doctrine independent of assumpsit which made the return of money obligatory ex aequo et bono.

6. Some of the early decisions of our Court show that attempts were made to restrict even for purposes of Article 62 of the Limitation Act the nature and scope of an action for money had and received within the limits permitted by the English law. Such attempts failed as we can see from two decisions of our Court reported in Municipal Council Dindigul v. Bombay Co. Ltd. (1928) 56 M.L.J. 525 : I.L.R. 52 Mad 207 and India Sugars and Refineries Ltd. v. Municipal Council, Hospet (1942) 2 M.L.J. 663 : I.L.R. (1943) Mad. 521. In the earlier case, Coutts-Trotter, C.J., at page 215 observed:

I take it to mean this-that in Courts such as those in Ceylon and those of British India, an action for money had and received, may be treated, though the English Common Law cannot treat it, as an action founded on an equity binding on the conscience of the recipient of the money which is shown not to be his. If that be right, it follows that the remedy being an equitable one is enforceable because it is binding as ex aequo et bono on the conscience of the defendant and cannot possibly be either a suit for damages or compensation.

In India Sugar Refineries Ltd. v. Municipal Council, Hospet (1942) 2 M.L.J. 663 : I.L.R. (1943) Mad. 521, cited above, the plaintiff sued the Municipal Council, Hospet, to recover the profession tax alleged to have been wrongfully levied during the period from October, 1933, to September, 1937. The plaintiff-company started to build a sugar factory in Hospet only in October 1933, but did not actually start manufacture until the beginning of 1935. The profession tax was levied on the Company for the half year ending 31st March, 1934, onwards. The learned District Judge held that Article 62 of the Limitation Act applied and the suit with reference to the first year's assessment was barred by limitation. This Court accepted that view as correct. Wadsworth, J., observed as follows at page 523-524:

An attempt has been made to argue that Article 62 applies only to an action for money had and received in the strictest sense of the term as understood in the Courts of Common Law in England and that, when the action is based not on any implied contract, but on the principle of ex aequo et bono, Article 62 would have no application and the residuary Article 120 would apply. We have been referred to no authority in support of this argument, and it seems to us that Article 62 is intended to apply to all actions for money had and received to the use of the plaintiff, whether they be actions which may be deemed strictly to be based on implied contracts or whether they be merely to enforce an equitable claim to the return of the money had and received. We therefore agree with the learned District Judge that the claim in so far as it relates to the first year's profession tax is barred by limitation.

7. It seems to us that the true test is, to whom did the money rightfully belong at the time when it was received? In the present case having regard to the provisions of the Madras Act, it cannot be stated that the landlord was not entitled to receive the agreed rate of rent at the time when it was paid to him or that when it was paid, it did not rightfully belong to him, though it may be that by the subsequent fixation of the fair rent, he became liable to refund a part of it under the statute. That test has been adopted by a Bench of this Court in District Board of Ramnad v. Mahomed Ibrahim Sahib (1933) 64 M.L.J. 574. In that case, the District Board of Ramnad filed the suit to recover from the defendant certain moneys being the subscription collected by him for the purpose of constructing a bridge. The bridge was completed in July, 1924. The lower Court held that the claim was barred by limitation under Article 62 of the Limitation Act. It was held in that case that the amount did not become payable to the plaintiff as soon as it was collected. The District Board could claim the amount only after the work had been begun and some steps had been taken towards the construction of the bridge. The money did not therefore rightfully belong to the District Board as soon as it was collected. The learned Judges therefore allowed the appeal, holding that Article 62 did not apply and that the article applicable was Article 120. They held that Article 62 contemplates a suit in which the plaintiff is entitled to obtain the whole of the money received as soon as it is received. That principle has found acceptance in some of the other High Courts. In an early decision of the Calcutta High Court by a Full Bench of five Judges reported in The Secretary of State for India in Council v. Guru Proshad Dhur (1892) I.L.R. 20 Cal. 51 (F.B.), the moneys sued for were surplus sale proceeds after liquidating the Government dues of the defaulting proprietors of the estate sold, and the law under Act XI of 1859 applicable to the case declared that the Collector should hold them in deposit on the account of those persons to be paid on demand to a proper receipt. It was held that to such a claim, Article 62 did not apply and that it was governed by Article 120. It was so held on the ground that it was only after the sale was confirmed and an account was made of the moneys by the defaulting proprietors, which were rarely represented by the actual default for which the sale took place and a surplus was shown in the account, that any money would be said to belong to the proprietors, that is to say, the plaintiff did not become entitled to the moneys as and when they were received. In an Allahabad case, The Municipal Board of Gazipur v. Deokinandan Prasad (1914) I.L.R. 36 All. 555, the plaintiff filed the suit, asking for a refund of octroi duty which he had paid to a municipality on certain logs. His allegation was that when the duty was demanded, he had represented to the Municipality that the logs were being imported for the use of the Government. A few days later, he produced a certificate to that effect and he asked for a refund of the duty which he had paid, but the Board declined to refund. The Court of first instance dismissed the suit as barred by limitation under Article 62; and on appeal, the District Judge held that Article 120 applied, and the High Court accepted that view as correct, because the plaintiff had not alleged that the Board was wrong in demanding the duty. It was pointed out that if the plaintiff had alleged that the Municipality was wrong in demanding and taking octroi in the first instance, the suit would have been governed by Article 62.

8. Having regard to the nature of the liability under the provisions of the Madras Act, we consider that in the present case the landlord was entitled to receive the agreed rate of rent and that the excess received by him was not money to which the plaintiff was entitled as soon as it was received, and so, Article 62 does not apply and that the only other article applicable is Article 120. The learned Counsel for the respondents drew our attention to the decision reported in Shivji Bhara v. Kanji (1949) 51 Bom.L.R. 515, where the tenants not only paid the rent which was the proper rent, but also a pugree worked out on the basis of Rs. 400 per month for the period of 13 months during which the tenancy was to continue. The question of limitation did not arise in that case, but the question was whether the plaintiff's suit to recover excess rent or pugree was a suit for recovery of rent. However, Chagla, G.J., stated at page 522:

The suit he is filing is to recover the amount which his landlord has wrongfully obtained from him and to which he is not entitled. To use a well-known English expression it would really be a suit for moneys had and received by the defendants.

That was therefore a suit to recover the amount which the landlord had wrongfully obtained and to which he was not entitled, and therefore a suit for money had and received within the meaning of Article 62. But, as we have stated above, the present case is not such a case.

9. If Article 120 applies to this case, as we hold it does, then, the claim from 1st October, 1946, to 16th January, 1951, would be within limitation. But, the second defendant was not a party to the proceedings in which the fair rent was fixed. She was collecting the rent only till October, 1948, when the partition took place and when the first defendant became the owner. After that date, it was the first defendant who has collected the rent. The second defendant would be liable, if at all, only for the period from October, 1946, to October, 1948; but, as she was not a party to the proceedings fixing the fair rent, she was under no obligation to refund the excess received by her. The result is that the plaintiff can claim a refund from the first defendant only for the period from 1st October, 1948 to 16th January, 1951, that is, for a period of 27 1/2 months; and at the rate of Rs. 5 a month, the refund comes to Rs. 137-8-0. This Revision Petition is therefore allowed only to that extent and there will be a decree in favour of the plaintiff for the said amount with interest thereon at 6 per cent. per annum from the date of the plaint and with proportionate costs in the trial Court. The plaintiff will get the costs of this revision petition from the first defendant. The revision petition is dismissed with the costs of the second defendant.