Jitender Agal vs Smt. Reena Kakar
2006 Latest Caselaw 833 Del

JUDGMENT

Manju Goel, J.

1. This is a case to decide the preliminary issue on the question of limitation and pecuniary jurisdiction.

2. The suit is for ejectment, recovery of arrears of rent and pendente lite and future mesne profits in respect of Flat No.E-198, Second Floor, Greater Kailash, Part-II, New Delhi-110 048. The prayer in the plaint is as under:

a. It is, therefore, most humbly prayed that; a.a decree for ejectment may kindly be passed in favor of the plaintiff and against the defendant directing the defendant, her agents, representatives, employees, to hand over the vacant peaceful possession of the suit premises i.e., the entire second floor of premises No. E-198, IInd Floor, Greater Kailash Part II, New Delhi " 110 048 comprising of three bed rooms with attached bathrooms, one drawn(sic) cum dining room, one servant quarter & kitchen, to the plaintiff as described in the site plan i.e., Annexure -P1.

b. a decree of arrears of mesne profit/rent as the case may be amounting to Rs.27,45,000/-(Rupees Twenty Seven Lacs Fourty Five Thousand Only), may kindly be passed in favor of the plaintiff and against the defendant in respect of unpaid mesne profit/rent as the case may be w.e.f. 01.11.2000 to 30.11.2005 i.e. @ Rs.45,000/- per month.

c. pendentilite(sic) & future mesne profits @ Rs.45,000/- per month may kindly be awarded to the plaintiff and against the defendant for the unauthorized use & occupation of the suit premises by the defendant till handing over & vacation of the suit premises to the plaintiff. d.cost of the suit may also be awarded to the plaintiff & against the defendant. e.such other & further order(s) may also be passed which is/are necessary & expedient in the interest of justice.

3. The tenancy of the defendant allegedly came to an end on 31-10-2000. The defendant continued in default of payment of rent. Thereafter, tenancy was again terminated vide notice of termination dated 7-11-2005. Arrears of rent/mesne profit is claimed with effect from 1-11-2000 to 30-11-2005 at the rate of Rs.45,000/- per month. The suit is presented on 6-12-2005. The question, therefore, arises as to whether arrears of rent/mesne profit with effect from 1-11-2000 is still within limitation

4. Article 52 of Schedule to the Limitation Act prescribes as under:

  Description of suit        Period of         Time from which period
                           limitation        begins to run
52. For arrears of rent    Three years       When the arrears become
                                             due.

 

No article specifically mentions a claim for mesne profit. Article 113 prescribes as under:
  Description of suit          Period of       Time from which period
                             limitation      begins to run 
113 Any suit for which       Three years     When the right to sue
    no period of limitation  accrues.
    is provided elsewhere
    in this Schedule.

 

5. Since the suit is filed on 6-12-2005, all arrears of rent/mesne profit falling due prior to 6-12-2005 becomes barred by time. When seen in the light of Article 52 and Article 113 of the Schedule to the Limitation Act 1963. Learned counsel for the plaintiff wants to take shelter under Article 22 which is as under:

  Description of suit      Period of      Time from which period
                         limitation     begins to run
22 For money deposited   Three years    When the demand is made
   under an agreement
   that it shall be payable
   on demand, including
   money of a customer
   in the hands of his banker
   so payable.

 

6. According to him the arrears of rent/mesne profits should be viewed as money deposited under an agreement and, therefore, the cause of action for this can arise only when a demand is made and since in the present case, demand is made by a notice of 2005, the cause of action arises only in 2005 and the suit is within limitation. The plea of the learned Counsel for the plaintiff is entirely fallacious. A specific article has been included in the Limitation Act regarding arrears of rent. The claim for mesne profits is of a very similar nature as the claims for arrears of rent. The claim will be governed by Article 113 and not by Article 52. The cause of action for mesne profits arise when the same accrues. It has further to be noticed that in the present case, the tenancy is said to have been terminated by a notice of 7-11-2005. Accordingly the claim is actually of arrears of rent rather than mesne profits. The claim before December, 2002 is, therefore, barred by time.

7. The arrears are claimed at the rate of Rs.45,000/- per month. For three years at this rate, arrears of rent/mesne profits due on the date of filing of plaint would be Rs.16.20 lacs. The value of the suit for recovery of possession is pleaded to be Rs.2.28 lacs. This figure has presumably been arrived at on the basis of the monthly rent on which the defendant was inducted as a tenant namely Rs.19,000/- since a suit for possession against a tenant is valued on the basis of one years' of rent, the valuation of the suit for possession is Rs.2.28 lacs. The total value of the suit for eviction as well as arrears of rent/mesne profit up to the date of presentation of the plaint therefore comes to Rs.18.48 lacs. The suit, therefore, falls within the pecuniary jurisdiction of the District Judge.

8. The suit has been presented on 9-12-2005 on a day when the pecuniary jurisdiction of the District Judge was Rs.20 lacs. Accordingly, it is ordered that the plaint be returned for presentation to the proper Court. The plaint can be presented to the District Judge on 22-5-2006 and the defendant shall be present before that Court on that day.

9. The Registry to do the needful for returning the plaint in compliance with the provisions of Order 10 Rule 2 CPC.