# Mahadeo Prasad Deft-Revisionist v. Sarvar Jahan Begum Plff

- **Citation:** (2013) 3 ILRA 1163
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-08-23
- **Case number:** Civil Revision No. 320 of 1993
- **Bench:** Pankaj Mithal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mahadeo-prasad-deft-revisionist-v-sarvar-jahan-begum-plff-42676
- **Pages:** 4

## Headnote

Sri Navin Sinha, Sri S.M. Iqbal Hasan
Sri Manish Tandon

Civil Revision- Suit for arrear of rent and
possession-decreed by judge SCC-arrears of
rent
w.e.f.
01.06.1972
to
15.12.1978according to Art. 52 part I of limitation Actlimitation provided 3 years-suit institute 1975
returned for presentation before court having
competent jurisdiction-presented only in
1986-held-time barred-decree so for arrears
of rent concern-set-a-side-but for possession
maintained.

Held: Para-20
The limitation of instituting a suit to recover
possession from the tenant under Article 67
Part V of the Limitation Act, 1963 is 12 years
from the date of determination of the
tenancy. The tenancy was determined vide
notice dated 15.2.1974 and the suit on its
basis was instituted in the year 1986. It
appears that the said suit was within 12 years
of the determination of the tenancy, though
no exact date of its institution has come on
record. It is not the case of the defendant
revisionist that the suit for recovery of
possession was also barred by time. Thus,
apparently the suit for recovery of possession
is within time. Accordingly, notwithstanding
that the suit for arrears of rent could not have
been decreed there is no flaw in decreeing the
suit for eviction and awarding damages for its
use and occupation after the determination of
tenancy.

Case Law discussed:
13 Indian Cases 377; AIR 1929 Privy Council
103; AIR 1973 SC 313; (1997) 9 SCC 688

## Text

3 All] Mahadeo Prasad Vs. Sarvar Jahan Begum
1163
damages for the unauthorised use and
occupation of the land prior to the period of
acquisition but the remand of the matter for
the above purpose would add another round
of litigation consuming sufficient time and,
therefore, to cut short the litigation, I am of
the view that the interest of the parties would
be subserved and the equities would stand
balanced if the interest on compensation
awarded by the reference court for the period
prior to the notification is converted and is
directed to be treated as damages for for use
and occupation of the said land for the said
period.

12. Accordingly, the appeal is
disposed of upholding the impugned
award but directing that the interest
awarded by the reference court on
compensation from January, 1982 to
7.12.1987 be treated as part of damages
for use and occupation of the land and not
interest on compensation.
--------
REVISIONAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.08.2013

BEFORE
THE HON'BLE PANKAJ MITHAL, J.

Civil Revision No. 320 of 1993

Mahadeo Prasad
 ...Deft-Revisionist
Versus
Sarvar Jahan Begum .... Plff-Respondent

Counsel for the Petitioner:
Sri V. Singh

Counsel for the Respondents:
Sri Navin Sinha, Sri S.M. Iqbal Hasan
Sri Manish Tandon

Civil Revision- Suit for arrear of rent and
possession-decreed by judge SCC-arrears of
rent
w.e.f.
01.06.1972
to
15.12.1978according to Art. 52 part I of limitation Actlimitation provided 3 years-suit institute 1975
returned for presentation before court having
competent jurisdiction-presented only in
1986-held-time barred-decree so for arrears
of rent concern-set-a-side-but for possession
maintained.

Held: Para-20
The limitation of instituting a suit to recover
possession from the tenant under Article 67
Part V of the Limitation Act, 1963 is 12 years
from the date of determination of the
tenancy. The tenancy was determined vide
notice dated 15.2.1974 and the suit on its
basis was instituted in the year 1986. It
appears that the said suit was within 12 years
of the determination of the tenancy, though
no exact date of its institution has come on
record. It is not the case of the defendant
revisionist that the suit for recovery of
possession was also barred by time. Thus,
apparently the suit for recovery of possession
is within time. Accordingly, notwithstanding
that the suit for arrears of rent could not have
been decreed there is no flaw in decreeing the
suit for eviction and awarding damages for its
use and occupation after the determination of
tenancy.

Case Law discussed:
13 Indian Cases 377; AIR 1929 Privy Council
103; AIR 1973 SC 313; (1997) 9 SCC 688

(Delivered by Hon'ble Pankaj Mithal, J.)

1. Heard Sri V. Singh, learned
counsel for the defendant revisionist. Sri
Manish Tandon and Sri S. M. Iqbal
Hasan, learned counsel have appeared for
the plaintiff respondent.

2. The suit of the plaintiff
respondent for arrears of rent and eviction
of the defendant revisionist from the shop
in question has been decreed by the
Additional
District
Judge
exercising
powers of the Judge of Small Causes
Court vide impugned judgment and order
dated 11.5.1993.
1164 INDIAN LAW REPORTS ALLAHABAD SERIES

3. The dispute is regarding a shop
which was let out in the year 1968 at a
rent of Rs.80/- per month with the
stipulation that after one year the rent
would stand increased to Rs.85/- per
month. The plaintiff respondent vide
notice dated 15.2.1974 which is said to
have been served upon the defendant
revisionist on 22.2.1974 determined his
tenancy and required him to vacate the
said shop on the allegation that he had
failed to pay rent for the period 1.6.1972
till the last date of January, 1975.

4. On the basis of the aforesaid notice,
original suit No.48 of 75 claiming arrears of
rent from 1.6.1972 to 31.1.1975, damages and
for eviction was instituted in the court of
Munsif. On 5.8.1978 the plaint was returned
for want of jurisdiction for presentation before
the Civil Judge. It was represented in the court
of Civil Judge and was numbered as original
suit No.23 of 1979. Again the plaint of the suit
was returned for want of jurisdiction from the
court of Civil Judge on 17/19.4.1986 for
presentation before the court of small causes.
Thereafter, it was presented in the court of
small causes and was registered as SCC Suit
No.2 of 1986.

5. The suit has been decreed by the
impugned judgment and order dated
11.5.1993 for arrears of rent amounting to
Rs.6687/- for damages w.e.f. 15.12.1978
@ Rs.85/- per month and for eviction
within a period of one month. The court
below in decreeing the suit held that the
provisions of U.P. Act No.13 of 1972 are
not applicable to the shop in question, the
notice
was
duly
served
upon
the
defendant revisionist, he is in arrears of
rent as claimed in the plaint and that the
suit is not barred by limitation.

6. In assailing the aforesaid
judgment and order, in this revision under
Section 25 of the Small Causes Court Act,
the submission of Sri V.Singh, counsel for
the defendant revisionist is that the claim
for the arrears of the rent from 1.6.1972 to
15.12.1978 had become barred by time
and could not have been decreed in a suit
instituted in the year 1986.

7. Sri Manish Tandon, in defence
has submitted that the suit is not barred by
limitation as it was presented in 1975 and
when the tenancy stood determined, the
defendant revisionist cannot escape the
liability of eviction.

8. The findings regarding the shop
being outside the purview of U.P. Act
No.13 of 1972 and the service of notice
have not been assailed.

9. In view of the aforesaid facts and
circumstances and the rival submissions
made by the counsel for the parties the
following
three
points
arise
for
determination.

(1) Whether the suit would be
deemed to be instituted in 1975 or in
1986;

(2) Whether the claim of arrears of
rent for the period 1.6.1972 to 31.1.1975
or 15.12.1978 is barred by time; and

(3) Whether despite the claim for
arrears of rent being barred by time, the
decree of eviction could be maintained.

Point No.1

10. Order IV Rule 1 C.P.C. provides
for the institution of the suit by presenting
a plaint to the court. The "Court" therein
means the proper court of jurisdiction.
Therefore, when a plaint of a suit is
presented in a wrong court and it is
returned for presentation to proper court it
3 All] Mahadeo Prasad Vs. Sarvar Jahan Begum
1165
would not amount to institution of the
suit. It is only on representation of the
plaint to the court of proper jurisdiction it
will be deemed that the suit had been
instituted. Thus, the presentation of the
plaint in the proper court of jurisdiction
would be the date of institution of the suit.

11. The earliest decision on the point
appears to be of the High Court of Calcutta
U. Hedlot Khasia and another Vs. Karan
Khasiani and others 13 Indian Cases 377.
In the said case their Lordships of the court
clearly ruled that a suit is to be treated as
instituted when a returned plaint is presented
in a competent court.

12. In Ramdutt Ramkissen Dass
Vs. E.D. Sassoon and Co. AIR 1929
Privy Council 103 it was laid down that
where a suit is instituted in a wrong court
having no jurisdiction and it becomes
necessary to file a fresh suit in the proper
court, the second suit would not be
regarded as continuation of the first suit
even though the parties and the subject of
the suit matter happens to be the same.

13. The three Judges Bench of the
Supreme Court in Amar Chand Inani
Vs. Union of India AIR 1973 SC 313
held presentation of a plaint in proper
court after it is returned by an earlier court
is not a continuation of a suit which was
instituted in the wrong court. The court
observed that the word "court" means a
proper court which has jurisdiction to
entertain the suit.

14. In Hanamanthappa and
another Vs. Chandrashekharappa and
others (1997) 9 SCC 688 the plaint was
returned for presentation to proper court.
It was then presented in the proper court of
jurisdiction. The High Court treated the said
plaint to be a fresh plaint and not a
continuation of the earlier one which was
returned. The Supreme Court in the above
circumstances held that the High Court rightly
treated it to be a fresh plaint subject to
limitation, pecuniary jurisdiction and payment
of court fees.

15. In view of above legal position, the
institution of the suit would be on the
presentation of the plaint in the proper court
of jurisdiction and it would not reckon with
the date when it was initially presented to the
court having no jurisdiction.

16. In the instant case the plaint of the
suit was presented to the court of proper
jurisdiction only in 1986. Therefore, the
institution of the suit would be of the year
1986 and would not relate back to the date of
its initial filing of 1975.

Point No.2

17. The plaintiff respondent had
claimed arrears of rent for the period
1.6.1972 till 31.1.1975. The limitation for
instituting a suit for recovery of arrears of
rent under Article 52 of Part I of the
Limitation Act, 1963 is three years from
the date when the arrears became due.

18. In view of the limitation
provided above, the demand of arrears of
rent for the period 1.6.1972 to 31.1.1975
became barred by time on the date the suit
was instituted. Accordingly, the court
below could not have decreed the suit for
arrears of rent for the above period.

Point No.3

19. There is no dispute that the shop
was outside the purview of U.P. Act
No.13 of 1972. It is well settled that where a
1166 INDIAN LAW REPORTS ALLAHABAD SERIES
building is not covered by the above Act, the
termination of lease and eviction will be
governed by the provisions of the Transfer of
Property Act, 1882. The suit was based upon
the notice dated 15.2.1974. The said notice
was a composite notice determining the
tenancy and for demand of arrears of rent. The
tenancy was determined under Section 106 of
the Transfer of Property Act, 1882.The notice
makes clear that the plaintiff respondent does
not want to keep the defendant revisionist as
tenant and therefore, requires him to deliver
possession. A notice which requires a tenant
to vacate the accommodation and handover
possession to the landlord within 30 days is a
valid notice determining the tenancy. The
validity of the said notice is not even under
challenge. It has not been disputed before me.
Therefore, there is dispute that the tenancy
stood determined by the said notice. The
default in paying the rent or that the defendant
revisionist is in arrears of rent or arrears, if any
are not recoverable being barred by time, are
not relevant considerations for eviction where
the tenancy has been validly determined.

20. The limitation of instituting a suit to
recover possession from the tenant under
Article 67 Part V of the Limitation Act, 1963
is 12 years from the date of determination of
the tenancy. The tenancy was determined vide
notice dated 15.2.1974 and the suit on its basis
was instituted in the year 1986. It appears that
the said suit was within 12 years of the
determination of the tenancy, though no exact
date of its institution has come on record. It is
not the case of the defendant revisionist that
the suit for recovery of possession was also
barred by time. Thus, apparently the suit for
recovery of possession is within time.
Accordingly, notwithstanding that the suit for
arrears of rent could not have been decreed
there is no flaw in decreeing the suit for
eviction and awarding damages for its use and
occupation after the determination of tenancy.

21. In view of the aforesaid facts
and circumstances, the decree of arrears
of rent as passed by the court below is set
aside and that with regard to eviction and
damages is maintained.

22. The revision is allowed in part.
No costs.
--------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 29.08.2013

BEFORE
THE HON'BLE VISHNU CHANDRA GUPTA, J.

Criminal Misc. Case No. 812 of 2013
(U/s 482 Cr.P.C.)

Chandra Dev Ram Yadav and Anr.

 ...Petitioners
Versus
State of U.P. and Anr.
 ...Opp. Parties

Counsel for the Petitioner:
Sri Kapil Misra, Sri Sayendra Kumar Singh

Counsel for the Respondents:
A.G.A.

(A)Code of Criminal Procedure Section167(2)- whether the day of surrender
and release on interim bail-would be
taken in consideration of 15 days? held-
'No'-as on day of surrender the court not
changed to custody of applicant either to
police or judicial custody.

Held: Para-10-
So far as inclusion of 10th January, 19th
January, 25th January and 2nd February,
2013 while calculating first 15 days is
concerned, the day on which the petitioners
surrendered and release on interim bail
shall not deem to be the date of remanded
to the judicial custody. No doubt they
surrendered before the court concerned
themselves to be taken into physical control
of the court but the court has not change
the custody either to the police custody or