Sunday 31 October 2021

Whether landlord is entitled to get eviction decree if tenant fails to pay time barred rent?

The issue involved in this petition is; whether the plaintiff-landlord was entitled to decree of eviction in a suit filed on 5th September, 1994 on the ground of default in payment of rent for February, 1998 and December, 1990, even though the same fell beyond the period of three years prior to the date of the suit.

 At this stage we may clarify that the decree of eviction has been sustained by both the courts below on both the aforestated grounds namely personal necessity of the landlord and willful default in payment of rent by the tenant.

 In this case we are concerned with the ground of default which falls under Section 11(1)(d) and which states that where the amount of two months rent, lawfully payable by the tenant and due from him is in arrears by reason of non payment within the time fixed by the contract or in the absence of such contract by the last day of the month next following that for which rent is payable then such default would constitute ground for eviction. It is interesting to note that the expression used in Section 1 l(l)(d) is "lawfully payable" and not "lawfully recoverable" and therefore, Section 11(1)(d) has nothing to do with recovery or arrears of rent On the contrary Section 11 (l)(d) provides a ground for eviction of the tenant in the eviction suit. It is well settled that law of limitation bars the remedy of the claimant to recover the rent for the period beyond three years prior to the institution of the suit, but that cannot be a ground for defeating the claim of the landlord for decree of eviction on satisfaction of the ingredients of Section 11 (l)(d) of the said Act, 1982. In the case of Bombay Dyeing & Manufacturing Co. Ltd. v. The State of Bombay and Ors., reported in AIR (1958) SC 328 it has been held that when the debt becomes time barred the amount is not recoverable lawfully through the process of the court, but it will not mean that the amount has become not lawfully payable. Law does not bar a debtor to pay nor a creditor to accept a barred debt.

For the foregoing reasons special leave petition is dismissed.

 Supreme Court of India

Sri Bhimsen Gupta vs Sri Bishwanath Prasad Gupta on 3 February, 2004
Bench: V.N. Khare Cj, S.H. Kapadia
Citation: (2004) 4 SCC 95 : 2004 SCC OnLine
SC 144 : (2004) 15 AIC 36 : (2004) 2 CHN 20 :
(2004) 54 ALR 700 : 2004 AIR SCW 971 :
AIR 2004 SC 1770
Read full Judgment here: Click here

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