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TMI Blog1931 (9) TMI 7X X X X Extracts X X X X X X X X Extracts X X X X ..... , having regard to the terms of Order II, Rule 2, of the Civil Procedure Code, is a bar to the plaintiff's present suit for arrears of rent. The parties framed seven issues, but the learned Judge has not in terms answered them. The only two which he deals with in substance are, first of all, whether the plaintiff's claim to arrears of rent does not lie having regard to Order II, Rule 2, and, secondly, whether the defendant's counter-claim, with which I will deal presently, is well founded. 2. Now, the first point arises in this way. There is no doubt that the property was originally let by the plaintiff to the defendant in the year 1918 and the rent payable was ₹ 200 per-month. There is also no doubt that as from May 1923 further sums have been payable--whether as rent or premium is a question which we have to decide. Further sums amounting to ₹ 1,200 per annum have been payable and have been called premium and it was for four months' arrears of this premium that the suit was brought in the Small Cause Court. Under Order II, Rule 2, it is provided that the plaintiff' must make all claims which he is entitled to make under the same cause of action, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there might be a third case, because it might have been provided in 1923 that rent should be paid at the old rate of ₹ 200 per month and in addition a premium of ₹ 100 per month should be payable, so that in that case we should have one contract providing for payment both of rent and of premium. I think in that case Order II, Rule 2, would apply and if the plaintiff sued only for the premium he could not afterwards sue for the rent. The learned Judge has not shown us definitely into which of these categories he thinks this case falls, but from his reference to the contract for payment of premium being made at a different date from the contract to pay rent, I am rather inclined to think that he puts the case in the first category, namely, that of two distinct contracts, and, in my opinion, on the evidence that is the right view. I think that on the evidence both of the plaintiff and the defendant the only agreement which was made in 1923 was an agreement to pay a premium at the rate of ₹ 1,200 per annum and that no alteration was made in the contract of tenancy for the payment of a rent, at ₹ 200 a month. It appears from the evidence that the plaintiff had gi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that no premium may be charged and in Sub-Section (2) it is provided that where any such payment has been made the amount shall be recoverable by the tenant by whom it was made from the landlord. Then Section 12 provides for the recovery of rent overpaid, but there is a limitation in that section which provides that the claim must be made within six months. I agree with the learned Judge in thinking that Section 12 has no application to a premium and as we have held that the amount in question in this case was a premium, the limitation in Section 12 does not apply and we have to consider what Article of the Indian Limitation Act is the one applicable to the case. It is argued for the plaintiff that the Article applicable to the case is Article 62 which provides a limitation of three years for money payable by the defendant to the plaintiff for money received by the defendant for the plaintiff's use. Mr. Somji on behalf of the defendant (plaintiff in counter-claim) has strenuously contended that this sum was not paid by the defendant to the plaintiff for the use of the defendant and he has referred us to a considerable number of cases which in my view really do not affect the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... year as premium or pagdi is not very clear. But after going through it carefully I have come to the conclusion that during the continuance of the tenancy in 1923 the parties entered into a fresh and separate contract whereby the defendant agreed to pay the premium. In other words, there were two distinct and separate contracts, one for payment of rent, and another subsequent to the first, under which the defendant agreed to pay the premium. On this finding I am clearly of opinion that the case does not come within the provisions of Order II, Rule 2, of the Civil Procedure Code. 8. The second question relates to the counter-claim of the defendant for a sum of ₹ 2,400 which he had paid to the plaintiff as premiums in 1923 and 1921. The counter-claim was made in May 1928 and was based on the provisions of Section 8 of the Bombay Rent (War Restrictions) Act, No. II of 1918. The plaintiff contends that the counter claim is barred by limitation under Article 62 of the Indian Limitation Act. This contention was rejected by the learned Judge who held that the Article applicable to the case was Article 120 of the Act. Section 8 of the Rent Act run as follows:- 8. (1) It shall ..... X X X X Extracts X X X X X X X X Extracts X X X X
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