JUDGMENT

HEMANT GUPTA, J.-- The suit filed by the plaintiff-respondent was decreed by the learned trial Court, vide judgment and decree dated 21.10.1993 granting a decree in the sum of Rs.6,764.50p along with interest @ 8% p.a. from the date of filing of the suit till realization of the decretal amount. The defendant’s appeal before the first Appellate Court, also remained unsuccessful vide judgment and decree dated 4.12.1995. Still aggrieved, the defendant has filed the present Regular Second Appeal.

2. The defendant-appellant, as an owner of a shop situated in Jind, filed an ejectment petition under Section 13 of the Haryana Urban (Control of Rent and Eviction) Act, 1973 (for short `the Act’), primarily on the ground of non payment of arrears of rent. The appellant alleged that the shop was initially given on rent @ Rs.150/- per month and subsequently, the rent was enhanced to Rs.250/- per month on 1.9.1983. The stand of the plaintiff-respondent was that he has paid rent upto the date of filing of the rent petition and that he is not in arrears of rent having paid the same on 30.9.1986 at the agreed rate of Rs.150/- per month. However, to avoid ejectment, he tendered the rent at the agreed rate i.e.Rs.150/- per month on 6.12.1986 along with interest and costs.

3. The learned Rent Controller, vide order dated 16.9.1989 (Exhibit P.10), found that the rate of rent was Rs.150/- per month. The learned Rent Controller in respect of Issue No.3-B which is to the effect `Whether the tenant is entitled to refund of the amount of rent paid @ Rs.150/- per month?, returned a finding accepting the version of the tenant that he has paid the rent and consequently ordered refund of the amount of rent paid @ Rs.150 per month. Thus, the defendant–appellant was directed to refund an amount of Rs.5,590.50p along with interest @ 6% per annum from 6.12.1986 till the date of payment. An appeal against the said judgment filed by the appellant was partly accepted vide judgment Exhibit P.11. The learned Appellate Authority has affirmed the finding that the rate of rent was Rs.150/- per month, but it was held that the tenant is not entitled to the refund of Rs.5590.50p because prayer for refund was not made within six months of the payment. Having returned such finding, a liberty was given to the tenant to claim the said amount in accordance with other remedies available to him. It is thereafter, the present suit for recovery of the excess amount of arrears of rent was filed on 4.2.1992, which has been decreed by the Courts below.

4. The only issue, which was pressed before the Courts below and again an argument raised before this Court, is that the suit is barred by limitation as the payment was made on 6.12.1986. Therefore, the right to claim the refund of the said amount arises on that day. Thus, the suit filed on 4.2.1992 is barred by limitation. It is argued that in terms of Section 7 of the Act, the tenant could claim payment of the excess amount within six months of the date of payment. Therefore, under the provisions of the Act as also under the law of limitation, the suit is barred by limitation.

5. Having heard learned counsel for the parties, I do not find that any substantial question of law arises for consideration of this Court on the present appeal. Section 7 of the Act, deals with the recovery of rent without prejudice to any other method of recovery. Therefore, Section 7 of the Act, authorizes a Rent Controller to pass an order of recovery of the excess amount paid to the landlord. The other remedy i.e. the remedy of the Civil Suit, has been saved by Section 7 of the Act itself.

6. It was only with the finding recorded by the learned Rent Controller on 16.9.1989 vide judgment (Exhibit P.10), the rate of rent was determined and it was found that the excess amount had been paid to the landlord. Such finding recorded by the learned Rent Controller was affirmed by the learned Appellate Authority on 8.12.1990. However, the order of refund was set aside and the tenant was given a liberty to avail the remedy as is available to him. Such liberty is in terms of the provisions of Section 7 of the Act. Therefore, a right to sue will arise to the plaintiff only when the Rent Controller, held that the plaintiff has paid excess of the rent and thus, he is entitled to refund. Such right, firstly would arise on that day and secondly, when such finding was affirmed by the learned Appellate Authority.

7. The present suit falls within the scope of Article 55 falling in Part II of the Schedule of the Limitation Act, 1963. Article 55 provides for a limitation of three years for compensation for the breach of any contract, express or implied not specifically provided therein. The time from which the period begins, is when the contract is broken or where there are successive breaches, when the breach in respect of which the suit is instituted occurs or where the breach is continuing, when it ceases. The plaintiff tendered the amount on 6.12.1986, to avoid eviction. Such amount was paid in breach of the contract of tenancy. A finding regarding breach of contract was recorded by the Rent Controller on 16.9.1989 and, therefore, the time during which the suit can be filed would begin from that date. The suit has been filed within three years of the decision of the Rent Controller, though it could be filed within 3 years of the decision of the learned Appellate Authority.

8. In view of the above, I do not find that the findings recorded by the Courts below suffer from any patent illegality or material illegality, so as to give rise to any substantial question of law in the present Regular Second Appeal.

Hence, the present appeal is dismissed.

Appeal dismissed.

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