MUHAMMAD HALEEM, J.--This second appeal is directed against the judgment and decree dated 9th February 1966, passed by the Additional District Judge, Karachi, by which he dismissed the appeal of the appellant and maintained the judgment and decree of the trial Court dated 9th February 1965.
2. This appeal arises in the following circumstances The respondents, who are plaintiffs in the suit, purchased a house bearing No. 298, survey sheet A.
Ivl. 21 situated in Karachi from a Hindu evacuee vide registered sale-deed dated 13th September 1947. They realised rent from the appellant who was its tenant at the rate of Rs. 50 per month till the promulga, tion of Pakistan (Administration of Evacuee Property) Ordinance (XV of 1949). By section 16 of this Ordinance, confirmation of the transaction was necessary and accordingly the respondent applied for the confirmation of the sale which was confirmed on 14th October 1950. This confirmation was set aside by the Custodian of Evacuee Property on 29th February 1952, on some technical ground but again the sale was confirmed on 10th September 1958, by the Additional Custodian (Judicial). The appellant waited for about 13 months and then filed a revision against this order on 11th December 1959, before the Custodian of Evacuee Property but no stay order was obtained and on 19th November 1960, this revision. Was dismissed and the order of the Additional Custodian (Judicial) was upheld. The appellant in the year 1961, filed a petition for leave to appeal in the Supreme Court and during the pendency of this petition, the suit, out of which this appeal arises, was filed on 20th October 1961, by the respondents for the recovery of rent amounting to Rs.
6,500 for the period commencing from. 15th December 1950 to 14th October 1961. Till the filing of the suit the Supreme Court had not granted any stay order. Leave was granted to the appellant but the appeal was dismissed by the Supreme Court on 6th February 1964.
3. The appellant inter alia pleaded that the suit was filed beyond time as the cause of action could not remain suspended. The other pleas need not be set out here since none of them was pressed into service before us. On the plea of limitation, the trial Court settled the issue as under t- "Has the cause of action as to the recovery of rent remained suspended as alleged by the plaintiffs or is the claim of the--plaintiffs for the recovery of rents for more than three years. Barred by limitation ?" and decided It in favour of the resp.)ndents on the ground that- -it was only on and after 19-11-1960, that the status of the property became certain and that the title of the plaintiffs and the liability of the defendant were finally determined. The cause of action for the suit, therefore, arose to the plaintiff's on and after 19-11-1960 and the suit was filed on 20-10- 1961, well within three years from 19th November 1960."
The appellant filed an appeal against the judgment and decree of the trial Court which was also dismissed as the appellate Court reached the same conclusion.
4. The learned counsel for the appellant in this second appeal urged that the Courts below have wrongly construed the word 'due' in Article 110 of the Limitation Act to mean the date on which the cause of action arises for the filing of the suit for the recovery of arrears of rent and that till then limitation remains suspended. According to the learned counsel, the word `due' should be interpreted to mean the date on which the rent becomes payable and in this context urged that the arrears of rent beyond three years previous to the institution of the suit were out of time and could not have been decreed. It will be useful here to repraduce Article 110 of the Limitation Act, which is asunder :- "110. For arrears of rent. Three years. When the arrears become due."
On the other hand, the learned counsel for the respondents urged that the cause of action did not accrue until the order of the Additional Custodian (Judicial) was confirmed by the Custodian ; therefore, the word 'due' must be construed to mean the date, on which the respondents became entitled to file the suit for the recovery of the arrears of rent for the entire period. He invited our attention to the fact that the Custodian confirmed the order of the Additional Custodian (Judicial) on 19th November 1960 and the suit was filed on 20th October 1961, within 3 years of that date and accordingly it was in time. It is clear from section 16 of Ordinance (XVI of 1949) that unless the sale was confirmed it could not be "effective so as to confer any right or remedy on any party thereto or any person claiming under any such party". Consequently until the sale was confirmed, the respondents could not claim to be the owners of the house pursuant to the sale-deed ; therefore, the relationship of landlord and tenant was not recognised so as to entitle the respondents either to demand the rent or to recover it. It was only after the confirmation of sale that this relationship was recognised as from the date on which the respondents purchased the property see M. M.
Ispahani Ltd. v. Haji Muhammad Sultan (1). In this context, can it be said that during the period when the respon--dents could not have asserted their status as landlord, the rent would still be due to them and would fall into arrears so as to become barred by time beyond three years ?
(1) PLD 1961 SC 76
5. We now proceed to examine as to what is the meaning of the word `due' in Article 110 of the Limitation Act. In Mst. Ranee Surno Moyee v. Shooshee Mukhee Burmonia and others (1) the facts were that the Zamlndar had granted a "putnee talook" and the "Putneedars" had fallen into arrears of rent, whereupon the Zamindar pursued htr remedy under Regulation VIII of 1819 and brought the Talook to sale. It was sold for a sum greatly in excess of the rent in arrear. The purchaser was put in possession of the Talook." A suit was then brought to set aside the sale and the sale was set aside. The appeal was also dis--missed. The Zamindar then sued the "putneedars" for the recovery of the arrears of rent and in defence it was pleaded that the suit was out of time.
Repelling this contention their Lordships held as under :- "It seems to their Lordships to be perfectly clear, that the cause of action accrued at the time at which, the sale having been set aside, the obligation to pay this sum of money revived; and whether that time be taken to be the date of the first decree, or the date of the final decree, the present suit would, in either case, have been brought in time. They do not, however, think ft necessary to decide that either that Act, or the particular exception in it, is to be brought in to qualify the peculiar and special law of limitations introduced by the Act of 1859, because they think that, upon the fair construction of the 32nd section of that Act, the time had really not run. Their Lordships' view of the case is this that, upon the setting aside of this sale, and the restoration of the parties to posses--sion, they took back the estate, subject to the obligation to pay the rent ; and that the particular arrears of rent claimed in this action must be taken to have become due in the year in which that restoration to possession took place. It follows that upon the language of the 32nd section Act, No. X of 1859, the appellant was not barred from her remedy."
These observations mutatis mutandis apply to the instant case. Accordingly, it is from the date of the accrual of the cause of action that time began to run. The word 'due' bas the connotation of something legally demandable and as was held by their Lordships of the Supreme Court in Ashfaqur Rahman v. Ch. Muhammed Afzal (2), the word 'due' would carry ,4 the connotation of "due in law or recoverable in an action at law". Consequently, a suit for the recovery of rent can only be filed when the rent becomes legally recoverable and that is in point of time when the cause of action to recover the arrears accrues. In Haji Adam v. Levant Line and 2 others (3) the principle laid down in the above Privy Council case was reiterated and it was held that: "It is a fundamental principle of law of limitation that ft always implies an existing cause of action and that unless the cause of action for a suit has arisen, limitation for such suit cannot begin to run.
In short, where there is no cause of
(1) 12MIA244 (2)PLD1968SC230
(3) PLD 1959 Kar. 364 action, there can be no limitation. In Rangayya Appa Rao v. Bobba Sriramulu and others (1) where rent was unascertained and had to be ascertained before it could be recovered, it was held as under:- "The object of a Limitation Act is presumably to compel people who have actionable claims to sue upon them with due promptitude or to forfeit the right to do so at all. In such an Act the falling due of rent, naturally means the falling due of an ascertained rent, which the tenant is under an obligation to pay, and which the landlord can claim and, if necessary, sue for."
In that case also the right to file the suit depended on the accrual of the cause of action, which accrued only when the rent was finally determined in appeal. The principle laid down leads to the same inference. In Srimat Deivasi Khamani Annamalat Dasikar v. Rao Bahadur M. R. Govinda Rao
(2) the suit was filed for the recovery of arrears of rent due for more than 3 years prior to the suit which could not be filed earlier because the defendant, who was both the head of a mutt and trustee of a temple, had been removed from trusteeship by a decree of the Court, which appointed the plaintiff as receiver for the management of temple and there was no person competent to file the suit for the recovery of rent which had become due. It was held that- "when there was none competent to sue, there was no cause of action, and limitation could not run, because there was none against whom 1t could run."
These observations also reflect the same principle.
6. Our conclusion from what has been discussed above I that the word 'due' in Article 110 of the Limitation Act means the date on which the cause of action arises for filing a suit and in this context the rent for the entire period of 10 years and 1 months became due on 19th November 19v0 when the B Custodian upheld the order of the Additional Custodian (Judicial), and the respondents were in law entitled to sue for the recovery of the arrears of rent. The suit was filed within 3 years of that date and therefore it was within time under Article 110 of the Limitation Act.
7. The learned counsel for the appellant in the face of this difficulty contended that no stay order was granted during the pendency of the revision application by the Custodian and since the revision was also filed much later on 11th December 1959, the terminus a quo for. Computing the period of limitation would be the 10th of September 1958 when the Additional Custodian (Judicial) confirmed the sale and not 19-11-1961 when it was confirmed by the Custodian and that accordingly the suit having been filed beyond 3 years from that date was, out of time. This contention appears to be misconceived because under Article 110 of the Limitation Act, the suit could be filed at any time within 3 years from 10th September 1958 but on the filing of a revision application the matter again became subjudice and the order of the Additional Custodian (Judicial) could be final only
(1) 1 L R 27 Mad. 143(2) I L R 46 Mad. 579 after the revision was dismissed in terms of section 43 (7) of the Pakistan (Administration of Evacuee Property) Act XII of 1957. The necessary consequence therefore was that the order of the Additional Custodian (Judicial) merged in that of the Custodian and it was the order of the Custodian that held the field and could only be the basis for the accrual of the cause of action.
Accordingly we are unable to accede that time began to run as from 10th September 1958.
8. In conclusion, this appeal is dismissed but in the circumstances of the case we would make no order as to costs.