Shashikant Yeshwant Limaye & Anr vs Chintaman Vinayak Kolhatkar on 2 July, 2010

[Cites 12, Cited by 3]

Bombay High Court

Shashikant Yeshwant Limaye & Anr vs Chintaman Vinayak Kolhatkar on 2 July, 2010

2. By this petition, the petitioners takes exception to the judgment and order dated 17 October 1994 passed by the learned IInd Additional District Judge, Pune allowing the appeal filed by the respondents landlords and thereby passing a decree for eviction ::: Downloaded on - 09/06/2013 16:04:56 ::: 2 against the petitioners.

3. The respondents are the owner of the suit property. By an agreement dated 21 January 1965, the respondents let out to the petitioner no.1 the suit property, i.e. four rooms situated on the first floor of the property bearing CTS No. 721-2-B, Pune on a monthly rent of Rs.110/-. By a notice to quit dated 31 March 1987, the respondents terminated the tenancy of the petitioner no.

1 by the end of 30 April 1987 and called upon him to vacate the suit premises. As the petitioner no.1 failed to vacate the suit premises, the respondents filed a suit being Suit No.719 of 1987 against him for possession joining petitioner no.2 as a party defendant. The respondents claimed possession on the ground that after the letting the petitioner no.1 had purchased/ acquired his own flat in a building known as "Supurti" situate in the Bank of Maharashtra Cooperative Housing Society, Pune. The respondents were therefore entitled to a decree for possession under section 13(1)(l) of the Bombay Rents Hotels and Lodging House Rates Control Act, 1947 (for short "the Bombay Rent Act"). The petitioner no.2, who is a brother of the petitioner no.1, was joined as a party to the suit so as to avoid any obstruction to the execution ::: Downloaded on - 09/06/2013 16:04:56 ::: 3 of the decree that may be passed against the petitioner no.1. In the trial court, it was not seriously disputed that the petitioner no.1 had purchased/acquired the alternate premises. The petitioners, however, contended that even according to the respondents, the petitioner no.1 had acquired alternate premises in the year 1970-71. Consequently, the suit which was filed in the year 1987 after expiry of 12 years from the date of accrual of cause of action was barred by limitation. The trial court upholding the defence held that the suit was barred by limitation. The lower appellate court, however, reversed the decision and held that the suit was within limitation and passed a decree for possession. Aggrieved petitioners are in this Court by way of this writ petition.

4. The short question that arises for my consideration is:

Whether the suit filed on 29 April 1987 was barred by limitation?

5. Articles 66 and 67 of the Limitation Act, 1963 are relevant.

They both relate to a suit for possession of immovable property and read thus:

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Article Description of suit Period of Time from which Limitation period begins to run

66. For possession of immovable Twelve years When the forfeiture is property when the plaintiff has incurred or the condition become entitled to possession is broken by reason of any forfeiture or breach of condition.

67. By a landlord to recover Twelve years When the tenancy is possession from a tenant determined

6. Learned counsel for the respondents submitted that in the present case the suit would be governed by Article 67 of the Limitation Act and the period of limitation was required to be counted from 31 March 1987, when they had issued the notice of termination of tenancy. As such, the suit which was filed in the year 1987 was within 12 years.

7. Per contra, learned counsel for the petitioners submitted that the suit was governed by Article 66 of the Limitation Act inasmuch as no notice for termination of tenancy was required to be issued in view of the decision of the Supreme Court in Dhanpal Chettiar v.

Yasodai Ammal, AIR 1979 SC 1745. The respondent became entitled to possession by reason of statutory forfeiture of tenancy on breach of statutory condition of tenancy, namely acquisition of ::: Downloaded on - 09/06/2013 16:04:56 ::: 5 suitable residential premises by the petitioner no.1 tenant elsewhere. Acquisition of suitable residence elsewhere is a statutory ground for eviction provided under section 13(1)(l) of the Bombay Rent Act. The suit filed after 12 years of accrual of cause of action was barred by limitation.

8. Prior to the decision of the Supreme Court in Dhanpal Chettiar (supra), different High Courts in the country had taken different views on a question whether it was necessary for a landlord to terminate the (contractual) tenancy of a tenant before filing of a suit for possession. The controversy was set at rest by the Supreme Court by its decision in Dhanpal Chettiar (supra) wherein the Supreme Court observed:

"Determination of a lease in accordance with the Transfer of Property Act is unnecessary and a mere surplusage because the landlord can not get eviction of the tenant even after such determination. The tenant continues to be so even thereafter. That being so, making out a case under the Rent Act for eviction of the tenant by itself is sufficient and it is not obligatory to form the proceeding ::: Downloaded on - 09/06/2013 16:04:56 ::: 6 on the basis of determination of the lease by issue of notice in accordance with sec. 108 of the Transfer of Property Act."

The position is, therefore, settled that in case of a tenant protected under the provisions of any rent restriction Act, like the Bombay Rent Act as in the present case, a suit for possession of the rented premises on a ground covered by the provisions of the concerned Rent Act can be filed without issuance of a notice of termination of tenancy under section 108 of the Transfer of Property Act. If termination of a tenancy is not necessary for the purpose of institution of a suit for possession by a landlord against a tenant, obviously Article 67 of the Limitation Act would not apply for a suit by a landlord against a tenant under the provisions of the Bombay Rent Act. Because Article 67 of the Limitation Act provides the starting point for counting the period of limitation to be the date of termination of tenancy and as in the present case as per the decision of the Supreme Court in Dhanpal Chettiyar's case it is not at all necessary to terminate the tenancy and the suit can be filed without the termination of the tenancy. Article 67 of the Limitation Act would not apply to the present case as there would be no date ::: Downloaded on - 09/06/2013 16:04:56 ::: 7 of determination of tenancy. Consequently, the suit for possession by a landlord against a tenant protected under Bombay Rent Act would be covered by Article 66 of the Limitation Act.

9. In Smt. Shakuntala S. Tiwari v. Hem Chand M. Singhania, AIR 1987 SC 1923 relied upon by the counsel for the respondent, the Supreme Court held that the Limitation Act was applicable to a suit by a landlord against a tenant for recovery of possession under the Bombay Rent Act. The Supreme Court further held that in the scheme of the Rent Act there was nothing to indicate or warrant that there would be no limitation of any period for a suit for possession. Of course therein the Supreme Court has held that Article 67 of the Limitation Act would apply but that was on the basis of the law prevalent at that time that it was necessary for the landlord to terminate the tenancy of the tenant before institution of the suit for possession. In that case the controversy did not relate as to whether Article 66 of Article 67 of the Limitation Act would apply, but was whether the provisions of the Limitation Act would at all apply to a suit for possession by the landlord against the tenant and the second controversy was whether Article 67 or Article 113 of the Limitation Act would apply. It was in that ::: Downloaded on - 09/06/2013 16:04:56 ::: 8 context that the Supreme Court held that the provisions of the Limitation Act were applicable and that the suit would not be governed by Article 113 of the Limitation Act. The question whether the suit by a landlord against a tenant for possession under the provisions of the rent restriction Act would be governed by Article 66 or Article 67 of the Limitation Act has subsequently been specifically considered by the Supreme Court in its decision in Ganpat Ram Sharma v. Gayatri Devi, (1987) 3 SCC 576, in which the Supreme Court in para 22 of its decision has observed:

"22. The next aspect of the matter is which article of the Limitation Act would be applicable. Reference was made to Article 66 and Article 67 of the Limitation Act, 1963 (hereinafter called the Limitation Act) which stipulates that for possession of immovable property the cause of action arises or accrues when the plaintiff has become entitled to possession by reason of any forfeiture or breach of condition. Article 67 stipulates a period of twelve years when the tenancy is determined. Article 113 deals with suit for which no period of limitation is provided elsewhere in this Schedule. On the facts of this ::: Downloaded on - 09/06/2013 16:04:56 ::: 9 case it is clear that Article 66 would apply because no determination in this case is necessary and that is well-

settled now. Determination by notice under section 106 of the Transfer of Property Act is no longer necessary." (underlining supplied) In the light of this later decision wherein after considering both Article 66 or Article 67 of the Limitation Act, the Supreme Court held Article 66 would apply, it must be held that a suit by a landlord against a tenant for possession under the provisions of the Bombay Rent Act would be governed by Article 66 and not Article 67 of the Limitation Act.

10. In the case at hand, the respondent no.1 in the plaint had stated that the petitioner no.1 had acquired the alternate premises and started residing therein from 1970-71. Section 13(1)(l) of the Bombay Rent Act provides that a landlord shall be entitled to recover possession of any premises if the Court is satisfied that a tenant after coming into operation of the Bombay Rent Act, has built acquired vacant possession of or being allotted a suitable residence. Under section 13(1)(l) of the Bombay Rent Act, a ::: Downloaded on - 09/06/2013 16:04:56 ::: 10 tenant forfeits his protection and the right to remain in possession of the tenanted premises if he acquires suitable residence. The forfeiture takes place on the date on which the tenant acquires suitable residential premises. Consequently, the period of limitation would be required to be counted from the date of forfeiture, i.e. the date of acquisition of the suitable residential premises. That would be the starting point for computing the period of limitation for filing of the suit for possession. As the petitioner forfeited his right to remain in possession of the suit premises in the year 1970-71 when he acquired the suitable residential premises, the suit filed on 29 April 1987 was clearly barred by limitation.

11. The lower appellate court has relied upon a decision of this Court in Hemchand M. Singhania v. Smt. Shakuntala S. Tiwari, 1987 (2) Bom. C.R. 428 for coming to the conclusion that the cause of action arose from the date of issuance of notice determining the tenancy. In that case, the Court held that the period of limitation both under Article 66 and Article 67 of the Limitation Act was 12 years. In my view, that decision does not lay down that when the period of 12 years would begin to run. Assuming, however, as held ::: Downloaded on - 09/06/2013 16:04:56 ::: 11 by the lower appellate court, that the decision holds that starting point of limitation is the issuance of notice to quit, that is contrary to the decision of the Supreme Court in Dhanpal Chettiar (supra) and Ganpat Lal Sharma (supra) and to that extent any observation in the said decision that period of limitation would start from the date of notice to quit stands overruled by reason of the decision of the Supreme Court in the case of Dhanpal Chettiar (supra).

12. For these reasons, it must be held that the suit filed after 12 years of forfeiture of tenancy was barred by limitation.

Consequently, the impugned judgment of the lower appellate court is not sustainable and is accordingly set aside and the judgment and order of the trial is restored. Rule is made absolute accordingly.

(D.G. KARNIK, J.) ::: Downloaded on - 09/06/2013 16:04:56 :::

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