Bombay High Court
Ramchandra Keruji Deokar vs Raghunath Shankar Bichakar on 22 July, 1992
Equivalent citations: 1994(2)BOMCR1
JUDGMENT N.P. Chapalgaonker, J.
1. This Civil Revision Application raises a question whether there is any limitation prescribed for an application by a person retiring from the Armed Force for getting premises vacated from the possession of the tenant under section 13-A1 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, hereinafter, for the sake of brevity, referred to as `the Bombay Rent Act'. Brief facts of the case are as follows.
2. The landlord Raghunath Shankar Bichkar filed an application under section 13-A1 of the Bombay Rent Act before the Competent Authority at Nasik in which he contended that he is the landlord of House No. 144, City Survey No. 5978 situated at Sangale Lane in Ahmednagar town and defendant non-applicant Ramchandra Deokar is the tenant in occupation of a portion of the said premises. Rent agreed was Rs. 20/- plus Rs. 5/- as light charges per month. The tenant has not paid any rent since 1st January, 1982 (sic), after 22 years of service he would come back and settle down at Ahmednagar. Only two rooms are in his possession now and those will not be sufficient. He has a son of marriageable age and an ailing and aged mother. Therefore, premises in occupation of tenant will have to be get back by evicting him. It was also contended by the landlord that since he has served in the Army as an Officer, the present accommodation of two rooms only which he has, would not be sufficient and the accommodation in dispute will have to be added to the present accommodation. This Application No. 27 of 1989 was resisted by the tenant by filing a reply in the form of an affidavit on 6-9-1989. Non-applicant contended that the need of the applicant landlord is not bona fide one and proceedings have been initiated merely to get the rent increased.
3. On 18-9-1989, issues were framed by the Competent Authority. On 24-12-1989 landlord came to be examined. On this day, tenant (petitioner before this Court) and his advocate both were absent. In view of this, a purshis was filed by applicant landlord that he does not wish to examine any other witness, a judgment came to be delivered by the Competent Authority allowing the application and directing tenant to deliver vacant possession of the disputed house vide his order dated 31-12-1990. It was further directed by the Competent Authority that Rs. 2,250/- be paid by the tenant to the landlord as damages in lieu of the rent and the tenant was further directed to pay Rs. 25/- p.m. as damages in lieu of the rent for period from 1st July, 1989 till he vacates the disputed premises. After this order was passed, applicant tenant appeared before the Competent Authority and prayed that ex parte order be set aside and he be allowed to take part in the proceedings. This application came to be allowed and later-on, the landlord gave further evidence and tenant was allowed to cross-examine and before the tenant could enter into the witness box, again the tenant and his advocate were absent in the proceedings. Competent Authority who had restored the Application No. 27 of 1989, delivered judgment again, allowed the application and directed possession of the disputed premises to the landlord alongwith the payment of the arrears of rent of Rs. 2,250/- and gave further direction about damages as already stated. This order passed on 31-12-1990 by the competent authority under the Bombay Rent Act, Nashik Division, Nashik has been challenged in this writ petition.
4. Shri A.B. Gatne, learned Counsel for the petitioner, submitted that the landlord had retired from the Army on 1-1-1982 and the application filed in the year 1989 is beyond the period of limitation as prescribed by the statute. He further submitted that no proper opportunity was given to the petitioner-tenant and the matter deserves to be remanded back to the competent authority for giving further opportunity to the tenant to examine himself and to adduce evidence. Shri Gatne further contended that the subsequent judgment of the competent authority dated 31-12-1990 is not a judgment at all since he has not considered the fact and the evidence afresh after the plaintiff was cross-examined. If a case is restored, the Presiding Officer cannot again refer to the earlier judgment and say that no circumstances have been pointed out to change the earlier judgment. In support of this contention. Shri Gatne pointed out the observation in the judgment by the competent authority that there is no reason to interfere with the conclusion or findings already arrived before. Shri Gatne also contended that the necessary finding that the disputed premises in required by the landlord for his bona fide personal use has not been arrived at on consideration of any cogent evidence before the Competent Authority. In fact, the landlord has failed to prove his bona fide need and the petition should have been dismissed even in the absence of any evidence on behalf of the tenant. Shri D.A. Gursahani, learned Counsel on behalf of the respondent landlord, submitted that there is no limitation prescribed for an application under section 13-A1 of the Bombay Rent Act and the landlord has given enough evidence to enable Competent Authority to come to conclusion that he bona fide requires the premises and findings recorded in a summary proceeding like this, need not be gone into and reversed in revisional jurisdiction of this Court under the Bombay Rent Act.
5. Whether there is any limitation prescribed for an application under section 13-A1 of the Bombay Rent Act was one of the question raised by the learned Single Judge who had referred the matter to the Division Bench. In Ram Sadashiv Shinde v. Khanderao Chintaman Panse (since deceased by heirs), . Division Bench consisting of C.S. Dharmadhikari and M.G. Choudhari, JJ., had formulated a question to the following effect-
"Whether any period of limitation can be implied from Clause (b) of sub-section (1) of section 13-A1 for a suit under Clause (a) of sub-section (1) of the section 13-A1?"
But the question No. 3 was not answered by the learned Judges and Choudhari, J., speaking for the Bench observed---
"The question raised by Shri Dalvi undoubtedly requires consideration but we think it is not necessary to do so in the present proceedings because even if a period of limitation is to be implied, it cannot be implied retrospectively."
Since Division Bench thought that the consideration of this question is not necessary, it did not answer the same.
6. Some facts are necessary to be placed on record before considering the question of limitation. The landlord respondent retired from the Army on 1st January, 1982. Thereafter, he was again re-employed as Clerk in Infantry School at Mhow (Madhya Pradesh) and again retired on attaining age of superannuation on 31-12-1990. The first certificate Exhibit 11 speaks about the retirement of the respondent-landlord and also certifies that the landlord does not possess any other suitable residence in local area where he or the members of his family can reside. This certificate is dated 20-7-1984 and the same is issued by Major General-Maharashtra and Gujarat Area. Another Certificate submitted by the landlord is dated 8-7-1989 by Colonel of the Infantry School, Mhow (Madhya Pradesh) and it merely states that the landlord Bichkar will be retiring from service on 31-12-1990 on attaining age of superannuation. Starting point of limitation, if any, will be the date of the retirement and the date of retirement should be the date on which the applicant has retired as a member of the Armed Forces of the Union. Shri Gursahani was fair enough to admit that re-employment of the landlord as Clerk in the Army Training School at Mhow is not the membership of the Armed Forces of the Union. Secondly, in the summary proceedings, a certificate to be produced by the landlord under section 13-A1(a) of the Bombay Rent Act certifying that he is member of the Armed forces or he was such a member and does not possess any other premises suitable for residence in the local area, will have to be a certificate by authorised officer. Authorised officer is defined by an explanation to this section to be a Commanding Officer or Head of Service and in case of Army, it would include Area commander, in case of Navy, it would include Flag Officer Commander-in-Chief, Naval Command and in case of Air Force, Station Commander. Neither the certificate dated 8-7-1989 at Exhibit 10 is by Area Commander nor by any other authorised officer. It also does not certify that the landlord was a member of the Armed Forces of the Union of India and it also does not certify that the landlord does not possess any other suitable residence in the local area. Therefore, Exhibit 10 dated 8-7-1989 is no certificate in the eye of law for the purpose of section 13-A1 of the Bombay Rent Act. Therefore, if there is any limitation, it cannot start running from 31-12-1990 and we will have to consider the other certificate which is at Exhibit 11 dated 20-7-1984 only. Even the petitioner has not contended in his application that his second retirement would give him a cause of action under section 13-A1. He solely relies on the first retirement dated 1st January, 1982 certified by certificate dated 20-7-1984.
7. On the question of limitation, Shri Gatne, learned Counsel for the petitioner-tenant, submits that section 13-A1 was amended by Maharashtra Act No. 18 of 1987 authorising a Competent Authority to dispose of the applications of the persons retiring from Army for the possession of the premises which they had let out to the tenant with a view that the remedy should be made expeditious. The purpose of carving out persons retiring from the Army as a class from the general category of the landlords is to give them immediate relief so that their life after the retirement is made easier by allowing them to get possession of the accommodation. Therefore, the provision is made for some immediate purpose and in this light we will have to read provisions of section 13-A1 of the Bombay Rent Act. Relying on the provisions of sub-section (b) of section 13-A1, Shri Gatne points out that in case of the death of the landlord who had served the Armed Forces, his heirs would get a right to apply under the provisions only if the death has occurred during the service in Army or within 5 years from the date of the retirement. If the legislature had intended that there should be no limitation for the application under section 13, then the right given to the heirs of a member of the Armed Forces would not have been limited for such provisions. Sub-section (B) provides as under ---
(B) A successor-in-interest who becomes the landlord of the premises owned by any landlord referred to in Clause (A), as a result of death of such a landlord while in service or where he is a member of the Armed Forces of the Union, within five years of his retirement, ... ... shall be entitled to recover possession of such premises ..."
Sub-clause (a) of sub-section (B) speaks about the certificate to be filed alongwith application of such successor-in-interest and this also requires that the certificate should state that the successor-in-interest is a widow or any member of the family of the deceased member of the Armed Forces of the Union who died while in service or who has retired and has died within five years of his retirement. Relying on the above two provisions, Shri Gatne submits that a limitation of five years will have to be inferred.
8. It is worthy to note that no provision in section 13-A1 of the Bombay Rent Act provide any limitation for submitting an application under this section to the Competent Authority even if it is to be submitted by successor-in-interest. Five years limitation has not been prescribed for filing an application. Mention of five years is in a reference to the restriction on the extension of the right to apply so far as successor-in-interest of the landlord are concerned. There is a rational behind this. If a person is retired from the Army, he is faced with the difficulty since he has to re-establish himself at the place of his origin from migrated place of service. The difficulties which he is required to face are also faced by his widow or his other members of the family in case he dies during the service or immediately after the retirement. If he gets reasonable time after the retirement, then the same difficulties may not be faced by members of the family who could have been well rehabilitated by a retired Army person. Therefore, the legislature thought it fit that the right to apply under this provision should be given only to the successor-in-interest - person retired from Army if the death has occurred within five years of the date of the retirement. A reasonable class is carved out from the successor-in-interest of retired person of Army, and a right is given by the legislature to them. Since the legislature has not fixed any limitation, as was contended by Shri Gatne before me, there is no question of extending the same rule of limitation to the persons retiring from Army and if the legislature in its wisdom has thought it fit not to prescribe any limitation, it would neither be proper nor competent for this Court to add anything placing a restriction on a person seeking remedy under a statute.
9. The Law of Limitation restricts the general right to a citizen to approach to the Competent Authority to seek relief. Therefore, any rule of limitation restricting this right will have to be read strictly. Even in cases wherein two interpretations are possible, the interpretation which can further the cause of right to sue will have to be accepted. Whatever may be the notions of the Court about the suitability or however sincere may be desire to further that alleged purposefulness of the statutes, no rule of limitation can be read when it is not actually there in the statute. If the words of the statute are clear, it leaves no room for applying any other rule of construction. While interpreting the rules of limitation, the plea for an equitable construction is totally inapplicable and if equity is there, it would always be in favour of the subsistence of a right to sue and not in favour of foreclosing it.
10. Presidency Small Cause Courts Act had given a special jurisdiction to Small Cause Courts to pass orders of ejectment. A person who had suffered such order, was entitled to file a suit on title under Order 21, Rule 103 of the Code of Civil Procedure. In a case before the Division Bench of this Court, question arose whether section 11-A of the Limitation Act, 1908 would be applicable to such suit by implication. It was submitted that Code of Civil Procedure has been made applicable to the enquiry before the Small Cause Courts. Therefore, such order passed will have to be treated to be a decree and if a person suffers a decree which directs him to handover the possession, then suit on title will have to be brought within limitation as prescribed by Article 11-A. Chagla, C.J., speaking for the Division Bench, in the case of Madhavprasad Kalkaprasad Nigam v. S.G. Chandavarkar, A.I.R. 1949(36) Bom. 104, was pleased to remind "It is an elementary principle of construction that the scope of Limitation Act cannot be extended by implication, and a party's right to come to Court cannot be taken away unless the Limitation Act expressly provides that his right is so barred".
In a latter judgment, Chagla, C.J. was pleased to reiterate the same principle. In P.N. Films Ltd. and another v. Overseas Films Corporation Ltd., speaking for Division Bench, he was pleased to observe ---
"The Limitation Act deprives a party of a valuable right, and unless the provision in the Limitation Act is clear and beyond doubt, a benevolent construction, a construction favourable to the party whose valuable right is being taken away, must always be given."
In the instant case, there is no scope to interpret any implied rule of limitation as is contended by Shri Gatne and rule of limitation barring a remedy can never be inferred.
11. Shri Gatne further relied on a judgment of the Division Bench of this Court in the case of Ram Sadashiv Shinde v. Khanderao Chintaman Panse, , to canvass that a certificate of officer incharge produced by the landlord that he does not possess any other accommodation suitable for the residence is not conclusive proof of the bona fide requirement. Relying on this observation of the Division Bench of this Court, Shri Gatne submitted that the enquiry by the Competent Authority would include a question as to whether landlord has established a bona fide requirement and it needs to be examined in the light of the evidence of both the parties. In the instant case, non-applicant tenant has not examined himself and has not given any evidence and, therefore, no fair opportunity can be said to have been given to both the parties. He has also taken exception to the nature in which the subsequent judgment i.e. judgment dated 31-12-1990 has been delivered by the Competent Authority.
12. It is true that by virtue of the provisions of section 13-A1 of the Bombay Rent Act, the Competent Authority is expected to follow the procedure prescribed for the Court of Small Causes and since the Court of Small Causes need not elaborately discuss the evidence, the judgment can be a short one. Shri Gursahani, defending the impugned judgment, invited my attention to a judgment of this Court in the case of Tribhavandas Manchharam v. C.R. Contractor's Company at Broach , and submitted that Order 20, Rule 4(1) of the Code of Civil Procedure does not require anything more than the points for determination and the decision thereon. But the very judgment of Justice Lokur cited by Shri Gursahani, has given a caution against monosyllabic answers to the points for determination. The learned Judge has pointed out that a decision should be so worded as to convey some indication that the Judge has applied his mind to every question of law and fact arising in the case. This is possible only when learned Judge has discussed whatever is on record though brief.
13. I do not find that the Competent Authority has applied his mind afresh to the facts of the case and what he has done is simply referred the earlier judgment, which in fact was not in existence in law, and say that "I do not find any reason to interfere with the earlier judgment". This would not be a justifiable approach. I, therefore, propose to remand the matter to the Competent Authority, Nashik who would hear the case afresh giving both the landlord and the tenant fresh opportunity to adduce evidence if they want to and as is permissible within the scope of the enquiry before him, and decide the case afresh. Shri Gursahani very rightly pointed out that if the tenant remains absent and again an ex parte orders are set aside one after another, it would defeat the very purpose for which the summary procedure was made by the legislature. The argument is perfectly justified. Both the parties shall appear before the Competent Authority at Nashik on 3rd August, 1992 and the Competent Authority shall not give any adjournment to the tenant on any count. He would give opportunity to lead further evidence to both the parties. Evidence already recorded can also be read and would decide the case at latest by the end of August, 1992. Shri Gatne, learned Counsel for the petitioner-tenant and Shri Gursahani, learned Counsel for the respondent-landlord assures that their clients would co-operate with the Competent Authority for the disposal within the time indicated above.
14. In the result, Civil Revision Application stands allowed. Since the respondent is dragged to this Court for no fault of his, petitioner-tenant to pay a cost of Rs. 300/- to the respondent landlord, which would be a condition precedent for the commencement of the enquiry before the Competent Authority. Amount of Rs. 300/- will have to be deposited on or before 3rd August, 1992 in the office of the Competent Authority or to be paid to the landlord and a receipt thereof can be obtained. The jurisdiction given to the Competent Authority under section 13-A1 read with Part II-A of the Bombay Rent Act nowhere gives any power to grant a decree for the arrears of rent or damages. Therefore, the part of the order by the Competent Authority directing the payment of the damages to the landlord is totally without jurisdiction. Since I am quashing the whole order, it is suffice to say that the Competent Authority has no power to grant any money decree. If on 3rd August, 1992 tenant fails to appear before the Competent Authority and if he fails to adduce any evidence, in support of his contentions, on such day as may be directed by the Competent Authority, the Competent Authority shall be free to proceed with the case. If certified copy applied for, be given within one week. Rule made absolute in the above terms.
Rule made absolute.