Marlapalle B.H., J.@mdashOn a reference being made by the Single Bench as per the order dated 27/7/2010, this petition has been assigned to us and as the petition has been pending for the last about more than 14 years, we deem it appropriate to decide the reference as well as the petition finally. The reference made is,
Whether a suit by landlady against a tenant protected under the Bombay Rent Control Act would be governed by Article 66 or Article 67 of the Limitation Act, 1963?
The brief and disputed facts are that the plaintiff-landlady through her power of attorney and son had given on rent for the purpose of running a grocery shop, as per the agreement dated 1/5/1970, the suit premises consisting of two rooms on the ground floor and two rooms on the first floor of Municipal House No. 2437 and one room on the rear side of Municipal House No. 2438 for a period of 11 months. On expiry of the first agreement, the second agreement was signed on 1/4/1971 and the third one on 2/ 3/1972. The last agreement signed, for a period of 11 months of tenancy, was on 1/ 2/1973 (Exh. 56). By registered notice dated 28/1/1981 (Exh. 55), the tenancy was terminated with effect from 28/2/1981 and the defendant - tenant was called upon to hand over the vacant and peaceful possession of the suit premises on 1/3/1981. The tenancy was terminated on the grounds that,
(a) Unauthorized change of user of part of the suit premises;
(b) Unauthorized permanent fixtures attached to property; and
(c) Bona fide requirement of the land-lady to occupy the premises.
This notice was replied to on 6/7/1981 (Exh. 60) by denying the allegations of change of user. It was contended that in all five rooms were given on rent and it was denied that the suit premises were rented out for a grocery shop alone. It was contended that the suit premises were rented out for residence and running a grocery shop and it was within the knowledge of the landlady. The reply also denied the bona fide requirement to occupy the suit premises by the landlady''s son and the balance of convenience and resultant hardship was not in favour of the landlady.
2. It was under these circumstances that on 19/6/1985 Regular Civil Suit No. 110 of 1985 came to be filed as the tenant did not hand over the vacant and peaceful possession of the suit premises. It was alleged that the tenant had committed breach of section 13(1)(a) and, therefore, the landlady was entitled for a decree of eviction and vacant and peaceful possession of the suit premises. The defendant-tenant filed written statement on 19/7/1986 at Exh. 18 and opposed the suit. The written statement was amended on 22/ 11/1990. It was contended that the suit premises were, right from the year 1970, being used for residential-cum-commercial purpose. The tenant was running a medical shop and a grocery shop and with a license from the Competent Authority. The name of the medical shop was "Shashikant Medical and General Stores". But subsequently it was only run as a Medical Store and at no point of time the landlady had complained about the same. The upper floors were being used for residence and it was as per the local usage that in the commercial premises there would be a part of residence and it was not necessary to mention specifically so in the tenancy agreement. On behalf of the landlady, her power of attorney - Shri Ashok Lanjekar and one more witness i.e. Shri Hari Pandurang Desai had stepped in the witness box (Exhs. 53 and 68), but none stepped in the witness box on behalf of the defendant -tenant. On the basis of the pleadings, the trial Court had framed the following issues:-
(a) Whether the suit property has been let out specifically to run a grocery shop?
(b) Whether the defendant has changed the use of suit premises?
(c) Whether the defendant has made unauthorized permanent construction in the suit premises?
(d) Whether the plaintiff is entitled to the relief of vacant possession of the suit premises?
(e) Whether the plaintiff is entitled to claim damages?
All the issues were answered in the affirmative as per the judgment and order dated 13/3/1992 while decreeing the suit. The defendant was directed to deliver the vacant and peaceful possession of the suit premises in favour of the plaintiff within a period of six months from the date of the order. This decree was challenged in Civil Appeal No. 57 of 1992 before the District Court. The learned Joint District Judge framed the following issues:-
(a) Whether plaintiff proves that defendant has changed purpose of use of suit premises for which it is let out?
(b) Whether defendant has made unauthorized permanent construction in the suit premises?
(c) Whether the suit is barred by limitation?
(d) Whether order of learned trial Judge requires any interference?
(e) What order?
On hearing both the parties, the Appellate Court reversed the findings of the trial Court on unauthorized and permanent construction in the suit premises and further held that the suit was barred by limitation and, therefore, the decree of the trial Court was required to be reversed and set aside as per the judgment and order dated 8/7/1996. It appears from the record that Misc. Application registered as Review Application No. 39 of 1996 was filed and it was rejected on 23/6/1997. Thus, the plaintiff-landlady challenged the Lower Appellate Court''s order in dismissing RCS No. 110 of 1985 on the ground of limitation.
3. When this petition was heard by the Single Bench, the plaintiff claimed that the suit will be governed by Article 67 of the Limitation Act which provides determination of tenancy as the starting point of limitation and as the suit was filed within 12 years of the notice to quit it was within limitation. Whereas the defendant urged that in view of the decision of the Supreme Court in the case of
4. In Dhanpal Chettiar''s case [supra], the issue was whether a notice u/s 106 of the Transfer of Property Act, so as to determine the tenancy, was necessary in order to get a decree or order of eviction against a tenant under any State Rent Control Act and the Supreme Court held against the tenant. A seven Judge Constitution Bench concluded that determination of a lease in accordance with the Transfer of Property Act is unnecessary and a mere surplus age because the landlord cannot get eviction of the tenant even after such determination and 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 found the proceeding on the basis of the determination of the lease by issue of notice u/s 106 of the Transfer of Property Act. It held that even if the lease is determined by forfeiture under the Transfer of Property Act, the tenant continues to be tenant in as much as there is no forfeiture in the eyes of law and he becomes liable to be evicted and forfeiture comes into play only if he has incurred the liability to be evicted under the State Rent Act and not otherwise. The Supreme Court observed,
The notice does not bring to an end such a relationship because of the protection given to the tenant under the Rent Act. If that be so, then it is not necessary for the landlord to terminate the contractual relationship to obtain possession of the premises for evicting the tenant. If the termination of the contractual tenancy by notice does not, because of the Rent Act provisions, entitle the landlord to recover possession and he becomes entitled, only if he makes out a case under the special provision of the State Rent Act, then, in our opinion, termination of the contractual relationship by a notice is not necessary. The termination comes into effect when a case is successfully made out for eviction of the tenant under the State Rent Act.
5. In the case of
The suit was filed because the tenancy was determined by the combined effect of the operation of sections 12 and 13, Bombay Rent Act. In this connection, the terms of sections 12 and 13 of the Bombay Rent Act may be referred to. At the most it would be within Article 66, Limitation Act, if we hold that forfeiture has been incurred by the appellant in view of the breach of the conditions mentioned in section 13, Bombay Rent Act and on lifting of the embargo against eviction of tenant in terms of section 12 of the said Act. That being so, either of the two, Article 66 or Article 67 would be applicable to the facts of this case and there is no scope of the application of Article 113, Limitation Act, in any view of the matter. Sections 12 and 13, Bombay Rent Act, co-exist and must be harmonized to effect the purpose and intent of the legislature for the purpose of eviction of the tenant. In mat view of the matter Article 113, Limitation Act, has no scope of application.
In the case of
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). Article 66 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 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 u/s 106 of the Transfer of Property Act is no longer necessary.
23. It is well settled that time begins to run from the date of the knowledge. See in this connection the decision of
Articles 66 and 67 of the Limitation Act read as under:
|
Description of suit |
Period of limitation begins to run |
Time from which period |
|
66. For possession of immovable property when the plaintiff has become entitled to possession by reason of any forfeiture or breach of condition. |
Twelve years |
when the for-feature is incurred or the condition is broken. |
|
67. By a landlord to recover possession from a tenant |
Twelve years |
When the tenancy is determined. |
6. In the instant case, let it be noted at the threshold that the tenant, either before the trial Court or before the Appellate Court in its appeal memo, had not raised the issue of limitation and on perusal of the record, we are at a loss to find out as to how the Appellate Court proceeded to frame the issue of limitation for the first time and recorded a finding against the landlady. When it was clear from the record that the tenant did not step in the witness box even to prove his written statement, even after its amendment, the Appellate Court and shockingly proceeded to observe,
I have already mentioned above that admittedly since beginning of the execution of document in question appellant/ defendant is using the suit premises i.e. two rooms of first floor for his residence.
This finding is not supported from any evidence or document on record. In fact, by amending the written statement before the trial Court the defendant - tenant pleaded that as per the local custom, if a premises was taken on rent for running a business, it was accepted / presumed that part of the premises would be used by the trader for his residence. The agreement dated 1/2/1973 (Exh. 56) clearly stated,
PW 1 - Shri Ashok Lanjekar, in his cross-examination, on a specific question asked to him, stated that he came to know of the change of usage from grocery shop to medical shop and residence was made by the defendant - tenant in the year 1976. Thus as per the law laid down in the case of Ganpat Ram Sharma {supra), the limitation, if any, would start from 1976 and even if it is held that Article 66 is applicable to the instant case, the limitation of 12 years would commence from the year 1976 and not from the date of signing of the agreement at Exh. 56 i.e. 1/2/1973. The Lower Appellate Court, therefore, in our view, committed a serious and grave error in firstly framing the issue of limitation, in the absence of any pleading either before the trial Court or in the appeal memo and secondly, by holding that the limitation of 12 years would start from 1/2/1973. On this sole ground, the decree passed by the Lower Appellate Court deserves to be quashed and set aside by restoring the decree of the trial Court. However, it would be necessary for us to decide the reference as well.
7. As noted earlier, the termination notice dated 28/1/1981 was on multiple grounds, including the ground of reasonable and bona fide requirement. However, when the Regular Civil Suit No. 110 of 1985 was filed, the plaintiff chose to agitate the grounds of illegal change or usage, namely,
(a) The grocery shop was converted into a medical store or medical and general store, and
(b) Part of the premises let on for usage of grocery shop were being used for residence.
Thus it was a case of the plaintiff that the eviction of the tenant was sought on the ground that the condition of the tenancy agreement was broken. It has been held by the Supreme Court and as noted earlier, in the case of Dhanapal Chettiar (supra) that the termination notice is not required to be issued by the landlord to protected tenant under the State Rent Control Act and even if such a termination notice as envisaged u/s 106 of the Transfer of Property Act is given, the tenancy does not come to an end and the tenant continues to be so. The notice of termination, in the instant case, was issued on 28/1 /1981, but in view of the grounds taken in the plaint so as to make out a case for a decree of eviction, it appears to us that it was not necessary for the plaintiff to issue a notice of termination and the suit has been filed solely on the ground of the illegal change of usage, which came to the notice of the landlady in the year 1976. The defendant fell to discharge his burden to prove his case that the usage of change was not brought out during the tenancy and on the other hand the premises were being used partly for residence as well as to run a medical shop right from the beginning. When he was taken such a plead, it was imperative on his part to step in the witness box and to prove the same by some contemporaneous documents. The license (Exh. 85) obtained for running the medical shop by itself would not be the required evidence in support of his case and the possibility of the defendant - tenant obtaining license behind the back of the landlady cannot be ruled out. The said license shows that on 30/6/1976 the defendant was running a shop in the suit premises by name and style of Shashikant Medical Store (Chemist 8s Druggist). What is more important in this case are the contents of the tenancy agreement (Exh. 56) and it in no way sets out the specific usage for which the premises were taken out, namely, for running a grocery shop. In our considered opinion, in the peculiar facts of this case, the issue of limitation would be covered under Article 67 of the Limitation Act and the limitation would start running from the year 1976. Viewed in any angle, the suit filed by the plaintiff was within the limitation.
8. The trial Court, on appreciation of evidence of both the parties, also held that the tenant had erected open bath-room in the suit premises illegally and unauthorizedly. Thus, the plaintiffs case that the tenant had put up illegal construction of open bath-room in the suit premises was duly proved. The trial Court referred to the various documents placed on record by the defendant. The extract of Fair Price Shop at Exh. 61, the extract of Voters List (Exh. 62), extract of Assessment Register filed at Exh. 63, the school leaving certificate in the name of his children (Exhs. 73 and 74), Voters list at Exh. 77, receipt given by the Gas Company at Exh. 78, the papers of Gas connection at Exh. 79, the other papers at Exhs. 86 to 88 showing the address of the defendant at the suit premises. The defendant also relied upon the receipts issued by the Municipal Council, Ratnagiri at Exhs. 85, 90 and 91. The trial Court concluded that from all these documents it was proved that the defendant was residing in the part of the suit premises. But at the same time, the trial Court held that the defendant could not prove on what basis he was staying in the suit premises. Rent agreement at Exh. 56 clearly went to show that the suit premises were let out for running a grocery shop and for storage of the groceries. Hence, as per the trial Court, residence of the defendant in the suit premises was totally illegal and unauthorized and also without the permission of the plaintiff. On this ground also the trial Court rightly concluded that the plaintiff was entitled for a decree of eviction. Thus, on all counts the reasoning set out by the trial Court does not suffer from any errors apparent on the face of the record and the findings of the trial Court are required to be confirmed. The Lower Appellate Court seriously erred and caused grave injustice to the plaintiff. The view taken by the Lower Appellate Court on the point of limitation is unsustainable. Hence, this petition succeeds and the same is hereby allowed. We hold that in the instant case Article 67 of the Limitation Act is applicable and the limitation of 12 years would start from 1976 and not from the date of the agreement at Exh. 56 i.e. 1/2/1973. The judgment and order of the Lower Appellate Court is hereby quashed and set aside. Civil Appeal No. 57 of 1992 stands dismissed. Consequently, the decree passed by the trial Court on 13/3/1992 is confirmed and Regular Civil Suit No. 110 of 1985 stands decreed accordingly.
