Sudha Madhusudan Lanjekar vs Shashikant Gajanan Pathare
2011 Latest Caselaw 173 Bom

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pdp




                                                                          
           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                   CIVIL APPELLATE JURISDICTION




                                                  
                    WRIT PETITION NO. 4805 OF 1997




                                                 
      Sudha Madhusudan Lanjekar
      Since deceased by heirs
      Ashok Madhusudan Lanjekar and ors.               .. Petitioners




                                          
            Vs.
                         
      Shashikant Gajanan Pathare,
      Since deceased by heirs
      Anjali Shashikant Pathare and ors.               .. Respondents
                        
      Mr. V. V. Tulzapurkar, Senior Advocate i/by Mr. Vasant B. Dhawan
      for petitioners.
        

      Ms. Priyadarshani Birje for respondents.
     



                        CORAM : B. H. MARLAPALLE &
                               SMT. NISHITA MHATRE, JJ.

RESERVED ON : NOVEMBER 08, 2011

PRONOUNCED ON : DECEMBER 07, 2011

JUDGMENT ( PER B. H. MARLAPALLE,J.):-

1. On a reference being made by the Single Bench as per the

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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?"

2. 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,

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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

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by the landlady's son and the balance of convenience and resultant

hardship was not in favour of the landlady.

3. 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

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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

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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

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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.

4.

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 V. Dhanpal Chettiar Vs. Yesobai Ammal [AIR 1979 SC 1745], it

was not at all necessary to give a notice of termination of tenancy

before filing of the suit and, therefore, Article 67 of the Limitation

Act would not be applicable in respect of a suit for possession by

the landlord against a tenant where the tenant is protected by the

Rent Control Act. It was the case of the defendant - tenant that the

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suit was beyond limitation and it was required to be filed within 12

years of the accrual of cause of action i.e. from the date of the

agreement dated 1/2/1973. In short, it was claimed that Article 66

of the Limitation Act would be applicable and not Article 67. The

Single Bench referred to three other Coordinate Bench decisions,

namely, (a) Shashikant Yeshwant Limaye and anr. Vs. Chintaman

Vinayak Kolhatkar [ 2011 (2) Bom.C.R. 283], (b) Kondeo

Savalaram Panse vs. Digambar Ramrao Pai and ors. [2001 (4)

Bom.C.R. 267] and Pandurang Maruti Patil and ors. Vs. Ganesh

Hari Dharmadikari and ors. [1997 Vol.99(2) BLR 705] and having

noticed the controversy made a reference to a larger Bench.

5. In Dhanpal Chettiar's case (Supra), the issue was whether a

notice under Section 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 surplusage because the landlord cannot get eviction of the

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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 under Section 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

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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.........."

6. In the case of Smt. Shakuntala S. Tiwari vs. Hem Chand M.

Singhania [AIR 1987 SC 1823], the controversy raised was,

whether in a suit filed by the landlord for eviction of the tenant, the

question of limitation would be governed under Article 113 of the

Limitation Act. The Supreme Court rejected the contention that

Article 113 of the Limitation Act would be applicable to a suit filed

by the landlord and seeking possession of the tenanted premises on

the ground that the tenant had made alterations of permanent nature

and had committed acts of waste and damage. A two Judge Bench,

in para 11, stated,

"..........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

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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 that view of the matter Article 113, Limitation Act, has no scope of application..........."

In the case of Ganpat Ram Sharma and ors. Vs. Gayatri Devi

[(1987) 3 SCC 576], a two Judge Bench of the Supreme Court

held,

"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

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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 under Section 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 Harbans Singh v. Custodian of Evacuee

Property `P' Block, though that was a case under a

different statute and dealt with a different article. See also Ujagar Singh v. Likha Singh. The Division Bench of the Punjab and Haryana High Court in Som Dass

vs. Rikhu Dev Chela Bawa Har Jagdass Narokari held that in a suit for possession under Article 113 of the Limitation Act, material date is one on which the right

to sue for possession arises."

Articles 66 and 67 of the Limitation Act read as under:

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Description of suit Period of limitation Time from which period begins to run

66. For possession of Twelve years When the forfeiture is immovable property incurred or the

when the plaintiff has condition is broken. become entitled to possession by reason of any forfeiture or

breach of condition.

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




                                          
    7.
                               

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."

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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,

lnj okijkl fnysys Hkkx eh ek>s ftulh nqdkuklkBh ?ksrysys vlwu R;kar

nqdkups /ka|kpk eky Bso.ks o ftulh nqdkukpk /kank dj.ks ;klkBh ?ksrysys

vkgsr-

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

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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.

8.

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

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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 under Section 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

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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 & 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.

9. 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 plaintiff's 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),

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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

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seriously erred and caused grave injustice to the plaintiff. The view

taken by the Lower Appellate Court on the point of limitation is

unsustainable.

10. 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.

(SMT. NISHITA MHATRE,J) (B.H. MARLAPALLE,J.)