PETITIONER:
SMT. SHAKUNTALA S. TIWARI
Vs.
RESPONDENT:
HEM CHAND M. SINGHANIA
DATE OF JUDGMENT06/05/1987
BENCH:
MUKHARJI, SABYASACHI (J)
BENCH:
MUKHARJI, SABYASACHI (J)
VENKATARAMIAH, E.S. (J)
CITATION:
1987 AIR 1823 1987 SCR (3) 306
1987 SCC (3) 211 JT 1987 (2) 433
1987 SCALE (1)1009
ACT:
Bombay Rents, Hotels and Lodging House Rates Control
Act, 1947: Sections 12 and 13--Harmonious
construction--Necessity for as provisions co exist--Suit for
recovery of possession by landlord-Period of
limitation----What is.
Limitation Act 1963: Recovery of possession by landlord
under section 13 of the Bombay Rent Act--Period of limita-
tion-Would be 12 years under Articles 66 or 67 and not 3
years under Article 113.
HEADNOTE:
The appellant in the appeals was the tenant of the
demised premises who was inducted as a monthly tenant for
the purpose of conducting the ice-cream business carried on
by her husband. The letting was done on an agreement dated
December 29, 1975 by the landlord respondent which was to
become effective from January 1, 1976.
The landlord alleged that in breach of the agreement and
the terms of the tenancy, as also in violation of the prohi-
bition prescribed under section 13(1) of the Bombay Rents,
Hotels & Lodging House Rates (Control) Act, 1947 the tenant
had indulged in several acts of commission by which not only
there had been permanent alterations of major nature, but
the entire structure of the demised premises was completely
changed. it was also alleged that the tenant had indulged in
acts of waste and damage to the property, and that she had
changed the user of the premises when some of the employees
started residing there.
On the basis of the aforesaid allegations the landlord
gave a notice to quit dated 20th September, 1978 to the
tenant. Thereafter in 1979 the landlord fried a suit against
the tenant in the Small Causes Court for possession of the
demised premises. The Trial Court on 11th November, 1982
decreed the suit upholding the allegation that the tenant
had made
307
alterations of permanent nature in the demised premises and
had committed acts or waste and damage.
Aggrieved by the aforesaid decision the tenant filed an
appeal before the Appellate Bench of the Small Causes Court
on 28th September, 1985, and the respondent's suit for
eviction was dismissed on the ground that the suit was
barred by lapse of time under Article 113 of the Limitation
Act, 1973, which prescribed a period of three
The landlord thereafter filed a writ petition under
Article 227 which was allowed by the High Court which held
that Article 66 or Article 67 was applicable which pre-
scribed a period of 12 years. The writ petition filed by the
tenant was however dismissed.
In the appeals by the tenant to this Court the only
question for consideration was: whether Article 113 or
either of Articles 66 or 67 of the Limitation Act would be
applicable, and what would he the date of the accrual of the
cause of action.
On behalf of the tenant-appellant it was contended that
on the facts of the case Article 113 of the Limitation Act
alone would apply and that neither Article 66 nor Article 67
would have any application. Article 67 of the Limitation Act
had no application inasmuch as time begins to run only when
the tenancy is determined and that determination of tenancy
which takes place under the Transfer of Property Act is
wholly irrelevant for cause of action in ejectment. That
Article 66 contemplates an immediate right to recover pos-
session. Breach of a condition only leads to an immediate
right to possession without more, and not a determination in
law. That Article 66 is a general article which does not
apply to landlord or tenant, and that when a specific Arti-
cle applied the general Article should not be applied spe-
cially when it was not free from doubt.
On behalf of the respondent--landlord it was however
submitted that for any suit by a landlord against the tenant
for recovery of possession under the Rent Act the Limitation
Act was inherently inapplicable.
Dismissing the Appeals,
HELD: 1. Recovery of possession is by a suit and there
is no section in the scheme of the Limitation Act to
indicate that the Limitation Act was inherently
inapplicable. In the scheme of the Rent Act or in
308
the various contingencies contemplated under the Rent Act,
there is nothing to indicate or warrant that there would be
no limitation of any period. [311E-F]
2. Sections 12 and 13 of the Bombay Rent Act co-exist
and must be harmonised 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 of the Limitation Act
has no scope of application. [316C-D]
3. Article 67 indicates that time begins to run only
when the tenancy is determined. It comprehends suit by a
landlord and deals with the right to recover possession from
the tenant. Therefore it deals with landlord and tenant. [31
IF-G]
4. On the strict grammatical meaning Article 67 of the
Limitation Act would be applicable. This is indubitably a
suit by the landlord against the tenant to recover posses-
sion from the tenant. Therefore, the suit clearly comes
within Article 67 of the Limitation Act. The suit was flied
because the tenancy was determined by the combined effect of
the operation of Sections 12 and 13 of the B-
ombay Rent Act. At the mast it would be within Article 66 of
the Limitation Act if it is held that forfeitures have been
incurred by the appellant in view of the breach of the
conditions mentioned in Section 13 of the 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 the instant case. There is no scope for the
application of Article 113 of the Limitation Act in any view
of the matter. The period of limitation in this case would
therefore be 12 years. The suit was therefore not barred.
[315H; 316A-E]
Dhanpal Chettiar v. Yesodai Ammal, [1980] 1 S.C.R. 334;
Pradesh Kumar Bajpai v. Binod Behari Sarkar, [1980] 3 S.C.R.
93, Gian Devi Anand v. Jeevan Kumar & Other, [1985] 2 S.C.C.
683; Hiralal Vallabhram v. Kastorbhai Lalbhai & Others,
[1967] 3 S.C.R. 343 at 349 and 350; Bahadur Singh & Anr. v.
Muni Subrat Dass & Anr., [1969] 2 S.C.R. 432 at 436, Kau-
shaiaya Devi & Others v. Shri K.L. Bansal, [1969] 2 S.C.R.
1048 at 1050; Ferozi LaIJain v. Man Mal and another, A.I.R.
1970 S.C. 794 at 795 aud 796; aud Haji Suleman Haji Ayub
Bhiwandiwala v. Narayan Sadashiv Ogale, [1967] 84 Bombay Law
Report p. 122, referred to.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 116117
of 1987.
309
From the Judgment and Order dated 28.11.1986 of the
Bombay High Court in Civil Writ Petition Nos. 5391 And 55 15
of 1985.
F.S. Nariman, R.F. Nariman, Ashok Goel, Rajan Karanjawa-
la and Ejaz Mazbool for the Appellant.
H.C. Tunara, M.N. Shroff, A.G. Parekh and K.M.K. Khan
for the Respondent.
The Judgment of the Court was delivered by
SABYASACHI MUKHARJI, J. This appeal by special leave is
by the tenant from the judgment and order of the High Court
of Bombay dated 28th of November, 1986. The only question
involved in this appeal is what is the period of limitation
for the recovery of possession of the demised premises. The
premises in question is located on the Municipal Street No.
16 in Fanaswadi area of Bombay. The tenant was inducted as a
monthly tenant in respect of the said premises at a monthly
rent of Rs. 105.60 for the purpose of conducting ice-cream
business which was being carried on by her husband who was
the holder of the power of attorney on her behalf. The
premises consisted of the entire structure on the ground
floor with a loft covering the entire area with corrugated
iron sheets. The letting was done on an agreement dated 29th
of December, 1975 which was to become effective from the 1st
of January, 1976. It is the case of the landlord, the re-
spondent herein, that in breach of the agreement and the
terms of tenancy as also in violation of. the prohibition
prescribed under section 13(1) of the Bombay Rents, Hotel &
Lodging House Rates (Control) Act, 1947 (hereinafter re-
ferred to as the Rent Act), the tenant had indulged in
several acts of commission by which not only there has been
permanent alterations of major nature but the entire struc-
ture was completely changed so much so that even the height
of the structure was increased and thus, the loft lost its
initial character and became almost as a first floor which
was the creation of the appellant-tenant herein. Several
other breaches were alleged to have been committed in re-
spect of the terms of tenancy. It was alleged that the
tenant had indulged in the acts of waste and damage to the
property and that further she had changed the user of the
suit premises when some of the employees started residing
there. On the basis of those and other allied allegations on
the 20th of September, 1978 the landlord, respondent herein,
gave a notice to quit to the tenant, the appellant herein,
on the ground that the tenant had (1) made alterations of
permanent nature in respect of the demised premises, (2)
committed
310
acts of waste and damage and (3) changed the user of the
premises. In 1979 the landlord filed R.A.E. Suit No.
1326/4557 of 1979 against the tenant in the Small Causes
Court, Bombay for possession of the demised premises. The
Trial Court on 11th November. 1982 decreed the suit uphold-
ing, inter alia, that the tenant had made alterations of
permanent nature in the demised premises and had committed
acts of waste and damage. Aggrieved by the said decision
Appeal No. 667 of 1982 was filed by the tenant against the
decree of the Trial court. The same was allowed by the
Appellate Bench of the Small Causes Court on 28th September,
1985 and the respondent’s suit for eviction was dismissed on
the ground that the suit was barred by lapse of time under
article 113 of the Limitation Act, 1963 (hereinafter called
the Limitation Act). The High Court of Bombay on 28th of
November, 1986 allowed the writ petition being Writ Petition
No. 5391 of 1985 filed by the landlord under Article 227 of
the Constitution against the judgment of the Appellate Bench
of the Small Causes Court. The High Court allowed the said
Writ Petition filed by the landlord and dismissed the Writ
Petition being Writ Petition No. 5515 of 1985 filed by the
tenant. In the premises the High Court’s judgment and order
dated 28th of November, 1986 impugned in this appeal re-
stored the judgment of the Trial Court decreeing the re-
spondent’s suit for possession.
All the three courts have held that the tenant, appel-
lant herein, had made alterations of permanent nature and
had committed acts of waste and damage. The Appellate Bench
of the Small Causes Court and the High Court, however,
differed on the question of limitation. The Appellate Bench
of the Small Causes Court had held that the suit was barred
under article 113 of the Limitation Act which prescribed a
period of 3 years while the High Court held that articles 66
or 67 was applicable which prescribed a period of 12 years.
According to the landlord-respondent, the suit though filed
after 3 years was filed within 12 years of the accrual of
the cause of action. The only question which was argued in
this appeal was the question of limitation. No factual
aspect was agitated before this Court. This appeal must
therefore, decide the question which article of the Limita-
tion Act would be applicable, that is to say, whether arti-
cle 113 or either of the article 66 or 67 and what would be
the date of the accrual of cause or’ action.
On behalf of the appellant, it was submitted by Mr.
Nariman that on the facts of this case, article 113 of the
Limitation Act would alone apply because according to him
neither article 66 nor article 67 would have any applica-
tion. It may not be inappropriate to set out article 66 and
article 67 of the Schedule of the Limitation Act. The said
articles
311
appear in Part V of the Schedule First Division dealing with
suits relating to immovable property. The first column gives
the description of suit, the second column gives the period
of limitation and the third column deals with time from
which period begins to run. Articles 66 and 67 read as
follows:-
“66. For possession Twelve When the forfeiture
of immovable property years is incurred or the
when the plaintiff condition is
has become entitled broken.
to possession by
reason of any forfeiture
or breach of condition.
67. By a landlord to Twelve When the
recover possession years tenancy is
from a tenant. determined."
Article 113 on the other hand which is in Part X dealing
with suits provides that for any suit for which no period of
limitation is provided elsewhere in the Schedule the period
would be three years from the date when the right to sue
accrues.
It was submitted by Shri Tunara, learned counsel for the
respondent-landlord that for any suit by a landlord against
a tenant for recovery of possession under the Rent Act, the
Limitation Act was inherently inapplicable. We are, however,
unable to accept this argument. Recovery of possession is by
a suit and there is no section in the scheme of the Limita-
tion Act to indicate that Limitation Act was inherently
inapplicable. In the scheme of the Rent Act or in the var-
ious contingencies contemplated under the Rent Act, there is
nothing to indicate or warrant that there would be no limi-
tation of any period. Article 67 of the Limitation Act which
has been set out hereinbefore indicates that time begins to
run only when the tenancy is determined. It comprehends suit
by a landlord and deals with fight to recover possession
from the tenant. Therefore, it deals with landlord and
tenant. We are therefore unable to accept the argument of
the respondent that limitation was inapplicable to eject-
ment.
On behalf of the appellant it was however submitted that
article 67 of the Limitation Act had no application inasmuch
as time begins to run only when the tenancy is determined. A
determination of tenancy which takes place under the Trans-
fer of Property Act is wholly irrele-
312
vant for cause of action in ejectment. It is an act in law
and not an act of law because under the scheme a determina-
tion of tenancy which takes place under the Transfer of
Property Act, according to the appellant, is wholly irrele-
vant for rounding a cause of action in ejectment because the
provisions of the Transfer of Property Act are superseded by
the provisions of the Rent Act and according to the appel-
lant a cause of action for eviction is to be rounded only on
one of the grounds mentioned in Section 13 of the Rent Act.
For this reliance was placed on V. Dhanpal Chettiar v.
Yesodai Ammal, [1980] 1 S.C.R. 334 where this Court held
that a lease between a lessor and a lessee comes into exist-
ence by way of contract when the parties to the contract
agree on the rent, duration of tenancy and other relevant
terms. Section 111 of the Transfer of Property Act provides
various methods by which a lease of immovable property can
be determined. Under clause (h) of section 111 a lease
determines on the expiry of a notice to determine the lease
given by the landlord to the tenant. But a notice is not
compulsory or obligatory nor must it fulfil all the techni-
cal requirements of section 106 of the Transfer of Property
Act, because as a result of the various State Rent Acts the
liability to be evicted if incurred by the tenant, he cannot
turn round and say that the contractual tenancy had not been
determined. It was further reiterated that the action of the
landlord in instituting a suit for eviction on the ground
mentioned in the State Rent Act would tantamount to an
expression of the intention of the landlord that he does not
want the tenant to continue as his lessee and the jural
relationship between the lessor and the lessee would come to
an end on the passing of an order or a decree for eviction.
Until then, under the extended definition of ‘tenant’ under
the various State Rent Acts, the tenant continued to be a
tenant even though the contractual tenancy had been deter-
mined by giving a valid notice under section 106 of the
Transfer of Property Act. Therefore notice under section 106
of the Transfer of Property Act terminating the tenancy is
no longer necessary. At page 353 of the said report, the
Court was of the view that making out a case under the Rent
Act for eviction of the tenant by itself was sufficient and
it was not obligatory to the proceeding on the basis of the
determination of the lease by issue of a notice in accord-
ance with section 106 of the Transfer of Property Act. This
view was also reiterated again in Pradesh Kumar Bajpai v.
Binod Behari Sarkar, [1980] 3 S.C.R. 93 where this Court
observed that once the requirements of Rent Act were satis-
fied, the tenant could not claim the double protection of
invoking the provisions of the Transfer of Property Act or
the terms of the contract. Therefore, in the case before
this Court the question of termination of lease by forfei-
ture did not arise on the facts of that case
313
and after the Rent Act came into force, the landlord could
not avail himself of clause 12 which provided for forfei-
ture, in that case, even if the tenant had neglected to pay
the rent for over two months and further the landlord could
not enter into possession forthwith without notice. The only
remedy for him is to seek eviction under the provisions of
the Rent Act. See also in this connection the observations
in Gian DeviAnandv. Jeevan Kumar & others, [1985] 2 S.C.C.
683.
It was further submitted on behalf of the appellant that
columns 1 and 3 of the Schedule of the Limitation Act should
be read together and if a case does not fall within either
column 1 or column 3 the residuary article must apply.
Reference may be made to the observations in Kripal Shah
Sant Singh v. Shri Harkishan Das Narsingh Das, A.I.R. 1957
Punjab 273 at 275; M/s. Swastik Agency, Madras v. The Madras
Port Trust and another, A.I.R. 1966 Madras 130 at 135 and
Mulla Vittil Seeti, Kutti and others v. K.M.K. Kunhi Pathum-
ma and others, A.I.R. 1919 Madras 972.
Mr. Nariman, learned counsel for the appellant submitted
that the expression “determination” appears in section 111
of the Transfer of Property Act. Under section 14 of the
Bombay Rent Act, the same expression was used in the context
of a sub-tenant becoming a direct tenant of the landlord.
This expression however, according to the appellant, is not
to be found in section 13. of the Act. This Court has held
that this expression contained in section 14 of the Rent Act
is different from the expression contained in section 111 of
the Transfer of Property Act inasmuch as the tenancy only
determines under the Rent Act for a decree only for eviction
is passed, and not before. Reliance was placed in support of
this argument on the observation of this Court in Hiralal
Vallabhram v. Kastorbhai Lalbhai & Ors., [1967] 3 S.C.R. 343
at 349 and 350. It was further urged therefore that article
67 of the Limitation Act would not apply.
Article 66, according to the appellant, contemplates an
immediate fight to recover possession. Breach of a condition
must lead to an immediate right to possession without more.
This would not be a determination in law according to the
appellant. Section 13 of the Rent Act contemplated, however,
two conditions being fulfilled one is a ground for ejectment
subsisting and the other is the Court’s satisfaction which
is a condition precedent before which there is a no immedi-
ate right to possession. Reliance in support of this propo-
sition was placed on Sharoop Dass Mondal v. Joggessur Roy
Chowdhry, I.L.R. 26 Calcutta 564 at 568; Annamalai Pathar v.
Sri-la-sri
314
Vythilinga Pandara Sannadhi A vergal and another, A.I.R.
1937 Madras 295 at 297; Mahalinga Bandappa Lakhannavar v.
Venkatesh Waman Karnataki, 59 B.L.R. 227 at 233; Bahadur
Singh & Anr. v. Muni Subrat Dass & Anr., [1969] 2 S.C.R. 432
at 436; Kaushalaya Devi & Ors. v. Shri K.L. Bansal, [1969] 2
S.C.R. 1048 at 1050 and Ferozi Lal Jain v. Man Mal and
another, A.I.R. 1970 S.C. 794 at 795 and 796. Under section
13 of the Rent Act, possession is not recoverable only for
breach of a condition, and it is recoverable on fulfilment
and not breach of a condition precedent to the Court’s
satisfaction, according to counsel for the appellant. It was
further submitted on behalf of the appellant that section
13(1) of the Rent Act was to be contrasted with section
12(1)–recovery of possession under section 13(1) was not
directly upon a breach of condition of tenancy, but only
upon the Court’s satisfaction that a ground for recovery of
possession was made out. Under section 12(1), however, a
landlord is not entitled to recover possession so long as
the tenant observed the “conditions of tenancy”. It was
further submitted that section 13 is subject to sections 15
and 15A of the Rent Act if the landlord and the tenant
respectively have fulfilled (not breached) according to the
counsel, the provisions of these two sections, no suit for
ejectment will lie. It was urged that again showed that
section 13(1) of the Rent Act contained conditions that were
to be fulfilled before a landlord can recover possession for
a tenant’s breach of condition. Section 13(1) contained
grounds for eviction of a tenant which need not be for
breach of any condition. According to the appellant only one
article for recovery of possession is reserved under the
Limitation Act by a landlord from a tenant, that is article
139 of the Limitation Act, 1908. This article is the exact
predecessor of article 67. Article 66 is a general article,
says the appellant, which does not apply to landlord or
tenant and it was further submitted that when a specific
article applied, a general article should not be applied
specially when it was not free from doubt. Some authorities
were referred to in this behalf.
We accept this submission on the principle of construc-
tion. It is further reiterated that a strained construction
to give a more favourable limitation period is to be avoid-
ed–considerations of equity were out of place in construing
the articles under the Limitation Act. It was submitted
before us that section 12(1) of the Rent Act did not apply
to the facts of the present case. The decree for eviction
was grounded upon section 13(i)(b) of the Rent Act and not
on section 12(1). It was further reiterated that the non-
obstante clause of section 13 made it clear that where a
condition of tenancy coincided with a ground for eviction,
the ground for eviction alone is to be looked at—and to
that
315
extent, any breach of the condition of tenancy was supersed-
ed by the ground for eviction. Also in the instant case,
clause 3 of the agreement dated 29th December, 1975 is
inconsistent with the provisions of the Act inasmuch as even
temporary structures were not allowed to be erected and
there is no provision for the written consent of the land-
lord. It was further submitted without prejudice to the
aforesaid submission that section 12(1) of the Rent Act was
a section that was designed to afford protection to a tenant
if his lease was determined under the Transfer of Property
Act and it was thus designed to be a shield but not a word.
It was submitted that the decision in Haji Suleman Haji Ayub
Bhiwandiwala v. Narayan Sadashiv Ogale, [1967] 84 Bombay LaW
Report p. 122 is against the current of modern rent juris-
prudence.
Haji Suleman Haji Ayub Bhiwandiwala v. Narayan Sadashiv
Ogale, (supra) which is a decision of the Bench of three
judges and as such binding on this Court held that sections
12 and 13 of the Bombay Rent Act dealt with different topics
and have different objects. It was held that section 12(1)
clothed a tenant with the cloak of statutory protection
against eviction so long as he performs the conditions of
tenancy. Section 13 provides that notwithstanding that
protection the landlord can sue for eviction provided he
established any one of the circumstances set out in that
section. This Court further observed that it was impossible
to say that it was only when circumstances set out in sec-
tion 13 arose that a landlord could evict and that eviction
on the ground of the failure to perform the conditions of
tenancy would not deprive the tenant of the protection under
section 12(1) of the Rent Act. Such a reading would be
contrary to the whole scheme underlying the objects of the
two sections. We accept the aforesaid legal position. It is
not against the trend of the principle behind rent legisla-
tion. It affords protection to the tenant inasmuch as it
says that it was only on the fulfilment of the condition
stipulated in the two sections and on satisfaction of the
contingencies mentioned in section 12 which would deprive
the tenant of the protection that the tenant can be evicted.
Much argument was advanced to the contrary—but in our
opinion to prevent unreasonable eviction, in balancing and
harmonising the rights of the landlords and tenant if the
sections are so read as done in Haji Sulernan’s case, it
would meet the ends of justice and that would be proper
construction.
If that is so then on the strict grammatical meaning
article 67 of the Limitation Act would be applicable. This
is indubitably a suit by the landlord against the tenant to
recover possession from the tenant.
316
Therefore the suit clearly comes within article 67 of the
Limitation Act. The suit was filed because the tenancy was
determined by the combined effect of the operation of sec-
tions 12 and 13 of the 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 of
the 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 of the Bombay Rent Act
and on lifting on 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; there is no scope of the application
of article 113 of the Limitation Act in any view of the
matter. Sections 12 and 13 of the Bombay Rent Act co-exist
and must be harmonised 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 of the Limitation Act
has no scope of application. Large number of authorities
were cited. In the view we have taken on the construction of
the provisions of articles 67 and 66 of the Limitation Act
and the nature of the cause of action in this case in the
light of sections 12 and 13 of the Bombay Rent Act, we are
of the opinion that the period of limitation in this case
would be 12 years. There is no dispute that if the period of
limitation be 12 years, the suit was not barred.
In that view of the matter, the appeals fail and are
accordingly dismissed with costs.
N.V.K. Appeals dis-
missed.
317