{"id":170603,"date":"1987-05-06T00:00:00","date_gmt":"1987-05-05T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/smt-shakuntala-s-tiwari-vs-hem-chand-m-singhania-on-6-may-1987"},"modified":"2017-12-12T09:29:38","modified_gmt":"2017-12-12T03:59:38","slug":"smt-shakuntala-s-tiwari-vs-hem-chand-m-singhania-on-6-may-1987","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/smt-shakuntala-s-tiwari-vs-hem-chand-m-singhania-on-6-may-1987","title":{"rendered":"Smt. Shakuntala S. Tiwari vs Hem Chand M. Singhania on 6 May, 1987"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Smt. Shakuntala S. Tiwari vs Hem Chand M. Singhania on 6 May, 1987<\/div>\n
Equivalent citations: 1987 AIR 1823, \t\t 1987 SCR (3) 306<\/div>\n
Author: S Mukharji<\/div>\n
Bench: Mukharji, Sabyasachi (J)<\/div>\n
           PETITIONER:\nSMT. SHAKUNTALA S. TIWARI\n\n\tVs.\n\nRESPONDENT:\nHEM CHAND M. SINGHANIA\n\nDATE OF JUDGMENT06\/05\/1987\n\nBENCH:\nMUKHARJI, SABYASACHI (J)\nBENCH:\nMUKHARJI, SABYASACHI (J)\nVENKATARAMIAH, E.S. (J)\n\nCITATION:\n 1987 AIR 1823\t\t  1987 SCR  (3) 306\n 1987 SCC  (3) 211\t  JT 1987 (2)\t433\n 1987 SCALE  (1)1009\n\n\nACT:\n    Bombay  Rents,  Hotels and Lodging House  Rates  Control\nAct,\t 1947:\t   Sections    12     and     13--Harmonious\nconstruction--Necessity for as provisions co exist--Suit for\nrecovery    of\t  possession\tby    landlord-Period\t  of\nlimitation----What is.\n    Limitation Act 1963: Recovery of possession by  landlord\nunder  section 13 of the Bombay Rent Act--Period of  limita-\ntion-Would  be\t12 years under Articles 66 or 67 and  not  3\nyears under Article 113.\n\n\n\nHEADNOTE:\n    The\t appellant  in\tthe appeals was the  tenant  of\t the\ndemised\t premises who was inducted as a monthly\t tenant\t for\nthe purpose of conducting the ice-cream business carried  on\nby  her husband. The letting was done on an agreement  dated\nDecember  29, 1975 by the landlord respondent which  was  to\nbecome effective from January 1, 1976.\n    The landlord alleged that in breach of the agreement and\nthe terms of the tenancy, as also in violation of the prohi-\nbition\tprescribed under section 13(1) of the Bombay  Rents,\nHotels & Lodging House Rates (Control) Act, 1947 the  tenant\nhad indulged in several acts of commission by which not only\nthere  had been permanent alterations of major\tnature,\t but\nthe entire structure of the demised premises was  completely\nchanged. it was also alleged that the tenant had indulged in\nacts  of waste and damage to the property, and that she\t had\nchanged the user of the premises when some of the  employees\nstarted residing there.\n    On\tthe basis of the aforesaid allegations the  landlord\ngave  a\t notice to quit dated 20th September,  1978  to\t the\ntenant. Thereafter in 1979 the landlord fried a suit against\nthe  tenant in the Small Causes Court for possession of\t the\ndemised\t premises.  The Trial Court on 11th  November,\t1982\ndecreed\t the suit upholding the allegation that\t the  tenant\nhad made\n307\nalterations of permanent nature in the demised premises\t and\nhad committed acts or waste and damage.\n    Aggrieved by the aforesaid decision the tenant filed  an\nappeal before the Appellate Bench of the Small Causes  Court\non  28th  September,  1985, and the  respondent's  suit\t for\neviction  was  dismissed  on the ground that  the  suit\t was\nbarred by lapse of time under Article 113 of the  Limitation\nAct, 1973, which prescribed a period of three\n    The\t landlord  thereafter filed a  writ  petition  under\nArticle\t 227 which was allowed by the High Court which\theld\nthat  Article  66 or Article 67 was  applicable\t which\tpre-\nscribed a period of 12 years. The writ petition filed by the\ntenant was however dismissed.\n    In\tthe  appeals by the tenant to this  Court  the\tonly\nquestion  for  consideration  was: whether  Article  113  or\neither\tof Articles 66 or 67 of the Limitation Act would  be\napplicable, and what would he the date of the accrual of the\ncause of action.\n    On behalf of the tenant-appellant it was contended\tthat\non  the facts of the case Article 113 of the Limitation\t Act\nalone would apply and that neither Article 66 nor Article 67\nwould have any application. Article 67 of the Limitation Act\nhad no application inasmuch as time begins to run only\twhen\nthe tenancy is determined and that determination of  tenancy\nwhich  takes  place under the Transfer of  Property  Act  is\nwholly\tirrelevant  for cause of action in  ejectment.\tThat\nArticle\t 66 contemplates an immediate right to recover\tpos-\nsession.  Breach of a condition only leads to  an  immediate\nright to possession without more, and not a determination in\nlaw.  That  Article 66 is a general article which  does\t not\napply to landlord or tenant, and that when a specific  Arti-\ncle  applied the general Article should not be applied\tspe-\ncially when it was not free from doubt.\n    On\tbehalf\tof the respondent--landlord it\twas  however\nsubmitted that for any suit by a landlord against the tenant\nfor recovery of possession under the Rent Act the Limitation\nAct was inherently inapplicable.\nDismissing the Appeals,\n    HELD:  1. Recovery of possession is by a suit and  there\nis  no\tsection\t in  the scheme of  the\t Limitation  Act  to\nindicate   that\t  the\tLimitation   Act   was\t  inherently\ninapplicable. In the scheme of the Rent Act or in\n308\nthe  various contingencies contemplated under the Rent\tAct,\nthere is nothing to indicate or warrant that there would  be\nno limitation of any period. [311E-F]\n    2.\tSections 12 and 13 of the Bombay Rent  Act  co-exist\nand  must be harmonised to effect the purpose and intent  of\nthe  legislature for the purpose of eviction of the  tenant.\nIn that view of the matter Article 113 of the Limitation Act\nhas no scope of application. [316C-D]\n    3.\tArticle\t 67 indicates that time begins to  run\tonly\nwhen  the  tenancy is determined. It comprehends suit  by  a\nlandlord and deals with the right to recover possession from\nthe tenant. Therefore it deals with landlord and tenant. [31\nIF-G]\n    4.\tOn the strict grammatical meaning Article 67 of\t the\nLimitation  Act would be applicable. This is  indubitably  a\nsuit  by the landlord against the tenant to recover  posses-\nsion  from  the tenant. Therefore, the\tsuit  clearly  comes\nwithin Article 67 of the Limitation Act. The suit was  flied\nbecause the tenancy was determined by the combined effect of\nthe operation of Sections 12 and 13 of the B-\nombay Rent Act. At the mast it would be within Article 66 of\nthe Limitation Act if it is held that forfeitures have\tbeen\nincurred  by  the  appellant in view of the  breach  of\t the\nconditions  mentioned in Section 13 of the Bombay Rent\tAct,\nand on lifting of the embargo against eviction of tenant  in\nterms  of section 12 of the said Act. That being so,  either\nof the two, Article 66 or Article 67 would be applicable  to\nthe  facts  of the instant case. There is no scope  for\t the\napplication of Article 113 of the Limitation Act in any view\nof  the matter. The period of limitation in this case  would\ntherefore  be 12 years. The suit was therefore\tnot  barred.\n[315H; 316A-E]\n    Dhanpal Chettiar v. Yesodai Ammal,<\/a> [1980] 1 S.C.R.\t334;\nPradesh Kumar Bajpai v. Binod Behari Sarkar,<\/a> [1980] 3 S.C.R.\n93, Gian Devi Anand v. Jeevan Kumar & Other, [1985] 2 S.C.C.\n683;  Hiralal  Vallabhram v. Kastorbhai\t Lalbhai  &  Others,<\/a>\n[1967] 3 S.C.R. 343 at 349 and 350; Bahadur Singh & Anr.  v.\nMuni  Subrat Dass & Anr.,<\/a> [1969] 2 S.C.R. 432 at  436,\tKau-\nshaiaya\t Devi & Others v. Shri K.L. Bansal,<\/a> [1969] 2  S.C.R.\n1048 at 1050; Ferozi LaIJain v. Man Mal and<\/a> another,  A.I.R.\n1970  S.C.  794 at 795 aud 796; aud Haji Suleman  Haji\tAyub\nBhiwandiwala v. Narayan Sadashiv Ogale, [1967] 84 Bombay Law\nReport p. 122, referred to.\n\n\n\nJUDGMENT:\n<\/pre>\n
    CIVIL  APPELLATE JURISDICTION: Civil Appeal Nos.  116117
\nof 1987.\n<\/p>\n
309<\/span><\/p>\n
    From  the  Judgment and Order dated\t 28.11.1986  of\t the
\nBombay High Court in Civil Writ Petition Nos. 5391 And 55 15
\nof 1985.\n<\/p>\n
    F.S. Nariman, R.F. Nariman, Ashok Goel, Rajan Karanjawa-
\nla and Ejaz Mazbool for the Appellant.\n<\/p>\n
    H.C.  Tunara, M.N. Shroff, A.G. Parekh and\tK.M.K.\tKhan
\nfor the Respondent.\n<\/p>\n
The Judgment of the Court was delivered by
\n    SABYASACHI MUKHARJI, J. This appeal by special leave  is
\nby the tenant from the judgment and order of the High  Court
\nof  Bombay dated 28th of November, 1986. The  only  question
\ninvolved in this appeal is what is the period of  limitation
\nfor the recovery of possession of the demised premises.\t The
\npremises in question is located on the Municipal Street\t No.
\n16 in Fanaswadi area of Bombay. The tenant was inducted as a
\nmonthly tenant in respect of the said premises at a  monthly
\nrent  of Rs. 105.60 for the purpose of conducting  ice-cream
\nbusiness  which was being carried on by her husband who\t was
\nthe  holder  of\t the power of attorney on  her\tbehalf.\t The
\npremises  consisted  of the entire structure on\t the  ground
\nfloor  with a loft covering the entire area with  corrugated
\niron sheets. The letting was done on an agreement dated 29th
\nof December, 1975 which was to become effective from the 1st
\nof  January, 1976. It is the case of the landlord,  the\t re-
\nspondent  herein,  that in breach of the agreement  and\t the
\nterms  of tenancy as also in violation of.  the\t prohibition
\nprescribed under section 13(1) of the Bombay Rents, Hotel  &
\nLodging\t House\tRates (Control) Act, 1947  (hereinafter\t re-
\nferred\tto  as\tthe Rent Act), the tenant  had\tindulged  in
\nseveral acts of commission by which not only there has\tbeen
\npermanent alterations of major nature but the entire  struc-
\nture was completely changed so much so that even the  height
\nof  the structure was increased and thus, the loft lost\t its
\ninitial\t character and became almost as a first floor  which
\nwas  the  creation of the appellant-tenant  herein.  Several
\nother  breaches were alleged to have been committed  in\t re-
\nspect  of  the\tterms of tenancy. It was  alleged  that\t the
\ntenant\thad indulged in the acts of waste and damage to\t the
\nproperty  and that further she had changed the user  of\t the
\nsuit  premises when some of the employees  started  residing
\nthere. On the basis of those and other allied allegations on
\nthe 20th of September, 1978 the landlord, respondent herein,
\ngave  a notice to quit to the tenant, the appellant  herein,
\non  the ground that the tenant had (1) made  alterations  of
\npermanent  nature  in respect of the demised  premises,\t (2)
\ncommitted
\n310<\/span>
\nacts  of  waste and damage and (3) changed the user  of\t the
\npremises.  In  1979  the  landlord  filed  R.A.E.  Suit\t No.
\n1326\/4557  of  1979 against the tenant in the  Small  Causes
\nCourt,\tBombay for possession of the demised  premises.\t The
\nTrial Court on 11th November. 1982 decreed the suit  uphold-
\ning,  inter  alia, that the tenant had made  alterations  of
\npermanent  nature in the demised premises and had  committed
\nacts  of  waste and damage. Aggrieved by the  said  decision
\nAppeal\tNo. 667 of 1982 was filed by the tenant against\t the
\ndecree\tof  the\t Trial court. The same was  allowed  by\t the
\nAppellate Bench of the Small Causes Court on 28th September,
\n1985 and the respondent’s suit for eviction was dismissed on
\nthe  ground that the suit was barred by lapse of time  under
\narticle 113 of the Limitation Act, 1963 (hereinafter  called
\nthe  Limitation\t Act). The High Court of Bombay on  28th  of
\nNovember, 1986 allowed the writ petition being Writ Petition
\nNo. 5391 of 1985 filed by the landlord under Article 227  of
\nthe Constitution against the judgment of the Appellate Bench
\nof  the Small Causes Court. The High Court allowed the\tsaid
\nWrit  Petition filed by the landlord and dismissed the\tWrit
\nPetition  being Writ Petition No. 5515 of 1985 filed by\t the
\ntenant. In the premises the High Court’s judgment and  order
\ndated  28th  of November, 1986 impugned in this\t appeal\t re-
\nstored\tthe  judgment of the Trial Court decreeing  the\t re-
\nspondent’s suit for possession.\n<\/p>\n
    All\t the three courts have held that the tenant,  appel-
\nlant  herein, had made alterations of permanent\t nature\t and
\nhad committed acts of waste and damage. The Appellate  Bench
\nof  the\t Small\tCauses Court and the  High  Court,  however,
\ndiffered on the question of limitation. The Appellate  Bench
\nof the Small Causes Court had held that the suit was  barred
\nunder  article 113 of the Limitation Act which prescribed  a
\nperiod of 3 years while the High Court held that articles 66
\nor 67 was applicable which prescribed a period of 12  years.
\nAccording to the landlord-respondent, the suit though  filed
\nafter  3 years was filed within 12 years of the\t accrual  of
\nthe  cause of action. The only question which was argued  in
\nthis  appeal  was  the question of  limitation.\t No  factual
\naspect\twas  agitated before this Court.  This\tappeal\tmust
\ntherefore, decide the question which article of the  Limita-
\ntion Act would be applicable, that is to say, whether  arti-
\ncle 113 or either of the article 66 or 67 and what would  be
\nthe date of the accrual of cause or’ action.\n<\/p>\n
    On\tbehalf\tof the appellant, it was  submitted  by\t Mr.
\nNariman\t that on the facts of this case, article 113 of\t the
\nLimitation  Act would alone apply because according  to\t him
\nneither\t article 66 nor article 67 would have  any  applica-
\ntion. It may not be inappropriate to set out article 66\t and
\narticle\t 67 of the Schedule of the Limitation Act. The\tsaid
\narticles
\n311<\/span>
\nappear in Part V of the Schedule First Division dealing with
\nsuits relating to immovable property. The first column gives
\nthe description of suit, the second column gives the  period
\nof  limitation\tand the third column deals  with  time\tfrom
\nwhich  period  begins  to run. Articles 66 and\t67  read  as
\nfollows:-\n<\/p>\n
      “66. For possession\tTwelve\t When the forfeiture
\n      of immovable property\tyears\t is incurred or the
\n      when the plaintiff\t\t condition is
\n      has become entitled\t\t broken.\n<\/p><\/blockquote>\n
      to possession by
\n      reason of any forfeiture
\n      or breach of condition.\n<\/p><\/blockquote>\n
      67. By a landlord to    Twelve   When the\n      recover possession      years    tenancy is\n      from a tenant.\t\t       determined.\"\n<\/pre>\n
    Article 113 on the other hand which is in Part X dealing
\nwith suits provides that for any suit for which no period of
\nlimitation is provided elsewhere in the Schedule the  period
\nwould  be  three years from the date when the right  to\t sue
\naccrues.<\/p><\/blockquote>\n
    It was submitted by Shri Tunara, learned counsel for the
\nrespondent-landlord that for any suit by a landlord  against
\na tenant for recovery of possession under the Rent Act,\t the
\nLimitation Act was inherently inapplicable. We are, however,
\nunable to accept this argument. Recovery of possession is by
\na suit and there is no section in the scheme of the  Limita-
\ntion  Act  to indicate that Limitation\tAct  was  inherently
\ninapplicable.  In the scheme of the Rent Act or in the\tvar-
\nious contingencies contemplated under the Rent Act, there is
\nnothing to indicate or warrant that there would be no  limi-
\ntation of any period. Article 67 of the Limitation Act which
\nhas been set out hereinbefore indicates that time begins  to
\nrun only when the tenancy is determined. It comprehends suit
\nby  a  landlord and deals with fight to\t recover  possession
\nfrom  the  tenant.  Therefore, it deals\t with  landlord\t and
\ntenant.\t We are therefore unable to accept the\targument  of
\nthe  respondent that limitation was inapplicable  to  eject-
\nment.\n<\/p>\n
    On behalf of the appellant it was however submitted that
\narticle 67 of the Limitation Act had no application inasmuch
\nas time begins to run only when the tenancy is determined. A
\ndetermination of tenancy which takes place under the  Trans-
\nfer of Property Act is wholly irrele-\n<\/p>\n
312<\/span><\/p>\n
vant  for cause of action in ejectment. It is an act in\t law
\nand not an act of law because under the scheme a  determina-
\ntion  of  tenancy which takes place under  the\tTransfer  of
\nProperty Act, according to the appellant, is wholly  irrele-
\nvant for rounding a cause of action in ejectment because the
\nprovisions of the Transfer of Property Act are superseded by
\nthe  provisions of the Rent Act and according to the  appel-
\nlant a cause of action for eviction is to be rounded only on
\none of the grounds mentioned in Section 13 of the Rent\tAct.
\nFor  this  reliance  was placed on V.  Dhanpal\tChettiar  v.
\nYesodai\t Ammal,<\/a>\t [1980] 1 S.C.R. 334 where this\t Court\theld
\nthat a lease between a lessor and a lessee comes into exist-
\nence  by  way of contract when the parties to  the  contract
\nagree  on the rent, duration of tenancy and  other  relevant
\nterms. Section 111 of the Transfer of Property Act  provides
\nvarious\t methods by which a lease of immovable property\t can
\nbe  determined.\t Under\tclause (h) of section  111  a  lease
\ndetermines on the expiry of a notice to determine the  lease
\ngiven  by  the landlord to the tenant. But a notice  is\t not
\ncompulsory or obligatory nor must it fulfil all the  techni-
\ncal requirements of section 106 of the Transfer of  Property
\nAct, because as a result of the various State Rent Acts\t the
\nliability to be evicted if incurred by the tenant, he cannot
\nturn round and say that the contractual tenancy had not been
\ndetermined. It was further reiterated that the action of the
\nlandlord  in instituting a suit for eviction on\t the  ground
\nmentioned  in  the  State Rent Act would  tantamount  to  an
\nexpression of the intention of the landlord that he does not
\nwant  the  tenant to continue as his lessee  and  the  jural
\nrelationship between the lessor and the lessee would come to
\nan end on the passing of an order or a decree for  eviction.
\nUntil then, under the extended definition of ‘tenant’  under
\nthe  various State Rent Acts, the tenant continued to  be  a
\ntenant\teven though the contractual tenancy had been  deter-
\nmined  by  giving a valid notice under section\t106  of\t the
\nTransfer of Property Act. Therefore notice under section 106
\nof  the Transfer of Property Act terminating the tenancy  is
\nno  longer  necessary. At page 353 of the said\treport,\t the
\nCourt was of the view that making out a case under the\tRent
\nAct for eviction of the tenant by itself was sufficient\t and
\nit was not obligatory to the proceeding on the basis of\t the
\ndetermination  of the lease by issue of a notice in  accord-
\nance with section 106 of the Transfer of Property Act.\tThis
\nview  was also reiterated again in Pradesh Kumar  Bajpai  v.
\nBinod  Behari  Sarkar,<\/a> [1980] 3 S.C.R. 93 where\t this  Court
\nobserved that once the requirements of Rent Act were  satis-
\nfied,  the tenant could not claim the double  protection  of
\ninvoking  the provisions of the Transfer of Property Act  or
\nthe  terms  of the contract. Therefore, in the\tcase  before
\nthis  Court the question of termination of lease by  forfei-
\nture did not arise on the facts of that case
\n313<\/span>
\nand  after the Rent Act came into force, the landlord  could
\nnot  avail himself of clause 12 which provided\tfor  forfei-
\nture, in that case, even if the tenant had neglected to\t pay
\nthe rent for over two months and further the landlord  could
\nnot enter into possession forthwith without notice. The only
\nremedy\tfor him is to seek eviction under the provisions  of
\nthe  Rent Act. See also in this connection the\tobservations
\nin  Gian DeviAnandv. Jeevan Kumar & others, [1985] 2  S.C.C.\n<\/p>\n
683.
\n    It was further submitted on behalf of the appellant that
\ncolumns 1 and 3 of the Schedule of the Limitation Act should
\nbe  read together and if a case does not fall within  either
\ncolumn\t1  or  column 3 the residuary  article\tmust  apply.
\nReference  may\tbe made to the observations in\tKripal\tShah
\nSant  Singh v. Shri Harkishan Das Narsingh Das, A.I.R.<\/a>\t1957
\nPunjab 273 at 275; M\/s. Swastik Agency, Madras v. The Madras
\nPort  Trust and another, A.I.R. 1966 Madras 130 at  135\t and
\nMulla Vittil Seeti, Kutti and others v. K.M.K. Kunhi Pathum-
\nma and others, A.I.R. 1919 Madras 972.\n<\/p>\n
    Mr. Nariman, learned counsel for the appellant submitted
\nthat  the expression “determination” appears in section\t 111
\nof  the\t Transfer of Property Act. Under section 14  of\t the
\nBombay Rent Act, the same expression was used in the context
\nof  a sub-tenant becoming a direct tenant of  the  landlord.
\nThis expression however, according to the appellant, is\t not
\nto  be found in section 13. of the Act. This Court has\theld
\nthat this expression contained in section 14 of the Rent Act
\nis different from the expression contained in section 111 of
\nthe  Transfer of Property Act inasmuch as the  tenancy\tonly
\ndetermines under the Rent Act for a decree only for eviction
\nis passed, and not before. Reliance was placed in support of
\nthis  argument on the observation of this Court\t in  Hiralal
\nVallabhram v. Kastorbhai Lalbhai & Ors.,<\/a> [1967] 3 S.C.R. 343
\nat 349 and 350. It was further urged therefore that  article
\n67 of the Limitation Act would not apply.\n<\/p>\n
    Article 66,\t according to the appellant, contemplates an
\nimmediate fight to recover possession. Breach of a condition
\nmust lead to an immediate right to possession without  more.
\nThis  would not be a determination in law according  to\t the
\nappellant. Section 13 of the Rent Act contemplated, however,
\ntwo conditions being fulfilled one is a ground for ejectment
\nsubsisting  and the other is the Court’s satisfaction  which
\nis a condition precedent before which there is a no  immedi-
\nate right to possession. Reliance in support of this  propo-
\nsition\twas placed on Sharoop Dass Mondal v.  Joggessur\t Roy
\nChowdhry, I.L.R. 26 Calcutta 564 at 568; Annamalai Pathar v.
\nSri-la-sri
\n314<\/span>
\nVythilinga  Pandara  Sannadhi A vergal and  another,  A.I.R.
\n1937  Madras 295 at 297; Mahalinga Bandappa  Lakhannavar  v.
\nVenkatesh  Waman  Karnataki, 59 B.L.R. 227 at  233;  Bahadur
\nSingh & Anr. v. Muni Subrat Dass & Anr.,<\/a> [1969] 2 S.C.R. 432
\nat 436; Kaushalaya Devi & Ors. v. Shri K.L. Bansal,<\/a> [1969] 2
\nS.C.R.\t1048  at  1050 and Ferozi Lal Jain v.  Man  Mal\t and<\/a>
\nanother, A.I.R. 1970 S.C. 794 at 795 and 796. Under  section
\n13  of the Rent Act, possession is not recoverable only\t for
\nbreach\tof a condition, and it is recoverable on  fulfilment
\nand  not  breach  of a condition precedent  to\tthe  Court’s
\nsatisfaction, according to counsel for the appellant. It was
\nfurther\t submitted on behalf of the appellant  that  section
\n13(1)  of  the Rent Act was to be  contrasted  with  section
\n12(1)–recovery\t of possession under section 13(1)  was\t not
\ndirectly  upon\ta breach of condition of tenancy,  but\tonly
\nupon the Court’s satisfaction that a ground for recovery  of
\npossession  was\t made out. Under section 12(1),\t however,  a
\nlandlord  is not entitled to recover possession so  long  as
\nthe  tenant  observed the “conditions of  tenancy”.  It\t was
\nfurther submitted that section 13 is subject to sections  15
\nand  15A  of  the Rent Act if the landlord  and\t the  tenant
\nrespectively have fulfilled (not breached) according to\t the
\ncounsel,  the provisions of these two sections, no suit\t for
\nejectment  will\t lie. It was urged that\t again\tshowed\tthat
\nsection 13(1) of the Rent Act contained conditions that were
\nto be fulfilled before a landlord can recover possession for
\na  tenant’s  breach of condition.  Section  13(1)  contained
\ngrounds\t for  eviction\tof a tenant which need\tnot  be\t for
\nbreach of any condition. According to the appellant only one
\narticle\t for  recovery of possession is reserved  under\t the
\nLimitation Act by a landlord from a tenant, that is  article
\n139  of the Limitation Act, 1908. This article is the  exact
\npredecessor of article 67. Article 66 is a general  article,
\nsays  the  appellant, which does not apply  to\tlandlord  or
\ntenant\tand  it was further submitted that when\t a  specific
\narticle\t applied,  a general article should not\t be  applied
\nspecially when it was not free from doubt. Some\t authorities
\nwere referred to in this behalf.\n<\/p>\n
    We accept this submission on the principle of  construc-
\ntion. It is further reiterated that a strained\tconstruction
\nto give a more favourable limitation period is to be  avoid-
\ned–considerations of equity were out of place in construing
\nthe  articles  under the Limitation Act.  It  was  submitted
\nbefore\tus that section 12(1) of the Rent Act did not  apply
\nto  the facts of the present case. The decree  for  eviction
\nwas  grounded upon section 13(i)(b) of the Rent Act and\t not
\non  section 12(1). It was further reiterated that  the\tnon-
\nobstante  clause  of section 13 made it clear that  where  a
\ncondition  of tenancy coincided with a ground for  eviction,
\nthe  ground for eviction alone is to be looked\tat—and  to
\nthat
\n315<\/span>
\nextent, any breach of the condition of tenancy was supersed-
\ned  by\tthe ground for eviction. Also in the  instant  case,
\nclause\t3  of  the agreement dated 29th\t December,  1975  is
\ninconsistent with the provisions of the Act inasmuch as even
\ntemporary  structures  were not allowed to  be\terected\t and
\nthere  is no provision for the written consent of the  land-
\nlord.  It  was further submitted without  prejudice  to\t the
\naforesaid submission that section 12(1) of the Rent Act\t was
\na section that was designed to afford protection to a tenant
\nif  his lease was determined under the Transfer of  Property
\nAct and it was thus designed to be a shield but not a  word.
\nIt was submitted that the decision in Haji Suleman Haji Ayub
\nBhiwandiwala v. Narayan Sadashiv Ogale, [1967] 84 Bombay LaW
\nReport\tp. 122 is against the current of modern rent  juris-
\nprudence.\n<\/p>\n
    Haji Suleman Haji Ayub Bhiwandiwala v. Narayan  Sadashiv
\nOgale,\t(supra)\t which is a decision of the Bench  of  three
\njudges and as such binding on this Court held that  sections
\n12 and 13 of the Bombay Rent Act dealt with different topics
\nand  have different objects. It was held that section  12(1)
\nclothed\t a  tenant with the cloak  of  statutory  protection
\nagainst\t eviction so long as he performs the  conditions  of
\ntenancy.  Section  13  provides\t that  notwithstanding\tthat
\nprotection  the\t landlord can sue for eviction\tprovided  he
\nestablished  any  one of the circumstances set out  in\tthat
\nsection. This Court further observed that it was  impossible
\nto  say that it was only when circumstances set out in\tsec-
\ntion 13 arose that a landlord could evict and that  eviction
\non  the ground of the failure to perform the  conditions  of
\ntenancy would not deprive the tenant of the protection under
\nsection\t 12(1)\tof  the Rent Act. Such a  reading  would  be
\ncontrary  to the whole scheme underlying the objects of\t the
\ntwo sections. We accept the aforesaid legal position. It  is
\nnot against the trend of the principle behind rent  legisla-
\ntion.  It  affords protection to the tenant inasmuch  as  it
\nsays  that  it was only on the fulfilment of  the  condition
\nstipulated  in the two sections and on satisfaction  of\t the
\ncontingencies  mentioned in section 12 which  would  deprive
\nthe tenant of the protection that the tenant can be evicted.
\nMuch  argument\twas advanced to the  contrary—but  in\t our
\nopinion\t to prevent unreasonable eviction, in balancing\t and
\nharmonising  the rights of the landlords and tenant  if\t the
\nsections  are  so read as done in Haji Sulernan’s  case,  it
\nwould  meet  the ends of justice and that  would  be  proper
\nconstruction.\n<\/p>\n
    If\tthat  is so then on the strict\tgrammatical  meaning
\narticle\t 67 of the Limitation Act would be applicable.\tThis
\nis indubitably a suit by the landlord against the tenant  to
\nrecover possession from the tenant.\n<\/p>\n
316<\/span><\/p>\n
Therefore  the suit clearly comes within article 67  of\t the
\nLimitation  Act. The suit was filed because the tenancy\t was
\ndetermined  by the combined effect of the operation of\tsec-
\ntions 12 and 13 of the Bombay Rent Act. In this\t connection,
\nthe  terms of sections 12 and 13 of the Bombay Rent Act\t may
\nbe referred to. At the most it would be within article 66 of
\nthe  Limitation\t Act  if we hold that  forfeiture  has\tbeen
\nincurred  by  the  appellant in view of the  breach  of\t the
\nconditions  mentioned in section 13 of the Bombay  Rent\t Act
\nand on lifting on the embargo against eviction of tenant  in
\nterms  of section 12 of the said Act. That being so,  either
\nof the two, article 66 or article 67 would be applicable  to
\nthe facts of this case; there is no scope of the application
\nof  article  113 of the Limitation Act in any  view  of\t the
\nmatter.\t Sections 12 and 13 of the Bombay Rent Act  co-exist
\nand  must be harmonised to effect the purpose and intent  of
\nthe  legislature for the purpose of eviction of the  tenant.
\nIn that view of the matter article 113 of the Limitation Act
\nhas  no\t scope of application. Large number  of\t authorities
\nwere cited. In the view we have taken on the construction of
\nthe  provisions of articles 67 and 66 of the Limitation\t Act
\nand  the nature of the cause of action in this case  in\t the
\nlight  of sections 12 and 13 of the Bombay Rent Act, we\t are
\nof  the opinion that the period of limitation in  this\tcase
\nwould be 12 years. There is no dispute that if the period of
\nlimitation be 12 years, the suit was not barred.
\n    In\tthat  view of the matter, the appeals fail  and\t are
\naccordingly dismissed with costs.\n<\/p>\n
N.V.K.\t\t\t\t\t      Appeals\tdis-\nmissed.\n317<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Smt. Shakuntala S. Tiwari vs Hem Chand M. Singhania on 6 May, 1987 Equivalent citations: 1987 AIR 1823, 1987 SCR (3) 306 Author: S Mukharji Bench: Mukharji, Sabyasachi (J) PETITIONER: SMT. SHAKUNTALA S. TIWARI Vs. RESPONDENT: HEM CHAND M. SINGHANIA DATE OF JUDGMENT06\/05\/1987 BENCH: MUKHARJI, SABYASACHI (J) BENCH: MUKHARJI, SABYASACHI (J) […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-170603","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nSmt. Shakuntala S. Tiwari vs Hem Chand M. 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