SHAKUNTALA S TIWARI Vs. HEM CHAND M SINGHANIA

JUDGEMENT

(1.) This appeal by special leave is by the tenant from the judgment and order of the High Court of Bombay dated 28th 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 December, 1975 which was to become effective from the 1st January, 1976. It is the case of the landlord, the respondent herein, that in breach of the agreement and the terms of tenancy as also in violation of the prohibition prescribed under S. 13(1), Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947 (hereinafter referred 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 structure 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 respect 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 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 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 upholding, 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 'If 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 Art 113, Limitation Act, 1963 (hereinafter called the Limitation Act). The High Court of Bombay on 28th November, 1986 allowed the writ petition being Writ Petition No. 5391 of 1985 filed by the landlord under Art. 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 November, 1986 impugned in this appeal restored the judgment of the Trial Court decreeing the respondent's suit for possession.

(2.) All the three courts have held that the tenant, appellant 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 Art. 113, Limitation Act, which prescribed a period of 3 years while the High Court held that Art. 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 Limitation Act would be applicable, that is to say, whether Art. 113 or either of the Art. 66 or 67 and what would be the date of the accrual of cause of action.

(3.) On behalf of the appellant, it was submitted by Mr. Nariman that on the facts of this case, Art. 113, Limitation Act, would alone apply because according to him neither Art. 66 nor Art. 67 would have any application. It may not be inappropriate to set out Art. 66 and Art. 67 of the Schedule of the Limitation Act. The said articles appear in Part V of the Schedule First Division dealing with suits relating the 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:-