AMRUTLAL JAGJIVANDAS SHAH Vs. RAMNIKLAL JAGJIVANDAS SHAH

JUDGEMENT

(1.) Present is a revision petition under Section 29(2) of the Bombay Rent Control Act, against the judgment dated 31st July, 1995 passed in Civil Appeal No. 54 of 1992, by the learned Joint District Judge, confirming the judgment and decree dated 24.9.1992 passed in Civil Suit No. 337 of 1985 by the learned Joint Civil Judge (Junior Division), Surendranagar, directing eviction of the present petitioner. The facts in short are that the landlord-respondent filed a suit for eviction somewhere in the year 1985, submitting, inter alia, that the tenant was liable to be evicted as he was in arrears of rent, he has sub-let the premises or has parted with possession and as he has parted with possession in favour of the petitioner no.2, he is not using the premises for any reasonable cause therefore he is liable to be evicted. The tenant, so also the sub-tenant were joined as parties, notices were issued to them and they appeared in the Court after receiving the summons. It was submitted by them that they were tenants/sub-tenants, were not in arrears of rent, though there was sub-letting but the landlord has lost his right by lapse of time as the sub-letting was created somewhere in the year 1967 and the suit came to be filed in the year 1985. The submission was that the suit ought to have been filed within a period of three years of accrual of the cause of action and as the suit has been filed almost after 18 years of accrual of the cause of action, the landlord's suit on the cause of sub-letting deserved to be dismissed. Allegation of non-user was also denied.

(2.) After recording evidence and hearing the parties, the learned trial court held in favour of the landlord on the ground of creation of sub-tenancy or parting with the possession. So far as the plea of non-user was concerned, it was accepted by the learned trial court that because of parting with the possession, the landlord was not using the premises. The said findings were challenged before the appellate court and as the findings have been confirmed, the dissatisfied tenant is before this Court.

(3.) Mr. D.D. Vyas, learned counsel for the petitioners has submitted that before the landlord can get a decree on the grounds available under Section 13 [1][e] of the Act, he is required and obliged to prove that the tenancy was unlawful. It was contended that as the cause of action accrued in favour of the landlord somewhere in the year 1967, the suit based on such cause of action for seeking possession from the tenant would not be maintainable either under Article 113 or under Article 120 or Article 67 of the Indian Limitation Act, 1963. Placing his strong reliance upon the judgment of the Supreme Court in the matter of Shakuntala Vs.Hem Chand reported in AIR 1987 Supreme Court, 1823, it was contended that if the landlord has lost his right to get a decree or a relief by lapse or as the action has become barred by limitation, a decree could not be granted. It was also submitted that though the cause of action in the matter of Shakuntala Vs. Hem Sand (supra) was construction of pakka structure, but the same is not going to make any difference, because, in the case on hand, the cause of action had accrued in the year 1967 and there would not be a continuing cause of action. I have heard Mr. Vyas at length.