SUDHA MADHUSUDAN LANJEKAR Vs. SHASHIKANT GAJANAN PATHARE

JUDGEMENT

(1.) ON a reference being made by the Single Bench as per the 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, 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 by the landladys son and the balance of convenience and resultant hardship was not in favour of the landlady.

(3.) IN Dhanpal Chettiars 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 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 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.