Case Note & Summary
The petitioner, as landlord, had given suit premises to the respondent for grocery business under a leave and license agreement dated 1 May 1970, last renewed on 1 February 1973. In 1985, the petitioner filed a suit alleging that the respondent had changed the user of the premises by also using it for residence, in breach of the license/letting conditions. The trial court passed a decree for possession on the ground of change of user and other grounds. On appeal, the appellate court reversed the decree on other grounds but upheld the finding of change of user. However, it declined to pass a decree on that ground, holding that the suit was barred by limitation as it was filed 12 years after the change of user. The petitioner challenged this in the High Court. The legal issue was whether the suit was governed by Article 67 of the Limitation Act, 1963 (12 years from determination of tenancy) or Article 66 (12 years from forfeiture of tenancy). The petitioner argued that since a notice to quit was given, the tenancy was determined, and Article 67 applied, relying on Pandurang Maruti Patil v. Ganesh Hari Dharmadhikari (1997) 99(2) Bom.L.R.705. The respondent argued that under the Bombay Rent Act, 1947, no notice is required for a suit on grounds other than non-payment of rent, and the suit is governed by Article 66, relying on V. Dhanpal Chettiar v. Yesobai Ammal, AIR 1979 SC 1745. The court, without finally deciding the issue, noted that the appellate court had not considered the applicability of Article 67 and remanded the matter for fresh consideration. The court observed that if a notice to quit was given, Article 67 would apply, and the suit would be within limitation if filed within 12 years of the notice. The decision favored the petitioner by setting aside the limitation finding and remanding the case.
Headnote
A) Limitation Act - Article 67 vs Article 66 - Suit for Possession on Ground of Change of User - The court considered whether a suit for possession based on change of user is governed by Article 67 (12 years from determination of tenancy) or Article 66 (12 years from forfeiture of tenancy). The court held that where the tenancy is determined by notice to quit, Article 67 applies, and the limitation period runs from the date of determination of tenancy, not from the date of forfeiture. (Paras 4-5)
B) Bombay Rent Act, 1947 - Change of User - Notice of Termination - The court noted that under the Bombay Rent Act, 1947, a suit for possession on grounds other than non-payment of rent can be filed without a notice terminating the tenancy. However, if a notice is given, Article 67 of the Limitation Act applies. (Para 5)
Issue of Consideration
Whether a suit for possession filed by a landlord against a tenant on the ground of change of user is governed by Article 67 or Article 66 of the Limitation Act, 1963, and whether the starting point of limitation is the determination of tenancy or the forfeiture of tenancy.
Final Decision
The court set aside the appellate court's finding that the suit was barred by limitation and remanded the matter to the appellate court for fresh consideration of the limitation issue in light of Article 67 of the Limitation Act, 1963.
Law Points
- Limitation Act
- 1963
- Article 67
- Article 66
- Bombay Rent Act
- 1947
- change of user
- termination of tenancy
- forfeiture of tenancy
- suit for possession
Case Details
2010 LawText (BOM) (07) 47
Writ Petition No.4805 of 1997
Mr. Virendra Tulzapurkar with Mr. Nikhil Sakhardande i/b Vasant B. Dhawan for the petitioner; Ms. Priyadarshini A. Birje for respondents
Sudha Madhusudan Lanjekar since deceased, Ashok Madhusudan Lanjekar & ors.
Shashikant Gajanan Pathare since deceased, Anjali Shashikant Pathare & ors.
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Nature of Litigation
Writ petition challenging appellate court's finding that suit for possession on ground of change of user was barred by limitation.
Remedy Sought
Petitioner sought to set aside the appellate court's order dismissing the suit as barred by limitation and to restore the decree for possession.
Filing Reason
The appellate court held that the suit filed in 1985 was barred by limitation as it was filed 12 years after the change of user, without considering the applicability of Article 67 of the Limitation Act.
Previous Decisions
Trial court passed decree for possession on ground of change of user and other grounds. Appellate court reversed decree on other grounds but upheld change of user, yet dismissed suit as barred by limitation.
Issues
Whether the suit for possession on ground of change of user is governed by Article 67 or Article 66 of the Limitation Act, 1963.
Whether the starting point of limitation is the determination of tenancy (by notice) or the forfeiture of tenancy (by breach).
Submissions/Arguments
Petitioner argued that the suit is governed by Article 67, which provides limitation of 12 years from the determination of tenancy, and since a notice to quit was given, the suit was within time. Relied on Pandurang Maruti Patil v. Ganesh Hari Dharmadhikari.
Respondent argued that under the Bombay Rent Act, no notice is required for a suit on grounds other than non-payment of rent, so Article 66 applies, and limitation runs from forfeiture. Relied on V. Dhanpal Chettiar v. Yesobai Ammal.
Ratio Decidendi
Where a tenancy is determined by a notice to quit, a suit for possession on the ground of change of user is governed by Article 67 of the Limitation Act, 1963, and the limitation period of 12 years runs from the date of determination of tenancy, not from the date of forfeiture.
Judgment Excerpts
In view of the final order that is proposed to be passed, it is not necessary to narrate elaborately the facts.
Before me, Mr.Tulzapurkar, learned Sr. Counsel appearing for the petitioner submitted that the suit would be governed by Article 67 of the Limitation Act which provides determination of the tenancy as the starting point of limitation.
Per contra, Ms.Birje, learned counsel for the respondent submitted that in view of the decision of the Supreme Court in the case of V.Dhanpal Chettiar Vs. Yesobai Ammal, AIR 1979 SC 1745, it is not at all necessary to terminate the tenancy before filing of a suit for possession and therefore, Article 67 of Limitation Act would not be applicable.
Procedural History
The petitioner filed a suit in 1985 for possession on ground of change of user. The trial court decreed the suit. The respondent appealed. The appellate court reversed the decree on other grounds but upheld change of user, yet dismissed the suit as barred by limitation. The petitioner filed this writ petition in the High Court.
Acts & Sections
- Limitation Act, 1963: Article 66, Article 67
- Bombay Rent Act, 1947:
