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2014 Supreme(Bom) 2296
IN THE HIGH COURT OF BOMBAY AT NAGPUR BENCH
Z.A. Haq, J.
Rajendra Antharam Tijoriwala and Gujrathi - Appellant
Vs.
Takhatmal Shrivallabh Charitable Trust and Ors. - Respondents
W.P. No. 6454 of 2005
Decided On: 20.12.2014
Advocate Appeared:
For the Appellant: P.Y. Deshpande
For the Respondents: J.J. Chandurkar
The main legal point established in the judgment is the application of the limitation period for filing a civil suit, the requirements for extending the benefit of section 14 of the Limitation Act, and the need for due diligence and good faith in prosecuting earlier proceedings.
Headnote:
Rent Control Order 1949 - Tenancy Termination - Limitation Act - [C.P. and Berar Letting of Premises and Rent Control Order, 1949 (Rent Control Order, 1949)] - [Clause 13(3)(vii), Article 67 of the Limitation Act] - The court discussed the legality of the notice terminating the tenancy, the limitation period for filing a civil suit, and the application of section 14 of the Limitation Act. The court found that the small cause civil suit was barred by limitation and the benefit of section 14 of the Limitation Act could not be extended to the respondent. The judgment and decree passed by the District Court was set aside, and the Small Cause Civil Suit No. 86/1987 filed by the respondent was dismissed.
Fact of the Case:
The tenant challenged a judgment granting possession and ancillary reliefs to the landlord. The landlord sought permission to terminate the tenancy, issued a notice, and filed a civil suit. The suit property was later transferred to a charitable trust, which filed a small cause suit for possession. The trial court dismissed the suit, but the District Court granted the decree for possession. The tenant filed a writ petition challenging the District Court's judgment and decree.
Finding of the Court:
The court found that the small cause civil suit filed by the respondent was barred by limitation, and the benefit of section 14 of the Limitation Act could not be extended to the respondent. As a result, the judgment and decree passed by the District Court were set aside, and the Small Cause Civil Suit No. 86/1987 filed by the respondent was dismissed.
Issues: The issues included the legality of the notice terminating the tenancy, the grant of permission to withdraw the civil suit with liberty to file a fresh suit, the application of clause 13(3)(vii) of the Rent Control Order, 1949, and the limitation period for filing the small cause civil suit.
Ratio Decidendi: The small cause civil suit was found to be barred by limitation, and the benefit of section 14 of the Limitation Act could not be extended to the respondent without proper application and pleadings. The court also emphasized the need for due diligence and good faith in prosecuting earlier proceedings.
Final Decision: The judgment and decree passed by the District Court were set aside, and the Small Cause Civil Suit No. 86/1987 filed by the respondent was dismissed.
Z.A. Haq, J.
1. Heard Shri P.Y. Deshpande, the learned advocate for the petitioner and Shri J.J. Chandurkar, the learned advocate for the respondent No. 1. None appears for the other respondents though served. The petition is by the tenant challenging the judgment passed by the District Court granting decree for possession and ancillary reliefs in favour of the respondents.
2. Though it is debatable as to whether the impugned judgment and decree can be challenged in revision or in writ petition, as the writ petition is admitted and is pending for final hearing since 2005, I have taken up the petition for final hearing without delving into the issue.
3. Shri Ramratan Shrivallabh Chandak the owner of the suit property had filed proceedings under clause 13(3)(vii) of the C.P. and Berar Letting of Premises and Rent Control Order, 1949 (for short "Rent Control order 1949") seeking permission of the Rent Controller to issue notice terminating the tenancy of the petitioner-tenant. The Rent Controller granted permission to Shri Ramratan to terminate the tenancy of the petitioner-tenant under clause 13(3)(vii) of the Rent Control Order, 1949. The permission granted by the Rent Controller was confirmed in the appeal and it became final. Shri Ramratan issued the notice dated 19th June, 1974 terminating the tenancy of the petitioner-tenant from 31st July, 1974. The petitioner having not complied with the requirements of the notice and having not vacated the suit premises, Shri Ramratan filed the Regular Civil Suit No. 666/1974 in October, 1974. During the pendency of the civil suit, the suit property was transferred to Takhatmal Shrivallabh Charitable Trust by the registered settlement deed dated 24th September, 1976.
4. In the civil suit the petitioner-tenant raised the defence that Shri Ramratan/plaintiff in the civil suit had transferred the ownership of the suit house to Takhatmal Shrivallabh Charitable Trust and, therefore, the cause of action did not subsist in favour of Shri Ramratan. The learned trial Judge framed the issue "1(b) whether the plaintiff has subsisting cause of action against the defendant?"
The learned trial Judge by the judgment dated 8th May, 1981 dismissed the civil suit on the ground that the plaintiff did not have cause of action in his favour.
5. Shri Ramratan challenged the judgment and decree passed by the trial Court by filing the appeal. In the appeal an application was filed for impleading Takhatmal Shrivallabh Charitable Trust as the appellant which came to be allowed. The petitioner-tenant had raised the objection that Takhatmal Shrivallabh Charitable Trust being a public trust, all the trustees are necessary parties. Takhatmal Shrivallabh Charitable Trust filed an application (Exh. 31) seeking permission to withdraw the civil suit with liberty to file fresh civil suit. The learned District Judge by the order dated 30th July, 1985 allowed the application and granted permission to Takhatmal Shrivallabh Charitable Trust to withdraw the civil suit and granted liberty to file fresh suit, however, the permission was granted subject to payment of the costs to the petitioner-tenant.
6. Takhatmal Shrivallabh Charitable Trust filed the Small Cause Suit No. 86/1987 praying for the decree for possession and other reliefs. This small cause suit was filed with averment that the cause of action had arisen on 31st July, 1974 when the tenancy of the petitioner-tenant stood terminated. The petitioner-tenant opposed the claim of the plaintiff Takhatmal Shrivallabh Charitable Trust.
7. The learned trial Judge by the judgment dated 30th September, 1992 concluded that the small cause civil suit was barred by limitation and the notice terminating the tenancy of the petitioner-tenant was not legal. The learned trial Judge dismissed the civil suit.
8. Takhatmal Shrivallabh Charitable Trust being aggrieved by the judgment and decree passed by the trial Court had filed the appeal before the District Court. The learned District Ju
