Sabyasachi Mukharji, J.— This appeal by special leave is by the tenant from the judgment and order of the High Court of Bombay dated November 28, 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 December 29, 1975 which was to become effective from January 1, 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 Section 13(1) of the 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 September 20, 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 Cause Court, Bombay for possession of the demised premises. The trial court on November 11, 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 of 1982 was filed by the tenant against the decree of the trial court. The same was allowed by the Appellate Bench of the Small Cause Court on September 28, 1985 and the respondent's suit for eviction was dismissed on the ground that the suit was barred by lapse of time under Article 113 of the Limitation Act, 1963 (hereinafter called “the Limitation Act”). The High Court of Bombay on November 28, 1986 allowed the writ petition being Writ Petition No. 5391 of 1985 filed by the landlord under Article 227 of the Constitution against the judgment of the Appellate Bench of the Small Cause 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 November 28, 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 Cause Court and the High Court, however differed on the question of limitation. The Appellate Bench of the Small Cause Court had held that the suit was barred under Article 113 of the Limitation Act which prescribed a period of 3 years while the High Court held that Article 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 Article 113 or either of the Article 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, Article 113 of the Limitation Act would alone apply because according to him neither Article 66 nor Article 67 would have any application. It may not be inappropriate to set out Article 66 and Article 67 of the Schedule of the Limitation Act. The said articles appear in Part V of the Schedule First Division dealing with suits relating to 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:
66. For possession of immovable property when the plaintiff has become entitled to possession by reason of any forfeiture or breach of condition
Twelve years
When the forfeiture is incurred or the condition is broken
67. By a landlord to recover possession from a tenant.
Twelve years
When the tenancy is determined.
4. Article 113 on the other hand which is in Part X dealing with suits provides that for any suit for which no period of limitation is provided elsewhere in the Schedule the period would be three years from the date when the right to sue accrues.
5. It was submitted by Shri Tunara, learned Counsel for the respondent landlord that for any suit by a landlord against a tenant for recovery of possession under the Rent Act, the Limitation Act was inherently inapplicable. We are, however, unable to accept this argument. Recovery of possession is by a suit and there is no section in the scheme of the Limitation Act to indicate that Limitation Act was inherently inapplicable. In the scheme of the Rent Act or in the various contingencies contemplated under the Rent Act, there is nothing to indicate or warrant that there would be no limitation of any period. Article 67 of the Limitation Act which has been set out hereinbefore indicates that time begins to run only when the tenancy is determined. It comprehends suit by a landlord and deals with right to recover possession from the tenant. Therefore, it deals with landlord and tenant. We are therefore unable to accept the argument of the respondent that limitation was inapplicable to ejectment.
6. On behalf of the appellant it was however submitted that Article 67 of the Limitation Act had no application inasmuch as time begins to run only when the tenancy is determined. A determination of tenancy which takes place under the Transfer of Property Act is wholly irrelevant for cause of action in ejectment. It is an act in law and not an act of law because under the scheme a determination of tenancy which takes place under the Transfer of Property Act, according to the appellant, is wholly irrelevant for founding a cause of action in ejectment because the provisions of the Transfer of Property Act are superseded by the provisions of the Rent Act and according to the appellant a cause of action for eviction is to be founded only on one of the grounds mentioned in Section 13 of the Rent Act. For this reliance was placed on V. Dhanapal Chettiar v. Yesodai Ammal (1979) 4 SCC 214, AIR 1979 SC 1745, (1980) 1 SCR 334 where this Court held that a lease between a lessor and a lessee comes into existence by way of contract when the parties to the contract agree on the rent, duration of tenancy and other relevant terms. Section 111 of the Transfer of Property Act provides various methods by which a lease of immovable property can be determined. Under clause (h) of Section 111 a lease determines on the expiry of a notice to determine the lease given by the landlord to the tenant. But a notice is not compulsory or obligatory nor must it fulfil all the technical requirements of Section 106 of the Transfer of Property Act, because as a result of the various State Rent Acts the liability to be evicted if incurred by the tenant, he cannot turn round and say that the contractual tenancy had not been determined. It was further reiterated that the action of the landlord in instituting a suit for eviction on the ground mentioned in the State Rent Act would tantamount to an expression of the intention of the landlord that he does not want the tenant to continue as his lessee and the jural relationship between the lessor and the lessee would come to an end on the passing of an order or a decree for eviction. Until then, under the extended definition of “tenant” under the various State Rent Acts, the tenant continued to be a tenant even though the contractual tenancy had been determined by giving a valid notice under Section 106 of the Transfer of Property Act. Therefore notice under Section 106 of the Transfer of Property Act terminating the tenancy is no longer necessary. At p. 353 of the said report, the court was of the view that making out a case under the Rent Act for eviction of the tenant by itself was sufficient and it was not obligatory to base the proceeding on the basis of the determination of the lease by issue of a notice in accordance with Section 106 of the Transfer of Property Act. This view was also reiterated again in Pradesh Kumar Bajpai v. Binod Behari Sarkar (1980) 3 SCC 348, AIR 1980 SC 1214, (1980) 3 SCR 93 where this Court observed that once the requirements of Rent Act were satisfied, the tenant could not claim the double protection of invoking the provisions of the Transfer of Property Act or the terms of the contract. Therefore, in the case before this Court the question of termination of lease by forfeiture did not arise on the facts of that case and after the Rent Act came into force, the landlord could not avail himself of clause (12) which provided for forfeiture, in that case, even if the tenant had neglected to pay the rent for over two months and further the landlord could not enter into possession forthwith without notice. The only remedy for him is to seek eviction under the provisions of the Rent Act. See also in this connection the observations in Gian Devi Anand v. Jeevan Kumar (1985) 2 SCC 683.
7. It was further submitted on behalf of the appellant that columns 1 and 3 of the Schedule of the Limitation Act should be read together and if a case does not fall within either column 1 or column 3 the residuary article must apply. Reference may be made to the observations in Kirpal Shah Sant Singh v. Harkishan Das Narsingh Das AIR 1957 Punj 273, Swastik Agency, Madras v. Madras Port Trust AIR 1966 Mad 130, (1965) 2 Mad LJ 113, Mulla Vittil Seeti Kutti v. K.M.K Kunhi Pathumma AIR 1919 Mad 972.
8. Mr Nariman, learned Counsel for the appellant submitted that the expression “determination” appears in Section 111 of the Transfer of Property Act. Under Section 14 of the Bombay Rent Act, the same expression was used in the context of a sub-tenant becoming a direct tenant of the landlord. This expression however, according to the appellant, is not to be found in Section 13 of the Act. This Court has held that this expression contained in Section 14 of the Rent Act is different from the expression contained in Section 111 of the Transfer of Property Act inasmuch as the tenancy only determines under the Rent Act for a decree only for eviction is passed, and not before. Reliance was placed in support of this argument on the observations of this Court in Hiralal Vallabhram v. Kastorbhai Lalbhai AIR 1967 SC 1853, (1967) 3 SCR 343. It was further urged therefore that Article 67 of the Limitation Act would not apply.
9. Article 66, according to the appellant, contemplates an immediate right to recover possession. Breach of a condition must lead to an immediate right to possession without more. This would not be a determination in law according to the appellant. Section 13 of the Rent Act contemplated, however, two conditions being fulfilled: one is a ground for ejectment subsisting and the other is the court's satisfaction which is a condition precedent before which there is no immediate right to possession. Reliance in support of this proposition was placed on Sharoop Dass Mondal v. Joggessur Roy Chowdhry; Annamalai Pathar v. Sri-la-sri Vythilinga Pandara Sannadhi Avergal AIR 1937 Mad 295; Mahalinga Bandappa Lakhannavar v. Venkatesh Waman Karnataki (1957) 59 Bom LR 227; Bahadur Singh v. Muni Subrat Dass (1969) 2 SCR 432, 1969 Ren CR 151, 1969 Ren CJ 276; Kaushalya Devi v. K.L Bansal AIR 1970 SC 838, (1969) 2 SCR 1048, (1969) 71 Pun LR (D) 289, 1969 Ren CR 703 and Ferozi Lal Jain v. Man Mal (1970) 3 SCC 181, AIR 1970 SC 794. Under Section 13 of the Rent Act, possession is not recoverable only for breach of a condition, and it is recoverable on fulfilment of and not breach of a condition precedent to the court's satisfaction, according to counsel for the appellant. It was further submitted on behalf of the appellant that Section 13(1) of the Rent Act was to be contrasted with Section 12(1) — recovery of possession under Section 13(1) was not directly upon a breach of condition of tenancy, but only upon the court's satisfaction that a ground for recovery of possession was made out. Under Section 12(1), however, a landlord is not entitled to recover possession so long as the tenant observed the “conditions of tenancy”. It was further submitted that Section 13 is subject to Sections 15 and 15-A of the Rent Act; if the landlord and the tenant respectively have fulfilled (not breached) according to the counsel, the provisions of these two sections, no suit for ejectment will lie. It was urged that that again showed that Section 13(1) of the Rent Act contained conditions that were to be fulfilled before a landlord can recover possession for a tenant's breach of condition. Section 13(1) contained grounds for eviction of a tenant which need not be for breach of any condition. According to the appellant only one article for recovery of possession is reserved under the Limitation Act by a landlord from a tenant, that is Article 139 of the Limitation Act, 1908. This article is the exact predecessor of Article 67. Article 66 is a general article, says the appellant, which does not apply to landlord or tenant and it was further submitted that when a specific article applied, a general article should not be applied specially when it was not free from doubt. Some authorities were referred to in this behalf.
10. We accept this submission on the principle of construction. It is further reiterated that a strained construction to give a more favourable limitation period is to be avoided — considerations of equity were out of place in construing the articles under the Limitation Act. It was submitted before us that Section 12(1) of the Rent Act did not apply to the facts of the present case. The decree for eviction was grounded upon Section 13(i)(b) of the Rent Act and not on Section 12(1). It was further reiterated that the non obstante clause of Section 13 made it clear that where a condition of tenancy coincided with a ground for eviction, the ground for eviction alone is to be looked at — and to that extent, any breach of the condition of tenancy was superseded by the ground for eviction. Also in the instant case, clause 3 of the agreement dated December 29, 1975 is inconsistent with the provisions of the Act inasmuch as even temporary structures were not allowed to be erected and there is no provision for the written consent of the landlord. It was further submitted without prejudice to the aforesaid submission that Section 12(1) of the Rent Act was a section that was designed to afford protection to a tenant if his lease was determined under the Transfer of Property Act and it was thus designed to be a shield but not a sword. It was submitted that the decision in Haji Suleman Haji Ayub Bhiwandiwala v. Narayan Sadashiv Ogale is against the current of modern rent jurisprudence.
11. Haji Suleman Haji Ayub Bhiwandiwala v. Narayan Sadashiv Ogale which is a decision of the Bench of three Judges and as such binding on this Court held that Sections 12 and 13 of the Bombay Rent Act dealt with different topics and have different objects. It was held that Section 12(1) clothed a tenant with the cloak of statutory protection against eviction so long as he performs the conditions of tenancy. Section 13 provides that notwithstanding that protection the landlord can sue for eviction provided he established any one of the circumstances set out in that section. This Court further observed that it was impossible to say that it was only when circumstances set out in Section 13 arose that a landlord could evict and that eviction on the ground of the failure to perform the conditions of tenancy would not deprive the tenant of the protection under Section 12(1) of the Rent Act. Such a reading would be contrary to the whole scheme underlying the objects of the two sections. We accept the aforesaid legal position. It is not against the trend of the principle behind rent legislation. It affords protection to the tenant inasmuch as it says that it was only on the fulfilment of the condition stipulated in the two sections and on satisfaction of the contingencies mentioned in Section 12 which would deprive the tenant of the protection that the tenant can be evicted. Much argument was advanced to the contrary — but in our opinion to prevent unreasonable eviction, in balancing and harmonising the rights of the landlords and tenant if the sections are so read as done in Haji Suleman case it would meet the ends of justice and that would be proper construction.
12. If that is so then on the strict grammatical meaning Article 67 of the Limitation Act would be applicable. This is indubitably a suit by the landlord against the tenant to recover possession from the tenant. Therefore the suit clearly comes within Article 67 of the Limitation Act. The suit was filed because the tenancy was determined by the combined effect of the operation of Sections 12 and 13 of the Bombay Rent Act. In this connection, the terms of Sections 12 and 13 of the Bombay Rent Act may be referred to. At the most it would be within Article 66 of ‘the Limitation Act if we hold that forfeiture has been incurred by the appellant in view of the breach of the conditions mentioned in Section 13 of the Bombay Rent Act and on lifting of the embargo against eviction of tenant in terms of Section 12 of the said Act. That being so, either of the two, Article 66 or Article 67 would be applicable to the facts of this case; there is no scope of the application of Article 113 of the Limitation Act in any view of the matter. Sections 12 and 13 of the Bombay Rent Act coexist and must be harmonised to effect the purpose and intent of the legislature for the purpose of eviction of the tenant. In that view of the matter Article 113 of the Limitation Act has no scope of application. Large number of authorities were cited. In the view we have taken on the construction of the provisions of Articles 67 and 66 of the Limitation Act and the nature of the cause of action in this case in the light of Sections 12 and 13 of the Bombay Rent Act, we are of the opinion that the period of limitation in this case would be 12 years. There is no dispute that if the period of limitation be 12 years, the suit was not barred.
13. In that view of the matter, the appeals fail and are accordingly dismissed with costs.