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Bai Dahi Vs. Amulakhbhai Gambhirbhai Barot - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtGujarat High Court
Decided On
Case NumberCivil Revn. Appln. No. 1272 of 1970
Judge
Reported inAIR1974Guj106; (1973)GLR801
ActsSpecific Relief Act, 1963 - Sections 4, 6 and 6(2); Limitation Act, 1963 - Sections 29 (2); Bombay Rent Act - Sections 28
AppellantBai Dahi
RespondentAmulakhbhai Gambhirbhai Barot
Appellant Advocate S.K. Zaveri, Adv.
Respondent Advocate D.L.Barot, Adv. for; M.R. Barot, Adv.
Cases ReferredShiavax C. Cambata v. Sunderdas Ebji
Excerpt:
property - possession - sections 4, 6 and 6 (2) of specific relief act, 1963, section 29 (2) of limitation act, 1963 and section 28 of bombay rent act - plaintiff filed suit against defendant claiming possession under section 6 - defendant contended that suit not filed within time as per section 6 (2) and city civil court had no jurisdiction to try suit as per section 28 - trial judge rejected contentions and passed decree in favour of plaintiff - revision application filed - as per section 6 (2) suit to be brought before period of six months from date of dispossession has expired - plaintiff filed suit after six months as civil court closed - section 4 applies to such suit unless specifically excluded as per section 29 (2) - suit for possession filed by dispossessed tenant against..........at ahmedabad against the defendant claiming possession of the suit premises under section 6 of the specific relief act, 1963.2. the defendant resisted the plaintiff's claim. it was inter alia contended that suit was not within time as contemplated by sub-section (2) of section 6 and that the city civil court had no jurisdiction to try the suit by virtue of the provisions of section 28 of the bombay rent act.3. both these contentions were negatived by the learned trial judge. on merits he held that the plaintiff was en- titled to possession and he, therefore, passed in favour of the plaintiff decree for possession.4. it is that decree which is challenged in this civil revision application by the defendant.5. mr. jhaveri appearing for the defendant has raised before me the following three.....
Judgment:

1. The plaintiff filed Civil Suit No. 58 of 19,68 in the City Civil Court at Ahmedabad against the defendant claiming possession of the suit premises under Section 6 of the Specific Relief Act, 1963.

2. The defendant resisted the plaintiff's claim. It was inter alia contended that suit was not within time as contemplated by sub-section (2) of Section 6 and that the City Civil Court had no Jurisdiction to try the suit by virtue of the provisions of Section 28 of the Bombay Rent Act.

3. Both these contentions were negatived by the learned trial Judge. On merits he held that the plaintiff was en- titled to possession and he, therefore, passed in favour of the plaintiff decree for possession.

4. It is that decree which is challenged in this Civil Revision Application by the defendant.

5. Mr. Jhaveri appearing for the defendant has raised before me the following three contentions.

1. The suit was barred by time under sub-section (2) of Section 6 of the Specific lie Relief Act, 1963.

2. The City Civil Court had no jurisdiction to try the suit by virtue of Section 28 of the Bombay Rent Act.

3. On merits the plaintiff has not established his claim.

6. Section 6 of the Specific Relief Act 1963 provides as under:

'(1) If any person is dispossessed without his consent of immovable property otherwise than in due course of law he or any person claiming through him may by suit recover possession thereof. notwithstanding any other title that may be set up in such suit.

(2) No suit under this section shall be brought

(a) after the expiry of six months from the date of dispossession: or

(b) against the Government.'..................... ........................ ........................

Sub-sections (3) and (4) are not relevant for the purpose of the present case. Under sub-section (2) the suit must be brought before a period of six months from the date of dispossession has expired. Indisputably the plaintiff was dispossessed on 28th June. 1967. He could have, therefore, brought the present suit on or before 28th December, 1967. But he filed the suit on 9th January. 1968 because from 28th December. 1967 to 8th January. 1968 the City Civil Court was closed. The question which has, therefore, been raised is whether Section 4 of the Limitation Act, 1963 applies to such a suit, Section 4 provides thus :

'Where the prescribed period for my suit, appeal or application expires on a day when the court is closed. the suit, appeal or application may be instituted preferred or made on the day when the court re-opens.

Explanation:- A court shall be deemed to be closed on any day within the meaning of this section if during any part of its normal working hours it reclosed on that day.'

Section 4 comes into play where there is a 'prescribed period' for a suit. Section 2(j) defines the expression 'Prescribed period' as follows:

' 'Prescribed period' means the period of limitation computed in accordance with the provisions of this Act'. The expression 'period of limitation' used in the definition of the expression 'prescribed period' has been defined as follows by the said clause itself.

' 'Period of limitation' means the period of limitation Prescribed for any suit, appeal or application by the Schedule.'

'Schedule' means Schedule to the Limitation Act, 1963. The period of six months laid down in clause (a) of sub-section (2) of Section 6 is not the period of limitation prescribed by the Schedule. Therefore, Section 4 will not proprio vigore apply to such cases. Now, sub-section (2) of Section 29 provides as follows :

'Where any, special or local law prescribes for any suit appeal or application a period of limitation different from the period prescribed by the Schedule. the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any Period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4 to 24 (inclusive) shall apply only in so tar as, and to the extent to which, they are not expressly excluded by each special or local law.'

7. This sub-section is in two parts. The first part attracts the applicability of Section 3 where a special or a local law prescribes for any suit, appeal or application a period of limitation different from one prescribed by the Schedule. I am not concerned with it in the instant case. The second part attracts the applicability of 'Sections 4 to 24 (inclusive)' for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, Specific Relief Act. 1963 is a special law within the meaning of that expression used in Section 29(2) of Limitation Act, 1963 inasmuch as Section 6 thereof prescribes its own period of limitation for suits to be filed thereunder. Secondly there is nothing in that Act which expressly excludes the applicability of Section 4 of the Limitation Act 1963. Therefore- Section 4 read with Section 29(2) of the Limitation Act, 1963 applied to the present suit . The suit was therefore instituted within time.

8. Mr. Zaveri has argued that whereas Article 3 in the Schedule to the Indian Limitation Act, 1908 prescribed special Period of limitation for suits under Section 9 of the Specific Relief Act. 1877, there is no corresponding Article in Limitation Act 1963. This is a correct submission. But this legislative change has not altered the situation for the following reasons. Section 9 of the Specific Relief Act. 1877 as originally enacted contained the expression 'instituted within six months from the date of dispossession'. It was deleted by the Amending Act XII of 1891. In Article 3 of the Indian Limitation Act, 1877 it found its expression and Article 3 of the Indian Limitation Act. 1908 was enacted exactly in the same terms as Article 3 of the Indian Limitation Act, 1877. In Limitation Act , 1963. Article 3 of the Indian Limitation Act, 1908 has not been enacted and the concept of period of limitation has been taken back to and incorporated In Section 6 of Specific Relief Act, 1963 as was the case in corresponding Section 9 of the Specific Relief Act, 1877 prior to Its amendment in 1891. In addition, Section 29 of the Indian Limitation Act, 1908 has been recast and the corresponding Section 29(2) in the Limitation Act, 1963 has been enacted in broader and wider terms. So far as the applicability of Section 4 to period of limitation prescribed by a special or local law is concerned. it has remained the same under the Act of 1908 and the Act of 1963 except for the insertion of Explanation to Section 4 in the Act of 1963. Nothing turns on the Explanation in this case.

9. Mr. Zaveri has next argued that whereas sub-section (2) of Section 6 of the Specific Relief Act, 1963 opens with the expression 'No suit under this section shall be brought ...' , in the context of Article 3 of Indian Limitation Act 1908. Section 3 thereof used the expression '.... every suit instituted ... after the period o f limitation prescribed therefore by the First Schedule shall be dismissed ...'. According to him. The difference in the language used in Section 6 of the Specific Relief Act. 1963 and Section 3 of the Indian Limitation Act, 1908 shows or suggests that the period of limitation prescribed by Section 6 of the Specific Relief Act, 1963 is not the period of limitation properly so called but is the condition Precedent to the maintainability of the suit. If it is so viewed. Section 4 of the Limitation Act, 1963 read with Section 29(2) thereof will have no applicability to the suits instituted under Section 6. I am unable to accede to this argument for two reasons. Firstly, I am unable to discover any real difference between the aforesaid two expressions- one used in Section 6 of the Specific Relief Act, 1963 and another used in Section 3 of the Indian Limitation Act, 1908. In one case no such suit can be brought after the expiry of the period of six months from the date of dispossession. It. therefore such a suit has been brought, it shall have to be dismissed. In another case, any suit instituted after the expiry of the said period of limitation shall have to be dismissed. When analysed in these terms, the effect of both the expressions is the same Different expressions are certainly used to convey different meanings. But it is not unknown that different expressions are used in different contexts in order to produce the same result. Therefore. I am unable to read so much in Section 6 of the Specific Relief Act, 1963 as Mr. Zaveri wants me to read. Secondly. I cannot exclude the application of Section 4 unless it Is 'expressly excluded' within the meaning of sub-section (2) of Section 29. Specific Relief Act, 1963 contains no such express -provision. To accede to Mr. Zaveri's argument is to attempt to draw a highly sophisticated and minute implication from the difference in language used to Section 6 of the Specific Relief Act, 1963 and Section 3 of the Limitation Act 1963. Section 29(2) does not permit any such Implication to be drawn. Mr. Zaveri's argument ignores the clear and unambiguous language of Section 29(2) and its acceptance will lead to the violation of the section.

10. The next argument of Mr. Zaveri is that in the context of Section 5 of the Specific Relief Act. 1963, Section 6 provides a special remedy which is fettered by a special condition. This analysis made by Mr. Zaveri. Is eminently correct but he forgets that the rigour of the special condition is not as oppressive as he thinks it to be because of the moderation introduced by Section 29 (2).

11. He has invited my attention to the decision of the Supreme Court in Nair Service Society Ltd. v. K. C Alexander, AIR 1968 SC 1165. It explains the difference between Sections 8 and 9 of-the Specific Relief Act 1877-corresponding broadly to Sections 5 and 6 of the Specific Relief Act. 1963 and the difference between Articles 64 and 65 of the Limitation Act, 1963. It has no bearing on the impact of Section 4 read with Section 29(2) of the Limitation Act. 1963 upon suits filed under Section 6 of the Specific Relief Act, 1963. Mr. Zaveri's arguments do not help the defendant In contending that the present suit was bar- red by the provisions of Section 6 itself. In my opinion, it was instituted within time. The first contention raised by Mr. Zaveri fails and is rejected.

12. The second contention which Mr. Zaveri has raised is that by virtue of the provisions of Section 28 of the Bombay Rent Act the City Civil Court had no jurisdiction to entertain the present suit under Section 6 of the Specific Relief Act, 1963. Where Section 23 applies the Court specified therein has Jurisdiction to entertain the suit and no other Court has any such Jurisdiction. Mr. Beavers has invited my attention to the averment made by the plaintiff in his plaint to the effect that he is the lawful sub-tenant who was wrongfully dispossessed from his premises by the defendant-landlady. The averment made by the plaintiff that he is the lawful subtenant and, therefore, entitled to retain his Possession attracts submits Mr. Zaveri, the provisions of Section 28.

13. A similar question arose before a Division Bench of the High Court of Bombay in Shiavax C. Cambata v. Sunderdas Ebji : AIR1950Bom343 . In that case a suit for possession was filed under Section 9 of the Specific Relief Act. 1877. In that suit the defendants had let out a shop in their building to one R. S. Dalaya. In course of time Dalaya transferred the tenancy to Sunderdas, the plaintiff, and put him in possession of the premises. The defendants with the help of their watchmen took forcible possession of the shot) and the contents thereof from the Plaintiff. The plaintiff, therefore filed on the Original Side of the High Court of Bombay a suit for possession under Section 9 of the Specific Relief Act. 1877. It was contended that by virtue of Section 28 read with Section 50 of the Bombay Rent Act the High Court had no jurisdiction to try the suit and that the suit should be transferred to the Court of Small Causes at Bombay. The contention was upheld by the learned trial judge who ordered the suit to be transferred to the Court of Small Causes at Bombay. An appeal from that order was heard by a Division Bench of the High Court of Bombay consisting of Chief Justice M C. Chagla and Mr. Justice Coyajee. It was contended that Section 9 was intended to protect possession without any regard to the title or the origin of possession and that. therefore, its operation was not excluded even in cases where parties happened to be landlords and tenants. Upholding that contention it has been laid down that it is not every suit for possession to which the provisions of the Bombay Rent Act are attracted. The provisions of the Bombay Rent Act are attracted only to those suits for possession between a landlord and a tenant where they have been filed by a landlord as a landlord or by a tenant as a tenant and in his capacity as a landlord or a tenant and relying on his title as a landlord or as a tenant. It has been further laid down in that decision that though the plaintiff may set out his title in the plaint, those averments are entirely unnecessary and irrelevant because the defendants cannot raise in a it under Section 9 of the Specific Relief Act, 1877 an issue as to the plaintiff's title in the suit. He cannot contest the position that the plaintiff is not entitled to possession because he Is not a tenant. He can contest the Plaintiff's claim only an one simple and short ground , viz. that the plaintiff was mot in possession within six months of the Cling of the suit. The issue as to relationship of landlord and tenant can never arise in such, a suit. Therefore in the opinion of the Division Bench of the High Court of Bombay the suit for possession filed by a dispossessed tenant or subtenant against his landlord under Section 9 of the Specific Relief Act. 1877 does mot attract the provisions of Section 28 of the Bombay Rent Act because no issue as to title arises in such a suit.

14. Mr. Jhaveri has relied upon a Full Bench decision of the High Court of Bombay in Dattatraya Krishna Jangam, v. Jairam Ganesh Gore : AIR1965Bom177 . The Full Bench of the High Court of Bombay has in that decision considered the aforesaid decision in the case of Shiavax C. Cambata, 52 Bom LR 381 : AIR1950Bom343 (supra) and has observed as under.

'In Shiavax Cambata's case it was held that a suit by a tenant to recover possession of demised premises from his landlord brought under Section 9 of the Specific Relief Act does not fall within the purview of Section 28 of the Rent Act. Chagla, C. J. pointed out in his Judgment that the object of Section 9 of the Specific Relief Act is to protect possession without regard to the title or origin of possession. that although the plaintiff might have set out his title in the plaint those averments were entirely unnecessary and irrelevant that the defendants could not have contested the position' that the plaintiff was not entitled to possession because he was not a tenant that they could only have contested the plaintiff's claim on the one ample and short ground, viz., that the plaintiff was not in possession within six months of the filing of the suit that therefore the issue as to landlord and tenant could never, have arisen in the suit. and that, consequently suit was outside the scope of Section 28. The teamed Chief Justice also observed (p. 385):-

'.... In our opinion, it is only when a landlord or a tenant files a suit for possession as a landlord or a tenant and relying on his title as a landlord or a tenant that it becomes a suit of the description mentioned in See. 50 and Section v of the Act,'

With respect, we agree with this observation.

15. The Full Bench of the High Court of Bombay has. therefore, approved the decision in Shiavax Cambata's case : AIR1950Bom343 (supra) The principle laid down by the Full Bench of the High Court of Bombay in Dattatraya's case : AIR1965Bom177 (Supra) has no application to the facts of this case because in that case a suit for possession was filed by the plaintiff on his title as a landlord against the defendant whom he described as a trespasser. No such suit can be Med under Section 6 of the Specific Relief Act 1963. The High Court of Bombay in the aforesaid case was considering the question relating to the Jurisdiction of the Court in a case where the plaintiff had sued on his title. Obviously that decision cannot apply to the instant case. Relying upon the principle laid down by the High Court of Bombay in Shiavax Cambata's case : AIR1950Bom343 (supra) I am of the opinion that the operation of Section 6 is not excluded in cases between landlords and tenants where there is no question of title involved. The second contention raised by Mr. Zaveri therefore fails and Is rejected.

16. On merits Mr. Zaveri has contended that the defendant has not shown that he had been in possession of the suit promises. He has emphasised the distinction between legal possession and mere occupation. On facts, Mr. Zaveri's Contention cannot be upheld. The learned trial Judge has taken into account the averment made by the defendant in her reply which she filed in Standard Rent Application No. 1265 of 1966 between the parties in which she stated that the plaintiff had been in possession of the suit premises as a sub-tenant That reply is Ex. 21. The finding recorded by the learned trial Judge is based upon this evidence and other evidence on record. It is a pure finding of fact it suffers from no legal infirmity because what a subtenant enjoys is possession in the legal sense of the term and not mere occupation or permissive use. This finding, therefore, holds good for the Purpose of the present suit.

17. The decree passed by the trial Court is therefore unassailable and must be upheld. The trial Court has unnecessarily stated in answer to issue No. I that it was not necessary to decide it In fact, it has decided it but has curiously enough not recorded . Its short answer to the issue No. 1.

18. For the reasons stated above, I find no substance in this Revision Application. Revision Application therefore fails and is dismissed. Rule is discharged with no order as to costs.

19. Revision dismissed.


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