S.D. Jha, J.
1. This Second Appeal filed by the plaintiffs/landlord (hereinafter called, the plaintiffs) against the judgment and decree dated 14-3-1985 reversing the judgment and decree of the trial Court in plaintiffs' favour was by order dated 19-9-1985 admitted for final hearing on the following substantial questions of law arising for decision in the appeal:
"1. Whether on facts and in the circumstances of the case, the Court below erred in holding that the plaintiffs' suit was barred by limitation?
2. Whether on facts and in the circumstances of the case, the Court below erred in holding that the plaintiffs had failed to make out a case for eviction on the grounds specified in Section 12(1)(e)(g) and (h) of the Madhya Pradesh Accommodation Control Act, 1961?
3. Whether on the facts and in the circumstances of the case, the Court below erred in rejecting an application filed under Order 41, Rule 27 Civil Procedure Code submitted by the plaintiffs?"
The plaintiffs' case is that by registered sale-deed dated 20-10-1954 they purchased from one Jagannath s/o Shyamlal, the house No. 12 in Ward No. 4, Gandhi Marg in main market, Biaora whose boundaries are described in para 2 of the plaint and obtained possession of the same. Defendant's father Munnalal was tenant of portion marked with red letters A, B, C, D from the earlier owner (hereinafter called, 'the suit-accommodation'). After plaintiffs purchased the house defendant's father Munnalal recognized plaintiffs as landlord and agreed to pay yearly rent of Rs. 40/-. Munnalal died on 5-2-1963 and defendant is his only son. The defendant was joint with Munnalal and after his death is living in the suit-accommodation along with members of his family. Munnalal himself paid yearly rent till 9-7-1955 and for the period 10-7-1955 to 9-8-1964 rent was sent to the plaintiffs by money orders either by Munnalal or the defendant himself.
3. Plaintiffs further submit that earlier defendant's father Munnalal paid rent to plaintiffs calculated on monthly basis commencing from 10th of English Calendar ending with 9th of the succeeding month. On this basis plaintiffs had on 8-3-1956 served a notice on defendant's father Munnalal calling upon him to vacate the suit-accommodation, which was received by defendant's father Munnalal on 12-3-1956. By reply dated 3-4-1956 Munnalal stated that tenancy was not monthly but yearly and the yearly rent was Rs. 40/-.
4. The plaintiffs filed suit for eviction against the defendants on the grounds that:
(a) Defendant had not paid or deposited arrears of Rent for the period 10-6-1964 to 9-7-1972 in spite of registered notice of demand dated 29-12-1971 -Ground under Section 12(1)(a) of the Madhya Pradesh Accommodation Control Act, (hereinafter called Act').
(b) The suit-accommodation is required bona fide for the residence of the plaintiffs themselves, their wives, sons and daughters and that they do not have reasonably suitable accommodation of their own in their occupation in the town-Ground under Section 12(1 )(e) of the Act.
(c) That the accommodattion has become unsafe and unfit for human habitation and is required bona fide by the plaintiffs for carrying out repairs which cannot be carried out without the accommodation being vacated-Ground under Section 12(1)(g) of the Act.
(d) that the accommodation is required bona fide by the plaintiffs for the purpose of building or re-building or making substantial alterations and that such cannot be carried out without the accommodation being vacated-Ground under Section 12(1)(h) of the Act.
(e) That defendant/tenant has acquired vacant possession of the accommodation suitable for his residence-Ground under Section 12(1)(i) of the Act.
5. The plaintiffs on the above grounds besides claiming eviction also claimed arrears of rent from dated 10-8-1964 to 9-7-1972 the rate of Rs. 40/- per year, 316-66 as also cost of notice and further mesne profit.
6. The defendant resisted the suit. The defendant admitted that his father Munnalal was tenant of the suit accommodation on yearly rent of Rs. 40/- but pleaded that plaintiffs by registered notice dated 8-3-1956, Ex. P.7 and 11th September 1958 Ex. P. 11 had determined tenancy of the defendant's father on 8-3-1956 and then on 20-10-1958 and thereafter, the defendant's father and the defendant himself had ceased to be tenant of the plaintiffs in respect of the suit accommodation. It was, further submitted that after determination of tenancy on 20-10-1958 defendant's father Munnalal did not pay or remit by money order any rent to the plaintiffs and the suit for eviction, therefore, was barred by limitation. It was further submitted that arrars of rent claimed also included time barred claim. The grounds of eviction urged by the plaintiffs were denied. The defendant also claimed compensatory costs. After trial, the trial Court, Civil Judge, Class-II, Biora by judgment and decree dated 5-2-1979 found in favour of the plaintiffs-on the grounds under Clauses (e), (g) and (h) of Section 12(1) of the Act and the suit within limitation. He decreed the claim for eviction against defendants and so such of the arrears of rent which was within limitation.
The defendant filed appeal to the District Court against the judgment and decree of the trial Court. Before the First Appellate Court, plaintiffs (respondents before the Court) presented an application for additional evidence under Order 41, Rule 27, Civil Procedure Code to enable the plaintiffs to prove money order coupons, which had not been proved or exhibited by the plaintiffs' counsel, who was junior advocate. The first Appellate Court rejected the application for additional evidence and found the suit barred by limitation under Article 67 of the Limitation Act, 1963 and also grounds under Clauses (e), (g) and (h) of Section 12(1) of the Act not made out. The first Appellate Court allowed the appeal and dismissed the suit with costs.
7. Shri M.G. Upadhyaya learned counsel for the appellants submitted that original tenant-Munnalal father of present defendant died as a tenant and the suit filed by plaintiffs on the strength of registered notice Ex. P/4 dated 23-12-1971 was not hit by limitation under Article 67 of the Limitation Act. 1963.
That provision relating to determination of tenancy in Sections 106, 111(g) and (h) of the Transfer of Property Act, 1882 was not applicable to accommodation to which provisions of M.P. Accommodatiton Control Act, 1961 are applicable. For this submission, Shri Upadhyaya relied on a seven Bench decision in V. Dhanpal Chettiar v. Yesodai Ammal, 1979 MPLJ 719 (SC) = AIR 1979 SC 1745 and Pradesh Kumar Bajpaie v. Benod Behari Sarkar (dead) by LRs., AIR 1980 SC 1214. He also referred to Smt. Gian Anand v. Jeevan Kumar and Ors., AIR 1985 SC 796 Shri M.G. Upadhyaya explained Smt. Shakuntala S. Tiwari v. Hem Chand M. Singhaniia, AIR 1987 SC 1823. on which Shri Chafekar placed strong reliance as applicable to facts of the case and not laying down law of general application.
8. Shri G.M. Chafekar learned counsel for the respondent, however, strongly submitted that plaintiffs had by registered notice Ex. P/11 dated 11-9-1958 determined the tenancy of defendant's father. The defendant's father did not pay any rent and there is nothing on record to show that they recognised the plaintiffs as landlord. The suit not having been presented within 12 years of notice, Ex. P/11 was barred by limitation under Article 67. Shri Chafekar about Shri M.G. Upadhyaya's reliance on V. Dhanapal Chettiar's case (supra) sulmitted that decision was not an authority on applicability of Limitation Act to Accommodations governed by State Rent Control legislation, on the other hand, Smt. Shakuntala S. Tiwari's case (supra) was directly an authority on applicability of Article 67 of the Limitation Act to such accommodation and the question is no more open. Both the counsel relied on portions of judgment which to the extent necessary are reproduced below:--
"The decision of this Court in the case of Mangilal v. Suganchand, (1964) 5 SCR 239, being a decision of a Constitution Bench consisting of five learned and eminent Judges of this Court requires careful consideration. Therein it was held at page 244 with reference to Section 4 of the Madhya Pradesh Accommodation Control Act, 1955 thus:--
The Accommodation Act does not in any way abrogate Ch. V of the Transfer of Property Act which deals with leases of immovable property. The requirement of Section 106 of the Transfer of Property Act is that a lease from month to month can be terminated only after giving fifteen days' notice expiring with the end of a month of the tenancy either by the landlord to the tenant or by the tenant to the landlord. Such a notice is essential for bringing to an end the relationship of landlord and tenant. Unless the relationship is validly terminated the landlord does not get the right to obtain possession of the premises by evicting the tenant. Section 106 of the Transfer of Property Act does not provide for the satisfaction of any additional requirements. But then, Section 4 of the Accommodation Act steps in and provides that unless one of the several grounds set out therein is established or exists, the landlord cannot evict the tenant."
Section 4 of the Madhya Pradesh Rent Act, 1955 provided that no suit could be filed in any Civil Court against a tenant for his eviction for any accommodation except on one or more grounds set out in that section. The Corresponding provision in Madhya Pradesh Accommodation Act of 1961 is contained in Section 12 which starts with a non obstante clause also but the definition of the tenant as in other State Acts includes "any person continuing in possession after the termination of his tenancy." How then is it correct to say that a notice is essential for bringing to an end the relationship between the landlord and the tenant ? 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, terminattion 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. We say with utmost respect that on the point of requirement of a notice under Section 106 of the Transfer of Property Act. Mangilal's case was not correctly decided." (AIR 1979 SC 1745 -- relied on by Shri M.G. Upadhyaya).
"If that is so then on the strict grammatical meaning Article 67, 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 combined effect of the operation of Sections 12 and 13, 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, 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, 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 Articles 66 and 67 would be applicable to the facts of this case; there is no scope of the application of Article 113, Limitation Act, in any view of the matter. Sections 12 and 13, Bombay Rent Act, co-exist 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, 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, Limitation Act, and the nature of the cause of action in this case in the light of Sections 12 and 13, 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. " (AIR 1987 SC 1823 relied on by Shri G.M. Chafekar.)
9. Smt. Shakuntala S. Tiwari's case notices seven Judge decision V. Dhanapal Chettiar's case (supra) and then holds Article 66 and alternatively 67 of Limitation Act, 1963 applicable generally to accommodation governed by State Rent Control legislations. But the pertinent point is the time from which limitation starts running. Article 67 is reproduced below:--
"67. By a landlord to recover Twelve When the tenancy possession from a tenant. years. is determined."
10. In V. Dhanapal Chettiar's case (supra) Hon'ble the Supreme Court inter alia observes that:--
But when under the various State Rent Acts, either in one language or the other, it has been provided that a tenant can be evicted on the grounds mentioned in certain sections of the said Acts, then how does the question of determination of tenancy by notice arise ? If the State Rent Act requires the giving of a particular type of notice in order to get a particular kind of relief, such a notice will have to be given. Or, it may be, that a landlord will be well advised by way of abundant precaution and in order to lend additional support to his case, to give a notice to his tenant intimating that he intended to file a suit against him for his eviction on the ground mentioned in the notice. But that is not to say that such a notice is compulsory or obligatory or that it must fulfil all the technical requirements of Section 106 of the Transfer of Property Act. Once the liability to be evicted is incurred by the tenant, he cannot turn round and say that the contractual lease has not been determined."
"In many cases the distinction between a contractual tenant and a statutory tenant was alluded to for the purpose of elucidating some particular aspects which cropped up in a particular case. That led to the criticism of that expresion in some of the decisions. Without detaining ourselves on this aspect of the matter by any elaborate discussion, in our opinion, it will suffice to say that the various State Rent Control Acts make a serious encroachment in the field of freedom of contract. It does not permit the landlord to snap his relationship with the tenant merely by his act of serving a notice to quit on him. In spite of the notice, the law says that he continues to be a tenant and he does so enjoying all the rights of a lease and is at the same time deemed to be under all the liabilities such as payment of Rent etc. in accordance with the law."
11. From the foregoing (portions underlined) which is directly a case pertaining to M.P. Accommodation Control Act, 1961, it would follow that the notice Ex. P/11 did not bring about determination of tenancy and time for institution of suit for eviction had not started running from that date. The suit could not, therefore, be held barred by limitation under Article 67 of the Limitation Act.
Finding of the First Appellate Court on the point must be and is hereby set aside.
12. Shri Upadhyaya then next submitted that plaintiffs in Trial Court had filed with the plaint money order receipts showing remitting of Rent by defendant's father or defendant for period 10-7-1955 to 9-8-1964. The counsel representing the plaintiff in the Trial Court was a junior advocate who could not properly appreciate their importance and failed to get the same proved and exhibited. Shri Upadhyaya submitted that plaintiffs should be permitted to recall plaintiffs Ramcharan (P.W. 5) or Gangadhar (P.W. 7) for further examination as also examine some more witnesses. In support of his contention Shri Upadhyaya relied on the following decisions:--
(i) Nathulal and Ors. v. Nathibai and Ors., 1989 MPLJ 86 = AIR 1989 M.P. 275.
(ii) Kuldip Singh v. Krishan Kumar and Ors., AIR 1974 Delhi 145.
(iii) Mata Din v. Narayan, AIR 1970 SC 1953.
In these three cases delay due to mistake of counsel was condoned under Section 5 of the Limitation Act, 1963.
(1) K. Venkataramiah v. A. Seetharama Reddy and Ors., AIR 1963 SC 1526.
(2) Sobharam Tikaram and Ors. v. Rajkumar Munnalal and Ors.. 1958 MPLJ 89 = AIR 1959 M.P. 118.
13. Opposing Shri Upadhyaya's contention Shri Chafekar submitted that the First Appellate Court had rightly rejected the prayer for additional evidence. It was incorrect to say that plaintiffs were represented by a junior lawyer. The plaintiffs could not be permitted to fill in lacuna and fill in the gaps in their case by the application for additional evidence. Besides, the evidence was not of a conducive nature. He relied on State of U.P. v. Hanbodhan Lal Shrivastava, AIR 1957 SC 912, K. Venkataramiah v. Seetharama Reddy and Ors., AIR 1963 SC 1526 and Shivajirao Nilangekar Patil v. Dr. Mahesh Madhav Gosavi and Ors., AIR 1987 SC 294.
14. From application titled under Order 41, Rule 27, Civil Procedure Code presented on 8-11-1982 by plaintiffs before First Appellate Court the request was getting Money Order Coupons only exhibited. There was no request to examine any more witnesses like the Postman as was made out at the hearing before the Court. If the idea was only to recall plaintiffs Ramratan (P.W. 5) or Gangadhar (P.W. 7) it was strictly a case of recalling witness already examined as Money Order Coupons were on record though not formally proved and exhibited. Had request for recall been made before the Trial Court, the same might have been allowed. The request as presented before this Court was not only to recall but also to examine some more witnesses like the Postman before whom Money Order Coupons were signed. This would show that evidence is of an unconducive nature. The First Appellate Court discussed the question of additional evidence in paras 11 to 20 of the judgment. No infirmity can be seen in rejection of the application. Besides in view of finding on limitation under Article 67 of the Limitation Act above, this request is only of academic importance.
15. The next contention of Shri Upadhyaya is that on the material on record grounds under Clauses (e), (g) and (h) of Section 12(1) of the Act in favour of the plaintiffs justifying the decree of eviction against the defendant/respondents was made out and the First Appellate Court should not have reversed the finding of the Trial Court in plaintiffs' favour.
16. Shri G.M. Chafekar learned counsel representing the respondent /defendants submitted that whether or not gounds for eviction under Clauses (e), (g) and (h) of the Section 12(1) of the Act were made out is a finding of fact and in a Second Appeal the finding recorded by the First Appellate Court could not be interfered with unless the same suffers from any infirmity to make it a question of law within the meaning of Section 100. In support of this submission Shri Chafekar relied on (1) V. Ramchandra Ayyar and Anr. v. Ramlingam Chettiar and Anr., AIR 1963 SC 302 (2) Sarvate T.B. v. Nemichand, 1966 MPLJ 26.
17. The points are dealt with by First Appellate Court in paras 33 to 58 of the judgment. It is seen that the First Appellate Court after evaluating evidence adduced in the case found against the plaintiffs. The findings on the points are findings of fact and in absence of any substantial error or defect in procedure this Court is not entitled to interfere with finding recorded by the First Appellate Court (1966 MPLJ 26 and AIR 1963 302 relied on.) Shri Upadhyaya's contention on the point cannot be accepted.
18. This brings to the question whether in view of the finding above the plaintiffs are entitled to any relief in this Second Appeal. The suit having been held to be within limitation the claim for arrears of rent to the extent it was within limitation before the Trial Court and future rent after the institution of the suit till the date of this judgment and decree would have to be granted to the plaintiffs. Shri Chafekar during argument agreed that even if the suit for eviction were barred by Limitation the defendant/respondent continued to be tenant and the decree for arrears of Rent against him would have to be granted. In that connection in fairness he referred to a decision of the Supreme Court in Chander Kali Bail v. Jagdish Singh Thakur, 1978 MPLJ 96 wherein such a view has been taken. The judgment and decree of the Trial Court to the extent it relates to decree in favour of the plaintiffs for arrears of rent within limitation i.e., three years preceding the date of institutiton of the suit and future rent till date this judgment and decree would have to be granted.
19. The judgment and decree of the Trial Court granting arrears of rent within limitation to the plaintiffs is restored and to that extent dismissal of the suit by the First Appellate Court is set aside. Rest of the impugned judgment and decree is upheld except as aforesaid and finding as to limitation in para 11 above. The plaintiffs will also get future rent till the date of this judgment and decree with corresponding costs in all the Courts throughout. The appeal is, thus, partly allowed. Pleader's fee according to the schedule, or certificate whichever is less Decree be drawn up accordingly.