Rev. Applns. Nos. 108 109 and 110/Ten. of 1963

24th July, 1963.

Petitioner Counsel: R.N. Deshpande
Respondent Counsel: P.S. Badiye, S.V. Natu, Ku. Lilabai

Cases Cited:
1963 MhLJ 423.
AIR 1936 Bom. 285.

JUDGMENT

ORDER:- This order disposes of Revision Applications Nos. 108, 109 and 110/TEN. of 1963.

2. The present applicants and non-applicant Lilabai are the legal representatives of deceased Ramchandra. Ramchandra claimed to be the landlord of certain fields. On 26-12-1959 he gave notices to the various tenants of these fields to terminate their tenancies as required by section 38(1) of the Bombay Tenancy and Agricultural Lands (V.R. & K.A.) Act, 1958 (hereinafter referred to as the Tenancy Act), as it stood before the Amending Act No. V of 1961, which came into force on 28-1-1961. Before the Amending Act No. V of 1961, section 39 provided for a year's notice to terminate tenancy. Under section 36(2) ibid, the landlord had to apply for possession within two months from the date of the expiry of such notice. Ramchandra applied for possession of the several fields on 18-3-1961. Both the lower Courts held that the applications were time-barred and dismissed them. They held that the provisions of sections 38 and 36 of the Tenancy Act as they stood before the Amending Act No. V of 1961 governed the claims so far as limitation was concerned. According to them Ramchandra had to file his applications for possession on or before 26-2-1961, i.e. within two months from the date of the expiry of each notice. The notices expired after a year from the date they were given under section 38(1), as it stood before the amendment. A further period of two months for applying for possession from the date of the expiry of the notices was provided by the proviso to section 36(2) of the Act as it stood before 28-1-1961. For these reasons they held that Ramchandra's applications for possession which were filed on 18-3-1961 were time-barred and not maintainable. This position would have been correct, if the Act No. V of 1961, which amended both the sections 36 and 38 with regard to the period of notice and the application for possession, had not come into force. The Amending Act No. V of 1961 entitled the 'Bombay Tenancy and Agricultural Lands (V.R. & K.A.) (Amendment) Act, 1960 came into force on 28-1-1961, i.e. before the right of Ramchandra to apply for possession had been barred under the provisions as they stood before the Amending Act. The Amending Act made important changes in the provision regarding notice to be given for terminating tenancy under section 38(1). It has also deleted the proviso to section 36(2) providing for the period of two months for applying for possession after the expiry of the notice under section 38(1). The parties were therefore governed by the provisions of the Amending Act with respect to the notice and the application for possession. By the amendment any notice that was given on or before 15-2-1961 was good enough to terminate the tenancy. The amendment further required that an application for possession under section 36 had to be made on or before 31-3-1961. Ramchandra had thus complied with both those requirements. His notices were given prior to 15-2-1961 for terminating the tenancy, his applications for possession were filed on 16-3-1961. He was entitled to get the benefit of the amending provisions in these respects embodied in section 38(1) by the Amending Act No. V of 1961. His applications were not thus in any way time-barred.

3. The learned counsel for the non-applicants-tenants referred me to a decision of this Tribunal in Narhar v. Makhan Bhura1 presided over by Shri P.D. Deshmukh. The facts of that case are distinguishable. In that case the period of 14 months had expired before the date on which the application for possession was filed. It had expired 3 days prior to 26-1-1961 when the Amending Act No. V of 1961 came into force. Shri Deshmukh therefore rightly held that as the landlord's rights had become time-barred under the provisions as they stood before the Amending Act came into force, the landlord could not avail himself of the extended period of notice and application for possession provided by the Amending Act No. V of 1961. Shri Deshmukh had relied on the Full Bench decision of the Bombay High Court in Durlabhai v. Jhaverbhai2. That decision helps the present applicants, as the following observations of their Lordships in the last paragraph of that judgment show:

"......We are therefore of the opinion that the Amending Act would apply to all cases where the period of notice expired after the Amending Act came into force"

Their Lordships were considering in that decision the effect of an Amending Act. I, therefore, hold that Ramchandra's applications for possession of the various fields were within time.

4. Both the lower Courts had dismissed them solely on the ground of limitation. They did not give any findings on other issues that would arise in the proceedings. I, therefore, set aside the orders of both the Courts below and remand all the applications to the learned Tahsildar for fresh decisions according to law.

5. Non-applicant Lilabai filed before this Tribunal an application for adjournment after I had concluded the hearing of the arguments of the parties that were represented by counsel. She says that her counsel is ill as both the parties had exhaustively argued the case and as she was a pro-forma party in the revision applications, I do not see any reason to grant her an adjournment. Since the cases are being remanded it is open to her to appear and plead in the Tahsildar's Court.

Application allowed.