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2015 DIGILAW 114 (ALL)

RAM JI v. VIJAY KRISHNA

2015-01-17

PANKAJ MITHAL

body2015
JUDGMENT Hon’ble Pankaj Mithal, J.—The dispute between the parties in this writ petition is about the possession of a shop which is part of a building having number of shops on the ground floor and a residential accommodation on the first floor situate in Mohalla-Asifganj, Azamgarh. 2. One Radhey Shyam and Ghanshyam Das together vide registered agreement dated 7.3.1962 let out the shop in dispute to Jagdish Prasad, father of the petitioner for a fixed period of 6 years w.e.f. 1.3.1962 on a rent of Rs. 67.50 paise per month. 3. On the death of Radhey Shyam in 1964 a dispute arose between the family members of the Ghanshyam Das and the heirs of Radhey Shyam as to the entitlement to receive rent of the above shop. Therefore, Jagdish Prasad, predecessor in interest of the petitioner filed an interpleader suit No. 101 of 1965 against all of them contending that he is ready and willing to deposit rent in Court and that he should be absolved of the liability to pay the rent to any of them till they settle their dispute regarding entitlement of rent in connection thereto. In the said suit an order was passed on 21.3.1968 permitting Jagdish Prasad to deposit rent in Court subject to his legal rights. The said suit was finally decided on 13.4.1993 in terms of compromises dated 4.9.1991, 26.11.1991 and 22.3.1993. 4. The aforesaid Ghanshyam Das and Chaturbhuj Das, the successor of Radhey Shyam, collectively vide notice dated 28.2.1968 informed the tenant Jagdish Prasad that as the period of lease is expiring, he has no right to continue therein as tenant and should immediately vacate the shop failing which they would be entitle to damages @ Rs. 10/- per day. 5. Jagdish Prasad, the predecessor in interest of the petitioner, and after him petitioner himself continued to be in occupation of the shop even after the expiry of the period of lease stipulated in the agreement had expired. 6. In the meantime on 21.8.1972 Ghanshyam Das also died. He was succeeded by his sons Vijay Krishna and Gopal Krishna. One of his sons, Vijay Krishna on the basis of the notice dated 28.2.1968 instituted a civil suit No. 302 of 1975, Vijay Krishna v. Jagdish Prasad, in the Court of Civil Judge (Junior Division) Azamgarh for possession over the shop in dispute and for damages @ Rs. He was succeeded by his sons Vijay Krishna and Gopal Krishna. One of his sons, Vijay Krishna on the basis of the notice dated 28.2.1968 instituted a civil suit No. 302 of 1975, Vijay Krishna v. Jagdish Prasad, in the Court of Civil Judge (Junior Division) Azamgarh for possession over the shop in dispute and for damages @ Rs. 100/- per month contending that his father Ghanshyam Das and uncle Radhey Shyam had let out the shop in dispute for a period of six years under the agreement dated 7.3.1962 @ Rs. 67.50 paise per month and that the period of lease has expired but despite notice dated 28.2.1968 its possession has not been handed over though pursuant to the order in the interpleader suit Jagdish Prasad is continuously depositing the rent. 7. Learned counsel who was appearing for Vijay Krishna in the said suit accepted that the Civil Court lacked jurisdiction to try the suit and that it is cognizable by Small Causes Court. Accordingly, on issue No. 5 regarding jurisdiction of the Court, the plaint was ordered to be returned vide order dated 6.10.1979 for presentation before the appropriate Court. 8. The plaint on return was re-presented on 3.5.1993 before the Small Causes Court and was registered as SCC Suit No. 16 of 1993. 9. The aforesaid suit after contest was dismissed by the Small Causes Court vide judgment and order dated 13.9.1996. The Court held that the provisions of U.P. Act No. 13 of 1972 (hereinafter the Rent Act for short) are applicable to the shop; petitioner is a tenant having succeeded his father who was lawfully inducted as a tenant; the suit is bad for non-joinder of the other co-owners; and that it is barred by Section 20 of the Rent Act. 10. Aggrieved by the dismissal of the suit by the Small Causes Court, the respondent Vijay Krishna filed SCC Revision No. 267 of 1996. The said revision has been allowed by the impugned judgment and order dated 15.5.2013. The judgment and order of the Court below has been set aside and the suit for eviction of the petitioner from the shop in dispute has been decreed. 11. The said revision has been allowed by the impugned judgment and order dated 15.5.2013. The judgment and order of the Court below has been set aside and the suit for eviction of the petitioner from the shop in dispute has been decreed. 11. The revisional Court has held that (i) the SCC suit is a continuation of the earlier suit of which the plaint was ordered to be returned; (ii) petitioner is a trespasser and not a tenant as the tenancy had come to an end with the expiry of the lease; (iii) the Rent Act is not applicable as the tenancy had come to an end before the enforcement of the Rent Act itself; (iv) the suit is not barred by Section 20 of the Rent Act; (v) Section 20 of the Rent Act is not applicable in view of proviso to sub-section 1 to Section 20 of the said Act as the tenancy was a fixed term tenancy; (vi) the notice dated 28.2.1968 is not ineffective and that no fresh notice was necessary before institution of the suit; and vii) the suit is not bad for non-joinder of the other owners/landlords. 12. The petitioner in this writ petition has assailed the judgment and order dated 15.5.2013 passed by the revisional Court. 13. I have heard Sri A.S. Rai, learned counsel for the petitioner and Sri Ashish Agrawal, learned counsel appearing for the respondents who have consented to decide the petition finally on the basis of the pleadings exchanged between them. 14. The first and foremost argument of Sri A.S. Rai, learned counsel for the petitioner is that if the finding of the revisional Court that petitioner is a trespasser is accepted then the suit would not be cognizable by the Small Causes Court and the decree of eviction passed would be without jurisdiction. His other argument is that the revisional Court has decreed the suit without disturbing the findings recorded by the Small Causes Court and by recording its own findings which is beyond the revisional jurisdiction under Section 25 of the Provincial Small Cause Courts Act, 1887 (for short the Act hereinafter). Thirdly, petitioner acquired rights as tenant by holding over and therefore a notice determining tenancy was mandatory before filing a suit for eviction. The notice dated 28.2.1968 became ineffective and cannot be made the foundation of the suit for eviction. Thirdly, petitioner acquired rights as tenant by holding over and therefore a notice determining tenancy was mandatory before filing a suit for eviction. The notice dated 28.2.1968 became ineffective and cannot be made the foundation of the suit for eviction. The SCC suit is not a continuation of the earlier suit and is barred by law of limitation in view of Article 67 of the Limitation Act. The suit is also barred by Section 20 of the Rent Act. Lastly, the Rent Act became applicable to the shop in dispute with its enforcement in 1972. 15. In view of the above facts and circumstances and the respective arguments of the parties, the following points for determination arise for consideration in this writ petition : i) Whether the provisions of the Rent Act are applicable to the shop in dispute; ii) Whether the petitioner is a trespasser or a tenant by holding over or in the alternative his status vis-a-vis the shop in dispute; iii) Whether the suit is barred by Section 20 of the Rent Act; iv) Whether the suit is barred by limitation and is liable to be dismissed as time barred; v) Whether a notice determining tenancy was mandatory before instituting the suit and if so the impact of the notice dated 28.2.1968; and vi) Whether the suit is bad for non-joinder of other owners and landlords; Point No. 1: 16. Whether the provisions of U.P. Act No. 13 of 1972 are applicable to the shop in dispute? 17. The Uttar Pradesh Urban Building (Regulation of Letting, Rent and Eviction) Act, 1972 (for short the Rent Act as mentioned earlier) was enforced w.e.f. 15.7.1972. It was made applicable to the whole of U.P. and to every city, municipality, notified area, town area unless otherwise exempted. Section 2 of the Rent Act exempts certain classes of building from its operation and Sub-section (2) of it provides that it shall not apply to a building for a period of 10 years now 40 years w.e.f. 26th April 1985 vide U.P. Act No. 17 of 1985 from the date on which its construction is completed. 18. Section 2 of the Rent Act exempts certain classes of building from its operation and Sub-section (2) of it provides that it shall not apply to a building for a period of 10 years now 40 years w.e.f. 26th April 1985 vide U.P. Act No. 17 of 1985 from the date on which its construction is completed. 18. Explanation I to Section 2 (2) of the Rent Act provides that the construction of a building shall be deemed to have been completed (i) on the date on which its completion is reported to or is otherwise recorded by the local authority; (ii) in case of building subject to assessment, the date on which its first assessment comes into effect; and (iii) in the absence of any such report, record or assessment the date on which it is actually occupied for the first time. 19. The shop in dispute was let out to Jagdish Prasad, the predecessor in interest of the petitioner by registered agreement of lease dated 7th March 1962. There is no material to establish that the completion of its construction was reported to or otherwise recorded by the local authority. There is no evidence of its assessment. Therefore, the date of its first occupation would be deemed to be the date of completion of its construction ie. 7.3.1962. The Rent Act came into force wef. 20.9.1972. At that time, the above shop situate in the city of Azamgarh was already in existence and the period of 10 years had expired from its aforesaid date of completion of the construction. Therefore, with the enforcement of the Rent Act it immediately came within its purview. 20. The shop in dispute is not a class of buildings which are otherwise exempt from the operation of the Rent Act. It is worth noting that the Rent Act, if at all is applicable to the building rather than to tenancy. Therefore, the shop in dispute is a building which came within the ambit of the above Rent Act ever since it came into force. 21. The decision of the revisional Court that the Rent Act is not applicable to the shop in question is incorrect and the finding to that effect is set aside. Point No. 2 : 22. Whether the petitioner is a trespasser or a tenant by holding over or in the alternative his status vis-a-vis the shop in dispute? 23. 21. The decision of the revisional Court that the Rent Act is not applicable to the shop in question is incorrect and the finding to that effect is set aside. Point No. 2 : 22. Whether the petitioner is a trespasser or a tenant by holding over or in the alternative his status vis-a-vis the shop in dispute? 23. The status of the petitioner or his predecessor in interest, on the date of enforcement of the Rent Act vis-a-vis the above shop is the next point for my consideration. 24. There is no dispute that Jagdish Prasad, predecessor in interest of the petitioner was inducted as a tenant in the shop in dispute under a registered agreement dated 7th March, 1962 w.e.f. 1.3.1962 on monthly rent for a specified period of six years. 25. The predecessor in interest of the petitioner as such came to occupy the shop in dispute under a legal and a valid agreement and his possession over it was that of a tenant. The lease provided that on the expiry of six years he would vacate and handover vacant possession of the same to the lessors. The lease period under the agreement expired on 28/29.2.1968. On the expiry of the above period though it was open for the lessors to renew the lease or to get the shop vacated but it was neither got vacated nor the lease was renewed or extended by any of the landlords. 26. It is well acknowledged that on the expiry of lease, the possession of the tenant over the demised premises would be that of a tenant at sufferance unless it is proved or established to be with the consent of the owner/landlords in which case it would be as tenant by holding over. In other words, the tenant at sufferance is one who wrongfully continues in possession after the expiry of the lease period whereas the tenant who continues in possession after the expiry of the lease with the consent of the owner acquires right of a tenant by holding over resulting in creation of fresh tenancy. 27. In Raptakos Brett and Co. Limited v. Ganesh Property, (1998) 7 SCC 184 , it was held as under : “............... 27. In Raptakos Brett and Co. Limited v. Ganesh Property, (1998) 7 SCC 184 , it was held as under : “............... it must be held that on the expiry of the period of lease, the erstwhile lessee continues in possession because of the law of the land, namely that the original landlord cannot physically throw out such an erstwhile tenant by force. He must get his claim for possession adjudicated by a competent Court as per the relevant provisions of law. The status of an erstwhile tenant has to be treated as a tenant at sufferance akin to a trespasser having no independent right to continue in possession.” Thus, the possession of the tenant after the expiry of the lease period would be that of a tenant at sufferance which is similar to that of a trespasser. 28. Section 116 of the Transfer of Property Act, 1882 (hereinafter referred to as the T.P. Act) provides that if a tenant of a property remains in possession thereof even after the determination of the lease and the lessor or his legal representative accepts rent from him or otherwise assents to his continuing in possession, the lease would stand renewed from year to year or month to month basis according to Section 106 of the T.P. Act. 29. In Kai Khushroo Bezonjee Capadia v. Bai Jerbai Hirjibhoy Warden and another, AIR 1949 FC 124, observed as under : “On the determination of a lease, it is the duty of the lessee to deliver possession of the demised premises to the lessor. If the lessee or the sub-lessee under him continues in possession even after determination of lease, the landlord undoubtedly has the right to eject him forthwith; but if he does not chose and there is neither any assent nor descent on his part to the continuance of his occupation of such person, the letter becomes in the language of English law a tenant on sufferance who has no lawful title to the land but holds it merely through the latches of the landlord. If now the landlord accepts rent from such person or otherwise expresses assent to the continuance of his possession, a new tenancy comes into existence as is contemplated Section 116 of the T.P. Act and unless there is an agreement to the contrary, such tenancy would be regarded as one from year to year or from month to month in accordance with the provisions of Section 106 of the T.P. Act.” 30. In R.V. Bhupal Prasad v. State of A.P. and others, (1995) 5 SCC 698 , which has been followed with approval in Kewal Chand Mimani (Dead) by Lrs. v. S.K. Sen, 2001 (2) ARC 608 (SC), it has been observed as under: “8 Tenant at sufferance is one who comes into possession of land by lawful title, but who holds it by wrong after the termination of the term or expiry of the lease by efflux of time. The tenant at sufferance is, therefore, one who wrongfully continues in possession after the extinction of a lawful title. There is little difference between him and a trespasser. In Mulla’s Transfer of Property Act (7th Edn.) at page 633, the position of tenancy at sufferance has been stated thus: A tenancy at sufferance is merely a fiction to avoid continuance in possession operating as a trespass. It has been described as the least and lowest interest which can subsist in reality. It, therefore, cannot be created by contract and arises only by implication of law when a person who has been in possession under a lawful title continues in possession after that the title has been determined, without the consent of the person entitled. A tenancy at sufferance does not create the relationship of landlord and tenant. At Page 769, it is stated regarding the right of a tenancy holding over thus: The act of holding over after the expiration of the term does to necessarily create a tenancy of any kind. If the lessee remaining in possession after the determination of the term, the common law rule is that he is a tenant on sufferance. The expression “holding over” is used in the sense of retaining possession. A distinction should be drawn between a tenant continuing in possession after the determination of the lease, without the consent of the landlord and a tenant doing so with the landlord’s consent. The expression “holding over” is used in the sense of retaining possession. A distinction should be drawn between a tenant continuing in possession after the determination of the lease, without the consent of the landlord and a tenant doing so with the landlord’s consent. The former is called a tenant by sufferance in the language of the English law and the latter class of tenants is called a tenant holding over or a tenant at will. The lessee holding over with the consent of the lessor is in a better position than a mere tenant at will. The tenancy on sufferance is converted into a tenancy at will by the assent of the landlord, but the relationship of the landlord and tenant is not established until the rent was paid and accepted. The assent of the landlord to the continuance of the tenancy after the determination of the tenancy would create a new tenancy. The possession of a tenant who has ceased to be a tenant is protected by law. Although he may not have a right to continue to possession after the termination of the tenancy, his possession is juridical.” 31. In Shanti Prasad Devi and another v. Shankar Mahto and others, AIR 2005 SC 2905 , it has been held that the renewal clause in the lease deed by itself would not be sufficient to renew the release and there could be no implied renewal to confer the rights of tenant by holding over even if the rent offered by the lessee is accepted by the lessor. 32. In short mere acceptance of rent by lessor on expiry of the lease period would not amount to ‘assent’ for continuance of the lease. 33. Therefore in order to convert the status of tenant at sufferance into that of tenant by holding over, it is necessary to prove that the tenant at sufferance is continuing in possession of the demised premises with the consent of the landlord and that he is receiving rent thereof. 34. It is important to refer to the notice dated 28.2.1968 given by Ghanshyam Das and Chaturbhuj Das. The said notice informs Jagdish Prasad that his tenancy under the agreement comes to an end on 29.2.1968 and that they do not intend to continue him as a tenant thereafter. Therefore, he should without any let or hindrance vacate the shop and handover its possession immediately. The said notice informs Jagdish Prasad that his tenancy under the agreement comes to an end on 29.2.1968 and that they do not intend to continue him as a tenant thereafter. Therefore, he should without any let or hindrance vacate the shop and handover its possession immediately. The said notice clearly spells out the intention of the lessors that they do not want to continue Jagdish Prasad as tenant and that his tenancy stands determined on 29.2.1968 by efflux of time. 35. Strong reliance has been placed upon the notice dated 17.2.1968. This is a notice alleged to have been issued by Chaturbhuj Das stating that petitioner is a tenant of the shop in dispute @ of Rs. 67.50/- per month and that in future half of the said rent be paid to him and a receipt be obtained and further that in the event the rent of his share is paid to Vijay Krishnan and Gopal Krishnan, he would not be liable for the same. On the basis of the said notice it is contended that one of the co-landlords had assented to the continuance of the petitioner as a tenant thus renewing the lease. 36. The notice dated 17.2.1968 is simply a demand for half share in the rent by one of the co-landlords which falls much short of accepting the rent and as such there is no assent to the continuance of the tenancy of the petitioner within the meaning of Section 116 of the T.P. Act. 37. Admittedly, none of the co-landlords realized the rent of the shop in dispute after the expiry of the initial lease. The petitioner deposited the rent in the inter-pleader suit No. 101 of 1965. Therefore, none of the lessors or their legal representatives accepted the rent from the petitioner after the expiry of the lease and till the enforcement of the Act. 38. Thus, there is no positive evidence of any of the co-landlords assenting to the petitioner continuing in possession or of acceptance of rent by any of them. 39. Accordingly, the petitioner does not acquire any rights as a tenant by holding over and his status continues to be that of tenant at sufferance. 40. The revisional Court has however held the petitioner to be a trespasser. There is a fine distinction between a trespasser and a tenant at sufferance. 39. Accordingly, the petitioner does not acquire any rights as a tenant by holding over and his status continues to be that of tenant at sufferance. 40. The revisional Court has however held the petitioner to be a trespasser. There is a fine distinction between a trespasser and a tenant at sufferance. A trespasser is a person whose initial entry in the property is illegal. A tenant at sufferance is a person who enters the property in a legal and authorised manner but his occupation after sometime becomes unauthorised for various reasons. The induction of Jagdish Prasad, the predecessor in interest of the petitioner was under a registered agreement and was lawful. Therefore, petitioner who succeeded him cannot held to be a trespasser and on the date of the commencement of the Rent Act his status would be that of a tenant at sufferance only and not of a trespasser in a technical sense. 41. In Kewal Chand Mimani (Supra) it has been held that a tenancy at sufferance does not create the relationship of landlord and tenant. The Apex Court has referred to Mulla’s Transfer of Property (7th edition) page 633 wherein while describing the position of tenancy at sufferance it has been stated thus : “A tenancy at sufferance does not create the relationship of landlord and tenant.” 42. Thus, the relationship of landlord and tenant created between the parties breaks and the continuation in possession of then tenant after determination of lease without the assent of the landlord is that of a tenant at sufferance only. 43. The Supreme Court in Badrailal v. Municipal Corporation of Indore, AIR 1973 SC 508 , placing reliance upon the decision of the Federal Court held that on expiry of the lease and in the absence of its renewal the possession of the tenant over the demised premises would be that of a tenant at sufferance who could be evicted without notice and not that of a tenant by holding over. 44. In C. Albert Morris v. K. Chandrasekaran and others, 2006 (1) ARC 519 (SC), it has been held that the consensus of judicial opinion in India is that mere continuance of occupation of the demised premises after the expiry of the lease, notwithstanding acceptance of rent by the landlord would not create a tenancy so as to confer the status of tenant or the right to remain in possession. 45. In Kewal Chand Mimani (Dead) by Lrs (Supra) the Supreme Court has clearly spelled out the distinction between the tenant at sufferance and tenant by holding over. It lays down that tenant by holding over means retention of possession after the determination of lease with the consent of the landlord but if the possession is without the consent that than it is tenancy at sufferance and that a tenancy at sufferance does not create the relationship of landlord and tenant. 46. In view of above discussion, it can safely be held that the petitioner whose father was inducted as a lawful tenant in the shop in dispute become a tenant at sufferance on the expiry of the lease period with the efflux of time and in the absence of any assent by any of the landlords to his occupation thereof, he does not acquire the status of a tenant by holding over as contemplated under Section 116 of the T.P. Act. 47. Thus, the relationship of landlord and tenant which was created between the two parties came to an end much before the enforcement of the Rent Act reducing the status of the petitioner to that of tenant at sufferance. The said relationship could not be revived or even regularised under Section 14 of the Act so as to restore the status of tenant upon the petitioner. Point No. 3 : 48. Whether suit is barred by Section 20 of the Rent Act? 49. Section 20 of the Rent Act bars the suit for eviction of a tenant except on grounds specified therein. The very reading of the above provision reflects that a suit under the aforesaid provision on the grounds specified therein can be instituted for eviction of the tenant only. In its body also it provides that no suit shall be instituted for eviction of a tenant of a building except in cases provided thereafter in the said provision. 50. In short a suit under Section 20 of the Rent Act lies only against the eviction of a tenant and not against any other person. 51. In the previous point the status of the petitioner has been held to be that of a tenant at sufferance whose status more or less is that of a trespasser except for the fact that his initial entry was not illegal but authorized. 51. In the previous point the status of the petitioner has been held to be that of a tenant at sufferance whose status more or less is that of a trespasser except for the fact that his initial entry was not illegal but authorized. It has also been observed that tenancy at sufferance does not create the relationship of landlord and tenant. The petitioner as such ceases to be a tenant in true sense and is simply an occupant of the shop. 52. Section 20 of the Rent Act applies only for the eviction of a tenant. The petitioner who is a tenant at sufferance which does not result in creating relationship of landlord and tenant, is not liable to eviction under Section 20 of the Rent Act. 53. In view of the above, no suit under Section 20 of the Rent Act lies against the petitioner. Point No. 4: 54. Whether the suit is barred by limitation and is liable to be dismissed as time barred? 55. The suit in question is by the landlord to recover possession of the demised premises from the tenant at sufferance or for the recovery of possession from its occupant by the owner. 56. The period of limitation for instituting any suit for recovery of possession of an immovable property is provided under Articles 64, 65, and 67 of the Schedule to the Limitation Act, 1963. Out of the aforesaid Articles, only Articles 65 and 67 of the Schedule of the Act alone are relevant for the purpose of this case. 57. Article 65 of the schedule to the Act provides that in a case for possession of immovable property based upon title, the limitation for instituting a suit is 12 years from the date when the possession of the defendant becomes adverse. 58. Article 67 of the Schedule to the Act again provides for the same period of limitation for instituting a suit where the landlord wants to recover possession from the tenant and the limitation commences from the date of determination of the tenancy. 59. Thus, in both the situations the limitation for instituting the suit for recovery of possession over immovable property is 12 years from the date when the possession becomes adverse or from the date of determination of the tenancy respectively. 60. 59. Thus, in both the situations the limitation for instituting the suit for recovery of possession over immovable property is 12 years from the date when the possession becomes adverse or from the date of determination of the tenancy respectively. 60. In the instant case there are no pleadings as to when the possession of the petitioner became adverse to that of the landlords. However, as the tenancy was for a fixed period and expired on 28/29.2.1968, the possession of the petitioner or his predecessor would be treated to be adverse from the said date and the limitation for filing a suit for recovery would end in 1970. 61. In Anupam Chakraborti v. VI Additional District Judge, Varanasi and others, 1999 (2) JCLR 127 (All), it has been held that the limitation for filing a suit for eviction of tenant is 12 years from the date of determination of tenancy as provided under Article 67 of Schedule to the Act and the Article 113 of it would have no application. 62. The tenancy admittedly stood determined by efflux of time on 28/29.2.1968. Therefore, the suit by the landlord for recovery of possession of the demise premises could have been filed within 12 years from the aforesaid date ie. 28/29.2.1980 and not beyond it. 63. A suit commences on the presentation of the plaint to the Court. The Court as contained in Order IV Rule 1 CPC means the proper Court of jurisdiction. Accordingly, the institution of the suit commences with the presentation of a plaint to the proper Court of jurisdiction only. Therefore, presentation of a plaint in a wrong Court of jurisdiction would not be the institution of the suit. A plaint returned by a Court for presentation to proper Court of jurisdiction, on being so presented to the competent Court would alone amount to the institution of the suit. The said representation of the plaint in proper Court would be the date of the institution of the suit. 64. A plaint returned by a Court for presentation to proper Court of jurisdiction, on being so presented to the competent Court would alone amount to the institution of the suit. The said representation of the plaint in proper Court would be the date of the institution of the suit. 64. In Ram Dutt Ram Kishan Das v. ED Sassoon and Company, AIR 1929 PC 103 , it has been laid down that where a suit is instituted in a wrong Court having no jurisdiction and it becomes necessary to file fresh suit in the proper Court, the second suit would not be regarded a continuation of the first suit even though the parties and the subject-matter happens to be the same. 65. In Amar Chandra Inani v. Union of India, 1973 SC 313, it has been held that the ‘Court’ means proper Court which has jurisdiction to entertain the suit. Therefore, a suit cannot be deemed to be instituted on the date on which the plaint was presented in the wrong Court. The representation of the plaint in pursuance of the order passed under Order 7 Rule 10 CPC cannot be said to be a continuation of the suit. 66. In Hanamanthappa and another v. Chandra Shekhar Appa and others, (1997) 9 SCC 688 , the plaint was returned for presentation to proper Court. It was even presented to the proper Court of jurisdiction but the High Court treated the said plaint to be a fresh plaint and not a continuation of the earlier one which was returned. The Supreme Court in the above circumstances held that the High Court rightly treated it to be a fresh plaint subject to limitation, pecuniary jurisdiction and payment of Court fees. 67. In Smt. Ram Devi v. III Additional District Judge and others, 1981 ALJ 188, a Single Judge of this Court held that where a plaint in a suit for ejectment was returned by the Munsif for presenting it to the Court having jurisdiction to try it and it was so presented and was given a new suit number, the later suit would not be a continuation of the previous suit. 68. 68. In Oil and Natural Gash Corporation Limited v. Modern Construction and Company, (2014) 1 SCC 648 , the Apex Court recently held that after a plaint is returned under Order 7 Rule 10 CPC and is presented before the Court of competent jurisdiction, it amounts to institution of a fresh suit and the later suit cannot be considered a continuation of the earlier suit. 69. In view of the above legal position, the date of institution of the present suit would be 3.5.1993 and it would not relate back to the presentation of the plaint of the earlier civil suit which was returned on 6.10.1979. 70. In short, the present SCC Suit No. 16 of 1993 would be treated as instituted on 3.5.1993. 71. It has been held in earlier part that the limitation for institution of the suit was upto 28/29.2.1980.The institution of the suit on 3.5.1993 as such is ex facie beyond the period prescribed and the suit is barred by limitation. 72. Sri Ashish Agrawal contended that the plea of limitation was not raised by the petitioner earlier at any stage and that there are no pleadings that the suit is barred by limitation and as such he cannot be permitted to raise the said plea for the first time in the writ jurisdiction. 73. The argument at the outset may appear to be convincing and attractive but on closure scrutiny of law is not tenable. 74. Section 3 of the Limitation Act reads as under : 3. Bar of Limitation: “(1) Subject to the provisions contained in Section 4 to 24 (inclusive), every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed, although limitation has not been set up as a defence. (2) For the purposes of this Act—— (a) a suit is instituted—— 75. It casts a duty upon the Court not to proceed with the suit, if the suit is beyond the period of limitation prescribed even though no such plea has been set up in defence. 76. The law of limitation is founded on public policy. The object is that every legal remedy must come to an end after a fixed period of time as it is futile to keep it alive indefinitely. The law of limitation bars the remedy without affecting the rights. 76. The law of limitation is founded on public policy. The object is that every legal remedy must come to an end after a fixed period of time as it is futile to keep it alive indefinitely. The law of limitation bars the remedy without affecting the rights. Thus, though the right continues the remedy to enforce it comes to an end with the passage of time. It envisages to put to an end the remedy provided in law after expiry of a particular time. The Courts are obliged to dismiss the suit if the relief claimed therein is barred by time even though the plea of limitation has not been raised. 77. In Brijesh Kumar and others v. State of Haryana and others, 2014 ACJ 1058 (SC), the object of providing limitation was analysed and discussed. It was observed that the law of limitation is enshrined in the legal maxim interest reipublicae which means it is for the general welfare that a period be put to litigation. 78. The law of limitation is not meant to destroy the rights of the parties rather the idea is that every legal remedy be kept alive only for legislatively fixed period of time. 79. A five Judges Bench of the Privy Council in Maqbool Ahmad and others v. Onkar Pratap Narain Singh and others, AIR 1935 PC 85 , laid down that Section 3 of the Limitation Act is pre-emptory and it casts a duty upon the Court not to proceed with the suit, if on the face of the pleadings, it is found to be presented beyond the period of limitation prescribed. 80. A three Judges of the Supreme Court reiterated the above ratio in the case of Mahendra Land and Building Corporation Limited v. Bhootnath Banerji, AIR 1964 SC 1336 . 81. In FCI and Company and others v. Babu Lal Agrawal, 2004 SC 2926, the Apex Court reiterated that in view of Section 3 of the Limitation Act it is the duty of the Court to check at the threshold whether the relief claimed in the suit is barred by limitation and it is not necessary to raise the plea in this regard though in all fairness it is desirable to raise it. 82. 82. The Apex Court in Nohar Lal Verma v. District Co-operative Central Bank Limited Jagdalpur, (2008) SCC 445, held that the bare reading of Section 3 of the limitation Act leaves no room for doubt that if the suit is preferred after the prescribed period, it has to be dismissed even though no such plea has been raised or defence has been set up. 83. In V.M. Salgaocar and others v. Board of Trustees of Port of Mormugao and another, (2005) 4 SCC 613 , it was observed as under : “The mandate of Section 3 of the Limitation Act is that it is the duty of the Court to dismiss any suit instituted after the prescribed period of limitation irrespective of the fact that limitation has not been set up as defence. If the suit is ex- facie barred by limitation, the Court has no choice but to dismiss the same even if the defendant intentionally has not raised plea of limitation.” 84. Even the Privy Council in Lakshmi Sewak Sahu v. Ramroop Sahu, 1943 PC, held that the point of limitation is prima facie admissible even in the Court of last resort, although it had not been taken in the lower Courts and the direction has been followed till date by the Courts in India. 85. In view of the above, the submission that as the plea of limitation was not taken in the Courts below, it cannot be allowed to be raised for the first time in writ jurisdiction is of no substance. 86. Sri Ashish Agrawal had next argued that the landlord was bonafidely pursuing the remedy of the interpleader suit and therefore the period spent on the said suit is liable to be excluded by extending the benefit of Section 14 of the Act. 87. Section 14 of the Limitation Act provides for exclusion of time spent bonafidely in pursuing a remedy before the wrong Court of jurisdiction. 88. The interpleader suit was instituted by the predecessor in interest of the petitioner. It was not a suit for eviction of the petitioner or his predecessor from the demised premises or for recovery of possession. Therefore, the pendency of the said suit was not a proper remedy for recovering possession and at the same time a hurdle on part of the landlord in instituting suit for eviction of the tenant or for recovery of possession. Therefore, the pendency of the said suit was not a proper remedy for recovering possession and at the same time a hurdle on part of the landlord in instituting suit for eviction of the tenant or for recovery of possession. The pendency of the interpleader suit or any order passed therein did not affect the right of the respondent landlord in taking the remedy of evicting the petitioner or for recovery of possession. The relief of eviction of the petitioner was not available to the landlord in the said suit. The subject-matter of the interpleader suit was distinct and separate. 89. The benefit of Section 14 of the Limitation Act is not extendable in the present case. 90. Lastly, it was argued that petitioner is in a discretionary jurisdiction and no indulgence to him ought to be granted on technicality so as to defeat the relief which has been granted to the respondent landlord by the Courts below on the ground of limitation. 91. The argument though attractive is not sound. The law of limitation bars the present suit. The settled principle is that equity follows the law. Therefore, even if at times it may appear that the law is harsh but it has to be applied and cannot be ignored on equitable consideration as equity cannot be allowed to over-ride the law. 92. In General Fire and Life Assurance Corporation Limited v. Jon Mohammad Abdul Rahim, AIR 1941 PC, the Court relying upon the writing of Mr. Mitra in Tagore Law Lectures 1932 approved that a law of limitation and prescription may appear to operate harshly and unjustly in a particular case, but if the law provides for limitation, it is to be enforced even at the risk of hardship to a particular party, as the Judge cannot, on equitable grounds, enlarge the time allowed by law, postpone its operation and introduce exceptions, not recognized by law. 93. In Popat Bahiru Govardhane etc. v. Special Land Acquisition Officer and another, 2013 ACJ 1708 (SC), it has been held that law of limitation has to be applied with all its rigour and no benefit can be extended on equitable grounds. 94. In view of the aforesaid facts and circumstances, once it has been found that the suit is patently barred by limitation, no equitable consideration can come in way to make it within time. 95. 94. In view of the aforesaid facts and circumstances, once it has been found that the suit is patently barred by limitation, no equitable consideration can come in way to make it within time. 95. Accordingly, the suit is held to be barred by limitation. The revisional Court as such grossly erred in law in decreeing the same. Point No. 5: 96. Whether a notice determining tenancy was mandatory before instituting the suit and, if so, the impact of the notice dated 28.2.1968? 97. This point does not require to be dealt with in length. 98. It is settled position in law that where the tenancy stood determined automatically by efflux of time, no notice determining tenancy under Section 106 of the T.P. Act is necessary to be served upon the person occupying the property as a tenant at sufferance. 99. In Smt. Shanti Devi v. Amal Kumar Banerjee, AIR 1981 SC 1550 , it has been held that where a lease is for a definite period and it expires by efflux of time by reason of Section111 (a) of the Transfer of Property Act no notice under Section 106 of the Transfer of Property Act is necessary for determination of lease. 100. Thus, the contention that notice determining tenancy was mandatory is without substance in the facts and circumstances of this case. 101. In this situation of the matter, I need not comment upon the nature or the impact of the alleged notice dated 28.2.1968. Point No. 6 : 102. Whether the suit is bad for non-joinder of other owners and landlords? 103. In view of my conclusion that the suit is barred by limitation the point under consideration has lost all relevance and need not be addressed by me any more. Conclusion: 104. In view of the facts and circumstances of the case and the legal discussion above, the impugned judgment and order of the revisional Court dated 15.5.2013 is quashed and the suit is dismissed on the point of limitation alone. 105. The writ petition stands allowed with no orders as to costs. ——————