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Judgment
This revision petition instituted by the landlord is directed against the judgment and order d/ 21-2-76, passed by the District Judge, Mandya, in HRCA.5 of 1974 on his file, confirming the order d/ 27-2-1974, passed by the Principal Munsiff, Mandya, in HRC.14 of 1971 on his file.
The landlord instituted action for eviction of the tenant before the learned Munsiff at Mandya in HRC.14 of 1971 under Clauses (a), (b), (c), (f) and (o) of sub-sec. (1) of Sec. 21 of the Karnataka Rent Control Act 1961, (hereinafter referred to, as ''the Act). The landlord averred in the petition that the respondent in the petition, viz, P. Sampangiramaiah was a tenant under him by virtue of a registered lease deed d/ 20-12-1965 for a period of 25 years from 1-1-1966. The landlord further averred that the tenant defaulted in the payment of rental and that he was due in a sum of Rs.2245-16 as on 30-9-71 and that he bad not paid the same inspite of notice of demand. So he was liable to be evicted under Sec. 21(1)(a) of the Act. The landlord further affirmed that the tenant undertook to put up new constructions and renovate the existing building in the suit premises as per the agreement in the lease deed Ext.P-1 at a cost of Rs.60,000 within five years of the lease as per the plan approved, by the landlord. He had failed to do so and thus, he had forfeited his tenancy and was liable to be evicted under Clause(o) of Section, 21(1) of the Act. The landlord, further asserted that the tenant had sub-let the portions of the suit premises without his consent and, so, the tenant was liable to be evicted under Clause(f) of Sec. 21(1) of the Act. The landlord also stated that the tenant had put up some, permanent structures without his prior consent and so, the tenant was liable to be evicted under Clause(b) and (c) of Section 21(1) of the Act. On these averments, the landlord instituted the petition before the learned Munsiff on 14-10-1971.
The tenant resisted the petition by filing his statement of objections on 30-5-72. He contended that the lease was for a period of 25 years as per Ext.P-1 and that the landlord could not terminate his tenancy earlier. He denied that he was defaulter. The landlord had failed to pay the Municipal tax as per the terms in Ext.P-1, the lease deed, That being so, the Municipality issued him a notice as per Ext.D-21 to pay the tax. He paid the same under coercion. He has further averred that he had paid the rest of the rental to the landlord immediately on receipt of the notice. Thus, according to the tenant, he was not a defaulter.
The tenant also affirmed that he had put up the buildings at a cost of Rs.60,000, within five years from the date of the lease) as per the plans approved by the landlord and the Municipality and thus, he had not committed any breach of the terms in the lease. He further contended that there was no provision in Ext.P-1 for forfeiture of the lease and that the landlord could not rely on forfeiture to determine the tenancy. According to the tenant, the lease Ext.P-1 allowed him to sublet, that being the very purpose of the lease. The lease was of an open site as well as an old building which the tenant was required to renovate. The tenant was required to put up new structures in the open space. That being so, he was entitled to sub-let the buildings in the suit premises. Besides, the landlord had permitted him to do so in writing.
He denied that he had put up permanent structures without the consent or without the plan being approved by the landlord.
Thus, according to the tenant the petition of the landlord for his eviction was liable to be dismissed.
During hearing, the landlord examined one C.G. Gokavi on his behalf as PW.6 and examined five other witnesses as PWs.1 to 5. The tenant examined himself as DW.3 in support of the contentions raised by him and examined two other witnesses as DWs.1 & 2 and closed his case In addition to the, oral evidence, the petitioner got marked Exts.P-1 to P-18 and the tenant got marked Exts.D-1 to D-26.
The leaned, Munsiff, appreciating the evidence on record, held that the landlord failed to prove any of the grounds and in that view, he dismissed the petition of the landlord for eviction of the tenant by his order dated 27-2-1974.
Aggrieved by the said order, the landlord went up in appeal before the learned Dist Judge Mandya, and the learned Dist Judge by his judgment and order d/ 24-2-76, confirmed the order of the learned Munsiff and dismissed the appeal filed by the landlord.
Aggrieved by the said judgment and order, the landlord has come up in revision before this Court.
The learned Advocate appearing for the revision petitioner vehemently submitted that the Courts below failed to notice that the tenant had entailed forfeiture of the lease as he did not abide by the express conditions mentioned in the lease and it is for that reason, that the landlord determined the tenancy as per Ext.P-4 notice d/ 12-1-71 with effect from the end of January, 1971, and that, therefore, the Courts below ought to have held that the landlord was entitled to recover possession of the suit premises, though the, period of lease was for 25 years under Ext.P-1. He further submitted that the Courts below ought to have held that the tenant was a defaulter and that he had, sub-let the premises without the consent of the landlord and that he had, misused the premises using it for a purpose other than that for which it was let. So, he strenuously urged that the petition of the landlord for eviction of the tenant ought to have been allowed by the Courts below and that they have committed material irregularity in the exercise of their jurisdiction,
As against that, the learned Advocate appearing for the respondent-tenant vehemently argued that the landlord was not entitled to recover possession on the; facts of this case that there was no forfeiture of tenancy, that the Courts below were perfectly justified in holding that there was no default in payment of rental by the tenant and no unlawful subletting. He further submitted that the tenant had abided by the terms, of the lease Ext.P-1 and had put up structures worth Rs. 60,000 in the premises after taking approval of the landlord and the Municipality. Hence he submitted that the Courts below were justified in rejecting the claim of the landlord for eviction of the tenant.
The jurisdictional points that arise for my consideration in this Revision Petition are:
(1) Whether action under Sec. 21 of the Act can be instituted without first determining the lease? and (2) Whether the lease was determined by forfeiture under Sec. 111(g) of the Transfer of Property Act?
Section 21 of the Act reads:
"21. protection of tenants against eviction-(1)Notwithstanding anything to the contrary contained in any other law or contract no order or decree for the recovery of possession of any premises shall be made by any Court or other authority in favour of the landlord against the tenant: Provided that the Court may on an application made to it, make an order for the recovery of possession of a premises on one or more of the following grounds only, namely:
(a) to (p)......."
Thus, it becomes evident on reading the section that this section refers to the recovery of possession of ''any premises'' by the landlord. Before the landlord approaches the Rent Control Court under Sec. 21(1) of the Act, it is necessary that he should be entitled for the recovery or possession. It is well settled that the landlord becomes entitled to recovery o possession after the lease in favour of the tenant gets determined by one of the modes contemplated in Sec. 111 of the Transfer of Property Act. Hence, unless the lease is determined by one of the modes contemplated from Clause (a) to (h) of Sec. 111 of the Transfer of Property Act, it cannot be said that the landlord is entitled for the recovery of possession. It is for the reason that the Court has consistently taken the view that in the case of month to month tenancy, a notice to quit under Sec. 106 read with Sec. 111(h) of the Transfer of Property Act is a condition precedent before) the landlord can approach the Court under the Rent Control Act for recovery of possession.
The learned Advocate for the revision petitioner, however, invited my attention to a recent decision rendered by a Division Bench of this Court in Govindaswamy v. Pannalal, (1978) 1 KarLJ. 506. It is true that in that decision a Division Bench of this Court has held thus:
"Karnataka Rent Control Act 1961 is a self-contained enactment governing the creation of a lease in respect of a building to which that Act applies, the rate of rent to be paid in respect of it and the circumstances under which alone the landlord is entitled to seek eviction of the tenant from it. Hence, notice under Sec. 106 Transfer of Property Act is not necessary to be issued to the tenant."
The learned Advocate appearing for the respondent-tenant, however, strenuously argued that the decision rendered by the Division Bench of this Court in the case of Govindaswamy v. Pannalal, (1978) 1 KarLJ. 506, has, by some inadvertence, not noticed the positive provision made in the Act under Sec.21 and further that the Division Bench had ignored a direct decision of the Supreme Court on the point in the case, Bhaiya Punjalal v. Dave Bhagwatprasad, AIR. 1963 SC. 120. Thus, he submitted that it is a decision given per in curiam and hence, could not be a binding precedent. At best, it could be construed as binding on the parties to the proceeding in that case.
A decision is given per in curiam when the Court has acted in ignorance of a previous decision of its own or of any Court of co-ordinate jurisdiction which covered the case before it or when it has acted in ignorance of a decision of the superior Court and if it is a decision given per in curiam ignoring by inadvertence a decision of the Supreme Court on the point, it is obvious that the decision cannot be a binding precedent as the view taken by the Supreme Court on a question of law binds allCourts under Art. 141 of the Constn of India.
I would presently proceed to consider whether there is any substance in the submission, made by the learned Counsel for the respondent-tenant As stated above, Section 21(1) of the Act states:
"no order or decree for the recovery of possession of any premises shall be made......" Thus, the scope of Section 21 is confined to the recovery of possession by the landlord. We have, therefore, to see what is meant by the term ''recovery of possession'' and what is the stage at which the landlord can recover possession, because, it is only at the stage when the landlord is entitled to recover possession that Sec. 21 of the Act comes in. Sec. 21(1) of the Act places a blanket negation for recovery of possession by the landlord of the property from the tenant. Then comes the proviso creating some exceptions to the blanket negation contemplated under Sec. 21(1) of the Act. Similar words are used in the Bombay Rent Act which states under Section 12 thus
"A landlord shall not be entitled to the recovery of possession of any premises so long as the tenant pays......"
The Supreme Court of India had an occasion to interpret these; words ''recovery of possession'' in the case of Bhaiya Punjalal v. Dave Bhagwat Prasad, AIR. 1963 SC. 120. It is a decision rendered by a Bench consisting of J.L.Kapur, K.C.Das Gupta and Raghubar Dayal, JJ. The judgment was delivered for the Bench by his Lordship Raghubar Dayal, J. Speaking on this aspect at para 9 of the judgment his Lordship has stated thus;:
"Sub-sec. (1) of Sec. 12 of the Act provides that a landlord shall not be entitled to the recovery of possession of any premises so long as the tenant pays, or is ready and willing to pay, the amount of the standard rent and permitted increases, if any, and observes and performs the other conditions of the tenancy, in so far as they are consistent with the provisions of the Act. It creates a restriction on the landlord''s right to the recovery of possession. When the landlord will have such a right is not provided by it. Ordinarily, the landlord will have a right to recover possession from the tenant when the tenancy had terminated. The provisions of this section therefore, will operate against the landlord after the determination of the tenancy by any of the modes referred to in Sec.111 of the Transfer of Property Act. What this Section of the Act provides is that even after the determination of the tenancy a landlord will not be entitled to recover possession though a right to recover possession gets vested in him, so long as the, tenant complies with what he is required to do by this section. It is this extra protection given by this section which will be useful to the tenant after his tenancy has determined. The section does not create a new right in the landlord to evict the tenant when the tenant does not pay his rent. It does not say so, and therefore, it is clear that a. landlord''s right to evict the tenant for default in payment of rent will arise only after the tenancy is determined and the continued possession of the tenant is not on account of the contractual terms but on account of the statutory right conferred on him to continue in possession so long as he complies with what sub-sec. (1) requires of him. The landlord is restricted from evicting the tenant till the tenant does not do what he is required to do for peaceful possession under sub-sec. (1) of Sec. 12..." (Emphasis added)
Further on, his Lordship drew support from an earlier decision of the Supreme Court in the case of Dr. K.A. Dhairyawan v. J.T. Thakur, AIR 1958 SC. 789 and observes quoting from the decision: "The restriction on the landlord''s right to recover possession under Sec. 12 of the Act operates after he has determined the tenancy and that till then the rights between the parties with respect to eviction would be governed by the ordinary law."
Proceeding further, his Lordship clarified in para 16 of the judgment thus:
"The right to possession is to be distinguished from the right to recover possession. The right to possession arises when the tenancy is determined. The right to recover possession follows the right to possession, and arises when the person in possession does not make over possession as he is bound to do under law, and there arises a necessity to recover possession through Court. The) cause of action for going to Court to recover possession arises on the refusal of the person in possession, with no right to possess, to deliver possession. In this contest, it is clear that the provisions of Sec. 12 deal with the stages prior to it and that they come into play only when the tenancy is determined and a right to possession has come in existence." Thus, the law laid down by the Supreme Court would make it crystal, clear that the provisions of the Rent Control Act would come into play only when the landlord is vested with the right to recover possession. The Act nowhere speaks about the landlord getting right to possession. For that, he has to report to the provisions of Sec.111 of the Transfer of Property Act. This direct decision of the Supreme Court on the point is obviously not brought to the notice of their Lordships of the Division Bench of this Court in the case of Govindaswamy (1) referred to above and the decision is rendered in ignorance of the law on the point rendered by the Supreme Court of India.
In fact, this Court in the case of Bipathumma v. Mariam Bibi, (1966) 1 MysLJ. 162 has made this point clear. His Lordship Justice Narayana Pai, rendering the decision in that case has clearly laid down discussing the various rulings including the ruling of the Supreme Court referred to above that a landlord cannot seek a decree for eviction unless he has already acquired the right to possession. In the course of the judgment, his Lordship has stated, thus:
"The enacting provision is:.....no order or decree for the recovery of possession of any premises shall be made by any Court or other authority .... The Statute therefore directly concerns itself with the order or decree of a Court for recovery of possession of any premises. The words ''recovery of possession'' are obviously used advisedly by the statute because a decree of Court does not itself or by its own, force confer any right or substantive right on a litigant. All that a Court does is to uphold a right which the law gives to a litigant and protect it against invasion by the other party to the litigation. Ordinarily, no Court can pass a decree for recovery of possession in favour of a litigant before it unless that litigant is entitled to possession under some law governing the situation. In the case of a lease the transaction itself is one which transfers to the lessee the lessor''s right to possession as owner. So long as the lease is in force; or is current, the person entitled to possession of the property is the lessee and not the lessor. The lessor gets the, right to possession only when, the lessee''s right to it by virtue of the transfer comes to an end, that is to say, only when the lease is terminated. If a landlord or lessor comes to Court and askes for a decree for recovery of possession from his tenant or lessee before he has so acquired the right to possession, the Court is bound to reject his prayer without recourse, beinghad to any provisions of the special law like the Mysore Rent Control Act. In such a situation, therefore, there is absolutely no conflict between the consequences of the provisions of ordinary law and the consequences of the special provisions, viz, Sec. 21 of the Mysore Rent Control Act, because both the laws ask the Court not to pass a decree for recovery of possession."
Speaking about the Rent Control Act as a self-contained enactment, his Lordship observed:
"The section is no doubt a self contained Code: so far as the topic it deals with is concerned......
Now the provisions relating to determination or termination of tenancy under either the Transfer of Property Act or any other law governing the same are not provisions which deal directly with the topic of eviction.....He cannot be said to acquire the right to possession unless the lease is terminated."
Then his Lordship referred to the aforesaid Supreme Court decision and observed:
"The result therefore is that the principles stated with reference to Sec.12 of the Bombay Act are equally applicable to a position governed by Sec. 21 of the Mysore Rent Control Act."
Thus, the law is settled that a landlord cannot approach the Rent Control Court for recovery of possession unless he has first obtained the right to possession by determining the tenancy by any one of the modes contemplated in Sec. 111 of the Transfer of Property Act.
It is no doubt true that the Division Bench decision in the case of Govindaswamy ((1978) 1 KarLJ. 506), referred to above, has relied on a decision of the Supreme Court in the case of Puwada Venkateshwara Rao v. Chidamana Venkata Ramana, AIR. 1976 SC. 869. That is a decision rendered by the Supreme Court under the provisions of Sec. 10 of the Andhra Pradesh Building (Lease, Rent and Eviction) Control Act, 1960. Their Lordships of the Supreme Court have observed in that decision thus:
"The Andhra Pradesh High Court had, however, relied upon Ulligappa v. Mohan Rao (1969 (AIR. 1963 SC. 120) Andh.L.T. 268), where a Division Bench of that High Court had held that the Act, with which we are now concerned, provided, a procedure for eviction of tenants which was self-contained so that no recourse to the provisions of Sec. 106 of the Transfer of Property Act was necessary."
Proceeding further, in para 7 of the judgment it is observed thus:
"In the case before us, the respondent landlord relied upon a provision for special summary proceedings for eviction of tenants under an Act which contains all the requirements for those proceedings. We, therefore think that the learned Judge of the Andhra Pradesh High Court had correctly applied the principle laid down by a Division Bench decision of that Court."
Thus, their Lordships have observed that Andhra Pradesh Building (Lease Rent and Eviction) Control Act, is a complete Code providing procedure for eviction and a prior notice under Sec. 106 of the T.P.Act terminating the lease, is not necessary before filing petition for eviction under S.10 of that Act.
The Division Bench of this Court has observed in the course of the judgment in Govindaswamy''s case, (1978) 1 KarLJ. 506, that the Karnataka Act also is a self-contained enactment governing the creation of a lease in respect of a building to which that Act applies, the rate of rent to be paid in respect of it and the circumstances under which alone the landlord is entitled to seek eviction of a tenant from it. Then their Lordships observed:
"We are of the view that the provisions; of the Karnataka Act are substantially similar to the provisions of the Andhra Pradesh Act."
In that view, their Lordships; further held following the decision of the Supreme Court, that notice under Sec. 106 of the T.P.Act was not necessary to determine the tenancy before the landlord approaches the Court for recovery of possession from the tenant.
The learned Counsel appearing for the respondent-tenant rightly point out that the Division Bench had missed to observe that Sec. 10 of the Andhra Pradesh Act is entirely different from Sec.21 of the Act. Sec. 10 of the Andhra Pradesh Act does not speak of recovery of possession and, it does not merely bar the right of the Court to award recovery of possession. Section 10 of the Andhra, Pradesh Act reads.
"Sec. 10. Eviction of tenants-A tenant shall not be evicted whether in execution of a decree or otherwise except in accordance with the provisions of this section or Sections 12 and 13.....
(2) A landlord who seeks to evict his tenant shall apply to the
Controller for a direction in that behalf......."
Thus, it is obvious that the Andhra Pradesh Act is sell-contained. It states as quoted above, that the ''landlord'' who seeks to evict his tenant shall apply to the Controller for a direction in that behalf. They are not the wordings or scope of Sec.21 of the Act. This essential difference between the two Acts, which is pointed out by the Supreme Court in the aforesaid decision, is lost sight of by the Division Bench. In fact, the Supreme Court, in the case of Puwada Venkateshwara Rao(5) cited above in para-6 of the judgment refers to the decision in the cape of Mangilal v. Sugan Chand Rathi, AIR. 1965 SC. 101 and distinguishes that case. Their Lordships of the Supreme Court observed:
"It is true that in Mangilal v. Sugan Chand Rathi (AIR 1965 SC. 101) this Court has held that the provision of Section 4 of the Madhya Pradesh Accommodation Control Act of 1955 do not dispense with the requirement to comply with the provision of Section 106 of the Transfer of Property Act. In that case, however, Sec.4 of the Madhya Pradesh Act merely operated as a bar to an ordinary civil suit so that service of a notice under Sec. 106 of the Transfer of Property Act became relevant in considering whether an ordinary civil suit filed on a ground which constituted an exception to the bar contained in Sec.4 had to be preceded by a notice under Sec. 106 of the Transfer of Property Act. In the context of the remedy of ejectment by an ordinary civil suit, it was held that the usual notice of termination of tenancy under Sec. 106 of the, Transfer of Property Act was necessary to terminate a tenancy as a condition precedent to the maintainability of such a suit."
In the Karnataka Act also, the Court is barred from awarding possession to the landlord except under certain circumstances. The proceeding has to be started before the Court. It is in that view that his Lordship Justice Pai, J, in the case of Bipathumma, (1966) 1 MysLJ. 162 referred to above, observed:
"I Should also state that in a more recent decision of the Supreme Court in Mangilal v. Sugan Chand (AIR 1965 SC 101), their Lordships took the same view in regard to Sec. 4 of the Madhya Pradesh Rent Control Act as they had taken in Punjalal''s case (1962 MysLJ 712 SC) and applied the same principles." Therefore, the provisions of the Madhya Pradesh Rent Control Act are nearer to the provisions made in Sec. 21 of the Act, which their Lordships of the Division Bench of this Court have not fully noticed. That being so, it is obvious that the ruling rendered by the Supreme Court in the case of Puwada Vennateswara Rao, AIR. 1976 SC. 869, would not be of any assistance to hold that the determination of tenancy is not a pre-requisite under the Karnataka Act before approaching the Court for recovery of possession.
Thus, I have before me a decision of the Supreme Court in the case of Bhaiya Punjalal v. Dava Bhagwatprasad, AIR. 1963 SC. 120 and a decision of the Division Bench of this Court in the case of Govindaswamy, (1978) 1 KarLJ. 506 and the question is which of the decisions becomes a binding precedent. Both the decisions cover the same point. Halsbury''s Laws of England, 3rd Edn, Vol.32, para 1687 Pp 799-800 observed thus in this behalf:
"The Court is not bound to follow a decision of its own if given per in curiam. The decision is given in curiam when the Court has acted in ignorance of a previous decision of its own or of a Court of co-ordinate jurisdiction which covered the case before it or when it is acted in ignorance of a decision of the House of Lords. In the former case, it must decide which decision it should follow and in the latter case, it is bound by the decision of House of Lords."
I have shown above that the decision of the Division Bench of this Court is given per in curiam and Art. 141 of the Constitution of India state that the decision rendered by the Supreme Court of India on a, question of law binds all Courts in the country. That being so, I have no choice in the matter except to follow the decision of the Supreme Court as a bindings precedent. In fact, in the case of Harbans Singh v.Rajpaltan Singh, AIR. 1975 Patna 184, the Patna, High Court observed in a similar situation thus:
"The Court is not bound to follow the decision of its own if given per in curiam. A decision is given per in curiam where the Court has acted in ignorance of a previous decision of its own or of a Court of co-ordinate jurisdiction which covered the case before it, or when it has acted in ignorance of a decision of the Supreme Court. In the former case, the Court is bound to decide which decision to follow and in the latter case, it is bound by the decision of the Supreme Court."
That being so, I am constrained to hold that the landlord is bound to determine the tenancy before he approaches the Rent Control Court for recovery of possession from the tenant.
That leads me to consider the question, whether in the present case, the landlord has validly determined the tenancy before he approached the Court of the, learned Munsiff for recovery of possession from the tenant. It is not in dispute that the tenancy is created by Ext.P-1, the lease deed which grants a lease to the tenant for a period of 25 years from 1-1-1966. Hence, the landlord cannot determine the tenancy by merely issuing a notice to terminate the tenancy under Sec. 106 of the T.P. Act. The learned Counsel appearing for the appellant, however, submitted that the tenant has entailed forfeiture of the tenancy under Sec. 111(g) of the T.P. Act. According to him, there are express conditions in the lease deed Exh. P-1 and it was made clear that if the tenant committed breach of these conditions, the tenancy would be forfeited and the landlord would be entitled to re-enter. The learned Advocate appearing for the tenant however, strenuously urged that there were no such express terms stipulating re-entry in the lease deed as contemplated under Sec. 111(g) of the T.P. Act which speaks of forfeiture of tenancy. That being so, I have to look into the lease dee, Ext.P-1 to verify whether it contains a clause; for forfeiture and re-entry.
Sec. 111 of the Transfer of Property Act reads:
"111. Determination of lease-A lease of immovable property determines- (a) to (f)............
(g) by forfeiture; that is to say, (1) in case the lease breaks an express condition which provides that on breach thereof, the lessor may re-enter.........."
Thus, Sec. 111(g) of the T.P.Act contemplates three contingencies on the happening of which the lessor may re-enter. Clause(1) contemplates an express condition and then proceeds to state that upon its breach, the lessor shall be entitled to re-entry. There is thus, a condition consisting of two parts, first the condition itself which must be express and then a further provision for re-entry upon its breach. Under the Clause, not only the condition the breach of which would determine the lease must be express, but that it must also provide that, on breach thereof, the lessor has a right of re-entry. (BaiSarswathi Jeshankar v. Agent, Bharatkhand Textile Mafg Co Ltd, AIR. 1967 Guj. 36. A right of re-entry cannot be implied by other terms of the lease. If the right of re-entry is not express, such a provision in the lease is a mere covenant and not a condition of the lease and does not confer a right of re-entry on the lessor (Pramatha Nath Doli v. Prafulla Chandra Goswami, AIR. 1966 Assam 105, It is also, equally settled as long ago as in 1808 in Church v. Brown, (1808) 15 Ves. 258, that a forfeiture clause should be very strictly construed. (Vide Davit Cutinha v. Salvadora Minazes, AIR. 1926 Mad. 1202).
I would presently consider Ext.P-1, the lease deed, in this perspective. Clause(2) of the lease deed states:
"The lessee agrees with the, lessor as follows:"
and then it gives Clauses(a) to (1). Then Clause (3) states:
"The lessor agrees with the, lessee as follows:"
and gives three Clauses. Clauses(a) to (g) in Clause(2) are express. But, nowhere they provide for re-entry of the lessor in case of the breach of any of the conditions mentioned therein. That being so, it cannot be said that the tenant has entailed forfeiture of tenancy, even assuming that he committed breach of any of those conditions.
The learned Advocate appearing for the Revision Petitioner, no doubt invited my attention to sub-clause (b) in Clause, (3) which reads;
"(b) That the lessee paying the rent hereby reserved and observing and performing the conditions herein contained shall quietly and peaceably possesses and enjoys the said premises, during the, said term without any disturbance or interruption either by the lessor or any person claiming under them, as otherwise in case of......as otherwise incase of breach of any of the conditions to be observed and performed by the lessee the lease may be terminated at his option, without prejudice to his right to recover all arrears of rent and damages and other claims arising for breach of the agreement by the lessee."
This Clause, in the first place, is confusing. A plain reading of it would'' mean that in case of breach of any of the conditions to be performed by the lessee, the lease may be terminated at his option. Thus, it gives an option to the lessee and not to the lessor. The learned Counsel for the appellant, however, submitted that the word ''lessee'' there is a typing error and it should be read as "the lease may be terminated at lessor''s option" as the words that follow in that Clause would tend to fix that meaning. That, however, is not clear. The Clause specifically speaks of the lessee having the option and not the lessor. Thus, the Clause does not give the lessor the right of re-entry. That being so, as pointed out by the learned Counsel appearing for the respondent-tenant, there is no express condition in the lease deed which provides for re-entry to the landlord on the breach of an express condition. Even assuming for a moment that Sub-clause (b) of Clause (3) gives the lessor a right to terminate the tenancy, it does not amount to conferring a right on him for re-entry. Even in case of forfeiture of tenancy, Sec. 111(g) of the Transfer of property Act contemplates that the lessor shall give notice in writing to the lessee of his intention to determine the lease Therefore, the notice to determine the lease follows forfeiture and forfeiture occurs only when there is a breach of express condition in the lease and the further condition that on breach, the lessor may re-enter. As pointed out above, there is no condition for re-entry on the part of the lessor in the lease deed Ext.P-1. That being so, the learned Counsel for the tenant respondent rightly submitted that the lease is not determined in, this case on account of forfeiture contemplated under Sec. 111(g) of the T.P.Act. On going through the lease deed, Ext.P-1, carefully, I am persuaded to agree with the submission so made. I am of the considered view that forfeiture has not occurred on the facts of the present case and the landlord could not, on that ground, determine the tenancy under Ext.P-4, the notice.
That being so, it is obvious that the landlord has no right to possession. He cannot bring an action for recovery of possession under Sec.21 of the Act. In that view, the learned Munsiff, sitting under the Act, does not get jurisdiction to hear the application for eviction. The Courts below were, therefore, perfectly justified in dismissing the claim of the landlord for eviction of the tenant as there was no cause of action, for eviction. Sitting in revision under Sec. 115 of the Code of Civil Procedure, I have no compelling ground to interfere with the order passed by the learned Munsiff and confirmed by the District Judge in appeal. There is no irregularity or illegality in the exercise of jurisdiction by the Courts below.
In the result, the revision petition fails and is dismissed. No costs.