Gour Sundar Das vs Babita Dutta & Ors

Sabyasachi Bhattacharyya, J

The present challenge is at the instance of the defendant in a suit for eviction under the Transfer of Property Act, on the basis of a notice to quit issued by the lessor under Section 106 of the Transfer of Property Act, 1882. In such a suit, the defendant/petitioner filed an application under Section 114 of the Transfer of Property Act, seeking permission to deposit rent in respect of the suit premises along with the interest for the months of March to June, 2019 and subsequent rents month by month in the court below. The said prayer was refused by the impugned order, against which the present revision has been preferred.

The learned advocate appearing on behalf of the petitioner submits that there are ingredients of the ground of reasonable requirement in the plaint as well as the ground of default in payment of rent in the notice to quit served on the petitioner, which might attract the provisions of Section 111 of the Transfer of Property Act, making the nature of the suit to be one for forfeiture of lease.

However, the learned advocate appearing for the opposite parties argues that the plaint makes it very clear that the suit is based entirely on a notice to quit under Section 106 of the Transfer of Property Act.

It appears from the averments made in the plaint that although there were certain superfluous averments as to requirements of the plaintiffs, it was also mentioned in the same breath by the plaintiffs in the plaint that since the lease is governed by the Transfer of Property Act, no requirement is to be proved as a ground for eviction.

As such, since the suit is patently one under Section 106 of the Transfer of Property Act, which is also admitted by the plaintiffs/opposite parties, there is no scope of invocation of Section 114 of the said Act, since Section 114 is restricted in operation to suits filed for eviction under the Transfer of Property Act on the ground of forfeiture of lease for non-payment of rent. Accordingly, the language of Section 114 of the said Act implicitly bars an application under the said provision in a suit filed under Section 106 of the Transfer of Property Act, which specific bar, in turn, prevents the invocation of the inherent power of the court as well, to permit the petitioner to deposit any rent or amount equivalent thereto.

Hence, the trial court committed no jurisdictional error in passing the impugned order, rejecting the application filed by the petitioner purportedly under Section 106 of the Transfer of Property Act.

Accordingly, the revisional application bearing C.O. 3291 of 2019 is dismissed on contest without, however, any order as to costs.

Photostat certified copy of this order, if applied for, will be made available to the applicant within a week from the date of putting in the requisites.