Hakumat Rai vs District and Sessions Judge

S.P. Srivastava, J.—Feeling aggrieved by a decree for his eviction from the premises in dispute and recovery of arrears of rent and damages for use and occupation passed by the Judge Small Causes Court, Respondent No. 2 which was affirmed in a revision u/s 25 of the Provincial Small Causes Court Act, the Petitioner tenant has now approached this Court seeking redress praying for the quashing of the same.

The only contention urged by the Learned Counsel for the Petitioner in support of this writ petition is that the impugned decree stands vitiated in law as the Courts below have manifestly erred in not extending to the Petitioner the benefits available u/s 114 of the Transfer of Property Act.

I have heard Shri L.N. Pandey, Learned Counsel for the Petitioner and perused the record.

The trial Court had decreed the suit holding that the premises in question which had been let out to the Petitioner did not fall within the purview of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (U.P. Act No. 13 of 1972). It was further found that the Petitioner had been a defaulter in the payment of rent and had not tendered or paid rent pursuant to the notice of demand. It was also found that the tenancy of the Petitioner was terminated though a valid notice contemplated, u/s 106 of the Transfer of Property Act.

In the written statement, in paragraph 13 thereof the Petitioner had set up a plea claiming benefits available u/s 114 of the Transfer of Property Act asserting that he had tendered the requisite amount contemplated under the aforesaid provision to the tenant on the first date of hearing which on his refusal to accept was deposited in Court. The Trial Court, however, had observed that there was no evidence on the record which could lead to an inference that the required amount as contemplated under the aforesaid provision had in fact been deposited as asserted.

It further appears that before the revisional Court the Petitioner reiterated his claim in regard to the benefits available u/s 114 of the Transfer of Property Act which were denied to him. The finding in regard to the deposit of the requisite amount contemplated u/s 114 of the Transfer of Property Act which was recorded against him by the trial Court was also challenged.

The revisional Court, however, came to the conclusion that in fact on the materials on the record it stood established that the provisions contained in Section 114 of the Transfer of Property Act could not be deemed to have been attracted at all and consequently the tenant was not entitled to any benefit available thereunder. The revisional Court appears to have come to the conclusion that no case in regard to determination of the lease in question by forfeiture as contemplated u/s 111 (g) of the Transfer of Property Act had been made out which could justify the grant of equitable relief envisaged u/s 114 of the Transfer of Property-Act. The revisional Court appears to have taken the view that in the instant case the lease had been determined not by forfeiture on account of non-payment of rent due but by a simple notice terminating the tenancy envisaged u/s 106 of the Transfer of Property Act. it has been observed by the revisional Court that the tenant had failed to establish that there was any such express term or condition in the lease relied upon by him whereunder the lease could be determined by forfeiture for non-payment of rent or that in fact the landlord had filed the suit for the ejectment of the tenant relying upon any such forfeiture of the lease for non-payment of rent. In fact the observation is that neither any such plea was raised in the written statement nor any evidence was there on the record in support of such a plea.

The Learned Counsel for the Petitioner has urged that in the present case the landlord had come tip with a case that the Defendant was a month to month tenant and the tenancy used to begin on every first date of the English calendar month and that when the rent for the period, 17.4.1989 to 31.5.1989 had fallen due a notice of demand and terminating the tenancy was served on the Defendant on 30.6.1989. The contention is that in such a circumstance the determination of the lease has to be held to be by forfeiture and riot otherwise and consequently the provisions contained in Section 114 of the Transfer of Property Act stood squarely attracted. The Learned Counsel has strongly relied upon a decision of this Court in the case of Surjit Singh v. Additional District Judge. Hardwar 1993(2) All RC 470, wherein it has been held that in a case where the provisions of U.P. Act No. 13 of 1972 were found not applicable to a premises the Defendant tenant was entitled for protection u/s 114 of the Transfer of Property Act and this Court had remanded the case to the revisional Court for recording a finding as to whether the entire amount of rent was deposited or not and whether there was any default.

From a perusal of the judgment referred to above it is apparent that the question as to whether in the facts and circumstances of that case the provisions of Section 114 of the Transfer of Property Act could not be held to be applicable on account of the pre-requisite conditions having not been satisfied was neither agitated nor called upon to be decided.

At the time of hearing of the present writ petition, the Learned Counsel for the Petitioner had produced a copy of the composite notice of demand and termination of tenancy paper No. 40-C served on the Petitioner. A perusal of the aforesaid notice indicates that the landlord had required the tenant-petitioner to clear of the arrears of rent within thirty days of the receipt of the notice whereafter suit will be filed for the recovery of the same. It was also indicated in the said notice that the landlord did not want to keep the Defendant as a tenant, and, therefore, the tenancy will stand terminated after thirty days of the receipt of the notice and the tenant was required to hand over the vacant possession of the premises after expiry of thirty days from the receipt of the notice, otherwise suit will be filed for the said purpose.

The provisions contained in Section 114 of the Transfer of Property Act can be said to be attracted only where a lease of immovable property is determined by forfeiture for non-payment of rent. Section 111 of the Transfer of Property Act sets out when a lease of immovable property is determined. Sub-section (g) of Section 111 of Transfer of Property Act, apart from other stipulations lays down that a lease of immovable property determines by forfeiture that is to say in case the lease breaks an express condition which provides that on breach thereof the lessor may re-enter. Two things are necessary before the aforesaid provision under Sub-section (g) of Section 111 of the Transfer of Property Act can come into operation, firstly there should be express condition in the lease for the payment of rent and secondly there should be a clause for re-entry in the case of default of payment of rent. It is, therefore, obvious that unless there is an express condition in the lease for payment of rent and as a consequence of failure, to re-enter, there cannot be a forfeiture of the lease.

A Defendant tenant while claiming a benefit available u/s 114 of the Transfer of Property Act has to clearly plead and establish that the lease under which he holds the demised premises contains a term that in the event of a certain default in payment of rent the lease might be terminated and that the Plaintiff has based his claim on the lease having been determined as forfeiture had been incurred by the tenant according to the terms of the lease. It should not be lost sight of that it is open to the parties to agree that the landlord''s usual right of re-entry cannot be restricted by a term in the lease and such term may be that so long as the tenant goes on paying rent in the manner mentioned, landlord would not have the right of re-entry or the right of ejectment. In case there is such a specific term agreed upon forfeiture incurred for breach of the term may be relived under the provisions of Section 114 of the Transfer of Property Act, but where there is no such agreement between the parties or the Defendant fails to establish any such agreement the landlord has the right to terminate the tenancy in the manner mentioned in Section 106 of the Transfer of Property Act. In the absence of any specific term to the contrary the landlord has the right to terminate the lease and if the tenancy is terminated by a valid notice u/s 106 of the Transfer of Property Act the provisions contained in Section 114 of the Transfer of Property Act cannot be invoked to protect the tenant from ejectment.

It may further be noticed that on the facts and circumstances brought on record, there is no escape from the conclusion that in the instant case the tenant-petitioner had failed to establish that there was an express condition of re-entry for the failure in payment of rent. Further there is neither any finding nor proof of a written lease nor of any contract nor of any breach of any of its terms nor of the conditions of re-entry.

It may be noticed that this Court in its decision in the case of Riyasat Ali Khan Vs. Mirza Wahid Beg and Another, , had observed that there are different ways of terminating a tenancy. One of them is by notice and another by forfeiture. A monthly tenancy is terminable by one month''s notice by either party. In such a case there is no question of forfeiture. However a tenancy may be permanently terminated by the landlord if there is a forfeiture by the landlord if there is a forfeiture clause entitled him to do so. It was further observed by this Court that in a tenancy which runs from month to month no question of forfeiture arises if the landlord determines , it by a valid notice of termination.

In the facts and circumstances indicated hereinbefore, if the matter is viewed from this angle, that being the only view I find no difficulty whatsoever in affirming the impugned decree.

In the result, no ground at all has been made out to justify any interference in the impugned decree while exercising the extraordinary jurisdiction envisaged under Article 226 of the Constitution of India.

The writ petition is clearly devoid of merit and is hereby, dismissed in limine.