Safiqur Rahman vs Parul Bala Das @ Parul Bala Roy

A.P. Singh, J.—R.D. Case No. 10/94 was registered by the Munsiff No. 1 Karimganj on an application filed by the Petitioner for permission to deposit rent in Court in respect of house standing on Holding No. 85 of Nelambazar carrying monthly rent of Rs. 100/-. According to the Plaintiff/Appellant he had been paying rent of the disputed holding to die landlord Defendant-Respondent but the rent receipts along with the house in suit was destroyed in fire whereupon he demanded from the Respondent to re-issue the rent receipts which the Respondent denied, thereafter Petitioner wanted to pay the rent of the holding a fresh but the landlord refused to accept it was in these circumstances Petitioner deposited rent in the Court u/s 5(4) of the Assam Urban Areas Rent Control Act 1972.

Before the trial Court an issue was by the landlord regarding applicability of the Act to the house in suit. According to him since the holding was situate in rural areas the Act did not apply to it hence the rent could not be deposited in the Court. The trial Court decided the issue against the Petitioner but upheld the deposit of the rent u/s 114 of the Transfer of Property Act, 1884. For coming to the above conclusion regarding applicability of the T.P. Act reliance was placed by the learned Munsiff on a judgment of Calcutta High Court rendered in L.S.M. Ltd. v. Ibrahim 1985 CWN 753 wherein it was held that even if the tenant is unable to get the protection of the Rent Control Act, it may still be possible for him to get the special relief u/s 114 of the Transfer of Property Act, 1884. Aggrieved by the view taken by the Munsiff the landlord filed appeal. On Defendant''s appeal the lower appellate Court set aside the order passed by the trial Court taking the view that in view of the non-applicablity of the provisions of Urban Areas Rent Control Act, 1972 deposit of rent u/s 5 of the said Act was impossible. He also held that deposit of rent could not be justified under the provisions of Section 114 of the Transfer of Property Act, 1882 as the course to that Section had not been taken by the Petitioner at the time of making of the deposit of rent. Petitioner has thus come to this Court by way of revision u/s 115 of the Code of Civil Procedure.

Mr A.S. Choudhury, learned Counsel for the Petitioner contended that notwithstanding the fact that provisions of Urban Areas Rent Control Act were not applicable to the holding in question still the Petitioner was fully entitled to make the deposit of the rent in Court under the provisions of Section 114 of the T.P. Act. According to him, the view taken by the learned lower appellate Court was contrary to law hence Petitioners prayer is that the impugned judgment and order be set aside.

I do not agree with the contention. Provisions of Section 5(4) of the Rent Control Act are wholly different from that u/s 114 of the T.P. Act. Sub-section (4) of Section 5 of the Act entitles the tenant to deposit rent of the house under his tenancy in Court in case of refusal to accept the rent by the landlord the deposit of rent has to be made together with the process fees for service of notice of the deposit upon the landlord whereas protection u/s 114 of the T.P. Act is available to the tenant only after a suit for his eviction is filed by the landlord on the ground of default in payment of rent and the tenant on appearing in the case tendering rent together with interest and costs of the suit furnishes security in that event the Court is precluded from passing decree for tenants eviction from the house in suit and forfeiture of the tenancy too disappears and the tenancy is revived.

Section 114 of the T.P. Act reads as follows:

Relief against forfeiture for nonpayment of rent: Where a lease of immovable property has determined by forfeiture for nonpayment of rent, and the lessor sues to eject the lessee, if at the hearing of the suit, the lessee pays or tenders to the lessor the rent in arrear together with interest thereon and his full costs of the suit, or give such security as the Court thinks sufficient for making such payment within fifteen days, the Court may, in lieu of making a decree for ejectment pass an order relieving the lessee against the forfeiture; and thereupon the lessee shall hold the property leased as if forfeiture had not occurred.

Section 114 provides relief to the tenant against forfeiture of tenancy which had been caused on account of non-payment of rent of the house in suit and had to the filing of suit in, Court for his ejectment Ingredients of Section 114 of the T.P. Act unfortunately for the Petitioners are not present in the case at hand. The deposit of rent made u/s 5 of the Rent Control Act too is different situation. The amount of deposit too is wholly different Deposit in that case is of the rent and the process fee whereas tender of rent to the landlord u/s 114 of the T.P. Act is of rent, the interest payable thereon with cost of the suit in these situations deposit of rent in the Court made u/s 5(4) of Rent Control Act cannot be treated as tender of rent made u/s 114 of the T.P. Act The lower appellate Court in my opinion committed no illegality in holding that though on different grounds that the provisions of Section 114 of T.P. Act were not applicable to the case the Court was thus fully justified in setting aside the order of the trial Court.

This revision petition has no merit which is accordingly dismissed with costs.