Surujmal Jain vs Kanaklata Barua

G. Mehrotra, C.J.—This appeal is by the defendant. The plaintiff''s case is that two rooms were let out to the defendant one on the ground floor and the other on the upper storey at a rental of Rs. 300/- per month on the 2nd February, 1950. Rs. 2,000/- were paid as advance to the plaintiff and defendant agreed to pay Rs. 1,400/- within one month from the date of the agreement to the plaintiff. On the date of the agreement the possession of the room on the ground floor was given to the defendant and it was agreed that the room in the upper storey would be completed within two months from that time by the advance given by the defendant and thereafter made over to the defendant. For two months during which the upper storey room was being constructed the defendant was to pay Rs. 100/- from per month. The advance was not made by the defendant and thus the completion of the room was delayed. After the room was completed, the defendant was asked to take possession of that room on payment of Rs. 1,400/- as advance rent but the defendant did not make the said payment in spite of repeated demand and take possession of the room. The defendant had also agreed to pay Rs. 3,600/- as advance towards rent for the year 1956 by the 1st January of that year. That was also not paid by the defendant. After, payment of Rs. 2,000/- the defendant has not paid anything. The defendant has also caused some damages to the property. On these facts a notice was served by the plaintiff terminating the tenancy and demanding payment of Rs. 2,600/- as arrear rent Rs. 3,600/- as advance for the year 1956 and Rs. 1,000/- as damages. As the defendant did not comply with the notice the present suit has been brought for recovery of possession of the room in suit by ejecting the defendant, for Rs. 2,900/- as arrears of rent and compensation of Rs. 300/- per month from date of institution of the suit till restoration of possession.

The defendant contended that there was no agreement for payment or advance of Rs.1,400/-. The defendant did not get possession of the upper storey room, the kitchen, sanitary lavatory and the back courtyard as agreed between the parties. He has further, denied that he has damaged the property. According to him the fair rent for the room in the ground floor is only Rs. 50/- per month and on this calculation he has already paid up the rent for 40 months by way of adjustment against the sum of Rs. 2,000/- paid in advance.

The trial Court framed a number of issues and held that the rent of the room occupied by the defendant was fixed at Rs. 200/-. The trial Court further held that the tenancy commenced from the 2nd February 1955. The suit was filed on the 7th July, 1956. At the rate of Rs. 200/.- per month the rent up to the 2nd December 1955 only can be adjusted against the advance of Rs. 2,000/- paid. Thereafter thus the defendant has been in arrears, at the rate of Rs. 200 per month. The Court below held that as the defendant was in arrears and had not paid the agreed rent, he is liable to be ejected after due notice terminating the tenancy. The Court below has granted a decree for arrears of rent from the 2nd December 1955 till the 2nd July, 1956, when the tenancy was determined. This comes to Rs. 1,400/-. Further the Court below has allowed compensation till the 2nd July 1958, the date of the decree of the suit. This amount comes to Rs. 4,800/-. The total comes to Rs. 6,200/-. The suit has been decreed thus for ejectment of the defendant and for a sum of Rs. 6,200/- as arrears of rent till the 2nd July, 1958 and further the defendant is to pay compensation of Rs. 200 per month to the plaintiff till the plaintiff is restored to possession. It is against this, decree that the defendant has come up in appeal to this Court.

The order of the Court below is challenged on the ground that according to the provisions of the Assam Urban Areas Rent Control Act, 1955 the defendant was not in default and thus was not liable to be ejected. He has been paying rent according to the fair rent payable in respect of the room in defendant''s occupation. It is then urged that the Court below had no right to decree compensation for the subsequent periods after the decree of the Court below. Lastly it is urged that in any case the decree for ejectment being for arrears of rent, the defendant should have been allowed opportunity to pay up the arrears.

The question whether the defendant was in default really rests on the finding as to what was the actual rent of the suit premises. The case of the defendant was that the fair rent for the room of the ground floor would be only Rs. 50/- per month and if the rent is calculated on that basis the defendant has already paid up the entire rent as he admittedly paid an advance of Rs. 2,000/-. The defendant had applied for fixation of a fair rent at Rs. 50/- which was rejected. On the evidence it is quite clear that the defendant had agreed to pay Rs. 200/- and thus the rent payable under the law was the rent agreed, unless otherwise fixed by the proper Court. The defendant thus committed default in not paying the rent regularly. The tenancy commenced from the 2nd February 1955 and at the rate of Rs. 200/- the sum of Rs. 2,000/- paid in advance could be adjusted towards the rent up to 2nd December 1955. The suit was filed in July, 1956. Thus the defendant was in arrears of rent for a period from 2nd December 1955 to 2nd July 1956. Subsection (1) of Section 6 of the Assam Urban Areas Rent Control Act, 1955 Assam Act III of 1956 (hereinafter called ''the Act'') provides that no order or decree for the recovery of possession of any house shall be made or executed by any Court so long as the tenant pays rent to the full extent allowable under the Act and performs the conditions of the tenancy. The Act provides for the fixation of the fair rent. So long as the fair rent is not fixed by the proper authority, the rent allowable will be the rent agreed upon between the parties. There is, therefore, no substance in the contention that the defendant was not in default.

The plaintiff alleged in the plaint that the defendant took on rent two rooms one on the ground floor and the other on the upper storey under a registered kabuliyat dated 2nd February 1950 and agreed to pay monthly rent. On the 6th June 1956 notice was given by the plaintiff to the defendant. It was stated in the notice that the premises were to be vacated by the 1st July 1946 or whichever date was considered to be the last date of the month of his tenancy. The contention of Mr. Lahiri for the appellant is that the notice was not valid. u/s 106 of the Transfer of Property Act fifteen days notice should have been given terminating the tenancy expiring with the end of the month of the tenancy. He contends that the notice asked the defendant tenant to vacate the premises on the 1st July 1956 and thus the notice was not in conformity with the provisions of Section 106 of the Transfer of Property Act. In support of his contention he has relied upon the case of Bradley v. Atkinson, reported in ILR 7 All 899 (FB), and the case of Seoti Bibi v. Jagannath Prasad, reported in AIR 1920 All 104. In the notice the plaintiff has further mentioned that he should quit the premises either by the 1st July 1956 or on whichever date he considered to be the last date of the month of the tenancy. The notice was given on the 6th June. The tenant had clearly fifteen days to vacate and if he thought that the tenancy commenced from the 1st of the mouthy he should have vacated by the end of the month. The notice thus, in our opinion, was valid. The point does not seem to have been taken also is the Court below.

The next point urged was that u/s 114 of the Transfer of Property Act as the defendant appellant was willing to deposit the entire arrears of the rent together with interest and full cost of the suit, he should be relieved of forfeiture of the tenancy for non-payment oft the rent. His contention is that even though the plaintiff is entitled to get a decree for ejectment u/s 6 of the Act, still the Act does not in any way abrogate the provisions of the Transfer of Property Act and the defendant is entitled to get benefit of Section 114 of the Transfer of Property Act.

There are two points against the appellant in giving him relief u/s 114 of the Transfer of Property Act. Section 114 is only attracted where a lease of immoveable property is determined by forfeiture for non-payment of rent. Section III of the Transfer of Property Act sets oat when a lease of immoveable property is determined. Subsection (g) of Section in lays down that a lease of immoveable property determines by forfeiture, that is to say, in case the lessee breaks an ex-press condition which provides that on breach thereof the lessor may re-enter; or in case the lessee renounces his character as such by setting up a title in a third person or by claiming title in himself; or the lessee is adjudicated an insolvent) and the lease provides that the lessor may reenter on the happening of such event; and in any of these cases the lessor or his transferee give notice in writing to the lessee of his intention to determine the lease. It is urged that there is an express condition of the lease to pay monthly rent, and the plaintiff has brought the suit for ejectment on the ground that the condition of payment of rent has not been carried out thus Section 114 of T.P.A. is attracted. Two things are necessary before sub-section (g) of Section 111 can be attracted, (I) that there should be an express condition in the lease for payment of rent and (2) that there should be a clause for re-entry in the lease in the case of default of payment of rent. In the present case there is no such provision in the lease and thus there could not be a forfeiture of the lease for non-payment of the rent. If there was no forfeiture of the lease for non-payment of the rent, Section 114 will not be attracted.

Reference in this connection may be made to the case of K.G. Pandit v. Narsinghdas Sitaram, reported in AIR 1951 Nag 207. It is laid down in this case that unless there is an express condition in the lease for payment of rent and as a consequence of failure to re-enter there is no forfeiture of the lease. We are in complete agreement with the law laid down in this case.

Another objection to the plaintiffs claim is that Section 114 requires that the rent should be tendered at the hearing of the suit. It is urged by the respondent that the hearing of the suit does not include the hearing of the appeal and reliance is placed on the case of Habib Ahmed Vs. Mt. Keoti Kuer, . As against this the contention of the appellant is that as the appeal is a continuation of the suit it is open to the appellant to tender the arrears of rent at the time of the hearing of the appeal to get the benefit of S. 114. Reliance is placed on the case of Dayaram Kashiram Vs. Bansilal Raghunath, . It is not necessary to enter into that controversy in view of the finding that Section 114 is not attracted. But apart from this, the relief u/s 114 of the Transfer of Property Act is a discretionary relief which the defendant appellant can be granted only if the Circumstances of the case justify that. It was stated at the time of the hearing that the defendant appellant is willing to pay the cost of the entire arrears of the decree but the amount was not tendered at the time of the hearing. Moreover, having regard to the fact that the defendant denied the very contract of tenancy and took other pleas, he, is not entitled to any equitable relief.

The last point urged is that in any case the plaintiff was not entitled to a decree for compensation at the rate of Rs. 200/- per month after the filing of the suit till the date of the actual delivery of possession to the plaintiff.

Order 2, Rule 1, CPC provides that every suit shall as far as practicable be framed so as to afford ground for final decision. upon the subjects in dispute and to prevent further litigation concerning them. Order 2, Rule 4 provides that no cause of action shall unless with the leave of the Court, be joined with a suit for the recovery of immoveable property, except--(a) claims for mesne profits or arrears of rent in respect of the property claimed or any part thereof; (b) claims for damages for breach of any contract under which the property or any part thereof is held; and (c) claims in which the relief sought is based on the same cause of action Provided that nothing in this rule shall be deemed to prevent any party in a suit for foreclosure or redemption from asking to be put into possession of the mortgaged property. Order 20, Rule 12, CPC lays down as follows :

(1)Where a suit is for the recovery of possession of Immovable property and for rent or mesne profits, the Court may pass a decree :

(a) for the possession of the property;

(b) for the rent or mesne profits which has accrued in the property during a period prior to the instigation of, suit or directing an inquiry as to such rent or mesne profits;

(c) directing, an inquiry as to rent or mesne profits from the institution of the suit until:

(1) the delivery of possession to the decree-holder,

(ii)the relinquishment of possession by the judgment-debtor'' with notice to the decree-holder through the Court, or

(iii) the expiration of three years from the date of the decree, whichever event first occurs.

(2) Where an inquiry is directed under clause (b) or clause (c), a final decree in respect of the rent on mesne profits shall be passed in accordance with the result of such inquiry. The reading, of these orders and rules shows that the plaintiff-cannot be given a decree for compensation for wrongful possession after the period of the suit till the recovery of possession at the rate of Rs. 200/- per month. If the Court desire that an inquiry should be made as to the rent or mesne profits from the institution of the suit till the delivery of possession, a preliminary decree has to be passed to that effect and a final decree in respect of the rent or mesne profit is to be passed in accordance with the result of such inquiry. The decree thus in so far as it orders the payment of rent at the rate of Rs. 200/- .per month from the date of the suit till the date of the possession, cannot stand. The appeal is thus allowed in part and the suit for ejectment and arrears of rent up to the date of the suit is decreed. The respondent is entitled to proportionate cost.