Surjeet Singh v. Additional District, Judge — 1993 DIGILAW 490 (ALL)

JUDGMENT : M.P. Singh J. 1. The Petitioner was a tenant. The opposite party no. 3 is the landlord. He filed a Suit for ejectment on the ground of arrears of rent The U.P. Act No. 13 of 1972 (hereinafter referred to as the Act') was not applicable as the construction was a new one. 2. The Petitioner filed a written statement stating that the U.P. Act no. 13 of 1972 was applicable as it was old construe ion. The money order which was sent to the landlord, was refused so the deposit was made u/s 20(4) of the Act. There was no default and the suit was to be dismissed. 3. The Judge Small Causes decreed the suit holding that the said Act was not applicable and the Petitioner in default. 4. The Petitioner filed a revision. Before the revisional Court an application was filed on 49-1992 by him praying for fifteen days' time to comply with the provisions of Section 114 of the Transfer of Property Act, 1882. He made deposit as well. 5. The Petitioner claimed the benefit of Section 114 of the Transfer of Property Act on the ground that since the lease has beet' determined by forfeiture for non payment of rent and the suit has been filed for recovery of arrears of rent and ejectment the Petitioner was entitled for the relief under the said provision which was on equitable consideration. The revision was dismissed holding that Section 114 of the Transfer of Property Act was not attracted in the instant case, so the deposit, if made by the Petitioner, will not save him form ejectment. Against the said order present writ petition has been filed. 6. Sri Rajesh Tandon, learned Counsel for the Petitioner contended that once the revisional Court upheld the finding that the U.P. Act No. 13 of 1972 is not applicable then the provisions of Section 114 of the Transfer of Property Act become applicable automatically. In support of his contention he has relied upon a decision Arjun Khiamal Makhijani v Jamandas C. Tuliani, 1989 SC FB RC 500 = 1989 SC 1999. According to it Section 114 of Transfer of Property Act applies to that case where a lease of Immovable property has been determined by forfeiture for non-payment of rent. 7. In support of his contention he has relied upon a decision Arjun Khiamal Makhijani v Jamandas C. Tuliani, 1989 SC FB RC 500 = 1989 SC 1999. According to it Section 114 of Transfer of Property Act applies to that case where a lease of Immovable property has been determined by forfeiture for non-payment of rent. 7. Applying the same principle in the instant case I am of the view that since the U.P. Act no. 13 of 1972 is not applicable the Petitioner was entitled for the reilef as contemplated u/s 114 of the Transfer of Property Act. 8. Another case referred to is Praduman Kumar Vs. Virendra Goyal (Dead) by L.Rs., AIR 1969 SC 1349 . In this case the tenants claimed relief against forfeiture of their tenancy rights u/s 114 of the Transfer of Property Act. The deposit was made in the Court but the amount was less than the exact amount due. The suit was decreed. In appeal the tenants offered to pay balance of rent due together with costs of the suit and the appeal and interest and subsequently deposited 'he same. The appeal was allowed holding that the Appellants was entitled for the relief u/s 114 of the Transfer of Property Act. The High Court dismissed the appeal. The matter went to the Supreme Court. 9. The point to be considered by the Supreme Court was whether the jurisdiction u/s 114 of the Transfer of Property Act to relieve against forfeiture could only be exercised by the Court of First Instance; that the tenants having failed to avail the opportunity given by the trial Court to pay the amount due with interests and costs and then the appellate Court had no jurisdiction to allow the relief by granting another opportunity. 10. In that case the Supreme Court held that this clause of Section 114 of the Transfer of Property Act is only for securing payment pay rent. It was equitable relief and unless the tenant has committed default he becomes entitled for the said relief. Since the appeal was the continuation of the suit it was held that the equitable relief should have been given to the tenant. 11. In another case Prithvichand Ramchand Sablok v. S. Y. Shinde, 1993 SC & FB RC 283, it has been clarified that the tenant cannot claim the double protection. Since the appeal was the continuation of the suit it was held that the equitable relief should have been given to the tenant. 11. In another case Prithvichand Ramchand Sablok v. S. Y. Shinde, 1993 SC & FB RC 283, it has been clarified that the tenant cannot claim the double protection. He can either get the relief under the Rent Control Act or under the Transfer of Property Act. Once it is held that the Rent Control Act is applicable, the Petitioner will be disentitled for the protection under any other Act. Since in the instant case the finding has been recorded that the U.P. Act no. 13 of 1972 is not applicable, therefore, the Defendant is entitled for relief under the Transfer of Property Act. 12. Sri S. K. Gupta, learned counsel appearing on behalf of the contesting opposite party contended that in the instant case the ingredients of Section 114 of the Transfer of Property Act have not been fulfilled. Accordingly the order does no suffer from any error apparent on the face of record but he has failed to satisfy me about the ingredients said to have not been fulfilled. In support of his contention he has referred to a case Habib Ahmed v Mt. Keoti Kuer AIR 1946 Vol. 33 All 328, wherein it has been held that u/s 114 of the Transfer of Property Act there must be an actual payment or tender before the Court. Mere readiness to pay the rent is not sufficient. Moreover, this being a concession extended to the defaulting lessee its advantage should be availed of at the very first opportunity. It would be unfair to the lessor if the lessee is permitted to take advantage of it at the appellate stage when a decree has already been passed. But, in view of the Supreme Court decision in the case of Pradumn Kumar (supra) this view stands over-ruled. 13. Mr. S.K. Gupta further contended that there should have been an actual payment to the landlord and only a promise to pay the rent within 15 days is not sufficient. I find that there is discussion, on this point by the revisional Court. 14. 13. Mr. S.K. Gupta further contended that there should have been an actual payment to the landlord and only a promise to pay the rent within 15 days is not sufficient. I find that there is discussion, on this point by the revisional Court. 14. After hearing the learned counsel for the parties and perusing the record I am of the view that since the U.P. Act No.13 of 1972 was not applicable the tenant became entitled for protection u/s 114 of the Transfer of Property Act. 15. The revisional Court while dismissing the revision had confined itself only to the question of applicability of Section 114 of the Transfer of Property Act and after recording a finding the tenant has dismissed the same but it has not recorded a clear finding whether entire amount of rent due has been paid to the Plaintiff or not. This Court while exercising its power under Article 226 of the Constitution of India is not sitting as a Court of appeal and as such is not inclined to record its own finding on the question of default. Under these circumstances it becomes necessary for me to remand the case to the revisional Court to record a finding whether the entire amount of rent was deposited or not and whether there was any default. 16. Accordingly the writ petition succeeds and is allowed. The case is remanded to the revisional Court who will decide the matter within two months from the date of filing of a certified copy of this order before it without granting any adjournment to either party.