MOHD NASIR v. DISTRICT JUDGE NAINITAL — 1998 DIGILAW 1190 (ALL)

J. C. GUPTA, J. This is tenants peti tion for issuing a writ of certiorari to quash the order dated 1-10-1996 passed by the Judge, Small Cause Court, Respondent No. 2 and the order dated 25-5-1998. passed by Respondent No. 1 dismissing the petitioners revision filed against the decree of the trial Court. 2. The dispute is in relation to a shop situate in Mohalla Ganj, Kashipur, district Udham Singh Nagar (Nainital ). The Respondent No. 3, landlord filed suit for recovery of rent and ejectment against the petitioner alleging that the shop in ques tion was not governed by the provisions of U. P. Act No. 13 of 1972, hereinafter referred to as the Act and the petitioner has been tenant of the said shop on month ly rent of Rs. 500 per month. The rent from 1-6-94 to 31-10-94 was not paid despite several requests. The tenancy of the defen dant was terminated by a notice served upon him under Section 106 of the Trans fer of Property Act on 10-10-94 and when the notice was not complied with, the present suit was instituted. The defendant petitioner contested the suit. It was not disputed that he has been in occupation as tenant of the landlord. The rate or rent was also not disputed. However, according to the defence, since the shop was con structed in the year 1980, the Act was ap plicable. The Petitioner further pleaded that after the receipt of the notice of the plaintiff, he paid to him a sum of Rs. 3,500 which included rent from 1-6-94 to 31-10-94 and advance rent of October, 1985 but the plaintiff did not issue any receipt. The defendant further claimed protection of Section 20 (4) of the Act as the requisite deposit had been made in Court under the provisions of the said sub-section. 3. The Trial Court decreed the suit of Respondent No. 3 landlord holding that the shop in question was assessed for the first time in the year 1988-89, hence it was out of the purview of the Act as the suit was filed in the year 1994 before the expiry of a period of ten years from the date of con struction. It further came to the con clusion that rent was due from 1-6-94 and disbelieved the defence plea of payment of Rs. 8,500. The notice under Section 106 of the TP. It further came to the con clusion that rent was due from 1-6-94 and disbelieved the defence plea of payment of Rs. 8,500. The notice under Section 106 of the TP. Act was found to be duly served and since the Act was not applicable no benefit of the provisions of Section 20 (4) of the Act could be availed of. 4. The petitioner preferred revision under Section 25 of the Small Cause Court Act against the decree passed by the trial Court and during the pendency thereof an application was moved on his behalf for extending him the benefit of provisions of Section 114 of the T. P. Act because entire rent claimed had already been deposited by the petitioner in Court under Section 20 (4) of the Act. The reply of Respondent No. 3 to this plea was that since tenancy of the petitioner was duly terminated by a notice served under Section 106 of the TP. Act, Section 111 (g) of the TP. Act had no application and, therefore, no benefit could be given to the tenant under Section 114 of the TP. Act. It was further pleaded that there was no such condition in the terms of the tenancy that the landlord shall. have a right of re-entry on breach of any of the conditions. The tenancy was from month to month and, the same, was duly determined by giving thirty days notice under Section 106 of the TP. Act. In any event the deposit made under Section 20 (4)pf the Act was short by a sum of Rs. 444. The revisional Court came to the con clusion that the defendant petitioner was not entitled to claim benefit of Section 114 of the TP. Act as the tenancy was. not forfeited under Section 111 (g) but was determined by serving a notice under Sec tion 106 of the TP. Act. It further came to the conclusion that the rent note was inad missible in evidence as it was not a registered document. Since no other point was argued before the revisional Court, the revision was dismissed by the im pugned order. 5. I have heard Sri Rajesh Tandon,. appearing for the petitioner and Sri Vivek Chaudhary, Counsel appearing for the contesting respondent. 6. Since no other point was argued before the revisional Court, the revision was dismissed by the im pugned order. 5. I have heard Sri Rajesh Tandon,. appearing for the petitioner and Sri Vivek Chaudhary, Counsel appearing for the contesting respondent. 6. Learned Counsel for the petitioner could not assail the findings of fact recorded by the Courts below that the shop in question was out of the purview of the Act and, therefore, the defendant petitioner was not entitled to the benefit of Section 20 (4) of the Act and that the notice of termination was duly served upon the petitioner. 7. The only argument raised on behalf of the petitioner is that the revisional Court has committed an error of law in rejecting the petitioners application moved before the said Court for extending the benefit of Section 114 of the Transfer of Property Act (hereinafter referred to as the T. P. Act), because the entire rent due plus costs of the suit stood deposited by the tenant in Court and, therefore, the petitioner should have been relieved of the decree of eviction. His contention is that once the Act was held to be not applicable and the tenancy having been forfeited for non-payment of rent by the notice in ques tion, the deposit made in Court should have been treated as a valid payment made to the landlord under the provisions of Section 114 TP. Act and accordingly the decree for eviction could not be passed. On the other hand learned Counsel for the landlord-respondent argued that the tenancy of the petitioner was terminated simpliciter by a notice served upon the petitioner under the provisions of Section 106 TP. Act and not by forfeiture under Clause (g) of Section 111 of TP. Act, hence Section 114 TP. Act could not be attracted. He further argued that the tenant never pleaded before the trial Court that he was entitled to the relief against forfeiture of tenancy for non-payment of rent and thus he could not be allowed to raise that point before the revisional Court. Act, hence Section 114 TP. Act could not be attracted. He further argued that the tenant never pleaded before the trial Court that he was entitled to the relief against forfeiture of tenancy for non-payment of rent and thus he could not be allowed to raise that point before the revisional Court. It was further contended that the rent note relied upon by the petitioner was a unilateral docu ment and was not binding on the respon dent- lessor and in any view of the matter, there was no such forfeiture clause enti tling the landlord of the right of re- entry on account of non-payment of rent. 8. In order to appreciate the above contentions of the learned Counsel for the parties, it will be convenient to have a look to the relevant provisions of the Transfer of Property Act. Section 106 runs as under: "in the absence of a contract or local law or usage to the contrary, a lease of immovable property for agricultural or manufacturing pur poses shall be deemed to be a lease from year to year, terminable, on the part of either lessor or lessee, by six months notice expiring with the end of a year of the tenancy ; and a lease of immovable property for any other purpose shall be deemed to be a lease from month to month, terminable on the part of either lessor or lessee, by fifteen days notice expiring with the end of a month of tenancy. Every notice under this section must be in writing signed by or on behalf of the person giving it and either be sent by post to the party who is intended to be bound by it or be tendered or delivered personally to such party, or to one of his family or servants, at his residence, or (if such tender or delivery is not practicable) af fixed to a conspicuous part of the property. " Section 111 reads as under: "a lease of immovable property, deter mines : (a) by efflux of the time limited thereby; (b) where such time is limited conditional ly on the happening of some event-by the hap pening of such event; (c) where the interest of the lessor in the property terminates on, or his power to dispose of the same extends only to, the happening of any event-by the happening of such event; (d) in case the interests of the lessee and the lessor in the whole of the property become vested at the same time in one person in the same right; (e) by express surrender; that is to say, in case the lessee yields up his interest under the lease to the lessor, by mutual agreement be tween them; (f) by implied surrender; (g) by forfeiture, that is to say, (1) in case the lessee breaks in express condition which provides that on breach thereof the lessor may re-enter; or (2) 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 (3) the lessee is adjudicated an insolvent and the lease provides that the lessor may re-enter on the happening of such event; and in any of these cases the lessor or his transferee gives notice in writing to the lessee of his intention to deter mine the lease; (h) on the expiration of a notice to deter mine the lease, or to quit, or of intention to quit, the property lease, duly given by one party to the. other. " Section 114 runs as under: "where a lease of immovable property has been determined by forfeiture for non-payment of rent and the lessor sues to eject the leassee, 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 more gives such security as the Court thinks sufficient for making such payment within fif teen days, the Court may, in lieu of making a decree for ejectment, pass an order relieving the lesseee against the forfeiture ; and thereupon the lease shall hold the property leased as if the forfeiture had not occurred. " 9. " 9. From the perusal of the above provisions, it would be seen that there are different ways of terminating tenancy. Under Section 106 T P. Act a lease for year to year is terminable by giving six. months notice by either party and a month to month tenancy may be determined by serv ing upon the other party one months notice. Lease can also be determined in any of the modes laid down in Section 111 T. P. Act and one of such modes being by forfeiture under clause (g ). The word "for feiture" has not been defined under the T. P. Act but it means the loss of a legal right by means of some breach of an obligation. Clause (g) provides that a lease may be determined by forfeiture, that is to say: (1) Where the lessee- (a) breaks an express condition of lease and a right of re-entry is provided on such breach; or (b) denies the lessors title; or (c) is adjudicated as insolvent and the lease provides, on such contingency, for a right of re-entry. (2) And in any of these cases the lessor gives a notice in writing to the lessee of his intention to determine the lease. Thus it is noteworthy that for determining the lease by forfeiture not only existence of one or more of the three aforesaid contingencies is necessary but the lessor wishing to determine the lease for forfeiture must also give a notice in writing to the lessee of his intention to determine the lease. The right of forfeiture is limited to those cases where the tenant has been guilty of some kind of misconduct which provided a right of re-entry to the lessor. 10. On general principles, a suit for ejectment against a tenant is not main tainable unless a previous notice to quit or a notice demanding possession either under Section 106 or 111 (g) T. P. Act is given. There is, however, a distinction be tween a notice to quit and a notice deter mining tenancy under Clause (g) of Sec tion 111 T. P. Act. In determination of tenancy by forfeiture, a right is exercised while tenancy is still subsisting but in a notice to quit the tenancy is not subsisting and in such a case there arises no question of relief against forfeiture. 11. In determination of tenancy by forfeiture, a right is exercised while tenancy is still subsisting but in a notice to quit the tenancy is not subsisting and in such a case there arises no question of relief against forfeiture. 11. Section 114 T. P. Act confers a power on the Court to grant an equitable relief to the defaulting lessee. In order to claim benefit under this section, it has to be shown by the tenant that one of the terms of the lease was that the landlord will have a right of re-entry if the rent for any specified period remained unpaid and he has to show further that forfeiture has been incurred as provided under Section 111 (g ). Section 114 T. P. Act thus postu lates existence of determination of lease by forfeiture as a condition precedent and provisions contained in this section will have no application where the lease has been determined by serving a notice to quit under Section 106 T. P. Act. The relief under Section 114 T. P. . Act is confined to those cases only which are strictly covered under Section 111 (g) and not to those cases which fall under Section 106 T. P. Act. A monthly tenancy is determinable by one. months notice by either party and if the tenancy is terminated by serving one months notice under Section 106 T. P. Act there is no forfeiture of tenancy and in that event, Section 114 cannot be applied. Thus a notice under Section 106 T. P. Act by no means could be treated as one under Sec tion 11 l (g ). 12. Section 114 applies to those cases where the landlord invokes his rights under what is known as forfeiture clause and determines the lease by forfeiture and sues for the ejectment of the tenant, I may illustrate it by an example which will make the picture more clear. Suppose there is a lease for a fixed term of five years contain ing a clause that the landlord will be en titled to determine the lease and to re-enter upon the demised premises even during the period of five years if the tenant does not pay rent for more than three months. Suppose there is a lease for a fixed term of five years contain ing a clause that the landlord will be en titled to determine the lease and to re-enter upon the demised premises even during the period of five years if the tenant does not pay rent for more than three months. But for this clause, the lease must run for the entire period of five years and the landlord during the said period will have no right to eject the tenant before the expiry of the fixed period of five years. If the tenant fails to pay rent for more than three months, forfeiture clause enables the landlord to determine the lease before its expiration. In such a case, the subsisting tenancy cannot be determined by serving a notice simpliciter under Section 106 T. P. Act and it can only be determined where the landlord forfeits the tenancy by serving a notice under Section 111 (g ). In such an event Section 114 can be pressed into ser vice but where the tenancy runs from month to month and the same has been determined by a valid notice under Section 106 T. P. Act, Section 114 TP. Act shall have no application. 13. It has been urged by the learned Counsel for the petitioner that the rent note dated 15-7-1986 which was filed by the landlord before the revisional Court itself indicates that it contained a forfeiture clause which provided a right of re entry to the landlord on breach of any of the terms of the lease. Before the condi tions as laid down in the rent note are narrated it may be relevant to mention here that this rent note is an unilateral document having been executed by the tenant only and it was not an agreement of lease having been executed both by the lessor and the lessee. The rent note recited that the shop in question is a new construc tion of the year 1985 and has been taken on lease by the executant at the rate of Rs. 400 per month for a period of three months. The lessee agreed to be bound by the fol lowing conditions: (1) that I will pay Rs. 400 as rent and Rs. 100 towards tax, in all Rs. 400 per month for a period of three months. The lessee agreed to be bound by the fol lowing conditions: (1) that I will pay Rs. 400 as rent and Rs. 100 towards tax, in all Rs. 500 months; (2) that no damage shall be caused to the I shop in question nor it would be sublet to any I person; (3) that I will not make any structural I alteration therein and the expense of white-I washing etc. shall be brone by him; (4) If any new tax is levied on the shop in I question, the liability to pay the same shall be I mine; and (5) in case I commit breach of any of the I aforesaid conditions I shall be liable to ejectment. As already indicated above, the rent note was not executed by the landlord and it was an unilateral document which could not be binding upon the landlord. By the said rent note only the lessee bound himself to only the conditions contained therein. In any view of the matter, it cannot be said with certainty that the rent note contained an express condition that in case of non-payment of rent for a specified period, the landlord shall have a right of re-entry. As per the aforesaid rent note, the lease vas for a fixed period of three months and if during this period of three months rent for any period remained unpaid, the lessee bund himself to incur the liability of his eviction. Undisputedly the tenancy was not determined during the period of lease on account of breach of any of the condi tions and the tenant petitioner continued in occupation of the premises in question even after the expiration of lease period. His occupation thereafter would be in the capacity of a month to month tenant because under Section 105 T. P. Act a lease which is not for agricultural or manufac turing purposes, is presumed to be one from month to month. It was no bodys case that the lease in question was for agricultural or manufacturing purpose. Accordingly the tenancy was terminable by serving one months notice under the provisionsofsectionl06ofthetp. Act. 14. It was no bodys case that the lease in question was for agricultural or manufacturing purpose. Accordingly the tenancy was terminable by serving one months notice under the provisionsofsectionl06ofthetp. Act. 14. Even otherwise also if we look to the contents of the notice in question, there could be no doubt that the tenancy of the petitioner was terminated by a notice under Section 106 of the T. P. Act and not under Section 111 (g ). Sri Tandon, learned Counsel for the petitioner submitted that from the notice it was clear that it was the non-payment of rent by the tenant which had given rise for issuance of notice and suit was also filed for recovery of arrears of rent which would indicate that the landlords case was of breach of condition of making payment of rent regularly in time. Therefore, according to the learned Counsel, the tenancy of the petitioner was as a matter of fact forfeited under clause (g) of Section 111 for breach of condition of payment of rent and consequently the petitioner was entitled to claim the benefit of protection as enshrined under Section 114ofthetp. Act. 15. The perusal of the notice in question does show that it mentions about the tenant having not paid rent from a par ticular date but it also recited about the termination of tenancy and vacant posses sion of the premises in question was demanded by the landlord on the expiry of 30 days from the date of receipt of notice. The notice clearly mentioned that the tenancy was being terminated under Sec tion 106 T. P. Act. In the suit also rent was not claimed in respect of the period sub sequent to the notice period and for that period only damages for illegal use and occupation have been claimed. The notice itself shows that it was clause (h) of Section 111 which was pressed into service because the requirements of notice as mentioned in Section 106 T. P. Act were duly borne in mind. By no stretch of imagination this notice could be held to be a notice under Section 111 (g) of the T. P. Act. The, mere. fact that while terminating the tenancy under Section 106 of the T. P. Act the landlord also made a demand of arrears of rent and possession will not convert the notice as one given under Section 111 (g ). The, mere. fact that while terminating the tenancy under Section 106 of the T. P. Act the landlord also made a demand of arrears of rent and possession will not convert the notice as one given under Section 111 (g ). For this view I am supported by a Supreme Court decision in the case of Tharumal and Ann v. Masjid Hajum Pharosan Va Madrassa Talimulislam, Mirza hsmail Road Jaipur, (1994) 3 SCC375. 16. It is well established that the na ture and purpose of the notice must be gathered by reading the document as a whole and not from any words read out of the context or from any omission to use the formal language of a lawyer. In the present case the landlord simply intimated the tenant that on account of his not paying rent regulary a great inconvenience was being caused to the landlord and he was no more interested in keeping him as a tenant and his tenancy was being terminated by giving a 30 days notice under Section 106 T,p. Act. This clearly signified that the tenancy was terminated under Section 106 T. P. Act and not under Section 111 (g) by invoking forfeiture clause for non-pay ment of rent. Demand of rent was made only in addition to the demand of vacant possession. There is nothing in Sections 106 and 111 (g) of the T. P. Act to indicate that if a notice terminating the tenancy contains demand of rent also, it will cease to be a notice under Section 106 T. P. Act and would acquire the character of a notice under Section 111 (g) of the T. P. Act. The salient features in the notice leave no room of doubt in the mind of the Court that the present case is not one of forfeiture but of determination of tenancy. 17. In the case of Ahmad AH v. Jamaluddin, AIR 1963 All 581 , it was held that a document purporting to have a legal effect may fail to achieve that effect if it lacks something but cannot fail to achieve it just because it contains a superfluous matter unless the law makes it devoid of the effect on account of it containing the superfluous matter. The mere fact that in addition to the termination of tenancy under Section 106 T. P. Act the notice also contained demand of rent will not have the effect of making the notice invalid. 18. It is well settled that the notices to quit must be construed not with a desire to find faults in them which would render them defective but they are to be construed ut res magia valeat, quam, preat (that Act may avail rather than perish ). Whether a particular notice is a notice under Section 106 T. P. Act or under Section 111 (g) of the T. P. Act will depend upon the terms of the notice in each case and no hard and fast formula for its answer can be laid down. In the present case if the averments made in the notice in question are read together in harmony with each other and in the con text in which they have been made, it would be manifest that the petitioners tenancy was terminated in accordance with the provisions of Section 106 T. P. Act and in this view of the matter he was not entitled to claim benefit of Section 114 T. P. Act. 19. Learned Counsel for the petitioner then argued that after when the period of lease expired and the petitioner continued to be in occupation and paid rent a fresh contract of tenancy would be deemed to have come into existence on the same terms and conditions as well con tained in the rent note. In support of his contention he placed reliance on the decision in the case of Kai Khushroo Bezonjce Capadia v. Bai Jerbai Hirjibhoy Warden and Ann, AIR (37) 1949 Federal Court 124, learned Counsel for the petitioner invited attention of the Court to the observations made in paragraph 29 of the report. It is suffice to mention here that the said observations were made by Honble Patanjali Sastri, J. while taking dissenting view. The majority view of four other Honble Judge was that the tenancy which is created by the "holding over" as a lessee or under-lessee is new tenancy in law even though many of the terms of the old lease might be continued in it, by im plication, and it cannot be disputed that to bring new tenancy into existence, there must be a bilateral Act. What Section 116 contemplates is that on one side there should be an offer of taking a renewed or fresh demise evidenced by the lessees or sub-lessees continuing in occupation of the property after his interest has ceased and on the other side there must be a definite assent to this continuance of pos session by the landlord expressed by accep tance of rent or otherwise. In that case after the expiry of period of lease, rent was accepted by the landlord without any reservation or condition and in the cir cumstances it was held that a monthly tenancy under Section 116 came into existence. The Supreme Court in the case of Burmah Shell Oil Distributing now known as Bharat Petroleum Corporation Ltd. v. Khaja Midhat Noor and Ors. , AIR 1988 SC 1470 , also took the view that it is clear from the language of Section 107 of the T. P. Act which postulates that a lease of immovable property from year to year, or for any term exceeding one year or reserving a yearly rent, can be made only by a registered instrument. In the absence of registered instrument, it must be a monthly lease. The lessee and the sub- lessee in the facts of this case continued to remain in posses sion of the property on payment of rent as a tenant from month to month and, there fore, it was held that it was holding over and not continuation of old tenancy for a further period of five years. In the present case since even as per the rent note relied upon by the petitioner, the lease was for a fixed period of three months and the tenancy was from month to month, the status of the petitioner continued to be that of a monthly tenant on account of his holding over the demised premises after the expiration of lease period of three months, as such the tenancy was ter minable by 30 days notice under the provisions of Section 106 T. P. Act. 20. Learned counsel for the petitioner also relied upon a decision of a single Judge of this Court in the case of Surjeet Singh v. Addl. District Judge, Hand-war and Ors. , 1993 (2) ARC 470. 20. Learned counsel for the petitioner also relied upon a decision of a single Judge of this Court in the case of Surjeet Singh v. Addl. District Judge, Hand-war and Ors. , 1993 (2) ARC 470. In that case it was argued before the Court that once the revisional Court had upheld the find ing of the trial Court that the U. P. Act No. 13 of 1972 was not applicable then the provisions of Section 114 of the T. P. Act became applicable automatically. It is not clear from the report as to what were the contents of the notice which was served upon the tenant and in all the decisions on which reliance was placed in this decision the tenancy was determined by forfeiture for non-payment of rent and it was in this context that it was held that the tenant was entitled to the protection of Section 114 of the T. P. Act. The position will, however, be different where the tenancy is terminated by a simple notice under Section 106 of the T. P. Act and not for forfeiture for non-pay ment of rent. This aspect of the matter has already been discussed above and need not be repeated. 21. For the reasons stated above I find no merit in the submissions made by the learned Counsel for the petitioner and accordingly this writ petition is dismissed with no order as to costs. 22. Sri Rajesh Tandon learned Coun sel for the petitioner made a request to give the petitioner some reasonable time to comply with the decree of eviction passed by the Courts below so that in the meantime the petitioner may make alter native arrangement. Sri Vivek Chaudhary appearing for the respondents-landlord opposes this prayer. 23. 22. Sri Rajesh Tandon learned Coun sel for the petitioner made a request to give the petitioner some reasonable time to comply with the decree of eviction passed by the Courts below so that in the meantime the petitioner may make alter native arrangement. Sri Vivek Chaudhary appearing for the respondents-landlord opposes this prayer. 23. In the circumstances of the case, the petitioner is allowed time upto 31-3-1999 to vacate and hand over possession of the disputed property to the landlord-Respondent No. 3 on the following condi tions : (1) that the petitioner shall file within a period of six weeks from today an undertaking on affidavit before the trial Court to the effect that the petitioner shall on or before 31-3-99 hand over vacant possession of the disputed property to the landlord-respondent No. 3 peacefully without inducting any third person therein; and (2) that the petitioner shall deposit within the aforesaid period of six weeks entire decreetal amount due up-to-date in the executing Court and goes on depositing the same month to month by 15th of each succeeding month. Any amount already deposited shall be liable to adjustment while making compliance of this condition. 24. For a period of six weeks from today the execution of the impugned decree for eviction shall remain suspended and in case the required under taking as aforesaid is filed within the time allowed, the execution thereof shall remain suspended upto 31-3- 99. How ever, in the event of the required under taking being hot filed within the time as aforesaid and/or the other condition being not fulfilled or respected, it shall be open for the decree-holder to get the decree executed according to law forthwith. Petition dismissed. .