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2007 DIGILAW 2976 (ALL)

SUNIL KUMAR MODI v. MUNNA LAL GUPTA

2007-12-12

DILIP GUPTA

body2007
DILIP GUPTA, J. This Civil Revision which has been filed under Section 25 of the Provincial Small Cause Courts Act, 1887 has been filed by the defendant for setting aside the judgment and order dated 15th November, 2007 passed by the learned Additional District Judge Court No. 1 Jhansi by which the Suit has been decreed for rent and ejectment. 2. The contention advanced by Sri Pramod Kumar Jain learned Senior counsel for the revisionist is that the revisionist was entitled to the benefit of Section 114 of the Transfer of Property Act, 1882 (hereinafter referred to as the act) as there was no default in the payment of rent on the part of the defendant since the security amount of Rs. 60,000/- deposited by the tenant was lying with the plaintiff. 3. Sri Vishnu Gupta, learned counsel appearing for the plaintiff-respondent, however, submitted that the tenancy had been terminated by giving one months notice under Section 106 of the Act and, therefore, the provisions of Section 114 of the Act would not be applicable. 4. In order to appreciate the contentions advanced by the learned counsel for the parties, it would be necessary to examine the provisions of Sections 106, 111 and 114 of the Act and the same are quoted below. 5. Section 106 of the Act as amended in U. P. by U. P. Act No. 24 of 1954 is as follows:- "in the absence of a contract or local law or usage to the contrary, a lease of immovable property for agricultural or manufacturing purposes shall be deemed to be a lease from year to year, terminable, on the part of either lessor or lessee, by six months notice; 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 thirty days notice. 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) affixed to a conspicuous part of the property. " Section 111 of the Act is quoted below:- "a lease of immovable property, determines: (a) by efflux of the time limited thereby; (b) where such time is limited conditionally on the happening of some event by the happening 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 between them; (f) by implied surrender; (g) by forfeiture, that is to say, (1) in case the lessee breaks an 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 determine the lease; (h) on the expiration of a notice to determine the lease, or to quit, or of intention to quit, the property lease, duly given by one party to the other. " Section 114 of the Act is 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 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 gives 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 lease against the forfeiture; and thereupon the lessee shall hold the property leased as if the forfeiture had not occurred. " 5. " 5. The word "forfeiture" has not been defined under the Act but it means the loss of a legal right by means of some breach of an obligation. 6. On general principles, a suit for ejectment against a tenant is not maintainable unless a previous notice to quit or a notice demanding possession either under Section 106 or 111 (g) of the Act is given. There is, however, a distinction between a notice to quit and a notice determining tenancy under clause (g) of Section 111 of the 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. 7. This Court in Mohammad Nasir Vs. District Judge, Nainital & Ors. , 1999 (35) ALR 239 : 1999 (1) AWC 550 elaborately examined whether the provisions of Section 114 of the Act would be applicable when the tenancy is terminated by giving one months notice under Section 106 of the Act and it was observed. "section 114 of the 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, of the Act thus postulates 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, of the Act. The relief under Section 114 of the 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 of the 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 of the Act, there is no forfeiture of tenancy and in that event, Section 114 cannot be applied. 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 of the Act, there is no forfeiture of tenancy and in that event, Section 114 cannot be applied. Thus, a notice under Section 106, of the Act by no means could be treated as one under Section 111 (g ). Section 114 applies to those cases where the landlord invokes his rights under what is knows 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 containing a clause that the landlord will be entitled 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 of the 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 service but where the tenancy runs from month to month and the same has been determined by a valid notice under Section 106 of the Act, Section 114 of the Act shall have no application. " 8. This Court in Tikkam Ram Vs. Prakash Chandra 1966 ALJ 1016 had also observed as follows:- "mr. Chaturvedi then argued that this Court should exercise its power to grant relief against the landlords forfeiture of the lease for non-payment of rent. He contends that the courts power to grant such relief is not confined to the cases falling within Section 114 of the Transfer of Property Act, and he relied on a number of decisions. Chaturvedi then argued that this Court should exercise its power to grant relief against the landlords forfeiture of the lease for non-payment of rent. He contends that the courts power to grant such relief is not confined to the cases falling within Section 114 of the Transfer of Property Act, and he relied on a number of decisions. Jabab Vellalhi v. Smt. Kaderved Thayammal AIR 1958 Mad. 232 ; Sri Kishan Lal v. Ramnath Janaki Prasad AIR 1944 Nag. 229 and Malappa Venkatesh Shatti v. Janardan Govinda Mahab ILR 1950 Bom. 450. In all these cases, the court exercised its equitable power to grant relief against forfeiture, though the case did not fall within Section 114. But the power to grant relief against forfeiture, whether equitable or under Section 114, can be exercised by the Court only if there has been a forfeiture on the ground of non-payment of rent. But where there is no forfeiture and the landlord has terminated the lease under his right under Section 106, the question of granting relief against forfeiture does not arise. A suit for ejectment by the landlord after determining the lease under Section 106 is not based on forfeiture of the lease, but on the landlords ordinary right to terminate the lease and eject the tenant. This right is restricted by Section 3 (1) (a) of the U. P. Control of Rent and Eviction Act, but as soon as the tenant loses the protection of this Section, the landlords right to determine his lease and eject him is freed of all restrictions. The tenant cannot in such a case ask the court to exercise its equitable power against a forfeiture, for the simple reason that there is no forfeiture to give relief against. " 9. The aforesaid decisions clearly hold that where the tenancy has been determined by a notice under Section 106 of the Act, the provisions of Section 114 of the Act would have no application. The contention of Sri Pramod Kumar Jain, learned Senior Counsel for the Revisionist, therefore, cannot be accepted. 10. Sri Pramod Kumar Jain, learned Senior Counsel for the revisionist also submitted that the security amount of Rs. 60,000/- has not been returned by the plaintiff-respondent. The contention of Sri Pramod Kumar Jain, learned Senior Counsel for the Revisionist, therefore, cannot be accepted. 10. Sri Pramod Kumar Jain, learned Senior Counsel for the revisionist also submitted that the security amount of Rs. 60,000/- has not been returned by the plaintiff-respondent. Sri Vishnu Gupta, learned counsel for the plaintiff-respondent, on instructions received from his client, has stated that the said amount shall be paid to the revisionist on his vacating the premises in dispute. 11. Sri Pramod Kumar Jain, learned Senior counsel for the revisionist then submitted that some time may be given to the tenant to vacate the shop in dispute for which purpose his client is ready to give an undertaking that he will handover peaceful possession on the expiry of the said period and he shall also pay damages. 12. The Civil Revision is, therefore, dismissed subject to the following observations. 13. In view of this statement made by learned counsel for the plaintiff-respondent, the plaintiff- respondent shall pay to the revisionist an amount of Rs. 60,000/- which had been deposited towards security, when the revisionist hands over the vacant possession of the premises to the plaintiff- respondent. 14. The revisionist, however, shall not be evicted for a period of six months from today provided he files an undertaking to the following affect before the Court below within three weeks from today. 1. That the revisionist shall deposit the amount awarded in the judgment and order within a period of one month from today before the Judge Small Cause Courts. 2. That the revisionist shall pay damages at the rate of Rs. 4,000/- per month from December, 2007 up to the date he hands over the possession of the shop to the plaintiff-respondent. 3. That the revisionist shall not induct any other person in the shop. 4. That the revisionist shall handover vacant possession of the shop to the plaintiff-respondent on or before the expiry of six months from today. 15. It is made clear that in the event the revisionist fails to give the undertaking within the aforesaid period or fails to comply with any of the terms of the undertaking, it will be open to the plaintiff- respondent to get the decree executed. Revision Dismissed. .