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2011 DIGILAW 1750 (RAJ)

Heera Lal v. Ayodhya

2011-08-18

VINEET KOTHARI

body2011
JUDGMENT 1. - This writ petition has been filed against the order dated 16/3/2011 of the learned trial court rejecting the three applications filed by the defendant/lessee. The first application was under Order 24, Rule 1 CPC, another application under was under Order 7, Rule 14 CPC for taking certain documents on record and third application was under Order 7, Rule 11 CPC. Against the rejection of application under Order 7, Rule 11 CPC, the petitioner defendant Heera Lal has approached this Court by way of SB Civil Revision Petition No. 93/2011, which came to be dismissed by this Court on 6/5/2011 and it was held as under: "Having heard the learned counsel, this Court concurs with the reasons given by the learned trial court that the question as to which half portion is required to be evicted is to be determined during the course of trial by evidence and non compliance with the provisions of Section 111 of the Transfer of Property Act cannot be said to be a bar for trial of the suit. Accordingly, this Court finds no ground to interfere with the impugned order and the present revision petition being devoid of merit is hereby dismissed. Copy of the order be sent to opposite side and trial court forthwith. Sd/- (Dr.Vineet Kothari), J." 2. Learned counsel for the petitioner defendant, Mr. Sajjan Singh submits that in view of recent decision of this Court in the case of Purushottam Dalal v. Smt. Shanti Devi - SBCFA No. 346/2010 decided on 8/8/2011 , the defendant can offer to clear all the arrears of rent at the time of hearing of the suit and request the learned trial court to invoke its discretion for waiver of forfeiture under Section 114 of the Transfer of Property Act. He submits that, in the present case, the suit is at the stage of framing of issues and the petitioner defendant is ready and willing to pay the entire arrears of rent, interest thereon and cost of the suit in one go in terms of Section 114 of the Transfer of Property Act. He submits that, in the present case, the suit is at the stage of framing of issues and the petitioner defendant is ready and willing to pay the entire arrears of rent, interest thereon and cost of the suit in one go in terms of Section 114 of the Transfer of Property Act. He, therefore, submits that while contentions raised in application under Order 24, Rule 1 CPC and Order 7, Rule 14 CPC may not be pressed by him, the defendant petitioner may be given liberty to pay all the arrears of rent including the interest and cost as aforesaid in terms of Section 114 of Transfer of Property Act and learned trial court may be directed to decide such application afresh. 3. On this contention, learned counsel for the respondent plaintiff, Mr. Bhuvnesh Sharma does not have serious objection. 4. In the aforesaid decision in the case of Purshottam Dalal (supra), this Court held as under:- "5. In the present case, nothing of this sort in terms of compliance with the provisions of Section 114 of the Transfer of Property Act was done at the time of filing of the suit. On the other hand, such payment of arrears of rent was made by the defendant tenant after the decree has been passed by the trial court, admittedly, on 3/1/2011. This cannot be said to be in terms of Section 114 of the Act, therefore, this Court in appeal, which even though technically may be treated as continuation of suit, cannot grant such relief. The purpose of Section 114 of the Transfer of Property Act is to avoid ejectment decree if the defendant tenant or the lessee makes a complete surrender and not only makes the payment of entire arrears of rent along with interest thereon for delay in payment of rent but also the costs of the such suit and thus invokes the discretion of learned trial court to release him from forfeiture. If all such amount are actually paid or sufficient security, in the opinion of trial court, is furnished then in its discretion, the trial court may pass appropriate orders giving relief from the forfeiture in favour of lessee. The point of time for making such compliance and praying for relief is important. If all such amount are actually paid or sufficient security, in the opinion of trial court, is furnished then in its discretion, the trial court may pass appropriate orders giving relief from the forfeiture in favour of lessee. The point of time for making such compliance and praying for relief is important. The purpose of Section 114 of the Act is not to continue such possibility of granting relief to the lessee even before the appellate forums. Therefore, prayer of learned counsel for the appellant defendant before this Court that benefit of Section 114 of Transfer of Property Act may be given to the defendant at this stage, cannot be accepted and is liable to be rejected and same is accordingly rejected. 6. Otherwise on other counts, since the lease in question has been rightly determined by serving notice upon the defendant under Section 106 and 107 of the Act, the eviction decree is valid in law and no valid exception can be taken against the same. 7. Consequently, the present first appeal is dismissed. The appellant-defendant-tenant shall handover the vacant and peaceful possession of the suit property in question to the respondent-plaintiff within three months from today and shall further continue to pay mesne profits at the rate of Rs. 1000/- from August, 2011, failing which it will be open for the respondent landlord to get the decree passed in her favour executed and also to initiate contempt proceedings in this Court. No costs. Sd/- (Dr.Vineet Kothari), J." 5. Since the request of defendant is being made at the stage when the suit is still pending trial and issues are yet to be framed, this Court is of the opinion that in view of the admitted position that suit has to be tried under the provisions of Transfer of Property Act and not under the provisions of Rent Control Act, in the present case, the petitioner defendant deserves to be given such liberty at this stage. 6. 6. Accordingly, the present writ petition is disposed of with liberty to the petitioner defendant to comply with the conditions of Section 114 of Transfer of Property Act by moving application before the learned trial court and such application should be moved before the learned trial court within fifteen days from today along with the tender of payment of complete arrears of rent, interest thereon and cost of the suit in question in terms of Section 114 of Transfer of Property Act. Upon filing such application, the learned trial court may pass appropriate orders on such application in accordance with law within a period of three months from today. 7. With these observations and directions, the present writ petition is disposed of. No order as to costs.Petition disposed of. *******