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2011 DIGILAW 474 (RAJ)

Bhanwar Lal v. Rajendra Prasad

2011-03-03

GOPAL KRISHAN VYAS

body2011
JUDGMENT 1. - In this writ petition filed under Articles 226 and 227 of the Constitution of India, the petitioner has prayed for quashing the order dated 02.02.2011 (Annexure-5) passed by Civil Judge (JD) Judicial Magistrate First Class, Sri Doongargarh and further prayed that the application (Annexure-3) filed by the petitioner may be allowed. 2. As per facts of the case, the respondent plaintiff filed a suit against the petitioner defendant for recovery of rent of Rs. 5600/- so also for eviction from the shop situated in Rani Bazar at Sri Dungargarh. When above suit came up at final stage, then, an application under Section 114 of Transfer of Property Act read with Section 151 CPC was filed by the petitioner in which it is prayed that the suit has been filed for eviction on the ground of arrears of rent and a per provision of Section 114 of Transfer of Property Act, if lessee pays or tenders to the lessor the rent and 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 lessee against the forfeiture; and thereupon the lessee shall hold the property leased as if the forfeiture and not occurred. 3. Learned counsel for the petitioner submits that petitioner is ready to comply with Section 114 of Transfer of Property Act, therefore, the suit may be dismissed. A reply to the application filed under Section 114 of Transfer of Property Act was filed by the respondent in which it is submitted that the suit has not been filed for arrears of rent only but has been filed after terminating tenancy while sending notice under Section 106 of Transfer Property Act, for eviction, therefore, Section 114 of Transfer of Property Act does not apply in the facts of present case. 4. Learned trial Court rejected the application filed under Section 114 of Transfer of Property Act while holding that suit has not been filed only on the basis of recovery of rent but for eviction after terminating the tenancy as per Section 106 of Transfer of Property Act. 5. After hearing learned counsel for the petitioner, I have perused the impugned order and Section 114 of Transfer of Property Act. 5. After hearing learned counsel for the petitioner, I have perused the impugned order and Section 114 of Transfer of Property Act. Section 114 of Transfer of Property Act is as follows: "114 Relief against forfeiture for non-payment of rent.-Where as lease of immovable property has 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 and arrear, together with interest there on 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 lessee against the forfeiture; and thereupon the lessee shall hold the property leased as if the forfeiture had not occurred." 6. After perusing the facts of the case and above Section 114 of Transfer of Property Act, I am of the opinion that learned trial Court has rightly held that in this case Section 114 of Transfer of Property Act will not apply because suit has not only been filed on the ground of arrears of rent but also on the ground that notice under Section 106 of Transfer of Property Act was send and after terminating tenancy as per law, the suit has been filed, therefore, obviously upon present set of facts, it cannot b said that in the event of petitioner's request that he is ready to pay all the amount of rent as per Section 115 of Transfer of Property Act, suit can be dismissed. The facts of the present case are altogether different and learned trial Court while taking into consideration the fact that suit has been filed for eviction against the petitioner - tenant after terminating tenancy under Section 106 of Transfer of Property Act, has rightly rejected the application which is in consonance with law. 7. In this view of the matter, I agree with the finding given by learned trial Court for rejecting the application filed by the petitioner - tenant under Section 114 of Transfer of Property Act. Hence, this writ petition is dismissed.Petition dismissed. *******