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2015 DIGILAW 3285 (ALL)

Ramakant v. Om Prakash

2015-10-16

SUNEET KUMAR

body2015
JUDGMENT : Suneet Kumar, J. The petitioner/tenant is before this Court assailing the judgment and decree dated 8 February 2015 passed by the Additional District Judge/Special Judge, Kanpur Nagar in SCC revision no. 58 of 2008 (Rama Kant v. Om Prakash) arising from an order passed by the Small Causes Court, Kanpur Nagar decreeing the suit for eviction and arrears of rent/damages. 2. The respondent/landlord by notice dated 2 August 2008 determined the tenancy in respect of premises being House No. 111/478 for arrears of rent. The notice was replied by the petitioner denying the allegations therein but it was admitted that the petitioner is the tenant of the premises in dispute. The Trial Court upon exchange of pleadings framed three issues regarding (1) service of notice; (2) whether Act 13 of 1972 is applicable on the disputed premises and (3) whether plaintiff is entitled to get the reliefs claimed for; 3. The Courts below upon considering the material and evidence on record held that the notice under Section 106 of the Transfer of Property Act is valid and legal, Act 13 of 1972 is not applicable on the premises in dispute thereby decreed the suit for eviction. In revision the petitioner contended before the revisional Court that the benefit of Section 110 and 114 of the Transfer of Property Act was not given to the petitioner, therefore, it was urged that the impugned order is bad in law. The Revisional Court affirmed the judgment and decree thereby rejecting the revision. 4. The sole contention of the learned counsel for the petitioner is that the Courts below failed to appreciate that since the tenancy was determined on the ground of forfeiture (non-payment of rent) as provided in Section 111(g) of the Transfer of Property Act, therefore, the tenant is entitled to get the benefit of Section 114 of the Transfer of Property Act. It was contended that the petitioner deposited the entire rent after receiving notice, therefore, there was no breach of any condition of the agreement. The notice being invalid and illegal for the reason that 30 days notice was given as against 15 days notice provided under the Transfer of Property Act. 5. In rebuttal, Sri Nigam, learned counsel appearing for the respondent would submit that the impugned judgment and decree is lawful and valid, the benefit of Section 114 is not available. The notice being invalid and illegal for the reason that 30 days notice was given as against 15 days notice provided under the Transfer of Property Act. 5. In rebuttal, Sri Nigam, learned counsel appearing for the respondent would submit that the impugned judgment and decree is lawful and valid, the benefit of Section 114 is not available. The tenancy was month to month therefore, was terminated on a simple notice for default and arrears of rent. 6. I have considered the rival submissions of learned counsel for the parties. 7. In order to appreciate the submissions made by the learned counsel for the parties, it is necessary to refer to the relevant provisions of the Transfer of Property Act. The provisions of Section 114 of the Transfer of Property Act would be attracted only where the lease of a immovable property is determined by forfeiture of nonpayment of rent. 8. Section 111 of the Transfer of Property Act sets out when a lease of immovable property is determined. Subsection (g) of Section 111 of Transfer of Property Act, apart from other stipulations lays down that a lease of immovable property determines by forfeiture, that is, to say in case the lessee breaks an express condition which provides that on breach thereof the lessor may re-enter. Two things are necessary before the aforesaid provision under sub-section (g) of Section 111 of the Transfer of Property Act can come into operation, firstly, there should be an express condition in the lease for the payment of rent and secondly, there should be a clause for re-entry in the case of default. It is, therefore, obvious that unless there is an express condition in the lease for payment of rent and as a consequence of failure, to re-enter, there cannot be forfeiture of the lease. 9. A tenant, therefore, while claiming a benefit available under Section 114 of the Transfer of Property Act has to clearly plead and establish that the lease under which he holds the demised premises contains a term that in the event of a certain default in payment of rent the lease might be terminated and that the plaintiff has based his claim on the lease having been determined as forfeiture had been incurred by the tenant according to the terms of the lease. It should not be lost sight of, that, it is open to the parties to agree that the landlords usual right of reentry cannot be restricted by a term in the lease and such term may be that so long as the tenant goes on paying rent in the manner mentioned, landlord would not have the right of re-entry or the right of ejectment. In case there is such a specific term agreed upon forfeiture incurred for breach of the term may be relieved under the provisions of Section 114 of the Transfer of Property Act, but where there is no such agreement between the parties or the defendant fails to establish any such agreement the landlord has the right to terminate the tenancy in the manner mentioned in Section 106 of the Transfer of Property Act. In the absence of any specific term to the contrary the landlord has the right to terminate the lease and if the tenancy is terminated by a valid notice under Section 106 of the Transfer of Property Act the provisions contained in Section 114 of the Transfer of property Act cannot be invoked to protect the tenant from ejectment. 10. It may further be noticed that on the facts and circumstances brought on record, there is no escape from the conclusion that in the instant case the tenant petitioner had failed to establish that there was an express condition of re-entry for the failure in payment of rent. Further, there is neither any finding nor proof of a written lease nor of any contract nor of any breach of any of its terms nor of the conditions of re-entry. 11. This Court in Riyasat Ali Khan v. Mirza Wahid Beg And Anr., AIR 1966 All 165 observed that there are different ways of terminating the tenancy, one of them by notice and another by forfeiture. Monthly tenancy is terminable by one month notice by either party. In such a case, there is no question of forfeiture, however, a tenancy may be prematurely terminated by the landlord if there is a forfeiture clause entitling him to do so. It was further observed that in a tenancy which runs from month to month, no question of forfeiture arises, if the landlord determines it by a valid notice of termination. It was further observed that in a tenancy which runs from month to month, no question of forfeiture arises, if the landlord determines it by a valid notice of termination. (Refer: Sabir Husain v. Allah Tala Owner Waqf Alal-Aulad, 2005 (1) ARC 273 Hakumat Rai v. District and Sessions Judge, Haridwar, 1995 (1) AWC 334). 12. In Geetabai Namdeo Daf v. B.D. Manjrekar, AIR 1984 Bombay 400 referred to in Sabir Husain's case held as follows:- "The legal position to be noted is that there is a world of difference between liability of the tenant for eviction on the ground of forfeiture of tenancy and his liability on the ground of termination of the tenancy by a notice of termination simpliciter. The law relating to determination of tenancy is incorporated in Section 111 of the Transfer of Property Act. There are various reasons for determining the tenancy and there exist various modes by which the tenancy comes to an end. If the tenancy is to come to an end by virtue of the principle of forfeiture, what is required under the law is that the tenancy should be for a particular period and the lease deed must contain a clause of forfeiture on the ground of breach of certain conditions of the tenancy. If the breach is committed, the tenancy becomes liable for forfeiture even before the expiry of the agreed period of the tenancy. When the tenant incurs forfeiture, there is a further thing required to be done by the landlord, namely, that the landlord must exercise his right of forfeiture either expressly or by necessary implication. If he exercises the right of forfeiture, then the tenancy comes to an end even before the agreed period of tenancy. In such a case no question of notice of termination of tenancy as provided by Section 106 of the Transfer of Property Act arises, although, in certain cases, some kind of notice indicating exercise of the right of forfeiture by the landlord may be advisable. On the other hand, when the lease is not for a particular fixed period but is only a periodical lease like a yearly lease or a monthly lease and if the agreement of tenancy provides that the lease can be terminated by notice of termination as contemplated by Section 106 of the Transfer of Property Act, no question of forfeiture as such arises. The tenant might happen to be a paragon of virtue and he might have been paying every single farthing of the rent with strict punctuality and might have been performing every term of the tenancy with enviable devotion; still, if the tenancy is terminated by the notice to quit provided for expressly or impliedly by the agreement of tenancy, the conduct of the tenant and absence of breach of termination (condition) to tenancy on his part are irrelevant factors." 13. The Trial Court held that the provisions of Rent Act (U.P. Act 13 of 1972) were not applicable to the present case. The said finding does not appear to have been questioned by the petitioner before the higher courts, therefore, the finding became final. This plea has not been agitated by the learned counsel for the petitioner before this Court. 14. As regards period of notice, by Act 24 of 1954 "15 day notice" word "30 days notice" was substituted. 15. In view of the fact that the provisions of the Rent Act were not applicable to the present case, the lease of the petitioner could be determined by a notice to quit under Section 111(h) read with Section 106 of the Transfer of Property Act as has been done in the present case. Since the notice, as discussed above, is not a notice under Section 111(g) of the Transfer of Property Act for forfeiture of lease, section 114(A) has no application to the present case. 16. For the reasons stated herein above, the writ petition is dismissed. 17. On the request of the learned counsel for the petitioner, it is provided that in case the petitioner gives an undertaking on oath before the Court below that he shall vacate the premises in question and hand over the possession of the same peacefully to the respondent landlord on or before 30 April 2016. 17. On the request of the learned counsel for the petitioner, it is provided that in case the petitioner gives an undertaking on oath before the Court below that he shall vacate the premises in question and hand over the possession of the same peacefully to the respondent landlord on or before 30 April 2016. The aforesaid undertaking on oath shall be given by the petitioner before the Court below within 10 days from the date of production of certified copy of this order and the petitioner shall deposit the monthly rent of the premises in question before the Court below, as per the current rent fixed and shall continue to deposit the same by 07th of the each calendar month till the vacation of the premises in question, which amount may be permitted to be withdrawn by the respondent-landlord after due verification by the Court concerned. 18. It is made clear that in the event of default committed by the petitioner/tenant in any of the conditions, the order shall stand automatically vacated without reference to the Court. 19. No order as to cost.