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2016 DIGILAW 396 (ALL)

Ramakant Richhariya v. Tribhuwan Ji Sinha

2016-02-01

SURYA PRAKASH KESARWANI

body2016
JUDGMENT Surya Prakash Kesarwani, J. – This revision under Section 25 of the Provincial Small Causes Court Act has been filed by the revisionist with a prayer to quash the judgment and order dated 28.11.2015 passed by IIIrd Additional District Judge, Jalaun at Orai in SCC Case No. 7 of 2011 (Tribhuwan Ji Sinha v. Ramakant Richhariya). 2. Heard Sri H.N. Singh, learned Senior Counsel assisted by Sri Vineet Kumar Singh, Advocate learned counsel for the defendant-revisionist and Sri Chaudhary Subhash Kumar, learned counsel for the plaintiff-respondent. 3. Learned counsel for the defendant-revisionist submits that the impugned judgment dated 28.11.2015 in SCC Case No. 7 of 2011, has been passed without considering the fact that entire arrears of rent was deposited by the defendant-revisionist in view of the provisions of Section 114 of the Transfer of Property Act, 1882 (hereinafter referred as `the Act'). He further submits that once the entire arrears of rent was deposited at the first hearing of the suit, the Court below should have protected the defendant-revisionist under Section 114 of the Act. Further submission is that it is undisputed that tenancy was oral tenancy on month to month basis and therefore, in case of suit filed for forfeiting the tenancy, the provisions of Section 114 of the Act would come into play in the situation when the entire rent was deposited by the revisionist/tenant. He also submits that the provisions of Section 114-A of the Act is referable to the provisions of Section 111(g) of the Act while the provisions of Section 114 is not referable to Section 111(g) of the Act and can be invoked by a tenant even in case where a notice under Section 106 of the Act has been issued by the landlord. 4. Sri Chaudhary Subhash Kumar, learned counsel for the plaintiff-respondent submits that Section 114 or Section 111(g) of the Act has no application on the facts of the present case inasmuch as the said provisions are applicable only when there is a written agreement containing express condition for forfeiting of the tenancy in case of non-payment of rent. He further submits that in the present set of fact it is wholly undisputed that there is an oral tenancy on month to month basis and the notice was given by the plaintiff-respondent to the defendant-revisionist (tenant) under Section 106 of the Act. He further submits that in the present set of fact it is wholly undisputed that there is an oral tenancy on month to month basis and the notice was given by the plaintiff-respondent to the defendant-revisionist (tenant) under Section 106 of the Act. He also submits that the finding of fact has been recorded by the court below while deciding the issue No. 4 that the notice under Section 106 of the Act was given by the plaintiff-respondent to the defendant-revisionist and despite service of notice, the defendant-revisionist has neither paid rent nor vacated the shop in question. 5. I have carefully considered the submissions of learned counsel for the parties. 6. It is the admitted case of the defendant-revisionist as also evident from paragraph-15 of the written statement filed as annexure No. 5 to the affidavit in support of this revision that the tenancy was oral and it was on month to month basis. It is also undisputed that the arrears of rent was deposited by the defendant-revisionist by tender for the period from January 2006 to January 2012 amounting to Rs. 40,000/- and for the month from February 2012 to March 2013 amounting to Rs. 8,000/- by challan being Paper Nos. 23-C and 34-C respectively. It is the admitted case of the defendant-revisionist that there was no written agreement containing any express condition providing for forfeiture in case of breach of such express condition. Under the circumstances, in my view; the provisions of Section 114 or Section 111(g) of the Act were not applicable. 7. The question of the applicability of provisions of Section 111(g) or Section 114 of the Act came for consideration before this Court in the case of Devi Prasad v. Special Judge, 2013 (4) AWC 3548 in which this Court referred to various decisions and held as under in Paragraph 6 to 10: - "6. The existence of written agreement containing a stipulation empowering landlord to re-enter in demised premises in case of breach of condition regarding payment of rent is essential. In Ram Bali Pandey (Since deceased) through his Lrs' v. II Additional District Judge, Kanpur and other, 1998 (2) ARC 362 , in para 23, this Court observed: "The tenancy was terminated under Section 106 of the T.P. Act simpliciter. In Ram Bali Pandey (Since deceased) through his Lrs' v. II Additional District Judge, Kanpur and other, 1998 (2) ARC 362 , in para 23, this Court observed: "The tenancy was terminated under Section 106 of the T.P. Act simpliciter. For the applicability of Section 114, existence of an agreement containing a stipulation empowering the landlord to re-enter in the demised premises in case of breach of a condition regarding payment of rent is essential. In the present case there was no such agreement and as U.P. Act No. 3/47 was not applicable to the premises, there was simpliciter termination of tenancy under Section 106 of the T.P. Act serving a notice thereunder. The mere fact that the notice stated about non-payment of rent also besides termination of monthly tenancy and demand of vacant possession it would not be a case of forfeiture under Clause (g) but one of determination of tenancy by exercising power under Clause (h) of Section 111 of the T.P. Act. No authority is required for the proposition that where there is simpliciter termination of tenancy under Section 106 of the T.P. Act and not under Section 111 (g) of the T.P. Act then provisions of Section 114 of the T.P. Act cannot be attracted. This argument of respondent's counsel also does not appeal to the Court and has to be rejected." (emphasis added) 8. In Mohammad Nasir v. District Judge, Nainital and others, 1999 (1) AWC 550 , this Court said: "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. 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 month's notice by either party and if the tenancy is terminated by serving one month's 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 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 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." (emphasis added) 9. 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." (emphasis added) 9. The aforesaid judgments have been referred to and followed by this Court in Writ Petition No. 3115 of 2000 (Smt. Noorul Subah & Anr. v. Addl. District Judge-I, Bijnor & Others) decided on 6.12.2012. 10. In Arun Khiamal Makhijani v. Jamnadas C. Tuliani and Ors., (1989) 4 SCC 612 , at page 624, Apex Court observed: "In a case where forfeiture of lease is claimed for non-payment of rent, it would, therefore, have to be established that one of the express conditions of the lease provided that on breach of that condition namely on non-payment of rent the lessor was entitled to re-enter. It is only in those cases where such an express condition is contained in the lease and the lessee breaks the said condition and the lessor on his part gives notice in writing to the lessee of his intention to determine the lease that a lease of immovable property determines by forfeiture for nonpayment of rent." From the aforesaid authorities and also bare perusal of Section 114 of Act, 1882 makes it very clear that genesis of Section 114 of Act, 1882 is a written agreement between the parties containing expressed terms and conditions and in breach whereof, when a right of re-entry is exercised under Section 111(g) of Act, 1882, Section 114 of Act, 1882 may be attracted and not otherwise. 11. Learned counsel for the petitioner could not make any substantive argument so as to pursue this Court to take a different view from what has been observed hereinabove. 12. In absence of any written agreement, the courts below have rightly declined to extend benefit of Section 114 of Act, 1882 to the petitioner." 13. In view of the above discussions and considering the law laid down in the case of Devi Prasad (supra), I find no merit in this revision. The provisions of Section 114 of the Act are not applicable at all on the facts of the present case. The revision lacks merit and therefore, deserves to be dismissed. 14. In view of the aforesaid, the revision fails and hereby dismissed. Revision dismissed.