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2016 DIGILAW 93 (RAJ)

Hari Ram v. Anachi Devi

2016-01-13

ARUN BHANSALI

body2016
JUDGMENT : Arun Bhansali, J. This writ petition has been filed by the petitioner aggrieved against the order dated 28.9.2013 passed by the trial court, whereby the application filed by the petitioner under Section 114 of the Transfer of Property Act, 1882 ('the Act') has been dismissed. 2. The respondent-landlord filed a suit for eviction based on termination of tenancy by issuing a notice under Section 106 of the Act. 3. During the pendency of the suit, the petitioner filed application inter-alia indicating that the plaintiff has filed suit on the ground of forfeiture of tenancy for non-payment of rent and the notice issued also is to the same effect. It was submitted that the petitioner was submitting a sum of L 23,070/-, which amount may be paid to the plaintiff and the suit be dismissed. 4. The application was opposed by the respondent-landlord. It was inter-alia submitted that a notice only pertains to termination of tenancy and the application under Section 114 of the Act was not maintainable. 5. The trial court by its order dated 28.9.2013 came to the conclusion that in view of the fact that the suit was filed based on oral agreement and termination under Section 106 read with Section 111(h) of the Act, the application under Section 114 of the Act was not maintainable and consequently dismissed the same. 6. It is submitted by learned counsel for the petitioner that the trial court committed error in dismissing the application filed by the petitioner, inasmuch as, the suit was filed based on default in payment of rent and once the petitioner has paid the rent along with interest, the provision of Section 114 of the Act would be attracted and the suit was liable to be dismissed. 7. Learned counsel for respondent vehemently opposed the submissions made. It was submitted that the suit was based on termination of tenancy simpliciter and was not a case of forfeiture under Section 111(g) of the Act and therefore, the order impugned passed by the trial court is justified in the circumstances of the case. Reliance was placed on Rajendra Cloth Store & Anr. v. Gopi Kishan : S.B. C.W.P. No. 6121/2013 decided on 23.2.2015. 8. I have considered the submissions made by learned counsel for the parties and have perused the material available on record. 9. Reliance was placed on Rajendra Cloth Store & Anr. v. Gopi Kishan : S.B. C.W.P. No. 6121/2013 decided on 23.2.2015. 8. I have considered the submissions made by learned counsel for the parties and have perused the material available on record. 9. From a bare look at the notice dated 2.8.2010, issued by counsel for the plaintiff to the defendant under Section 106 read with Section 111(h) of the Act (as produced for perusal of this Court by learned counsel for the petitioner), clearly reveals that there has been only a mention of rent being due and there is not any indication of any forfeiture on account of such non-payment of rent and further the notice only stipulates termination of tenancy simpliciter. 10. This Court in the case of Rajendra Cloth Store (supra), held as under:- "A bare look at the provisions of Section 114 of the Act would reveal that the said provision is applicable where a lease of immovable property is determined by forfeiture for non-payment of rent and the lessor sues to eject the lessee; the determination by forfeiture is governed by provisions of Section 111 (g) of the Act, wherein, in case the lessee breaks an express condition, which provides that on breach thereof, a lessor may re-enter and the lessor or his transferee gives notice in writing to the lessee of his intention to determine the lease. In the present case, the plaintiff has issued a notice Annexure-1 through his counsel though noticing the default in payment of rent but thereafter expressly determining the tenancy in terms of Section 106 of the Act, which provides that a lease of immovable property is terminable on part of the lessor by 15 days' notice other than a lease of immovable property for agriculture or manufacturing purposes and the mode of termination is provided under Section 111(h) of the Act, which in the present case has been invoked. Apparently, the provisions of section 111(g) of the Act are not attracted, which are pre-requisite for applicability of provisions of Section 114 of the Act and the action in the present case having been taken under Section 106 of the Act provision of Section 114 is not at all applicable and the trial court was justified in dismissing the application filed by the petitioners." 11. In view of the law laid down by this Court in the case of Rajendra Cloth Store (supra), there is no substance in the writ petition filed by the petitioner, the same is, therefore, dismissed. 12. In view of the fact that the suit is pending before the trial court since 2010, the trial court is directed to proceed with the suit as expeditiously as possible and decide the same preferably within a period of six months from the date a certified copy of this order is placed before the said Court.