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Allahabad High Court · body

2019 DIGILAW 398 (ALL)

Khalil Ahmad v. Anis Ahmad

2019-02-14

MANOJ KUMAR GUPTA

body2019
ORDER : Manoj Kumar Gupta, J. 1. By order dated 2.1.2013, service of notice upon the respondent was deemed sufficient. 2. Matter taken up in the revised call. 3. Heard Sri Ashish Kumar Singh, counsel for the revisionist. No one is present on behalf of the respondent-tenant. 4. The instant revision is directed against the judgment and decree dated 16.7.2012 passed by Judge Small Causes in SCC Suit No.23 of 2011 thereby dismissing the suit. 5. The facts in brief necessary for disposal of the instant revision are as under : The plaintiff-revisionist (hereinafter referred to as 'the plaintiff') instituted a suit for recovery of arrears of rent and for eviction of the defendant-tenant (hereinafter referred to as 'the defendant') from the shop in his tenancy situated in Kasba Behat, District Saharanpur. According to the plaint assertion, the rent of the premises was Rs.880/-per month including municipal taxes. The defendant had defaulted in payment of rent since 1.4.2006. The provisions of U.P. Act No.13 of 1972 are not applicable as the shop was first assessed in the year 1993. A notice dated 28.3.2011 was served upon the defendant demanding arrears of rent and determining his tenancy after expiry of 30 days of service of notice. It was followed by institution of suit for recovery of arrears of rent and for eviction. In the plaint it was also alleged that the tenanted premises had been sublet. 6. The suit was contested by the defendant by filing written statement, in which he admitted the rent to be Rs.880/-per month. He also did not dispute that notice dated 28.3.2011 was duly served upon him but it was alleged that thereby his tenancy did not stand determined. He also showed willingness to deposit entire arrears of rent and infact also deposited Rs.56,728/- and claimed benefit of Section 20(4) of the Act. 7. The trial court framed various points for determination. On point no.1, it held that there was relationship of landlord and tenant between the parties and the rent of the premises was Rs.880/-per month. While deciding point no.4, the court held that the provisions of U.P. Act No.13 of 1972 are not applicable, the tenanted premises being first assessed in the year 1991-92. While deciding point no.2, the court held that notice dated 28.3.2011 was duly served. While deciding point no.4, the court held that the provisions of U.P. Act No.13 of 1972 are not applicable, the tenanted premises being first assessed in the year 1991-92. While deciding point no.2, the court held that notice dated 28.3.2011 was duly served. It thereafter proceeded to consider the effect of the deposit of a sum of Rs.56,728/-by the defendant-tenant. The court observed that since entire arrears of rent etc. stood deposited therefore, the defendant was entitled to benefit of Section 114 of Transfer of Property Act, 1982 (for short 'the Act') and accordingly relieved him from liability of eviction and dismissed the suit. 8. Counsel for the petitioner submitted that the tenancy of the defendant was terminated by a notice simplicitor under Section 106 of the Transfer of Property Act. The tenancy thereby stood determined as per Section 111(h) of the Act. He further submitted that the suit was not instituted on the ground of forfeiture of any express condition of the lease agreement nor the notice was under Section 111(g), consequently, the benefit of Section 114 of the Transfer or Property Act was wrongly extended. 9. Since the trial Court has found the provisions of U.P. Act No. 13 of 1972 to be inapplicable, the relationship between the parties was governed by the general law i.e. the Transfer of Property Act, 1882. Section 111 of the Act provides various modes and contingencies by and under which a lease of immovable property stands determined. Under Clause (g) thereof, a lease gets determined by forfeiture i.e. where the lessee breaks an express condition which provides that on breach thereof the lessor may reenter followed by a notice in writing by the lessor to the lessee of his intention to determine the lease. Under Clause (h), a lease determines on the expiration of the notice to determine the lease or to quit or of intention to quit, the property leased, duly given by one party to the other. The manner of serving notice to quit is that provided by Section 106. 10. Under Clause (h), a lease determines on the expiration of the notice to determine the lease or to quit or of intention to quit, the property leased, duly given by one party to the other. The manner of serving notice to quit is that provided by Section 106. 10. The forfeiture, which is entailed upon break of express condition of lease is condonable, by virtue of provisions of Section 114 of the Act, where the leasee pays or tenders to the lessor the rent in 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. In such a case, the Court may, in lieu of passing a decree of eviction, pass an order relieving the leasee against the forfeiture. 11. Section 114 of the Transfer of Property Act, 1882 is thus applicable only where the lease is determined by forfeiture i.e. on account of breach of an express condition which entitles the lessor to re-enter. On the other hand, if the tenancy is determined by a simple notice to quit, as provided under Clause (h) of Section 111, then Section 114 would not come to the rescue of the leasee. 12. The notice dated 28.3.2011 has been brought on record alongwith the supplementary affidavit. A perusal thereof would reveal that although thereby, the entire arrears of rent was also demanded but the tenancy was not terminated on the ground of violation of any express condition of the lease deed stipulating for re-entry in case of breach of such condition. Infact it was a notice simplicitor under Section 106 of the Transfer of Property Act specifically stating that after expiry of 30 days, the tenancy would stand determined and the defendant should vacate the tenanted premises. 13. In Tharumal and another Versus Masjid Hajum Pharosan va Madrassa Talimul Islam, 1994 (3) SCC 375 , it has been held in an identical situation as under : - "10.Though a perusal of the notice, which is dated 29-5-80 does show that it mentioned about non-payment of rent, but it also stated about termination of tenancy and demanded vacant possession by 31-7-80 or "the last date of the month of......". In the suit as filed rent had not been claimed on and from 1-8-80, it was rather damages on account of illegal use and occupation. In the suit as filed rent had not been claimed on and from 1-8-80, it was rather damages on account of illegal use and occupation. For the first of the three situations mentioned in Section 111(g) to operate the condition has to be one the breach of which had provided the lessor a right to re-enter. In the present case, there is nothing to show that such was the condition of the tenancy. That apart, the notice itself would show that it was clause (h) of Section 111 which was pressed into service, because the requirements of notice of termination as mentioned in Section 106 of the Transfer of Property Act were duly borne in mind, as per which section in case of monthly tenancy, the notice must expire with the "end of a month of the tenancy". The perusal of the notice shows that the tenancy at hand was a monthly tenancy as per English calendar and it is because of this that vacant possession was demanded from 31-7-80, the end of an English calendar month, stating simultaneously about "the last date of the month of.....". These salient features do not leave any doubt in our mind that the present was not a case of forfeiture but of determination of tenancy. We, therefore, reject the second contention as well of Shri Sachar." 14. As a result and in view of the foregoing discussion, the Court is of the considered opinion that the view of the court below that the defendant was entitled to benefit of Section 114 of the Transfer of Property Act, is wholly erroneous. The tenancy having been determined by giving notice under Section 106 of the Transfer of Property Act, there was no hindrance in decreeing the suit for eviction. 15. Accordingly, the impugned judgment dismissing the suit is set aside. The suit for eviction of the defendant is hereby decreed. The revision stands allowed.