The tenant was not found to be in default of payment of rent, as he had duly tendered a sum of Rs. 13560/- by draft in response to notice under Section 106 of the Transfer of Property Act, 1882. By applying the principles of Section 114 of the Act, the tenant was relieved from the liability of eviction. The trial Court also held that no amount was payable by the tenant towards electricity charges. It also held that the plaintiffs could not establish bona fide need for the shop in dispute, therefore, it declined to grant relief of eviction.
5. The sole submission of Sri N.C. Rajvanshi, learned senior counsel for the revisionists is that once U.P. Act No. 13 of 1972 was found to be inapplicable to the building in dispute, the relationship of the parties would stand governed by the provisions of the Transfer of Property Act, 1882. He submitted that the tenancy was terminated by giving notice under Section 106 of the Act. It was not a notice of forfeiture on the ground of non-payment of rent nor provisions of Section 114 were applicable. The tenant became liable for eviction, as service of notice is not in dispute.
6. 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 re-enter 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.
7. 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 lien of passing a decree of eviction, pass an order relieving the leasee against the forfeiture.
8. 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.
9. The notice dated 19.5.2010 has been brought on record and a perusal thereof reveals that it is a notice under Clause (h) of Section 111 of the Transfer of Property Act, 1882 seeking termination of tenancy upon expiry of the statutory period. The plaintiffs have specifically stated that after expiry of the statutory period, the tenant should vacate, as they do not want to continue him as tenant any more. In the said notice, it is also stated that rent and electricity charges since March 2010 have not been paid, but the tenancy has not been determined on the ground of non-payment of these amounts. In fact, the finding of the Court below is that no written lease deed has been brought on record, nor it was the case of the landlords that there was breach of express condition of any lease agreement entitling the plaintiffs to determine the lease by forfeiture.
IN THE HIGH COURT OF ALLAHABAD
Civil Revision No. 55 of 2013
Decided On: 18.01.2019
Subhash Chandra Vs. Ajay Gupta
Hon'ble Judges/Coram:
Manoj Kumar Gupta, J.
Citation: AIR 2019(NOC) 819 ALL
1. Heard Sri N.C. Rajvanshi, learned senior counsel assisted by Sri Vishesh Rajvanshi for the plaintiff-revisionists. None appears for the defendant-opposite party, despite sufficient service.
2. The plaintiff-revisionists instituted a suit of the nature of small causes being SCC Suit No. 50/2010 against the defendant-opposite party (for short 'the tenant') for eviction from a shop in his tenancy bearing No. 2 in Building No. 251, New No. 113, Mukund Nagar, Ghaziabad and for recovery of arrears of rent and mesne profits. It was alleged that rent of the shop was Rs. 3390/- per month. The tenancy was from month to month starting from the first day of the month and ending on the last day. It was further alleged that rent till February 2010 was paid by the tenant by cheque, but rent and electricity charges from March 2010 onwards had not been paid, despite service of notice dated 19.5.2010 under Section 106 of the Transfer of Property Act, 1882 (for short 'the Act'). It was further asserted that as the rent of the premises exceeded Rs. 2000/- per month, consequently, the provisions of U.P. Act No. 13 of 1972 were not applicable. The tenant had failed to vacate even after expiry of statutory period of thirty days, consequently, the suit was instituted.
3. The suit was contested by the tenant by filing written statement, in which it was admitted that the rent of the shop was Rs. 3390/- per month. The tenant asserted that the plaintiff-revisionists have deliberately stopped accepting the rent. He accepted the receipt of notice, but claimed that alongwith the reply to said notice, he remitted a sum of Rs. 13560/- by draft dated 3.6.2010 drawn on Bank of Baroda. The tenant also asserted that previously he was paying Rs. 400/- per month towards electricity charges to the landlord, but the landlord was not depositing the amount with the Electricity Department. He also asserted that the plaintiffs had no locus to institute the suit. The tenant also claimed protection from eviction under the provisions of U.P. Act No. 13 of 1972.
4. The trial Court by impugned judgment dated 26.11.2012 dismissed the suit for the relief of eviction, but permitted the plaintiffs to withdraw rent deposited in the Court. It held that provisions of U.P. Act No. 13 of 1972 were not applicable, rent being more than Rs. 2000/- per month. The plaintiffs were found competent to institute the suit as karta of HUF. The tenant was not found to be in default of payment of rent, as he had duly tendered a sum of Rs. 13560/- by draft in response to notice under Section 106 of the Transfer of Property Act, 1882. By applying the principles of Section 114 of the Act, the tenant was relieved from the liability of eviction. The trial Court also held that no amount was payable by the tenant towards electricity charges. It also held that the plaintiffs could not establish bona fide need for the shop in dispute, therefore, it declined to grant relief of eviction.
5. The sole submission of Sri N.C. Rajvanshi, learned senior counsel for the revisionists is that once U.P. Act No. 13 of 1972 was found to be inapplicable to the building in dispute, the relationship of the parties would stand governed by the provisions of the Transfer of Property Act, 1882. He submitted that the tenancy was terminated by giving notice under Section 106 of the Act. It was not a notice of forfeiture on the ground of non-payment of rent nor provisions of Section 114 were applicable. The tenant became liable for eviction, as service of notice is not in dispute.
6. 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 re-enter 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.
7. 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 lien of passing a decree of eviction, pass an order relieving the leasee against the forfeiture.
8. 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.
9. The notice dated 19.5.2010 has been brought on record and a perusal thereof reveals that it is a notice under Clause (h) of Section 111 of the Transfer of Property Act, 1882 seeking termination of tenancy upon expiry of the statutory period. The plaintiffs have specifically stated that after expiry of the statutory period, the tenant should vacate, as they do not want to continue him as tenant any more. In the said notice, it is also stated that rent and electricity charges since March 2010 have not been paid, but the tenancy has not been determined on the ground of non-payment of these amounts. In fact, the finding of the Court below is that no written lease deed has been brought on record, nor it was the case of the landlords that there was breach of express condition of any lease agreement entitling the plaintiffs to determine the lease by forfeiture.
10. In Tharumal and another v. Masjid Hajum Pharosan va Madrassa Talimul Islam, MANU/SC/0682/1994 : 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. 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."
11. The Court below without appreciating the basis for instituting the suit has made observation to the effect that the plaintiffs could not prove their bona fide need nor have stated the ground for evicting the tenant, which in the opinion of the Court is a result of complete misunderstanding of the plaint case. Since, it is not in dispute that the notice under Section 106 of the Act was duly served upon the tenant, therefore, in view of Section 111(h), the tenancy stood determined upon expiry of the statutory period and the tenant became liable for eviction.
12. In view of the foregoing discussion, the finding recorded by the trial Court that no ground is made out for eviction is not sustainable in law and is accordingly set-aside. The suit for eviction is hereby decreed. However, in respect of arrears of rent and electricity charges, no relief is being granted, as Sri N.C. Rajvanshi, learned senior counsel for the revisionists has not pressed for the same.
13. The revision stands allowed to the extent indicated above.
No order as to costs.
No comments:
Post a Comment