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
