Madhya Pradesh High Court
Khem Singh Dayal Singh Rawat vs Nagar Palika Parishad on 3 July, 1995
Equivalent citations: 1995(0)MPLJ753, 1995 A I H C 6478, (1995) 2 RENCR 528, (1995) MPLJ 753, (1996) 2 RENCJ 384, (1995) 1 CIVLJ 102
JUDGMENT T.S. Doabia, J.
1. This judgment shall dispose of two second appeals, namely, 95/94 (Khem Singh v. Nagar Palika Parishad, Shivpuri) and 142/94 (Jugal Kishore Pateria v. Shri Parshvnath Digamber Jain, Purana Mandir Trust, Chanderi). Both these appeals have been preferred by the tenants. A decree of eviction has been passed in both the cases. Brief facts in second appeal No. 142/94 be noticed first :-
2. The landlord institution by the name of Shri Parshvnath Digamber Jain Purana Mandir Trust, Chanderi filed a suit for eviction against the present appellant. It was based on the ground that the appellant/tenant was a habitual defaulter in the matter of payment of rent. Notice Ex.P/3 was served upon him. This notice has been issued under Section 106 of the Transfer of Property Act, 1882 (hereinafter referred to as the Act').
3. Appellant took a plea that appellant's father was the tenant and, after his death, he is to be treated as a tenant. It was urged that the provisions of M.P. Accommodation Control Act are attracted to the facts of this case. It was also pleaded that on the deposit of entire rent, the ground of eviction based on non-payment of rent would cease to be there. Both the Courts found no merit in the contentions of the appellant and the suit was decreed and appeal was dismissed.
4. In second appeal No. 95/94 (Khem Singh v. Nagar Palika Parishad, Shivpuri), the appellant was a tenant under Nagar Palika Parishad, Shivpuri. The premises in question are said to be non-residential. There was failure to pay rent. Notice under Section 106 of the Act was issued. In this notice, it was mentioned that the defendant/appellant has not paid rent. As there was failure to pay the rent, the suit was filed. Before filing of the suit as noticed above notice under Section 106 of the Act was also served.
5. The only argument which has been advanced by the appellants in both the cases is that up to date rent having been deposited the appellants are entitled to continue in possession and decree for eviction should be reversed. The appellants seek protection of Section 114 of the Act. It is stated that the appellants are ready to pay whatever rent has occurred along with interest and costs in this Court. As both the appeals hinge on the interpretation of Section 114 of the Act, this may be noticed. This section reads as under :-
"114. Where a lease of immovable property has determined by forfeiture for non-payment of rent and the lessor sues to eject the lessee, if, at the hearing of the suit, the lessee 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, the Court may, in lieu of making a decree for ejectment pass an order relieving the lessee against the forfeiture, and thereupon the lessee shall hold the property leased as if the forfeiture had not occurred."
6. It may be seen that there is subtle distinction between the liability of the tenant for eviction based on the ground of forfeiture of tenancy and his liability for eviction on the ground of termination of tenancy when this brought to an end by serving a notice under the Act. Such distinction was noticed by the Bombay High Court in case of Geetabai v. Manjrekar, AIR 1984 Bom. 400. It would be apt to quote what Sharad Manohar, J., observed in this case :-
"...The law relating to determination of tenancy is incorporated in Section 111 of the Transfer of Property Act. There are various reasons for determining the tenancy and there exists various modes by which the tenancy comes to an end. If the tenancy is to come to an end by virtue of the principle of forfeiture, what is required under the law is that the tenancy should be for a particular period and the lease deed must contain a clause of forfeiture on the ground of breach of certain conditions of the tenancy. If the breach is committed, the tenancy becomes liable for forfeiture even before the expiry of the agreed period of the tenancy. When the tenant incurs forfeiture, there is a further thing required to be done by the landlord, namely that the landlord must exercise his right of forfeiture either expressly or by necessary implication. If he exercises the right of forfeiture then the tenancy comes to an end even before the agreed period of tenancy. In such a case no question of notice of termination of tenancy as provided by Section 106 of the Transfer of Property Act arises although in certain cases some kind of notice indicating exercise of the right of forfeiture by the landlord may be advisable. On the other hand, when the lease is not for a particular fixed period but is only a periodical lease like a yearly lease or a monthly lease and if the agreement of tenancy provides that the lease can be terminated by notice of termination as contemplated by Section 106 of the Transfer of Property Act, no question of forfeiture as such arises. The tenant might happen to be a paragon of virtue and he might have been paying punctually and might have been performing every term of the tenancy with enviable devotion, still if the tenancy is terminated by the notice to quit provided for expressly or impliedly by the agreement of tenancy. The conduct of the tenant and absence of breach of termination (condition) to tenancy on his part are irrelevant factors."
It was further observed :-
"If the lease is capable of being terminated by a notice of termination under Section 106 of the Transfer of Property Act, the legal position is not that the tenancy is terminated by forfeiture. Termination of tenancy on account of forfeiture is an entirely different concept, and the Court must bear in mind that the concept of termination of tenancy on account of forfeiture and the concept of termination of tenancy by a notice to quit under Section 106 of the Transfer of Property Act are two distinct and independent concepts."
7. Learned counsel for the appellants has placed reliance on a decision given by the Supreme Court in Praduman Kumar v. Virendra Gopal, AIR 1969 SC 1349. In this case it was observed that the covenant of forfeiture of tenancy for non-payment of rent is regarded by the Courts as merely a clause for securing payment of rent, and unless the tenant has by his conduct disentitled himself to equitable relief the Courts grant relief against forfeiture of tenancy on the tenant paying the rent due, interest thereon and costs of the suit.
8. It may be seen that in the case before the Supreme Court there was a deed which obliged the tenant to pay a sum of Rs. 250/- per annum and in the event of default in payment of rent for two consecutive years, the tenancy rights were to stand forfeited. It was against this forfeiture clause, provisions of Section 114 of the Act were held to be applicable. It may further be seen that the above position would not be attracted to the facts of this case. As noticed above, there is subtle distinction between forfeiture which is brought about under the covenant and the termination which is brought about by issuing a notice under Section 106 of the Act.
9. Thus, the conclusion is that in order to attract the provisions of Section 114 it is necessary that under the contract between the parties, the lease deed must have an express term and on breach of covenant to pay rent at a specified time the lessor must have a right to reenter. In such a case the term of re-entry is held to be penal and will be relieved against. Where the tenancy is from month to month determinable at the option of either party, by giving of notice Section 114 of the Act would not be applicable.
10. These two appeals are accordingly without any merit and the same are dismissed with costs. Costs Rs. 250/- in each appeal.