Patna High Court
Hari Prasad Tamoli vs Smt. Indira Devi on 29 October, 1976
Equivalent citations: AIR1977PAT208, AIR 1977 PATNA 208
JUDGMENT M.P. Singh, J.
1. This is a defendant's second appeal questioning the validity of the decree in ejectment passed by the trial court and confirmed in appeal by the District Judge of Santal Parganas, Dumka. The appellant was a monthly tenant under the land-lady of the suit premises, the monthly rental being Rs. 17. The decree for ejectment against him was passed on the ground that he was a defaulter and was liable to be evicted by not having paid the amount of six months' rent from January, 1966 to June, 1966 lawfully payable by and due from him.
2. Two submissions have been made by the appellant. First, it is contended by the learned counsel that the default being on the basis that the monthly rental was Rs. 17/- cannot afford a ground for eviction because the rent in arrears was unlawful under Section 4 of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947 (Bihar Act III of 1947), it having been illegally enhanced from Rs. 13/-to Rs. 17/-. This contention was raised before the District Judge and was overruled, and, in my opinion, rightly. It was never the case of the defendant that he ever tendered or remitted by post the rent to the plaintiff even at the rate lawfully payable by him. He never offered the rent to the plaintiff for the months of January and February 1966, as stated in para. 7 of the plaint. The plaintiff mentioned therein that the cause of action for the suit arose on the 1st of April, 1966 when the defendant failed to pay the rent Of the suit premises for the months of January and February 1966 by the end of March 1966 and also when the defendant failed to quit the suit premises on determination of the tenancy and that the cause of action continued since then. Moreover, the trial court did not pass any decree for the arrears of rent because it had been deposited in court and withdrawn by the plaintiff. Under these circumstances, determination of this question was rightly considered to be irrelevant by the District Judge. I am also of the view that the question of the illegality of the amount of rent under Section 4 is not relevant for the purposes of this appeal. It would have assumed importance if the claim for arrears of rent would have been decreed. The central fact is that he made the default in payments of rent and became liable to be evicted on this ground. This point thus has no force.
3. His second contention is that as the defendant-appellant is willing to pay to the lessor the entire rent in arrear together with interest thereon and full costs of the suit, he should be given relief against the forfeiture of the tenancy as provided in Section 114 of the T. P. Act (briefly, the Act). This point raises the question of the true scope of Section 114. Section 114 provides as follows :--
"Where a lease of immoveable 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."
On a perusal of the provisions aforesaid, it is clear that Section 114 is only attracted where a lease of immovable property is determined by forfeiture for non-payment of rent and when it is said in that section that "Where a lease of immoveable property has determined by forfeiture........." it is meant that it has been determined in the manner as indicated in Section 111 (g) of the Act. The meaning of the expression 'forfeiture' as used in Section 114 is, therefore, to be found in Section 111 (g) of the Act: see the case of Tippayya Kuppayya Vaidya v. Rama Narayana Hegde. (AIR 1961 Mys 131), Section 111 (g) lays down that a lease of immoveable property determines by forfeiture; that is to say, (1) in case the lessee breaks an express condition which provides that, on breach thereof, the lessor may re-enter; or (2) in case the lessee renounces his character as such by setting up a title in a third person or by claiming title In himself; or (3) the lessee is adjudicated an insolvent and the lease provides that the lessor may re-enter on the happening of such event; and in any of these cases the lessor or his transferee gives notice in writing to the lessee of his intention to determine the lease. In the present case only 1st part of this sub-section is relevant. The question is whether forfeiture has been incurred as required by Section 111 (g). The argument of the appellant is that the express condition of the lease was to pay monthly rent, and the plaintiff brought the suit for ejectment on the ground that the condition of payment of rent was not carried out, and, therefore, Section 114 of the Act is attracted. In my opinion, the argument is devoid of substance. I am of definite opinion that forfeiture has not been incurred in this case. Two things are necessary before, Sub-section (g) of Section 111 can be attracted, (i) that there should be an express condition in the lease for payment of rent, and (ii) that there should be a clause to re-enter in the lease in the case of default of payment of rent. In Mulla's Transfer of Property Act, Fifth Edition, at p. 739, the law is stated thus:--
"Unless there is an express condition to pay rent at a specified time accompanied by a provision for re-entry in default of such payment, the non-payment of rent will not entail forfeiture"
and reference was made to the case of K. G. Bandit v. Narsingh Das Sitaram, (AIR 1951 Nag 207). In that ease it has been laid down that unless there is an express condition in the lease for payment of rent and as a consequence of failure to re-enter, there is no forfeiture of the lease. This view was accepted as correct in Surajmal Jain v. Kanaklata Barua. (AIR 1964 Assam 102). It is thus, apparent that non-payment of rent will support a forfeiture of tenancy only when a proviso for re-entry is annexed. In the present ease, there is no such provision in the lease. There is no document of the lease and there is nothing to show that there was any provision in the lease that on breach of any express condition the lessor may re-enter. Thus, there could not be a forfeiture of the lease for nonpayment of rent.
Secondly, there is nothing to show that any notice was given by the lessor to the lessee of the forfeiture of the tenancy for non-payment of rent as required by the provisions of Section 111 (g) of the Act. The giving of such notice is mandatory for determining the lease by forfeiture. In Bhagwant v. Ramchandra, (AIR 1953 Bom 129) Mr. Justice Gajendragadkar (as he then was) observed as follows:--
"The word 'forfeiture' used in Section 114 has a technical meaning which must be ascertained by reference to Section 111 (g) of the said Act. 'Forfeiture' in this technical sense is incurred in case the lessee breaks an express condition which provides that on breach thereof the lessor may re-enter, and even in such a case the lessor has to give notice in writing to the lessee of his intention to determine the lease."
This view was accepted as correct in Tippayya Kuppayya Vaidya v. Rama Nerayana Hegde (AIR 1961 Mys 131). It is clear from the above observation that the lessor has to give notice in writing to the lessee of his intention to determine the lease. In Ramniranjan Prasad Tulshyan v. Gajadhar Prasad, (AIR 1960 Pat 525) a Division Bench of this Court held that the parties to the contract cannot waive this particular statutory provision as to notice in writing by the lessor. In that case, the finding of fact of the learned appellate court was that no notice had been given by the landlord to the tenant of the forfeiture of the tenancy for non-payment of rent and hence, there had been no forfeiture of the lease. In the present case, the point regarding relief against the forfeiture as provided in Section 114 was not taken by the tenant in any of the two courts below. The point has been taken here for the first time. For this reason, there is absence of any finding of fact by any of the courts below on the point as to whether any notice was given by the lessor to the lessee under Section 111 (g) of the Act. Any way, there is nothing to show that any such notice was given by the lessor of the forfeiture of the tenancy for non-payment of rent. This also shews that there was no determination of the lease by forfeiture. In the present ease determination of the lease is under Section 106 of the Act and the suit in ejectment is not based on the cause of action of the forfeiture of the tenancy. But for the provisions of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947, under Section 106 of the Act where the demise is under a monthly lease, the same is de-terminable by a notice given either by the lessor or lessee. The right is absolute and recognised statutorily. To exercise that right, the landlord has only to satisfy the court that any of the statutory grounds of eviction mentioned in Section 11 of the Bihar Buildings (Lease, Rent and Eviction) Control Act exists. The provisions of Section 11 are in the nature of protection to the tenant from eviction. Once the ground mentioned therein is made out, the protection is lifted. It cannot be said that an attempt by the landlord to prove any of those grounds under the Bihar Buildings (Lease, Rent and Eviction) Control Act is an attempt to forfeit the tenancy under the provisions of the Act. These are two independent statutory provisions. The forfeiture provided by Section 111 (g) of the Act must not be confused with the statutory ground that is required to be made out by the landlord under Section 11 of the Bihar Buildings (Lease, Rent and Eviction) Control Act. That being the position, the relief sought for in the present case on the basis of the doctrine of forfeiture of the lease is not available and cannot be granted. The present case is not a case of forfeiture, but of a valid determination of the lease by notice under Section 106 of the Act. The distinction between the two cannot be ignored.
4. For the reasons already expressed above my concluded opinion is that Section 114 of the Act is inapplicable to this case and no relief can be given to the tenant-appellant under Section 114 of the Act. It will not be out of place to make a further observation that where relief against forfeiture is not available under Section 114 of the Act, it cannot be given on general principles of justice, equity and good conscience: vide the case of Tippayya, (AIR 1961 Mys 131).
5. These being the only submissions, the present appeal is ordered to be dismissed and it is dismissed with costs; hearing fee Rs. 55/- (Rupees fifty-five) only.