Rajasthan High Court - Jodhpur
Bhagwati Lal vs Ghanshyam Das on 9 February, 2017
Author: Pankaj Bhandari
Bench: Pankaj Bhandari
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B.Civil Writ Petition No. 12566 / 2016
Bhagwati Lal S/o Sohan Lal, by caste Sabu, aged about 57 years,
R/o Near Vardhman Press, Maheshwari Mohalla, Nimbahera, Tehsil
Nimbahera, District Chittorgarh.
----Petitioner
Versus
Ghanshyam Das S/o Chiman Das, by caste Lalwani Sindhi, R/o
Near Nagar Palika, Nimbahera, Tehsil Nimbahera, District
Chittorgarh.
----Respondent
_____________________________________________________
For Petitioner(s) : Mr. Rajesh Choudhary
For Respondent(s) : Mr. Sandeep Saruparia
_____________________________________________________
HON'BLE MR. JUSTICE PANKAJ BHANDARI
Order 09/02/2017
1. The petitioner has preferred this writ petition aggrieved by the order dated 10.08.2006 vide which application filed by the petitioner under Section 108 Clause (l) read with Section 114 of the Transfer of Property Act was rejected.
2. It is contended by counsel for the petitioner that the tenancy of the petitioner was terminated on the ground of default in payment of rent and on the ground that premises is required by the landlord.
3. It is contended that Section 114 permits the tenant to pay rent to the lessor together with interest and cost of the suit (2 of 4) [CW-12566/2016] and on such payment, the tenant would be relieved against the forfeiture and would continue to hold the leased premises as if the forfeiture had not occurred.
4. Counsel for the plaintiff-respondent has opposed the writ petition. His contention is that the suit was filed on 21.02.2011, the application has been filed on 20.04.2015 i.e. after a delay of four years and there is no compliance of Section 114 of the Transfer of Property Act. It is contended that the notice for termination of tenancy was given under Section 106 of the Tenancy Act therefore, Section 108(l) and 114 of the Tenancy Act have no applicability.
5. Counsel for the plaintiff-respondent has placed reliance on 2015(3) DNJ (Raj.) 1046 , Mohd. Anwar & Anr. Vs. Surendra Kumar.
6. I have considered the contentions of the parties and have also perused the provisions of Transfer of Property Act.
7. The sub clause (l) of Section 108 of the Transfer of Property Act provides that the lessee is bound to pay or tender, at the proper time and place, the premium or rent to the lessor or his agent in this behalf and if the rent is not paid sub clause (g) of Section 111 provides for forfeiture of the tenancy on account of breach of the express condition.
8. Section 114 gives relief to a lessee against forfeiture for non-payment of rent, a perusal of Section 114 makes it abundantly clear that if forfeiture is 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, (3 of 4) [CW-12566/2016] 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.
9. In the present case in hand, the defendant-petitioner neither paid or tendered the amount of rent on the first date of hearing nor paid the interest or cost of the suit, they also did not took time from the court for making payment within 15 days, this application has been filed after four years when the case is listed for final arguments.
10. The present matter is squarely covered by decision rendered in Mohd. Anwar & Anr. Vs. Surendra Kumar (supra) wherein also the plaintiff issued a notice mentioning the default in payment of rent but thereafter, expressly determined the tenancy in terms of Section 106 of the Act.
11. In the present case also the landlord has noticed the default and has observed that the tenancy is being terminated on account of default and on account of bonafide need, the notice in fact is a notice under Section 106 of the Transfer of Property Act as the landlord determined the tenancy from a particular date or date which tenant considers and has directed the tenant to handover possession within 15 days. However, even assuming that the notice was not under Section 106, the petitioner having not complied with the provisions of Section 114 of the Tenancy Act cannot claim the benefit of the same.
12. The court below has not committed any error in (4 of 4) [CW-12566/2016] rejecting the application filed by the petitioner.
13. The writ petition is accordingly dismissed. The stay petition also stands disposed.
(PANKAJ BHANDARI)J. zeeshan/