Allahabad High Court
Nizamuddin vs Smt.Bushara Khatoon And Others on 30 January, 2013
Author: Sudhir Agarwal
Bench: Sudhir Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 7 Case :- WRIT - A No. - 5091 of 2013 Petitioner :- Nizamuddin Respondent :- Smt.Bushara Khatoon And Others Petitioner Counsel :- Ranvir Singh Hon'ble Sudhir Agarwal, J.
1. Heard Sri Ranvir Singh, Advocate, for petitioner and perused the record.
2. The suit for ejectment instituted by respondent-landlords i.e. S.C.C. Suit No. 12 of 1995 was decreed by the Trial Court i.e. Small Causes Court/ Civil Judge (Senior Division), Auraiya vide judgment dated 9.5.2005 and petitioner's S.C.C. Revision No. 6 of 2005 having been dismissed by the Addl. District Judge, Auraiya by judgment dated 29.11.2012, this writ petition has come to this Court under Article 226 of the Constitution at the instance of petitioner-tenant.
3. Two points have been argued. Firstly that no notice was actually served upon petitioner and, therefore, ejectment suit was liable to be dismissed. On this aspect the Trial Court has recorded a finding of fact relying on appreciation of evidence, oral and documentary, which included petitioner's own oral deposition. It reads as under:
^^;g uksfVl iathd`r Mkd ls izsf"kr dh x;hA izkfIr Lohd`r jlhn dkxt la[;k 8x@2 ij izkfIrdrkZ futeqn~nhu dk gLrk{kj gSA Mh0MCyw0 1 futkeqn~nhu i`"B 5 ij ;g Lohdkj fd;k gS fd dkxt la[;k 8x@2 izkfIr Lohd`r jlhn ij mlds gLrk{kj gSaA bl izdkj uksfVl dh izkfIr gksus dk rF; ;g lk{kh Lohdkj dj fy;k gSA - - - - - pwafd ;g lk{kh izkIr Lohd`r jlhn ij cus gLrk{kj dh f'kuk[r fd;k vkSj ;g izkfIr fnukad 21-07-94 dk gSA blfy;s uksfVl izkIr gksus ds lEcU/k esa dksbZ fookn ugha jg tkrk gSA** "This notice was sent through registered post. The acknowledgement receipt being paper no. 8C/2 bears signature of recipient Nizamuddin. D.W. 1 Nizamuddin has admitted on page 5 that the acknowledgement receipt being paper no. 8C/2 bears his signature. In this way, the witness has accepted the notice having been received. .........Since this witness has identified the signature made on the acknowledgement receipt and the said receipt is dated 21.07.94, therefore, no dispute persists in respect of receipt of the notice." (English translation by the Court)
4. The aforesaid finding has been confirmed by Revisional Court having not been found perverse, illegal or contrary to material on record. I also therefore find no reason to take a different view.
5. The second ground is that petitioner is entitled for benefit under Section 114 of Transfer of Property Act, 1882 (hereinafter referred to as "Act, 1882") since the tenancy was determined on the ground under Section 111 (G) of Act, 1882.
6. The submission is thoroughly misconceived. On this aspect, Revisional Court said held as under:
^^tcfd bl ekeys esa i=koyh ds ifj'khyu ls Li"V gS fd izR;FkhZx.k@ oknhx.k us fuxjkuhdrkZ dh fdjk;snkjh dk volku uksfVl vUrxZr /kkjk 106 lEifRr vUrj.k vf/kfu;e fnukad 19-07-1994 }kjk fd;k x;k FkkA blfy;s fuxjkuhdrkZ@ izfroknh dh fdjk;snkjh dk lekiu lEifRr vUrj.k vf/kfu;e dh /kkjk 111 ¼,p½ ds rgr fd;k x;k ekuk tk;sxkA fuxjkuhdrkZ dh fdjk;snkjh dk lekiu lEifRr vUrj.k vf/kfu;e dh /kkjk 111 ¼th½ ds rgr ugha fd;k x;k FkkA blfy;s bl ekeys esa fuf'pr :i ls lEifRr vUrj.k vf/kfu;e dh /kkjk 114 ds izkfo/kku ykxw ugha gksaxsA bl ekeys esa vf/kfu;e la0 13@1972 ds izkfo/kku Hkh ykxw ugha gksrs gSaA** "Whereas, it is clear on perusal of records in the instant case that the Respondents/Plaintiffs have on 19.07.1994 served the Revisionist with a notice of termination of tenancy u/s 106 of Transfer of Property Act. Therefore, the tenancy of Revisionist/Defendant shall be deemed to have been terminated u/s 111 (H) of Transfer of Property Act. The tenancy of Revisionist was not terminated u/s 111 (G) of Transfer of Property Act. Therefore, the provisions of Section 114 of Transfer of Property Act will surely not be applicable to the instant case. The provisions of Act 13/1972 (No. 13 of 1972) also do not apply to the instant case." (English translation by the Court)
7. The question as to when Section 114 of Act, 1882 would be attracted is no more res-integra, having been considered and decided in a number of cases.
8. In Mohammad Nasir Vs. District Judge, Nainital and others 1999 (1) AWC 550 this Court elaborately examined whether the provisions of Section 114 of the Act, 1882 would not be applicable when the tenancy is terminated by giving one months notice under Section 106 and it was observed:
"Section 114 of the Act confers a power on the Court to grant an equitable relief to the defaulting lessee. In order to claim benefit under this section, it has to be shown by the tenant that one of the terms of the lease was that the landlord will have a right of re-entry if the rent for any specified period remained unpaid and he has to show further that forfeiture has been incurred as provided under Section 111 (g). Section 114, of the Act thus postulates existence of determination of lease by forfeiture as a condition precedent and provisions contained in this section will have no application where the lease has been determined by serving a notice to quit under Section 106, of the Act. The relief under Section 114 of the Act is confined to those cases only which are strictly covered under Section 111 (g) and not to those cases which fall under Section 106 of the Act. A monthly tenancy is determinable by one month's notice by either party and if the tenancy is terminated by serving one month's notice under Section 106 of the Act, there is no forfeiture of tenancy and in that event, Section 114 cannot be applied. Thus, a notice under Section 106, of the Act by no means could be treated as one under Section 111(g).
Section 114 applies to those cases where the landlord invokes his rights under what is known as forfeiture clause and determines the lease by forfeiture and sues for the ejectment of the tenant. I may illustrate it by an example which will make the picture more clear. Suppose there is a lease for a fixed term of five years containing a clause that the landlord will be entitled to determine the lease and to re-enter upon the demised premises even during the period of five years if the tenant does not pay rent for more than three months. But for this clause, the lease must run for the entire period of five years and the landlord during the said period will have no right to eject the tenant before the expiry of the fixed period of five years. If the tenant fails to pay rent for more than three months, forfeiture clause enables the landlord to determine the lease before its expiration. In such a case, the subsisting tenancy cannot be determined by serving a notice simpliciter under Section 106 of the Act and it can only be determined where the landlord forfeits the tenancy by serving a notice under Section 111 (g). In such an event, Section 114 can be pressed into service but where the tenancy runs from month to month and the same has been determined by a valid notice under Section 106 of the Act, Section 114 of the Act shall have no application."
(emphasis supplied)
9. Earlier also in Tikka Ram Vs. Prakash Chandra, 1966 ALJ 1016, this Court has observed as under:
"Mr. Chaturvedi then argued that this Court should exercise its power to grant relief against the landlord's forfeiture of the lease for non-payment of rent. He contends that the court's power to grant such relief is not confined to the cases falling within Section 114 of the Transfer of Property Act, and he relied on a number of decisions. Jabab Vellalhi v. Smt. Kaderved Thayammal AIR 1958 Mad. 232; Sri Kishan Lal v. Ramnath Janaki Prasad AIR 1944 Nag. 229 and Malappa Venkatesh Shatti v. Janardan Govinda Mahab ILR 1950 Bom. 450. In all these cases, the court exercised its equitable power to grant relief against forfeiture, though the case did not fall within Section 114. But the power to grant relief against forfeiture, whether equitable or under Section 114, can be exercised by the Court only if there has been a forfeiture on the ground of non-payment of rent. But where there is no forfeiture and the landlord has terminated the lease under his right under Section 106, the question of granting relief against forfeiture does not arise. A suit for ejectment by the landlord after determining the lease under Section 106 is not based on forfeiture of the lease, but on the landlord's ordinary right to terminate the lease and eject the tenant. This right is restricted by Section 3(1) (a) of the U.P. Control of Rent and Eviction Act, but as soon as the tenant loses the protection of this Section, the landlord's right to determine his lease and eject him is freed of all restrictions. The tenant cannot in such a case ask the court to exercise its equitable power against a forfeiture, for the simple reason that there is no forfeiture to give relief against."
(Emphasis supplied)
10. Besides above, the matter has also been examined in Ram Bali Pandey Vs. II Additional District Judge, Kanpur and other, 1999 (1) AWC 413, wherein the Court has stressed upon a tenancy terminated simplicitor or on account of forfeiture etc. The relevant observations in para 23 of the judgment in Ram Bali Pandey (supra) are as under:
"The tenancy was terminated under Section 106 of the T.P. Act simpliciter. For the applicability of Section 114, existence of an agreement containing a stipulation empowering the landlord to re-enter in the demised premises in case of breach of a condition regarding payment of rent is essential. In the present case there was no such agreement and as U.P. Act No. 3/47 was not applicable to the premises, there was simpliciter termination of tenancy under Section 106 of the T.P. Act by serving a notice thereunder. The mere fact that the notice stated about non-payment of rent also besides termination of monthly tenancy and demand of vacant possession it would not be a case of forfeiture under Clause (g) but one of determination of tenancy by exercising power under Clause (h) of Section 111 of the T.P. Act. No authority is required for the proposition that where there is simpliciter termination of tenancy under Section 106 of the T.P. Act and not under Section 111 (g) of T.P. Act, then provisions of Section 114 of the T.P. Act cannot be attracted. This argument of respondents' counsel also does not appeal to the Court and has to be rejected." (emphasis added)
11. In view of above exposition of law and the discussion made hereinabove, I do not find any illegality, legal or otherwise, in the orders impugned in this writ petition so as to warrant interference.
12. Writ petition lacks merit. Dismissed.
Dt. 30.1.2013 PS