1. Heard Sri Pankaj Agarwal, learned counsel for the petitioner in Writ Petition No.17254 of 2007 (hereinafter referred to as "first petition) and respondent in Writ Petition No.39504 of 2007 (hereinafter referred to as "second petition") and Sri S.K.Tyagi, learned counsel for the respondent in first petition and petitioner in second petition.
2. Both these matters are being decided by this common judgment since they have arisen from common judgment.
3. The petitioners, in first petition, instituted suit for eviction against defendant - respondent. It is contended that since accommodation in question is "public religious charitable trust" therefore, Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (U.P. Act No.13 of 1972) (hereinafter referred to as "Act, 1972") is not applicable to the building in dispute. The Trial Court held that Trust is not "public religious charitable trust" but a private trust and therefore Act, 1972 was applicable and since eviction proceedings were not within the provisions of Section 20(2) of Act, 1972, the suit was dismissed. The petitioner, Madan Mohan Garg preferred S.C.C. Revision No.129/01 but the same has been dismissed vide judgment dated 12.01.2007 by Revisional Court holding that though it is true that trust is a "public charitable trust" and Act, 1972 is not applicable but since defendant-tenant has paid entire rent, therefore, is entitled for benefit under Section 114 of Transfer of Property Act, 1882 (hereinafter referred to as "Act, 1882") and hence decree for eviction cannot be granted.
4. I am afraid that the manner in which Trial Court has granted benefit of Section 114 Act, 1882 without considering whether there was any pleading and necessary ingredient to attract Section 114 of Act, 1882 are satisfied or not. It is thus clearly erroneous.
5. In order to attract Section 114 of Act, 1882, an agreement containing stipulation empowering landlord to re-enter in demised premises in case of breach of condition regarding payment of rent is essential. In Ram Bali Pandey (Since deceased) through his Lrs' Vs. II Additional District Judge, Kanpur and other, 1998 (2) ARC 362, in para 23, this Court observed:
"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 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 the T.P. Act then provisions of Section 114 of the T.P. Act cannot be attracted. This argument of respondent's counsel also does not appeal to the Court and has to be rejected." (emphasis added)
6. In Mohammad Nasir Vs. District Judge, Nainital and others, 1999 (1) AWC 550, this Court said:
"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 added)
7. The aforesaid judgments have been referred to and followed by this Court in Smt. Noorul Subah & Anr. Vs. Addl. District Judge-I, Bijnor & Others, 2013 (2) ADJ 454.
8. In Arun Khiamal Makhijani Vs. Jamnadas C. Tuliani and Ors., (1989) 4 SCC 612, at page 624, Apex Court observed:
"In a case where forfeiture of lease is claimed for non-payment of rent, it would, therefore, have to be established that one of the express conditions of the lease provided that on breach of that condition namely on non-payment of rent the lessor was entitled to re-enter. It is only in those cases where such an express condition is contained in the lease and the lessee breaks the said condition and the lessor on his part gives notice in writing to the lessee of his intention to determine the lease that a lease of immovable property determines by forfeiture for non-payment of rent."
9. Referring to the above authorities, this Court also in Devi Prasad Sachan Vs. Spl. Judge (S.C. & S.T. Act) Kanpur Dehat & Ors., 2013 (3) ADJ 683 has held in paras 12 and 14 as under:
"12. From the aforesaid authorities and also bare perusal of Section 114 of Act, 1882 makes it very clear that genesis of Section 114 of Act, 1882 is a written agreement between the parties containing expressed terms and conditions and in breach whereof, when a right of re-entry is exercised under Section 111(g) of Act, 1882, Section 114 of Act, 1882 may be attracted and not otherwise."
"14. In absence of any written agreement, the courts below have rightly declined to extend benefit of Section 114 of Act, 1882 to the petitioner."
10. The above view has been reiterated in Civil Misc. Writ Petition No.19601 of 2013 (Mohd. Mustafa Vs. Ram Niwas Gupta & Ors.) decided on 16.4.2013 and Nizamuddin Vs. Smt. Bushara Khatoon & Ors., 2013(5) ADJ 590.
11. In the present case, in both the writ petitions, Trial Court, while considering SCC Case No.55 of 1996 and adjudicating issue no.1 has clearly held that "religious trust" is not a "public religious institution" and therefore, is not exempted under Section 2(bb) of Act, 1972. Then while deciding issue no.2 regarding default, it has considered the matter in a very casual way and without giving any finding as to whether there was any default at all, observed that since rent was deposited under Section 30 of Act, 1972 and also entire dues and rent was deposited before first date of hearing, therefore, tenant is entitled to benefit under Section 20(4) of Act, 1972 and having said so, the suit was dismissed vide judgment dated 17.3.2001.
12. The Revisional Court, however, has recorded findings on both the issues in wholly different manner. So far as issue no.1 regarding applicability of Section 2(bb) of Act, 1972 is concerned, it has reversed the findings of Trial Court and held that "religious trust" in question is a "public religious institution" and therefore, Act, 1972 is not applicable to the property in dispute in view of Section 2(bb) of Act, 1972. Having said so, it has clearly held that since Act, 1972 is not applicable, therefore, question of giving benefit of Section 20(4) of Act, 1972 does not arise. However, it has then proceeded itself by referring to Section 114 of Act, 1882 to hold that since entire dues have been paid by tenant before first date of hearing, therefore, decree of eviction is not to be granted by conferring benefit to the tenant under Section 114 of Act, 1882.
13. The fist petition has been filed by landlord challenging the revisional order to the extent it has dismissed the suit despite holding that Act, 1972 is not applicable but then extending benefit under Section 114 of Act, 1882 to the tenant so as to dismiss the suit. The second petition has been preferred by tenant being aggrieved by reversal of findings with respect of issue no.1 holding that Act, 1972 is not applicable.
14. Sri S.K.Tyagi, learned counsel for the petitioner, who advanced submission on behalf of tenant could not dispute that findings with respect to question as to whether institution in question is a "public religious institution" is a mixed question of law and fact and therefore, could have been examined by Revisional Court. He could not point out any error factual, legal or otherwise in the impugned Revisional Court's order with respect to issue no.1 as to whether "religious institution" is a "public religious institution" and therefore, I find no reason to interfere with the aforesaid findings recorded by Revisional Court. He however, supported Revisional Court's judgment in respect to benefit it has extended to the tenant by referring to Section 114 of Act, 1882 while Sri Pankaj Agarwal, learned counsel, who has put in appearance on behalf of landlord contended that there was no written agreement existed so as to attract Section 114 of Act, 1882, which is a condition precedent to attract the same, as discussed above.
15. I find substance in the argument advanced on behalf of landlord in respect to Section 114 of Act, 1882. In order to attract Section 114 of Act, 1882 existence of agreement is necessary, which may contain a clause entitling lessor to exercise right of re-entry in case of default in payment of rent. The Revisional Court however has not referred to any such agreement and even otherwise none has been placed before this Court. In fact there is no such pleading at all. It is very surprising that Revisional Court has suo motu referred to Section 114 of Act, 1882 and relying thereupon, has granted benefit to the tenant without looking to the fact, whether aforesaid provision would have any application in the facts and circumstances of the case and whether parties satisfy conditions precedent to attract aforesaid provision. The benefit given to a tenant despite the fact that Section 114 is not applicable to the facts of present case is patently erroneous. Revisional Court, therefore, in this regard has clearly committed error in dismissing the suit by declining to grant relief of eviction to the landlord despite recording a finding of default and rightful determination of tenancy by landlord. The conditions precedent to attract Section 114 of Act, 1882 are not satisfied at all in the case in hand. Revisional Court has completely failed to consider the various authorities on the subject binding on it and thus has committed manifest error rendering the impugned judgment illegal to that extent.
16. In the result, the writ petition no.39504 of 2007 (second petition), which has come at the instance of tenant is dismissed. The writ petition no. 17254 of 2007 (first petition) instituted by landlord is hereby allowed in part. The findings recorded by Revisional Court in the judgment dated 12.01.2007 in respect to issue no.2 holding that tenant is entitled for benefit of Section 114 of Act, 1882 and no relief of eviction can be granted, is set aside. The suit is decreed by granting relief of eviction to the plaintiff-landlord. The tenant shall vacate the premises in question within three months, failing which landlord shall be entitled to take steps for execution of decree in accordance with law.
Order Date :- 21.5.2014 KA