ORDER S.P. Mehrotra, J.
1. The present Writ Petition has been filed by the petitioner (defendant) under Articles 226/227 of the Constitution of India, inter-alia, praying for quashing the judgment and order dated 26-10-2002 (Annexure 8 to the Writ Petition) passed by the learned Additional District Judge, Court No. 9, Moradabad in S.C.C. Revision No. 53 of 1998.
2. The dispute relates to a shop situate in Bazar Gher Munaf, Amroha, District Moradabad, the details whereof are given in the plaint of the Suit referred to hereinafter. The said shop has, hereinafter, been referred to as "the disputed shop".
3. From a perusal of the averments made in the Writ Petition and the Annexures thereto, it appears that the respondent (plaintiff- landlord) filed a Suit for eviction, arrears of rent and damages etc. against the petitioner (defendant) in respect of the disputed shop.
4. It was, inter-alia, alleged by the respondent (plaintiff-landlord) in the said Suit that the disputed shop was the property of Waqf, and the petitioner (defendant) had been in occupation of the disputed shop as tenant at a monthly rent of Rs. 43,75 paisa besides water tax and house tax; and that rent for the period from 1.1.1995 to 31.8.1996 was due from the petitioner (defendant) which was not paid by the petitioner (defendant) despite demand, nor did the petitioner (defendant) pay to the respondent (plaintiff-landlord) the Municipal Taxes ; and that the disputed shop was the property of Waqf, which was Public Religious Institution, and the U.P. Act No. 13 of 1972 (in short "the Rent Act") was not applicable to the disputed shop.
5. It was, inter alia, further alleged in the said Suit that the tenancy of the petitioner (defendant) was determined by the respondent (plaintiff-landlord) by notice dated 29-8-1996, and the petitioner (defendant) was called upon to pay the arrears of rent Rs. 875/- and taxes and to deliver possession of the disputed shop on the expiry of one month from the date of receipt of the said notice; and that the said notice was served on the petitioner (defendant) on 30th August, 1996; and that the petitioner (defendant) did not deliver possession of the disputed shop to the respondent (plaintiff-landlord), hence the Suit.
6. The said Suit was registered as S.C.C. Suit No. 4 of 1997. Copy of the plaint of the said Suit has been filed as Annexure 1 to the Writ Petition.
7. The petitioner (defendant) contested the said Suit and filed written statement, copy whereof has been filed as Annexure 2 to the Writ Petition. It was, inter-alia, alleged in the said written statement that after serving the said notice on 30th August, 1996, the respondent (plaintiff-landlord), on 9-9-1996, received from the petitioner (defendant), the entire rent demanded with taxes amounting to Rs. 1016/- through Money-Order along with the reply notice of the petitioner (defendant), and that thus, the respondent (plaintiff-landlord) waived its said notice; and that in view of the waiver of its said notice, the Suit on the basis of the said notice was not maintainable.
8. It was, inter-alia, further alleged in the said written statement that the said notice given by the respondent (plaintiff-landlord) was legally invalid; and that the provisions of the Rent Act were applicable to the disputed shop; and that even if for the sake of argument, it be accepted that the Rent Act was not applicable to the disputed shop [which fact was not admitted by the petitioner (defendant), still the petitioner (defendant), having paid the rent and taxes was entitled to the benefit of Section 114 of the Transfer of Property Act.
9. It was, inter-alia, further alleged in the said written statement that on the first date fixed in the Suit, the petitioner (defendant) deposited by tender the rent for the period subsequent to 1-9-1996 with full cost of the suit, taxes, interest and counsel's fee etc. in accordance with the provisions of Order XV, Rule 5 of the Code of Civil Procedure amounting to Rs. 560/-.
10. It was, inter-alia, further alleged in the said written statement that the respondent (plaintiff-landlord) ought to have filed the Suit with the permission of the Waqf Board; and that without the permission of the Waqf Board, the Suit was not maintainable.
11. It further appears that the petitioner (defendant) filed an additional written statement in the said Suit, copy whereof has been filed as Annexure 5 to the Writ Petition.
12. It was, inter-alia, alleged in the said additional written statement that the petitioner (defendant) was the tenant of the disputed shop since the year 1964; and that the petitioner (defendant) was entitled to the benefit of Section 114 of the Transfer of Property Act; and that the petitioner (defendant) deposited the entire rent and cost etc. on the first date of hearing, and the Suit was not maintainable on the said ground also.
13. It further appears that both the sides led oral and documentary evidence in support of their respective cases.
14. By the judgment and order dated 5-8-1998, the learned Judge, Small Cause Court, Amroha, Moradabad dismissed the said Suit filed by the respondent (plaintiff-landlord). It was, inter-aha, held in the said judgment and order dated 5-8-1998 that it was admitted to the parties that the disputed shop was Waqf Property, and, therefore, in view of the provisions of Section 2(bbb) of the Rent Act, the disputed shop was not covered under the provisions of the Rent Act.
15. It was, inter-alia, further held that in reply to the notice sent by the respondent (plaintiff-landlord), the petitioner (defendant) sent by money-order the entire amount of Rs. 1015-25 paisa as mentioned in the reply notice No. 31-Ga ; and that the sole basis for the determination of the tenancy of the petitioner (defendant) was the default in payment of rent, and the same was paid by the petitioner (defendant) after only 4 days of the receipt of the notice, and the respondent (plaintiff-landlord) accepted the amount demanded, and thus, the notice stood automatically waived.
16. It was, inter-alia, further held that the petitioner (defendant) had not committed any default in making deposit of rent since the beginning of the Suit, during the pendency of the Suit and till the conclusion of the Suit; and that as the disputed shop was not covered under the Rent Act, the petitioner (defendant) was entitled to the benefit of Section 114 of the Transfer of Property Act; and that accordingly, the Suit for eviction of the petitioner (defendant) did not deserve to be decreed; and that as the damages and rent had been deposited, therefore, the respondent (plaintiff-landlord) was not entitled to get decree for recovery of damages etc. also,
17. The learned Judge, Small Cause Court, Amroha, Moradabad in the said judgment and order dated 5-8-1998, however, did not accept the plea of the petitioner (defendant) regarding the invalidity of the said notice nor did the learned Judge, Small Cause Court, Amroha, Moradabad accept the plea of the petitioner (defendant) that the respondent (plaintiff-landlord) was estopped by its own conduct. Copy of the said judgment and order dated 5-8-1998 passed by the learned Judge, Small Cause Court, Amroha, Moradabad has been filed as Annexure 7 to the Writ Petition.
18. Thereupon, the respondent (plaintiff-landlord) filed revision under Section 25 of the Provincial Small Cause Courts Act against the said judgment and order dated 5-8-1998. The said revision was registered as S.C.C. Revision No. 53 of 1998.
19. By the judgment and order dated 26-10-2002 passed by the learned Additional District Judge, Court No. 9, Moradabad, the said S.C.C. Revision No. 53 of 1998 was allowed. The said judgment and order dated 5-8-1998 passed by the learned Judge, Small Cause Court. Amroha, Moradabad was set aside, and the said S.C.C. Suit No. 4 of 1997 was decreed.
20. It was inter-alia, held in the said judgment and order dated 26-10-2002 that merely because after serving notice on 30 August 1996. the respondent (plaintiff-landlord) accepted on 9-9-1996 the rent etc. demanded in the said notice, it could not be said that the said notice stood waived.
21. It was, inter alia, further held that the benefit of Section 114 of the Transfer of Property Act was given to the tenant in case, the tenancy was forfeited under Section 111(g) of the Transfer of Property Act; and that from a perusal of the record, it appears that there was no written document regarding tenancy between the parties wherein a clause was written that the tenancy would be forfeited in case of non-payment of rent for a particular period; and that in the circumstances, it could not be accepted that the tenancy had been forfeited by the said notice because for forfeiture, it was necessary that there should be written deed, and it should be mentioned in such written deed that the tenancy would be forfeited in case of nonpayment of rent.
22. It was inter-alia, further held that the notice given by the respondent (plaintiff-landlord) to the petitioner (defendant) was notice under Section 106 of the Transfer of Property Act, and in the circumstances, the petitioner (defendant) was not entitled to the benefit of Section 114 of the Transfer of Property Act. Copy of the said judgment and order dated 26th October 2002 has been filed as Annexure 8 to the Writ Petition.
23. Thereafter, the petitioner (defendant) has filed the present Writ Petition seeking the reliefs mentioned above.
24. Counter affidavit, sworn on 23rd November, 2002 by Nure Sibtian, Muttwalh of the Waqf, has been filed on behalf of the respondent (plaintiff-landlord).
25. In reply to the said counter affidavit, rejoinder affidavit, sworn on 28th January 2003, has been filed on behalf of the petitioner (defendant).
26. I have heard learned Counsel for the parties at length, and perused the record.
27. Learned Counsel for the petitioner (defendant) has made the following submissions:
1. A perusal of the notice sent on 29th August, 1996 shows that it determined lease on account of default in payment of rent. In other words, it is submitted, it was a case of forfeiture of lease on account of non-payment of rent as contemplated under Section 111(g) of the Transfer of Property Act. Hence, the submission proceeds, the provisions of Sections 112 and 114 of the Transfer of Property Act were applicable to the present case.
On the facts and in the circumstances of the case, the petitioner (defendant) was entitled to the benefit of Section 112 of the Transfer of Property Act. It is submitted that the said notice was sent by the respondent (plaintiff-landlord) on 29th August, 1996, and the same was served on the petitioner (defendant) on 30th August 1996. Thereafter, the respondent (plaintiff-landlord) received on 9-9-1996 the entire amount demanded in the said notice by Money-Order sent to the respondent (plaintiff-landlord) by the petitioner (defendant) on 4.9.1996. In view of the acceptance of the rent, the forfeiture of lease stood waived in view of Section 112 of the Transfer of Property Act.
2. It is submitted by the learned Counsel for the petitioner (defendant) that Section 111(g) of the Transfer of Property Act was attracted to the present case, as is evident from an analysis of various provisions of the Transfer of Property Act.
Section 105 of the Transfer of Property Act, inter-alia, specifically provides that a lease may be express or Implied, and the same may be for a certain time or in perpetuity.
Section 107 of the Transfer of Property Act provides as to how leases can be made. It lays down that a lease of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent, can be made only by a registered instrument. All other leases of immovable property may be made either by a registered instrument or by oral agreement accompanied by delivery of possession.
Section 108 of the Transfer of Property Act provides for rights and liabilities of the lessor and the lessee. Section 108(m) of the Transfer of Property Act, inter-alia, provides that on the determination of the lease, the lessee is bound to restore the property in as good condition as it was in at the time when he was put in possession. In other words, the said clause, Inter-alia, provides that the lessee shall be bound to restore the possession of the property to the lessor on determination of the lease.
Section 108(q) of the Transfer of Property Act, inter-alia, provides that on the determination of the lease, the lessee is bound to put the lessor into possession of the property.
Referring to the aforesaid provisions of Sections 105, 107 and Section 108(m) and (q) of the Transfer of Property Act, it is submitted by the learned Counsel for the petitioner (defendant) that in view of Section 107 of the Transfer of Property Act, tenancy can be created either by a written contract or by an oral agreement coupled with delivery of possession. Section 107 makes no distinction between a written agreement of tenancy and an oral agreement of tenancy. Statutory rights and liabilities of the lessor and the lessee mentioned in Section 108 of the Transfer of Property Act become conditions of contract between the lessor and the lessee and have to be read as a part of the contract itself, unless there is a contract or local usage to the contrary. Section 108 of the Transfer of Property Act, it is submitted, covers both the tenancies/leases i.e. oral or written. The statutory rights and liabilities laid down in Section 108 of the Transfer of Property Act are to be read as part of the contract of tenancy, whether such contract be oral or in writing. It is submitted that the rights and liabilities mentioned in Section 108 of the Transfer of Property Act partake the character of a written contract and have to be read in every agreement of tenancy, and in the event of their breach, forfeiture clause mentioned in Section 111(g) of the Transfer of Property Act becomes applicable. Section 108(1), inter-alia, 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. Hence, it is submitted, in case the rent is not paid as per the requirement of Section 108(1) of the Transfer of Property Act, the lease would be forfeited under Section 111(g) of the Transfer of Property Act, and the lessee would be bound to restore possession under Section 108(m) and (q) of the Transfer of Property Act. Therefore, it is submitted, in case there is breach of the said condition laid down in Section 108(1) of the Transfer of Property Act, the provisions of Section 111(g) of the Transfer of Property Act are attracted. Consequently, the submission proceeds, in case, the landlord accepts the rent after forfeiture, the tenant would be entitled to the benefit of Section 112 of the Transfer of Property Act. It is submitted that in case. Section 111(g), and consequently Section 112 of the Transfer of Property Act is confined only to written lease, Section 111(g) becomes redundant. Learned Counsel for the petitioner (defendant) has placed reliance on the following decisions in this regard:
(a) Lalta Prasad Jaiswal v. Prescribed Authority, Allahabad (III Additional C.J.M., Allahabad) and Ors. 1996 (1) ARC 353 : (AIR All LJ 1011) (paragraph 11).
(b) M/s Raptakos Brett & Company v. Ganesh Property .
It is further submitted by the learned Counsel for the petitioner (defendant) that the discretion should normally be exercised against the forfeiture as the relief given under Section 114 of the Transfer of Property Act is equitable in nature. It is further submitted that the Trial Court (learned Judge, Small Cause Court, Amroha, Moradabad) in the present case having exercised discretion in giving benefit of Section 114 of the Transfer of Property Act to the petitioner (defendant), such exercise of diecretion should not have been reversed by the Revisional Court (learned Additional District Judge, Court No. 9, Moradabad). Reliance in this regard is placed on the following decisions:
(a) R.S. Lala Praduman Kumar v. Virendra Goyal (dead) by his Legal Representatives and Ors. .
(b) Om Shant TS warup v. Prasanna Kumar .
3. By accepting rent from the petitioner (defendant) on 9-9-1996 for a period after the date of notice, the respondent (plaintiff/ landlord) would be deemed to have waived the notice as contemplated under Section 113 of the Transfer of Property Act.
It is submitted that the petitioner (defendant) received on 30 August, 1S96 the notice sent by the respondent (plaintiff-landlord) on 29th August 1996 purporting to be under Section 106 of the Transfer of Property Act. The petitioner (defendant) sent the rent through Money-Order dated 4.9.1996, and the said Money-Order was accepted by the respondent (plaintiff- landlord) on 9-9-1996. It is pointed out that although the tenancy of the petitioner (defendant) had been determined on 29th August 1996, the rent demanded by the landlord was upto 31-8-1996. The aforesaid rent having been paid and accepted by the respondent (plaintiff-landlord) for a period beyond the period of determination of tenancy, the respondent (plaintiff-landlord) would be deemed to have waived the notice. It is further submitted that the tenancy has been determined on 29th August 1996 by a notice of the even date and the respondent (plaintiff-landlord) having subsequently accepted the rent for the period beyond the date of notice, the respondent (plaintiff-landlord) would be deemed to have waived the notice. Reliance in this regard is placed on the decision in Basant Lal (dead) by Legal Representative and Anr. v. The State of U.P. and Anr. (Supreme Court) (paragraph 9).
4. The notice as served on the petitioner (defendant) did not contain any date. In the absence of the date in the notice, the notice in question was no notice in the eye of law. Hence, the submission proceeds, in the absence of proper and legal notice, the lease of the petitioner (defendant) in respect of the disputed shop could not be deemed to have been determined. The finding of the learned Judge, Small Cause Court, Amroha, Moradabad In the said judgment and order dated 5-8-1998 in this regard was not correct.
5. It has come on record that the disputed shop is a Waqf Property, therefore, it was the duty of the respondent (plaintiff- landlord) to satisfy the Court that the necessary formalities of law in order to maintain the Suit in view of the provisions of the Waqf Act, 1995 had been complied with. It is submitted that in view of the provisions of Section 90 of the Waqf Act, 1995, It was necessary to implead the Waqf Board In the said Suit filed by the respondent (plaintiff-landlord), and the Waqf Board was also to be noticed and heard before the said Suit was decided. In the absence of the Waqf Board, the submission proceeds, the said Suit was not maintainable.
It is further submitted that in the written statement, it was pleaded by the petitioner (defendant) that the Suit was not maintainable without the permission of the Waqf Board, No such permission was brought on record to demonstrate that the respondent (plaintiff-landlord) had obtained permission before instituting the said Suit.
It is further submitted that in view of Section 85 of the Waqf Act, 1995, no suit or other legal proceedings shall lie in any Civil Court in respect to any dispute, question or other matter relating to any Waqf, Waqf Property or other matter which is required by or under the said Act to be determined by a Tribunal. It is submitted that the bar contained in Section 85 of the Waqf Act, 1995, thus, took away the right of the respondent (plaintiff-landlord) to file the said Suit before the Civil Court.
28. In reply, the learned Counsel for the respondent (plaintiff-landlord) has made the following submissions ;
(1) A perusal of the notice sent by the respondent (plaintiff/landlord) to the petitioner (defendant) on 29th August, 1996 shows that the said notice was a notice of determination of tenancy under Section 106 of the Transfer of Property Act. Merely because rent was also demanded in the said notice, it did not mean that the said notice was not a notice under Section 106 of the Transfer of Property Act, Hence, the submission proceeds, the present case was a case of determination of lease under Section 111(h) of the Transfer of Property Act by service of notice under Section 106 of the Transfer of Property Act to determine the lease or to quit. The present case was not a case under Section 111(g) of the Transfer of Property Act, and therefore, neither Section 112 nor Section 114 of the Transfer of Property Act was attracted to the present case.
(2) Section 112 of the Transfer of Property Act as also Section 114 of the Transfer of Property Act are attracted only in case of forfeiture of lease under Section 111(g) of the Transfer of Property Act. Therefore, for the applicability of Section 112 or Section 114 of the Transeter of Property Act, it is necessary that Section 111(g) of the Transfer of Property Act should be applicable to the case. In case, Section 111(g) of the Transfer of Property Act Is not applicable, the provisions of Section 112 or Section 114 of the Transfer of Property Act would not apply to the case.
A perusal of Section, 111(g) of the Transfer of Property Act shows that the lease deed should be in writing wherein the express condition is incorporated which also provides that in case of breach of condition, there would be for feiture of lease. It is submitted that in the present case, there is no written contract of tenancy between the petitioner (defendant) and the respondent (plaintiff-landlord). Hence, Section 111(g) of the Transfer of Property Act is not applicable to the present case. Consequently, the submission proceeds, the provisions of Section 112 or Section 114 of the Transfer of Property Act are also not attracted to the present case.
Reliance in this regard is placed by the learned Counsel for the respondent (plaintiff-landlord) on the following decisions:
1. U.P. State Road Transport Corporation, Moradabad v. II Additional District Judge, Moradabad and Ors. 1981 ARC 474 : 1981 ALJ 608.
2. Shrikant Gupta v. XIII Additional District Judge, Moradabad and Ors. 1995 (1) ARC 212.
3. Pramod Kumar v. III Additional District Judge, Meerut and Ors. 1996 (2) ARC 352 : (1996 AIHC 823).
4. Anish Ahmad v. Special/Additional District Judge, Saharanpur and Ors. 1997 (2) ARC 32 : 1998 (16) LCD 1284 : (1997 All LJ 1691).
5. Ram Bali Pandey (since deceased) through his Legal Representatives v. II Additional Judge, Kanpur and Ors. 1998 (2) ARC 362 : (1999 All LJ 522).
6. Arun Kumar v. VIII Additional District Judge, Budaun and Anr. 2002 (2) ARC 195 = 2002, Allahabad Civil Journal 788 : (2002 All LJ 1454).
(3) Notice sent to the petitioner (defendant) on 29.8.1996 could not be said to be Invalid merely because it demanded rent for the period upto 31-8-1996. It is submitted that the said notice sent to the petitioner (defendant) on 29-8-1990 was served on the petitioner (defendant) on 30th August 1996. Lease of the petitioner (defendant) was to expire on the expiry of 30 days from the date of service of the said notice on the petitioner (defendant) i.e. from 30th August 1996. Hence, the submission proceeds, the lease in favour of the petitioner (defendant) was to expire at the midnight of 29 September 1996. Evidently, it is submitted, the petitioner (defendant) was bound to pay rent to the respondent (plaintiff-landlord) for the period upto 29th September 1.996. Hence, the demand of rent for the period upto 31-8-1996 in the said notice did not make the said notice invalid.
For the same reason, the submission proceeds, the acceptance of rent on 9-9-1996 by Money-Order, sent by the petitioner (defendant) on 4.9.1996, in respect of rent for the period upto 31-8-1996 (as is evident from the reply-notice annexed as Annexure 4 to the Writ Petition) could not amount to waiver of the said notice under Section 113 of the Transfer of Property Act.
(4) The notice sent to the petitioner (defendant) on 29.8.1996 was not invalid even if the allegation made by the petitioner (defendant) that the notice sent to him did not bear any date, were to be accepted. The learned Judge, Small Cause Court, Amroha, Moradabad in his judgment and order dated 5.8.1998 has given cogent reasons for rejecting the said objection raised on behalf of the petitioner (defendant). As pointed out in the said judgment and order dated 5.8.1998, the learned Counsel for the respondent (plaintiff-landlord) reiterates that the fact of the receipt of the said notice sent on 29.8.1996 having been admitted by the petitioner (defendant), and the reply to the said notice having been sent by the petitioner (defendant), and nothing having been pointed out by the petitioner (defendant) that he failed to appreciate the facts mentioned in the said notice or the intention of the respondent (plaintiff-landlord) as expressed in the said notice on account of the said notice not bearing any date, the objection raised on behalf of the petitioner (defendant) regarding validity of the said notice is liable to be rejected.
(5) Even though vague allegation was made by the petitioner (defendant) in paragraph 9 of the written statement regarding the Suit being not maintainable without the permission of the Wakf Board, the specific objection to the maintainability of the said Suit on account of the provisions of the Waqf Act, 1995 was not taken by the petitioner (defendant).
In any case, it is submitted, the present case pertains to a Suit by the respondent (plaintiff-landlord) as landlord against the petitioner (defendant) as tenant. The matter in controversy in the present case is of eviction of the tenant from the Wakf Property. No question of title to the Wakf Property or the possession of the Wakf Property is involved in the present case. Hence, the provisions of Section 85 or Section 90 of the Wakf Act, 1995 are not attracted to the present case.
(6) Various decisions relied upon by the learned Counsel for the petitioner (defendant) are not attracted to the facts and circumstances of the present case.
29. In rejoinder, the learned Counsel for the petitioner (defendant) has -reiterated his submissions made by him earlier. It is further submitted by the learned Counsel for the petitioner (defendant) that the decisions relied upon by the learned Counsel for the respondent (plaintiff-landlord) are not attracted to the facts and circumstances of the present case.
29A. I have considered the submissions made by the learned Counsel for the parties and perused the record.
30. Let us first consider the submissions Nos. 1 and 2 made by the learned Counsel for the petitioner (defendant).
31. As noted in the earlier part of this judgment, the learned Judge, Small Cause Court, Amroha, Moradabad in his judgment and order dated 5-8-1998, inter-alia, held that it was admitted to the parties that the disputed shop was Wakf Property and, therefore, in view of the provisions of Section 2(bbb) of the Rent Act, the disputed shop was not covered under the provisions of the Rent Act. Reference in this regard may be made to the findings recorded by the learned Judge, Small Cause Court, Amroha, Moradabad on Issue No. 5 in the said judgment and order dated 5-8-1998.
32. The said finding of the learned Judge, Small Cause Court, Amroha, Moradabad does not appear to have been questioned in S.C.C. Revision No. 53 of 1998 as is evident from a perusal of the judgment and order dated 26-10-2002 passed by the learned Additional District Judge, Court No. 9, Moradabad in the said S.C.C. Revision No. 53 of 1998, nor has the said finding been questioned in the present Writ Petition before this Court.
33. The learned Judge, Small Cause Court, Amroha, Moradabad in the said judgment and order dated 5-8-1998, however, held that the petitioner (defendant) was entitled to the benefit of Section 114 of the Transfer of Property Act.
34. Reference in this regard may be made to the findings recorded by the learned Judge, Small Cause Court, Amroha Moradabad on Issue Nos. 1, 2 and 4 in the said judgment and order dated 5-8-1998.
35. The learned Additional District Judge, Court No. 9, Moradabad in the said judgment and order dated 26th October, 2002 passed in the said S.C.C. Revision No. 53 of 1998 did not agree with the said findings recorded by the learned Judge, Small Cause Court, Amroha, Moradabad in the said judgment and order dated 5-8-1998. The learned Additional District Judge, Court No. 9, Moradabad in the said judgment and order dated 26th October 2002 held that the petitioner (defendant) was not entitled to the benefit of Section 114 of the Transfer of Property Act.
36. Therefore, the question for consideration is as to whether the learned Additional District Judge, Court No. 9, Moradabad in deciding the said S.C.C. Revision No. 53 of 1998, was right in holding that the petitioner (defendant) was not entitled to the benefit of Section 114 of the Transfer of Property Act.
37. Section 111 of the Transfer of Property Act, which deals with the determination of lease provides as follows:
111. Determination of lease.- A lease of immovable property, determines
(a) by efflux of the time limited thereby;
(b) where such time is limited conditionally on the happening of some event--by the happening of such event;
(c) where the interest of the lessor in the property terminates on, or his power to dispose of the same extends only to, the happening of any event--by the happening of such event;
(d) in case the interests of the lessee and the lessor in the whole of the property become vested at the same time in one person in the same right;
(e) by express surrender; that is to say, in case the lessee yields up his interest under the lease to the lessor, by mutual agreement between them;
(f) by implied surrender;
(g) 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;
(h) on the expiration of a notice to determine the lease, or to quit, or of intention to quit, the property leased, duly given by one party to the other.
Illustration to Clause (f) A lessee accepts from his lessor a new lease of the property leased, to take effect during the continuance of the existing lease. This is an implied surrender of the former lease and such lease determines thereupon.
38. Section 111, Clause (h) deals with the determination of lease of immoveable property on the expiration of a notice to determine the lease, or to quit, or of intention to quit, the property leased, duly given by one party to the other.
39. Section 106 of the Transfer of Property Act deals with the notice contemplated under Clause (h) of Section 111 of the Transfer of Property Act. Section 106 of the Transfer of Property Act as amended in Uttar Pradesh provides as follows:
106. Duration of certain leases in absence of written contract or local usage.--In the absence of a contract or local law or usage to the contrary, a lease of immovable property for agricultural or manufacturing purposes shall be deemed to be a lease from year to year, terminable, on the part of either lessor or lessee, by six months' notice expiring with the end of a year of the tenancy ; and a lease of immovable property for any other purpose shall be deemed to be a lease from month to month, terminable, on the part of either lessor or lessee, by fifteen days notice expiring with the end of a month of tenancy.
Every notice under this section must be in writing signed by or on behalf of the person giving it and either be sent by post to the party who is intended to be bound by it or be tendered or delivered personally to such party, or to one of his family or servants, at his residence, or (if such tender or delivery is not practicable) affixed to a conspicuous part of the property. State Amendment Uttar Pradesh.
(1) The words expiring with the end of a year of the tenancy and "expiring with the end of a month of the tenancy, shall be omitted.
(2) For the words 'fifteen days notice' the words 'thirty days notice' shall be substituted. (UP. Act 24 of 1954, Section 2)
40. Section 113 of the Transfer of Property Act provides for waiver of notice to quit given under Section 111, Clause (h) of the said Act. The said Section 113 lays down as follows:
113. Waiver of notice to quit.--A notice given under Section 111, Clause (h), is waived, with the express or implied consent of the person to whom it is given, by any act on the part of the person giving it showing an intention to treat the lease as subsisting.
Illustrations
(a) A, the lessor, gives B, the lessee, notice to quit the property leased. The notice expires. B tenders and A accepts rent which has become due in respect of the property since the expiration of the notice. The notice is waived.
(b) A, the lessor, gives B, the lessee, notice to quit the property leased. The notice expires, and B remains in possession. A gives to B as lessee a second notice to quit. The first notice is waived.
41. Section 111, Clause (g) of the Transfer of Property Act provides for determination of lease by forfeiture. Category (1) of Clause (g) of Section 111 of the Transfer of Property Act contemplates determination of lease by forfeiture in case the lessee breaks an express condition which provides that, on breach thereof, the lessor may re-enter. Category (2) of Clause (g) of Section 111 of the said Act provides for determination of lease by forfeiture in case the lessee renounces his character as such by setting up a title in a third person or by claiming title in himself. Category (3) of Clause (g) of Section 111 of the said Act makes provision for forfeiture in case the lessee is adjudicated an insolvent and the lease provides that the lessor may re-enter on the happening of such event.
42. In each of the aforesaid three categories, it is further necessary that the lessor or his transferee must give notice in writing to the lessee of his intention to determine the lease.
43. Section 112 of the Transfer of Property Act deals with the waiver of forfeiture. The said Section 112 is quoted below:
112. Waiver of forfeiture.- A forfeiture under Section 111, Clause (g), is waived by acceptance of rent which has become due since the forfeiture, or by distress for such rent, or by any other act on the part of the lessor showing an intention to treat the lease as subsisting:
Provided that the lessor is aware that the forfeiture has been incurred:
Provided also that, where rent is accepted after the institution of a suit to eject the lessee on the ground of forfeiture, such acceptance is not a waiver.
44. Section 114 of the Transfer of Property Act provides for relief against forfeiture for non-payment of rent. The said Section 114 lays down as under ;
114. Relief against for feiture for non-payment of rent. -- Where a lease of immovable property has been 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.
45. Section 114 A provides for "relief against forfeiture in certain other cases". The said Section 114A is as follows:
114A. Relief against forfeiture in certain other cases. -- Where a lease of immovable property has been determined by forfeiture for a breach of an express condition which provides that on breach thereof the lessor may re-enter, no suit for ejectment shall lie unless and until the lessor has served on the lessee a notice in writing--
(a) specifying the particular breach complained of; and
(b) if the breach is capable of remedy, requiring the lessee to remedy the breach ;
and the lessee fails, within a reasonable time from the date of the service of the notice, to remedy the breach, if it is capable of remedy.
Nothing in this section shall apply to an express condition against assigning, under letting, parting with the possession, or disposing, of the property leased, or to an express condition relating to forfeiture in case of nonpayment of rent.
(Emphasis supplied)
46. A combined reading of Category (1) of Clause (g) of Section 111, Section 114 and Section 114A of the Transfer of Property Act shows that the provisions of Section 114 as well as Section 114A pertain to the determination of lease by forfeiture under Section 111, Clause (g), Category (1) of the said Act. While Section 114 of the said Act deals with the relief against forfeiture in case the lease has been determined by forfeiture for non-payment of rent, Section 114A of the said Act provides for relief against forfeiture in certain other cases of determination of lease by forfeiture under Category (1) of Clause (g) of Section 111 of the said Act.
47. As Section 114 as well as Section 114A of the Transfer of Property Act pertain to the determination of lease by forfeiture under Section 111, Clause (g), Category (1) of the said Act, it is necessary for the applicability of Section 114 as well as Section 114A of the said Act that the requirements of Section 111(g), Category (1) of the said Act are satisfied. In case the requirements of Section 11(g), Category (1) of the said Act are not satisfied, neither Section 114 nor Section 114A of the said Act will be applicable even if the requirements of Section 114 or Section 114A, as the case may be, are fulfilled.
48. A perusal of Section 111, Clause (g), Category (1) shows that for determination of lease by forfeiture, the following conditions must be fulfilled:
(1) There must be a condition in the lease.
(2) The condition must be an express condition.
(3) The express condition must provide that in case of breach of the said condition, the lessor may re-enter.
(4) The lessee breaks such express condition.
(5) The lessor or his transferee gives notice in writing to the Lessee of his intention to determine the lease.
40. Therefore, it follows that for the, applicability of Section 114 of the Transfer of Property Act, it is necessary that the following conditions, as per the provisions of Section 111(g), Category (1) of the said Act must be fulfilled:
(1) There must be a condition in the lease regarding payment of rent.
(2) The condition must be an express condition.
(3) The express condition must provide that in case of breach of the said condition (regarding payment of rent), the lessor may re-enter.
(4) The lessee breaks such express condition.
(5) The lessor or his transferee gives notice in writing to the lessee of his intention to determine the lease.
50. In case where the aforesaid conditions, as per the requirements of Section 111(g), Category (1) of the Transfer of Property Act, are satisfied, and further, the requirements of Section 114 of the said Act are also satisfied, the provisions of the said Section 114 will be applicable.
51. Similarly, for the applicability of Section 114A of the Transfer of Property Act, it is necessary that the following conditions, as per the provisions of Section 111(g), Category (1) of the said Act, must be fulfilled:
(1) There must be a condition in the lease.
(2) The condition must be an express condition.
(3) The express condition must provide that in case of breach of the said condition, the lessor may re-enter.
(4) The lessee breaks such express condition.
(5) The lessor or his transferee gives notice in writing to the lessee of his intention to determine the lease.
52. In case where the aforesaid conditions, as per the requirements of Section 111(g), Category (1) of the Transfer of Property Act, are satisfied, and further, the requirements of Section 114A of the said Act are also satisfied, the provisions of the said Section 114A will be applicable.
53. It should, however, be noted that in view of the last paragraph of Section 114A of the Transfer of Property Act, the said Section 114A will not apply in case the express condition, as contemplated in Section 111(g), Category (1), is any of the following:
(i) Express condition against assigning of the property leased.
(ii) Express condition against under-letting of the property leased.
(iii) Express condition against parting with the possession of the property leased.
(iv) Express condition against disposing of the property leased.
(v) Express condition relating to forfeiture in case of nonpayment of rent.
54. It is note-worthy that express condition relating to forfeiture in case of non-payment of rent (head (v) above) is in fact covered under Section 114 of the Transfer of Property Act.
55. Having noted the relevant provisions of the Transfer of Property Act, let us now proceed to consider the present case.
56. In order to decide the controversy involved in the present case, it is pertinent to refer to the contents of the notice sent by the respondent (plaintiff-landlord) to the petitioner (defendant), copy whereof has been filed as Annexure 3 to the Writ Petition. The said notice is reproduced below:
Vernacular Matter Omitted
57. A perusal of the said notice quoted above shows that the same was a notice to quit under Section 111(h) read with Section 106 of the Transfer of Property Act. No doubt, there is demand for arrears of rent and taxes to be paid within one month of the receipt of the notice, but the same is not the ground for determination of lease. There does not appear to be anything in the said notice suggesting that the lease was being determined by forfeiture under Section 111(g) of the Transfer of Property Act in exercise of any alleged right to re-enter in view of breach of any alleged express condition which gives any right of re-entry. The said notice, copy whereof is annexed as Annexure 3 to the Writ Petition, is a notice to quit simpliciter under Section 111(h) read with Section 106 of the Transfer of Property Act.
58. As already noted above, the learned Judge, Small Cause Court, Amroha, Moradabad in his judgment and order dated 5-8-1998, inter alia, held that the provisions of the Rent Act (i.e. U.P. Act No. 13 of 1972) were not applicable to the disputed shop. The said finding does not appear to have been questioned by the petitioner (defendant) in the said S.C.C. Revision No. 53 of 1998, nor has the said finding been disputed in the present Writ Petition before this Court.
59. In view of the fact that the provisions of the Rent Act (i.e. U.P. Act No. 13 of 1972) were not applicable to the present case, the lease of the petitioner (defendant) in respect of the disputed shop could be determined by a notice to quit under Section 111(h) read with Section 106 of the Transfer of Property Act as has been done in the present case.
60. Since the said notice (copy whereof has been filed as Annexure 3 to the Writ Petition), as noted above, is not a notice under Section 111(g) of the Transfer of Property Act on the ground of forfeiture of lease, Section 114 or Section 114A of the said Act has no application to the present case.
61. Therefore, the petitioner (defendant) is not entitled to the benefit of Section 114 of the Transfer of Properly Act. The submission made by the learned Counsel for the petitioner (defendant) in this regard cannot, in my view, be accepted.
62. Reference in this regard may be made to certain judicial decisions.
63. Geetabai Namdeo Daf v. B.D. Manjrekar AIR 1934 Bombay 400, it was laid down as follows (paragraph 3 of the said AIR):
3. I am somewhat unhappy that the law relating to forfeiture of tenancy has been misunderstood by both the Courts below. I have no objection to the courts committing mistakes. We all of us do so at one time or the other; but the question which I am dealing with should normally have been regarded as one of elementary principle. I am not happy that mistakes are committed by confusion of elementary principles.
The legal position to be noted is that there is a world of difference between liability of the tenant for eviction on the ground of forfeiture of tenancy and his liability on the ground of termination of the tenancy by a notice of termination simpliciter. 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 exist 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 cxercise of the right of forfeiture by the landlord may be advisable. On the other hand, when the lease is not for particular fixed period but is only a periodical lease fide 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 for feiture as such ariese. The tenant might happen to be a paragon of virtue and he might have been paying every single farthing of the rent with strict punctuality 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..
This is the position in the Transfer of Property Act. The legislature had found that sometimes this position was abused by some of the rapacious landlords, and that is the reason why the various Rent legislations -were enacted. At the places where the Rent Act applies, the tenants are relieved to some extent, of this inexorable position under the Transfer of Property Act mentioned above; but for the premises which are not governed by the Rent Act, the position under the Transfer of Property Act continues to subsist. 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. In the instant case no doubt the plaintiff-landlady had a grievance against the defendant that he had innate reluctance to pay the rent. It may be also true that the motive behind terminating the tenancy was the tenant's reluctance to pay the rent; but still when the tenant remained in arrears of rent, no such thing as forfeiture was incurred by him, because the tenancy was not for any fixed period, and hence there was no question of there being any forfeiture clause in the agreement. Further, when the landlady terminated the defendant's tenancy on account of her dissatisfaction about him, no forfeiture was enforced by her, once again because there existed no forfeiture clause in the agreement of tenancy. The fact that the tenant had been guilty of non-payment of rent is just one of the historical facts having no relevance whatsoever with the landlady's right to terminal e the tenancy.
I will explain the position further. If there existed a forfeiture clause to the effect that on account of breach of certain conditions of tenancy the landlady would be entitled to forfeit the tenancy, any number of notices she might give and still the tenancy would remain unaffected, if no breach of any of the conditions of the tenancy was committed by the tenant. On the other hand, if there existed, no forfeiture clause but the landlady was entitled to terminate the tenancy, the tenancy being a monthly tenancy, the notice of termination will be effective in law, even if no breach whatsoever was committed by the tenant. This \s the position in law resulting directly from the provisions of Section 111 of the Transfer of Property Act. If this is the position also in the present case. Section 114 of the Transfer of Property Act does not come into play at all. The fallacy in the reasoning of the lower Court lies in the fact that merely because there, exists Section 114 in the Transfer of Property Act, the Court volunteers to give the benefit of the same to the tenant, forgetting that Section 114 does not come into play unless the forfeiture Is Incurred by the tenant in pursuance of a forfeiture clause contained in the agreement of lease. When there is no such clause in the agreement. Section 114 does not come Into play at all. The position of law is as simple as that.
(Emphasis supplied)
84. In Shiv Shankar v. Additional District Judge, Court No. 8, Agra and Ors. 2002 (1) ARC 13, a learned Single Judge of this Court held as follows (paragraphs 4, 6 and 14 of the said ARC):
4. Section 114, Transfer of Property Act quoted above, gave an option to a tenant to make deposits contemplated therein within the prescribed period mentioned in the Section. In the case of forfeiture only the expression. used in the said Section 114. Transfer of Property Act" whether a lease of immovable property has been determined by forfeiture...." leaves no doubt that right of lessee to avoid suit for ejectment can be resorted to only in a case where a lease of Immovable property determines by forfeiture and not otherwise. Consequently, defendant-petitioner cannot take advantage of the aforesaid Section 114. Transfer of Property Act in a case where lease of a transferee determine only Itself or to quit the property leased, duly given by one party to the other: as contemplated under Section 111(h) of Transfer of Property Act.
6. A perusal of the said unregistered rent deed clearly shows that tenancy was month to month only after expiry of initial three years period of lease not having been extended specifically, it shall be deemed that the tenancy in question became a monthly tenancy. The defence of the defendant-petitioner on this score, thus has no merit.
14. Having given my considered thought, to the expression used in the notice of the present case (Annexure-S A-3), in the light of ratio laid down in the aforementioned Division Bench Judgment, it will be clear that expression 'terminated' used in Form E of the reported judgment or the expression 'terminates ' used in the notice of the present, are not determinative of the fact whether the notice is in present or not? Reading the notice, in the present case, as a whole, one can gather intention of the notice giver, and that is to determine tenancy on the expiry of 30 days as required under Section 106. Transfer of Property Act and not in present and reading the notice as given above, under Section 106, Transfer of Property Act in the present, cannot be said to be a invalid notice.
(Emphasis supplied)
65. In Ram Ball Pandey case 1999 All LJ 522 (supra), a learned Single Judge of this Court laid down as follows (paragraph 23 of the said ARC):
23. Smt. Poonam Srivastava, learned Counsel for the respondents further argued that no decree of eviction could be passed against the tenants as on account of the deposit made by them in Court, they were entitled to the protection of Section 114 of the Transfer of Property Act. It may be suffice to mention here that it had never been pleaded either by the original tenant or the substituted heirs in the Courts below that they were entitled to claim the benefit under the aforesaid provision. In any view of the matter Section 114 of the Transfer of Property Act has no application to the facts of the present case as it was not a case of forfeiture of tenancy for non-payment of rent. The tenancy was terminated under Section 106 of the Transfer of Property 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 LIP. Act No. 3 "47 was not applicable to the premises, there was simpliciter termination of tenancy under Section 106 of the Transfer of Property Act serving a notice thereunder. The mere fact that the notice stated about nonpayment 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 iii of the Transfer of Property Act. No authority is required for the proposition that where there is simpliciter termination of tenancy under Section 106 of the Transfer of Property Act and not under Section 111(g) of the Transfer of Property Act then provision 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 supplied)
66. Thus, these decisions support the conclusions mentioned above.
67. The question may be examined from another angle. Section 114 of the Transfer of Property Act, as noted above, is to be read with Section 111(g) Category (1) of the said Act. Section 111(g), Category (1) of the said Act provides that there must be an "express condition" in the lease, which should also provide that in case, the said condition is broken, the lessor may re-enter. The words "express condition" clearly imply that Section 111(g), Category (1) of the Transfer of Property Act applies only in case where the lease is in writing.
68. The submission of the learned Counsel for the petitioner (defendant) to the contrary, in my opinion, cannot be accepted in view of the various requirements of Section 111(g), Category (1) which the "express condition" must fulfill.
69. I am further unable to agree with the contention made by the learned Counsel for the petitioner (defendant) that if Section 111(g) is to be interpreted in a strict and limited manner confining it to only written lease and thereby, confining the benefit of Section 112 of the Transfer of Property Act regarding waiver of forfeiture to only written lease, then Section 111(g) would be rendered redundant.
70. Section 112 of the Transfer of Property Act on its plain language applies only to such cases of waiver of forfeiture where forfeiture has occurred under Section 111, Clause (g).
71. Such waiver occurs by acceptance of rent which has become due since the forfeiture, or by distress for such rent, or by any other act on the part of the lessor showing an intention to treat the lease as subsisting. It is further necessary that the lessor must be aware that forfeiture has been incurred.
72. It is further provided that in case the rent is accepted after the institution of the suit to eject the lessee on the ground of forfeiture, such acceptance is not a waiver.
73. It is note-worthy that Section 112 of the Transfer of Property Act applies to each of the 3 categories, namely, Category (1), Category (2), and Category (3), mentioned in Section 111(g) of the Transfer of Property Act.
74. As regards the requirement of lease being in writing, as noted above, the same applies only in case of Category (1) of Section 111(g) of the Transfer of Property Act, which provides that there must be an "express condition" in the lease, which should, also provide that in case, the said condition is broken, the lessor may re-enter.
75. Hence, the submission made by the learned Counsel for the petitioner (defendant) that Section 111, Clause (g) would be rendered redundant if Category (1) of the said Clause (g) is confined to only a written lease, cannot, in my view, be accepted.
76. Hence, in view of the aforesaid, it follows that for the applicability of Section 111(g), Category (1), and, as such, of Section 114 of the Transfer of Property Act, it is necessary that the lease must be in writing containing the express condition as per the requirements of Section 111(g), Category (1). In case, there is no written lease-deed, the provisions of Section 111(g), Category (1), and, as such, of Section 114 of the Transfer of Property Act will not apply. The provisions of Section 111(g), Category" (1), and consequently, of Section 114 of the Transfer of Property Act are not applicable to oral lease. This view gets support from various judicial decisions.
77. In U.P. State Road Transport Corporation case 1981 All LJ 608 (supra) a learned Single Judge of this Court held as follows: (paragraphs 5 and 6 of the said A.L.J.);
5. Section 114 of the Transfer of Property Act entitles a lessee for relief against forfeiture for non-payment of rent. In the Instant case, there is no agreement of lease between the parties. The lease has not been forfeited for non-payment of rent. In the circumstances, Section 114 of the Transfer of Property Act does not apply.
6. Learned Counsel for the petitioner has relied on Pruduman Kumar v. Virendra Goyal . The principle laid down in the case of Pradumah Kumar (supra) would not apply because as I have already held above, there was no agreement of lease between the parties and neither there was any question of forfeiture for nonpayment of rent. It is only in a case where there is a forfeiture of a lease because of non-payment of rent that the provisions of Section 114 of the Transfer of Property Act would apply.
78. In Shri Kant Gupta case 1995 AIR 212 (supra) a learned-Single Judge of this Court held that Section 114 of the Transfer of Property Act would apply only to such a case where lease is forfeited on account of nonpayment of rent in accordance with written lease deed. Reliance was placed by the learned Single Judge on the decisions in U.P. State Road Transport Corporation case (supra) and Geetabai Namdeo Daf case (supra).
79. In Pramod Kumar case (supra), a learned Single Judge of this Court held as follows: ( paragraphs 24, 25 and 26 of the said ARC):
24. It is urged that unless the petitioner violates any of these conditions, He is not liable to be evicted. He has placed reliance upon Section 111(g) of the Transfer of Property Act which provides that any lease of immovable property is determined by forfeiture i.e. to say (i) in case lease breaks an expression condition which provides that on breach thereof, the lessor may re-enter. The termination of tenancy by forfeiture as provided under Section 111(g) applies only when lease is of a perpetual nature and secondly, the terms of the lease condition provide that the tenancy can be determined only on the breach of such condition.
25. In the present case, a bare perusal of rent note does not provide for either of them. There is no stipulation In the agreement that lease is determinable only when the conditions are violated and secondly, it is not a permanent lease. The agreement itself indicates that it is only for 11 months and secondly, for a perpetual lease document should have been registered. It is only a rent note and not a registered document.
26. Learned Counsel for the petitioner has placed reliance in Hari Prasad-Tameli v. Smt. Indira Devi , wherein it was held that unless there is a clause of re-entry in default of payment of rent, non-payment of rent will not entail forfeiture. The agreement must provide that clause for re-entry. Similar view was expressed in Raja Sri Krishna Chandra Manasingh Harichandan Mardaraj Bhramarhar Roy and Anr. v. Ms National Chemical and Salt Works Limited (India), Calcutta . According to this case, a clause of forfeiture applies only when there is provision of re-entry in the agreement. If there is no condition of re- entry a forfeiture clause is not applicable. Admittedly, there is no clause of re-entry provided in the agreement entered into between petitioner and respondent No. 3. the teriancy could not have been terminated by forfeiture. The only course for the plaintiff was to terminate the tenancy under Section 106 of the Transfer of Property Act. The plaintiff has not terminated the tenancy by forfeiture.
(Emphasis supplied)
80. In Arun Kumar case (supra), a learned Single Judge of this Court held as follows: (paragraph 7 of the said ARC):
7. On combined reading of Sections 111(g) and 111(h) of the Transfer of Property along-with Section 114, the inevitable conclusion is that in case, the tenancy is for feiture only for non-payment of the rent and suit is instituted, in that event the tenant is entitled far the benefit of Section 114 to the effect that if within, fifteen days of decree passed by the trial Court the amount of decree is deposited the tenant shall be absolved of the (liability of eviction from the accommodation in dispute. The Revisional Court has recorded a finding that the petitioner tenant failed to demonstrate that there is any lease-deed or agreement about the tenancy in writing between the plaintiff-respondent and defendant-petitioner in which there was a clause that the tenancy shall stand forfeiture due to non-payment of the rent. There being no such contingency and particularly when the revisions against the decree is pending and the tenancy stands terminated by a notice under Section 106 of Transfer of Property Act, the question of giving benefit of Section 114 of Transfer of Property Act does not arise and the said benefit cannot be granted of the petitioner tenant. The Revisional Court fixed the date of hearing and ultimately vide its judgment dated 23.3.2001 rejected the aforesaid revision. Before the Revisional Court at the time of hearing learned Counsel for, the petitioner-tenant has reiterated the same argument which were already advanced claiming the benefit of Section 114 of Transfer of Property Act.
81. Hence, Section 111(g) of the Transfer of Property Act, arid therefore, Section 114 of the said Act apply only in a case where the lease is in writing, and not an oral lease.
82. In the present case, there is no dispute that the lease is an oral one, and not in writing. Consequently, Section 111(g) and Section 114 of the Transfer of Property Act are not applicable to the present case.
83. Therefore, there is no question of giving benefit of Section 114 of the Transfer of Property Act to the petitioner (defendant).
84. The question can be examined from yet another angle. Section 114 of the Transfer of Property Act requires that at the hearing of the suit, the lessee should pay or tender to the lessor the rent in arrear, together with interest thereon and his full costs of the suit, or should give such security as the Court thinks sufficient for making such payment within 15 days.
85. In view of the findings recorded by the learned Judge, Small Cause Court, Amroha, Moradabad on Issue Nos. 1, 2 and 4 in the said judgment and order dated 5-8-1998, it is evident that the requisite deposit sufficient to cover the amounts mentioned in Section 114 of the Transfer of Property Act was made by the petitioner (defendant). No contrary finding appears to have been recorded by the learned Additional District Judge, Court No. 9, Moradabad in the said judgment and order dated 26th October, 2002.
86. Therefore, the requirement of Section 114 of the Transfer of Property Act regarding payment or tender of the arrears of rent etc. by the lessee is fulfilled in the present case. However, as noted above, Section 114 of the Transfer of Property Act applies, in case, the lease is determined by forfeiture under Section 111(g), Category (1) of the Transfer of Property Act. Therefore, the conditions of Section 111(g). Category (1) of the Transfer of Property Act must be fulfilled before Section 114 of the said Act can be held to be applicable.
87. Consequently, as noted earlier, for the applicability of Section 114 of the Transfer of Property Act, it is necessary that the following conditions as per the requirements of Section 111(g), Category (1) must be fulfilled:
(1) There must be a condition in the lease regarding payment of rent.
(2) The condition must be an express condition.
(3) The express condition must provide that in case of breach of the said condition (regarding payment of rent), the lessor may re-enter.
(4) The lessee breaks such express condition.
(5) The lessor or his transferee gives notice in writing to the lessee of his intention to determine the lease.
88. In case where the aforesaid conditions, as per the requirements of Section 111(g), Category (1) of the Transfer of Property Act, are satisfied, and further, the requirements of Section 114 of the said Act are also satisfied, the provisions of the said Section 114 will be applicable.
89. In the present case, it has not been shown that there was any express condition for payment of rent month-to-month in the lease, which condition further provided that in case of breach of the said condition, (for payment of rent), there would be right to re-enter. Therefore, the requirements of Section 111(g) of the Transfer of Property Act are not fulfilled in the present case, Consequently Section 114 of the said Act would not apply.
90. Coming now to the other limb of the submissions Nos. 1 and 2 made by the learned Counsel for the petitioner (defendant), it is submitted by the learned Counsel for the petitioner (defendant), as noted above, that Section 111(g) of the Transfer of Property Act was attracted to the present case, as is evident from analysis of the various provisions of the Transfer of Property Act, particularly, Sections 105, 107 and Section 108(l), (m), and (q) of the Transfer of Property Act.
91. In order to appreciate the submissions made by the learned Counsel for the petitioner (defendant), it is necessary to refer to the said provisions of Sections 105, 107 and Section 108(l), (m), and (q) of the Transfer of Property Act, which are reproduced below:
105. Lease defined--A lease of immovable property is a transfer of a right to enjoy such property, made, for a certain time, express or implied, or in perpetuity, in consideration of a price paid or promised, or of money, a share of crops, service or any other thing of Value, to be rendered periodically or on specified occasions to the transferor by the transferee, who accepts the transfer on such terms.
Lessor, lessee, premium and rent defined.--The transferor is called the lessor, the transferee is called the lessee, the price is called the premium, and the money, share, service or other thing to be so rendered is called the rent
107. Leases how made.--A lease of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent, can be made only by a registered, instrument.
All other leases of immovable property may be made either by a registered instrument or by oral agreement accompanied by delivery of possession.
Where a lease of immovable property is made by a registered instrument, such instrument or, where there are more instruments than one, each such instrument shall be executed by both the lessor and the lessee:
Provided that the State Government may, from time to time, by notification in the Official Gazette, direct that leases of immovable property, other than leases from year to year, or for any term exceeding one year, or reserving a yearly rent, or any class of such leases, may be made by unregistered instrument or by oral agreement without delivery of possession.
108. Rights and liabilities of lessor and lessee.--In the absence of a contract or local usage to the contrary, the lessor and the lessee of immovable property, as against one another, respectively, possess the rights and are subject to the liabilities mentioned in the rules next following, or such of them as are applicable to the property leased;-
[a] to (k)....
(I) 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;
(m) the lessee is bound to keep, and on the termination of the lease to restore, the property in as good condition as it was in at the time when he was put in possession, subject only to the changes caused by reasonable wear and tear or irresistible force, and to allow the lessor and his agents, at all reasonable times during the term, to enter upon the property and inspect the condition thereof and give or leave notice of any defect in such condition; and, when such defect has been caused by any act or default on the part of the lessee, his servants or agents, he is bound to make it good within three months after such notice has been given or left.
(n) to (p)....
(q) on the determination of the lease, the lessee is bound to put the lessor into possession of the property.
92. It is submitted by the learned Counsel for the petitioner (defendant), as noted above, that the statutory rights and liabilities laid down in Section 108 of the Transfer of Property Act are to be read as part of the contract of tenancy, whether such contract be oral or in writing. It is submitted that the rights and liabilities mentioned in Section 108 of the Transfer of Property Act partake the character of a written contract and have to be read in every agreement of tenancy, and in the event of their breach, forfeiture clause mentioned in Section 111(g) of the Transfer of Property Act becomes applicable.
93. Accordingly, the submission proceeds, the statutory rights and liabilities laid down in Clauses (l), (m) and (q) of Section 108 of the Transfer of Property Act are to be read as part of the contract of tenancy, whether oral or in writing. Hence, in case of breach of the requirements of any of the Clauses (l), (m) and (q) of Section 108 of the Transfer of Property Act, Section 111(g) of the Transfer of Property Act would be applicable
94. I have considered the submissions made by the learned Counsel for the petitioner (defendant), and I find myself unable to accept the same.
95. No doubt Section 108 of the Transfer of Property Act provides for rights and liabilities of the lessor and the lessee in the absence of a contract or local usage to the contrary. Clause (1) 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. However, the said, condition given in Clause (I) of Section 108 of the said Act, which comes into play in the absence of a contract or local usage to the contrary, is a statutory condition. The said condition is implied in every lease unless there is a contract or local usage to the contrary. The said condition is not an "express condition", as contemplated in Section 111(g) of the Transfer of Property Act.
96. Similarly, Clause (m) of Section 108 of the Transfer of Property Act, inter-alia, provides that "the "lessee is bound to keep, and on the termination of the lease to restore, the property in as good condition as it was in at the time when he was put in possession....
97. The said condition given in Clause (m) of Section 108 of the said Act comes into play in the absence of a contract or local usage to the contrary, and the same is a statutory condition. The said condition is implied in every lease unless there is a contract or local usage to the contrary. The said condition is not an "express condition", as contemplated in Section 111(g) of the Transfer of Property Act.
98. Again, Clause (q) of Section 108 of the Transfer of Property Act provides that "on the determination of the lease, the lessee is bound to put the lessor into possession of the property." The said condition given in Clause (q) of Section 108 of the said Act comes into play in the absence of a contract or local usage to the contrary, and the same is a statutory condition. The said condition is implied in every lease unless there is a contract or local usage to the contrary. The said condition is not an "express condition", as contemplated in Section 111(g) of the Transfer of Property Act.
99. Before proceeding to deal with other submissions made by the learned Counsel for the petitioner (defendant), it is necessary to consider the decisions cited by the learned Counsel for the petitioner (defendant) in support of his aforesaid submissions on the basis of Section 108 of the Transfer of Property Act.
100. In Lalta Prasad Jaiswal case (supra), a learned Single Judge of this Court laid down as under (paragraph 11 of the said ARC):
11. Section 108(q) of the Transfer of Property Act provides that on the determination of the lease, the lease is bound to put the lessor into possession of the property. In Pt. Kishan Lal v. Ganpat Ram Khosla and Anr. , it was held that the tenant does not absolve himself from the obligation of his tenancy by intimating that as from a particular date he will cease to be in occupation under the landlord and that someone else whom the landlord is not willing to accept as tenant. It is one of the obligations of contract of tenancy that the tenant will on determination of a tenant, put the landlord in possession of the property demised. Unless possession is given to the landlord he continues to hold the premises during the period as tenant.
101. As is evident from a perusal of the above-quoted paragraph 11 of the decision in Lalta Prasad Jaiswal case, the said decision has emphasized the obligation on the part of the lessee as laid down in Clause (q) of Section 108 of the Transfer of Property Act. It has been held that it is one of the obligations of contract of tenancy that the tenant will, on the determination of the tenancy, put the landlord in possession of the property demised.
102. As already noted above, the condition given in Clause (q) of Section 108 of the Transfer of Property Act comes into play in the absence of a contract or local usage td the contrary, and the same is a statutory condition. The said condition is implied in every lease unless there is a contract or local usage to the contrary. The said condition is not an "express condition", as contemplated in Section 111(g) of the Transfer of Property Act.
103. The decision in Lalta Prasad Jaiswal case (supra) does not lay down that breach of condition mentioned Section 108 of the Transfer of Property Act attracts the provisions of Section 111(g) of the Transfer of Property Act. Hence, the said decision does not help the learned- counsel for the petitioner (defendant) in "his aforementioned submissions.
104. In M/S Raptakos Brett & Co, case (supra), their Lordships of the Supreme Court opined as follows (paragraphs 22, 24 and 25 of the said ARC):
22. However, the aforesaid conclusion of ours cannot put an end to the controversy between the parties. Reason is obvious. The plaintiff in clearest terms has based its cause of action also on the law of the land as found in paragraph 2 of the plaint. So far as this part of the cause of action is concerned, it is a distinct cause of action apart from the cause of action emanating from the alleged breach of the covenant on the part of the defendant. So far as the law of the land, is concerned, it is obviously the common law under which the erstwhile tenant on expiry of the lease has to hand over vacant possession to the erstwhile landlord. But that apart, the said obligation on the part of the erstwhile tenant is status only recognized by Section 108(q) read with III (a) of the Property Act Section III, Clause (a) reads as under:
111. A lease of immovable property determines:
(a) by efflux of the time limited thereby:
(b) xxx xxxxxx
(c) XXX XXX'XXX
(d) xxx xxx xxx
(e) xxx xxx xxx
(f) xxx xxx xxx
(g) XXX XXX XXX
(h) xxx xxx xxx In the present case we are not concerned with any of the other clauses of Section 111. We continue the present decision only on the aforesaid mode of determination of lease of immovable property by efflux of time. It is obvious that such a lease gets determined by efflux of time. The determination is automatic and does not depend upon any act either on the part of the landlord or on the part of the tenant. When such automatic statutory determination of lease takes place, Section 108(q) gets simultaneously attached against the erstwhile lessee. Section 108 of the Property Act deals with rights and liabilities of lessors and lessees. The said Section reads as under-:
108. In the absence of a contract or local usage to the contrary, the lessor and the lessee of immovable property, as against one another, respectively, possess the rights and are subject to the liabilities mentioned in rules next following, or such of them as are applicable to the property leased:
A. Rights and liabilities of the Lessor,
(a) xxx xxx xxx
(b) xxx xxx xxx
(c) xxx xxx xxx H. Rights and Liabilities of the Lessee
(d) xxx xxx xxx
(e) xxx xxx xxx
(f) xxx xxx xxx
(g) xxx xxx xxx
(h) xxx xxx xxx
(i) xxx xxx xxx
(j) XXX XXX XXX
(k) XXX XXX XXX
(l) xxx xxx xxx
(m) xxx xxx xxx
(n) xxx xxx xxx
(o) xxx xxx xxx
(p) xxx xxx xxx
(q) on the determination of the lease, the lessee is bound to put the lessor into possession of the property.
It is, therefore, obvious that a statutory obligation is foisted on the lessee on the determination of the lease which earlier existed in his favour. Therefore, on a conjoint reading of Section 108(q) read with Section. 111(a) of the Property Act, it becomes obvious that under law the erstwhile landlord is entitled to base his cause of action on the statutory obligation of the erstwhile lessee on determination of the lease to put the lessor in possession of the property. It is this statutory right of the lessor and the corresponding statutory obligation of the lessee that can be said to have been relied upon by the plaintiff for getting peaceful possession from the defendant as per the recitals in second part of paragraph 2 read with paragraphs 3 and 4 of the plaint.
24. It is difficult to see how these observations of the learned Judge can advance the case of the appellant. The obligation to restore possession by the ex-lessee will flow from the statutory provisions and not from any term of the contract. It is easy to visualize that any term in contract which is parallel to the statutory obligation of the contracting party would be based on such legal obligation and cannot be said to be laying down any inconsistent but legally permissible contractual term. In this connection Shri Nariman, learned Senior Counsel for the appellant also invited our attention to the observations in Foa's General Law of Landlord and Tenant, 8th Edn; at page 711. It has been observed by the learned author in paragraph 1083 of Chapter 2 dealing with Rights and Remedies of the Landlord that:
Subject to the provisions of the Rent Restriction Acts and to any stipulation or local custom to the contrary (a), and to the right conferred upon him in lieu of emblements by statute (b), the duty of the tenant upon the determination of the tenancy is to yield up peaceable and complete (c) possession of the premises demised (sic) to him, together with all fixtures except those which he is entitled to remove; and after entry and demand of possession by the landlord, or any act upon such entry showing an intention to resume possession, the tenant and all persons claiming under him are liable to he treated as trespassers (d). This duty will be implied in law if not expressed in the contract between the parties, arid the tenant will not discharge it by merely going out of possession, unless he restore possession to the landlord (e).
We fail to appreciate how these observations can change the complexion of the controversy in the present case. Even if there is no express covenant in the contract, law will imply duty on the tenant to hand over the possession on determination of lease. This will be a legal obligation covered by the express law of the land on which reliance is placed in paragraph 2 of the plaint. Similar observations are found in Hill & Redman on Landlord & Tenant, Seventeenth Edition, Chapter 6, paragraph 425 at page 520. Our attention was also invited by Shri Nariman to the observations in Mulla in "The Transfer of Property Act", 8th ed. at pages 843 and 844. Shri Nariman placed strong reliance on the observations of (he learned author at page 844 to the following effect:
Section 108. This section, as said by Coutts Trotter, J., sets out in a convenient form the implied covenants usually subsisting in a lease (i). Nearly all the clauses were said by Rankin, C.J., to be expressions of well-settled principles familiar to the law of England (l), The section has no application to a tenancy at will, for a tenancy at will is not a lease as defined in the Act (k).
25. Even these observations do not in any way dilute the contention of learned Senior Counsel for the respondent that when the plaintiff has relied on law of the land, any implied covenant as contemplated by the statutory provisions of Section 108(q) would still remain in the domain of statutory obligation on the part of the appellant to hand over vacant possession to the respondent on determination of lease by, efflux of time. Consequently, the decisions of Travancore and Karnataka High Courts which have taken the view that there is an implied term in the contract of lease that after the expiry of the lease period the lessee would put the lessor in possession would not be of any assistance to the appellant. It has to be noted that so long as this implied term runs parallel to the statutory obligation of such erstwhile lessee as per Section 108(q) it cannot be said that the said statutory obligation gets obliterated and repealed merely because such implied term can be culled out from the contract gets itself, Such an implied obligation or term in the contract cannot in any way reduce the legal efficacy of the statutory obligation foisted upon such a lessee by the express provisions of Section 108(q) read with Section 111(a) of the Property Act.
105. A perusal of the above-quoted paragraphs 22, 24 and 25 of the decision in M/s. Raptakos Brett & Co. (case) (supra) shows that the said decision, inter-alia, dealt with the determination of lease by efflux of the time under Section 111(a) of the Transfer of Property Act, and the consequent statutory obligation on the part of the erstwhile lessee to put the lessor in possession of the property. It has been held that the obligation on the part of the lessee to put the lessor into possession of the property on the determination of the lease is a statutory obligation as provided in Clause (q) of Section 108 of the Transfer of Property Act. The said obligation flows from the statutory provisions and not from any term of the contract. Even if there is no express covenant in the contract, law will imply duty on the tenant to hand over the possession on determination of lease. This is a legal obligation covered by the express law of the land.
106. This decision thus shows that the condition given in Clause (q) of Section 108 of the Transfer of Property Act is a statutory condition, laid down by the express law of the land.
107. The said condition, in my view, cannot be equated with "express condition" as contemplated in Section 111(g) of the Transfer of Property Act.
108. Thus the decision of the Apex Court in M/s Raptakos Brett & Co. case (AIR 1998 SC 3085) (supra) does not help the learned Counsel for the petitioner (defendant) in support of his aforementioned submissions.
109. Coming now to the last limb of the Submissions Nos. 1 and 2 made by the learned Counsel for the petitioner (defendant), it is submitted by the learned Counsel for the petitioner (defendant) that the relief given under Section 114 of the Transfer of Property Act is equitable in nature, and the discretion should normally be exercised against the forfeiture. It is further submitted that the learned Judge, Small Cause Court, Amroha, Moradabad (Trial Court) in the said judgment and order dated 5-8-1998 exercised his discretion in giving benefit of Section 114 of the Transfer of Property Act to the petitioner (defendant) Such exercise of discretion by the Trial Court should not have been reversed by the learned Additional District Judge, Court No. 9. Moradabad (Revisonal Court). The Revisional Court acted illegally in reversing the exercise of discretion by the Trial Court and in denying the benefit of Section 114 of the Transfer of Property Act to the petitioner (defendant).
110. I have considered the submissions made by the learned Counsel for the petitioner (defendant), and I find myself unable to accept the same.
111. The occasion for exercise of discretion under Section 114 of the Transfer of Property Act would arise if the provisions of the said Section were attracted in the facts and circumstances of the present case. In case, the provisions of Section 114 were not attracted in the facts and circumstances of the present case, there was no occasion for exercise of any discretion under Section 114 of the Transfer of Property Act.
112. As noted above, the provisions of Section 114 of the Transfer of Property Act would not apply to the facts and circumstances of the present case. Evidently, therefore, there was no occasion for the learned Judge, Small Cause Court, Amroha, Moradabad to give benefit of Section 114 of the Transfer of Property Act to the petitioner (defendant).
113. As the finding recorded by the learned Judge, Small Cause Court, Amroha, Moradabad in the said judgment and order dated 5-8-1998 giving benefit of Section 114 of the Transfer of Property Act to the petitioner (defendant) was not in accordance with law, the learned Additional District Judge, Court No. 9, Moradabad rightly reversed the said finding in the said judgment and order dated 26-10-2002 passed in S.C.C Revision No. 53 of 1998, under Section 25 of the Provincial Small CAUSE Courts Act, The submissions of the learned Counsel for the petitioner (defendant) to the contrary cannot, in my view, be accepted.
114. Let us consider the decisions relied upon by the learned Counsel for the petitioner (defendant) in support of his aforementioned submissions.
115. In R.S. Lala Pradurnan Kumar case (AIR 1969 SC 1349) (supra) it has been laid down by their Lordships of the Supreme Court as follows (paragraph 9 of the. said AIR):
9. The District Court has observed that valuable constructions had been put upon the land leased and the tenants had deposited an amount very much larger than the amount due to the landlord. Having regard to the circumstances the District Court was of the view that discretion should be exercised in favour of the tenants. The High Court summarily dismissed the appeal. The High Court must be taken to have confirmed the view of the District Court. In the appeal with special leave, this Court will not ordinarily interfere with an order made in exercise of the discretion of the Courts below, specially when there is no evidence that the tenants were guilty of conduct disentitling them to relief against forfeiture for non-payment of rent.
116. This decision thus laid down that the discretion exercised by the courts below giving relief against forfeiture of tenancy for non-payment of rent under Section 114 of the Transfer of Property Act should not normally be interfered with by the higher court.
117. In my opinion, the said decision in R.S. Lala Pradurnan Kumar case (AIR 1969 SC 1349) is not applicable to the facts and circumstances of the present case. As noted above, question of exercising discretion under Section 114 of the Transfer of Property Act would arise only in case, the said Section is attracted to the facts and circumstances of a case. In case, Section 114 of the Transfer of Property Act is attracted to the farts and circumstances of a case, and the courts, below exercise discretion in giving benefit of the said Section to the tenant then such exercise of discretion should ordinarily not be interfered with by the higher court. However, in case, the provisions of Section 114 of the Transfer of Property Act are not attracted to the facts and circumstances of a case, then there is no occasion for exercise of discretion under the said provisions. In case, the courts below give benefit of Section 114 of the Transfer of Property Act in a case where the said Section has no application then the higher court would be justified in interfering with the findings of the courts below in this regard.
118. In Om Shanti Swarup case (AIR 1975 All 227) (supra), this Court laid down as under (paragraph 8 of the said AIR):
8. Section 114 of the Act confers the discretion on the trial court! Under Section 25 of the Provincial Small Cause Courts Act the District Judge has been given the power to satisfy himself that the decree was according to law. The District Judge, therefore, had the jurisdiction to consider whether the discretion exercised by the Court of Small Causes was in accordance with law or not. It has come to the conclusion that the discretion had been exercised in accordance with law. He even reconsidered the matter on merits and came to the same conclusion. Under Section 115 of the Code of Civil Procedure this Court can interfere with the revisional order of the District Judge only if there is an error of Jurisdiction as contemplated by Section 115 of the Code . In the present case the District Judge has exercised a jurisdiction vested in him by law and has not exercised any jurisdiction not so vested. There is also nothing to show that he committed any error of procedure or exercised the jurisdiction either illegally or with material irregularity. Once the District Judge has exercised his jurisdiction as provided by Section 25 of the Provincial Small Cause Courts Act, the order cannot be set aside on the ground that this Court may have exercised the discretion under Section 114 of the Act in another manner. The discretionary power under Section 114 of the Transfer of Property Act is the power vested in the trial Court and unless it is shown to have been exercised in violation, of some principle of law it. cannot be reversed in revision under Section 115 of the Code of Civil Procedure filed against the revisional order of the District Judge. No such violation has been shown in the present case.
119. Thus, it follows from this decision that in case, the discretionary power under Section 114 of the Transfer of Property Act is Shown to have been exercised in violation of some principle of law then interference by the higher court under Section 115 of the Code of Civil Procedure is permissible.
120. This decision is, therefore, in consonance with the conclusions mentioned above., Coming now to the Submission No. 3 made by the learned Counsel for the petitioner (defendant)' it is submitted by the learned Counsel for the petitioner (defendant) that the petitioner, (defendant) had received on 30th August, 19)9.6, the notice sent by the respondent (plaintiff-landlord) on 29th August 1996 purporting to be under Section 106 of the Transfer, of Property Act. The said notice demanded rent for the period upto 31st August 1996. The petitioner (defendant) sent the rent through Money-Order dated 4-9-1996, and the said Money- Order was accepted by the respondent (plaintiff-landlord) on 9-9-1996.
121. It is submitted that the said notice having been sent to the petitioner (defendant) on 29-8-1996 demanding rent for the period upto 31-8- 1996, was rendered invalid in view of the fact that while the tenancy of the petitioner (defendant) was determined on 29-8-1996, the demand of rent was made for the period upto 31-8-1996.
122. It is further submitted that the respondent (plaintiff-landlord) having not accepted on 9-9-1996, the rent for the period upto 31-8-1996 sent through Money Order on 4-9-1996 along-with the reply-notice dated 4-9-1996 (Annexure 4 to the Writ Petition), the notice (Annexure 3 to the Writ Petition) sent by the respondent (plaintiff-landlord) on 29th August, 1996 stood waived in view of Section 113 of the Transfer of Property Act.
123. I have considered the submissions made by the learned Counsel for the petitioner (defendant), and I find myself unable to accept the same.
124. A perusal of Section 106 of the Transfer of Property Act with the U.P. Amendment made therein, inter-alia, shows that a lease of immovable property for any purpose other than for agricultural or manufacturing purposes will be deemed to be a lease from month to month, and the same will be terminable, on the part of either lessor or lessee, by 30 days' notice.
125. Section 111, Clause (h), inter-alia, provides that a lease of immovable property determines on the expiration of a notice to determine the Lease, or to quit, or of intention to quit, the property leased, duly given by one party to the other.
126. Reading Section 106 and Section 111(h) of the Transfer of Property Act together, it is evident that monthly lease comes to an end on the expiration of 30 days from the date of service of notice under Section 106 of the Transfer of Property Act on the lessee. Therefore, even after the issuance of notice under Section 106 of the Transfer of Property Act by the lessor to the lessee, the tenancy continues for a period of 30 days from the date of service of such notice on the lessee, and the lease stands determined on the expiration of the said period of 30 days from the date of Service of the said notice. Evidently, the lessee continues to be liable for rent for the said period of 30 days from the date of service of notice under Section 106 of the Transfer of Property Act.
127. In the present case, as noted above, the notice was sent by the respondent (plaintiff-landlord) to the petitioner (defendant) on 29th August 1996, and the same was served on the petitioner (defendant) on 30th August 1996. Therefore, the tenancy of the petitioner (defendant) continued for a period of 30 days from 30th August 1396 (date of service of notice), and consequently, the petitioner (defendant) was liable to pay rent for the said period of 30 days from 30th August 1996, i.e., for the period upto 29th September, 1996.
128. In the circumstances, the demand for rent for the period upto 31st August, 1996 made in the said notice sent by the respondent (plaintiff-landlord) on 29th August, 1996 could not render the said notice invalid.
129. Again, as noted above, the Money-Order sent on 4th September 1996 by the petitioner (defendant) along with reply notice dated 4th September, 1996 (Annexure 4 to the Writ Petition) was in respect of rent for the period upto 31st August, 1996, as is evident from the said reply-notice dated 4th September 1996 (Annexure 4 to the Writ, Petition). As the petitioner (defendant) was liable to pay rent for the period upto 29th September, 1996, the acceptance of the said Money-Order on 9th September, 1996 by the respondent (plaintiff-landlord) in respect of rent for the period upto 31st August 1996 would not amount to waiver of notice under Section 106 read with Section 111(h) of the Transfer of Property Act.
130. Reference in this regard may be made to illustration (a) to Section 113 of the Transfer of Property Act. The said illustration (a) is reproduced below:
(a) A, the lessor, gives B. the lessee, notice to quit the property leased The notice expires. B tenders, and A accepts rent, which has become due in respect of the property since the expiration of the notice. The notice is waived.
131. It is evident from the said illustration that when the rent, which has become due since the "expiration of the notice" - is accepted then the notice stands waived. Therefore, if the rent, which becomes due for the period after the expiration of 30 days from the date of service of notice under Section 106 read with Section 111(h) of the Transfer of Property Act, is accepted, then the notice stands waived. However, if the rent in respect of the period upto 30 days from the date of service of notice under Section 106 read with Section 111(h) of the Transfer of Property Act, is accepted, then there is no question of waiver of the said notice because the said rent would be for the period before the "expiration of the notice".
132. Before proceeding to consider the next submission made by the learned Counsel for the petitioner (defendant), it is necessary to consider the decision in Basant Lal case (supra), relied upon by the learned Counsel for the petitioner (defendant). In the said decision, their Lordships of the Supreme Court laid down as follows (paragraph 9 of the said ARC):
9. We find ourselves in complete agreement with the view taken by the High Court. There is no reliable evidence at all to show the exact date when the rent was accepted or, at any rate, the fact that the rent was accepted between the 26" February, 1944, when the notice was sent, and the 30th June, 1944, when the Company was asked to vacate the premises, furthermore, the High Court has pointed out from the evidence of the appellants that the Company was treated as a trespasser ever since 26th February, 1944, namely, the date when the notice was given and has held that any rent which the appellants accepted was really not rent but mere compensation for wrongful use and occupation of the land. In these circumstances, we fully endorse the finding of the High Court that there was no waiver of the notice such as was spelt by the District Judge:
133. A perusal of the decision in Basant Lal case (supra) shows that the lessor terminated the lease of the Company (lessee) by a notice dated 26th February, 1944 on account of breach of certain covenants contained in the lease, and allowed time upto 30th June, 1944 to the Company for vacating the premises. It is further evident that the Company was treated as a trespasser ever since 26 February 1944, namely, the date when the notice was given. It is in the context of the said facts that their Lordships made the observations contained in paragraph 9 of the decision quoted above.
134. The facts of Basant Lal case (supra) are distinguishable from the facts of the present case. As noted above, tenancy of the petitioner (defendant) continued for a period of 30 days from the date of service of notice, namely, 30th August 1996. Therefore, the petitioner (defendant) could not be said to be trespasser during the said period of 30 days from 30th August 1996, and the petitioner (defendant) continued to remain liable for payment of rent for the said period of 30 days Therefore, acceptance of rent on 9th September 1996 sent through Money-Order for the period upto 31st August, 1996 could not amount to waiver of the notice sent by the respondent (plaintiff-landlord) to the petitioner (defendant) on 29-8-1996.
135. Coming now to the Submission No. 4 made by the learned Counsel for the petitioner (defendant), it is submitted that the notice as served on the petitioner (defendant) did not contain any date, and as such, the said notice was no notice in the eye of law. The finding of the learned Judge, Small Cause Court, Armoha. Moradabad in the said judgment and order dated 5-8-1998 in this regard was not correct.
136. I have considered the submissions made by the learned Counsel for the petitioner (defendant).
137. The said submissions were also made on behalf of the petitioner (defendant) before the learned Judge, Small Cause Court, Amroha, Moradabad, in the said S.C.C. Suit No. 4 of 1997. Issue No 3 was framed in this regard in the said Suit.
138. The learned Judge, Small Cause Court, Amroha, Moradabad in his said judgment and order dated 5-8-1998, while deciding Issue No 3, gave valid reasons for rejecting the said submissions raised on behalf of the petitioner (defendant).
139. It was emphasized in the said Judgment and order dated 5-8-1998 that the fact of the receipt of the said notice sent by the respondent (plaintiff-landlord) on 29-8-1996 was admitted by the petitioner (defendant), and the reply to the said notice was sent by the petitioner (defendant) to the respondent (plaintiff-landlord).
140. Nothing was pointed out by the petitioner (defendant) that he failed to appreciate the facts mentioned in the said notice or the Intention of the respondent (plaintiff-landlord) as expressed in the said notice on account of the said notice not bearing any. date [assuming the said allegation made on behalf of the petitioner (defendant) to be correct.]
141. Besides, the aforesaid facts pointed out in the said Judgment and order dated 5-8-1998, it is also note-worthy that as per the own showing of the petitioner (defendant), he sent through Money-Order, on 4-9-1996, the rent demanded in the said notice sent by the respondent (plaintiff-landlord) on 29-8-1996.
142. It is, thus, evident that the petitioner (defendant) fully understood the import of j the notice sent by the respondent (plaintiff-landlord) on 29-8-1996. Hence, agreeing with the view of the learned Judge, Small Cause Court, Amroha, Moradabad, 1 am of the opinion that on the facts and in the circumstances of the case, the said notice sent by the respondent (plaintiff-landlord) on 29-8-1996 could not be said to be invalid merely because it did not bear any date [assuming the allegation made on behalf of the petitioner (defendant) in this regard to be correct.]
143. Let us now consider the Submission No. 5 raised on behalf of the petitioner (defendant).
144. It Is submitted by the learned Counsel for the petitioner (defendant) that in view of the provisions of Section 90 of the Wakf Act, 1995, it was necessary to implead the Wakf Board as party in the said Suit filed by the respondent (plaintiff-landlord), and the Wakf Board was also to be noticed and heard before the said Suit was decided. It is further submitted that in the absence of the Wakf Board, the said Suit was not maintainable.
145. Before proceeding to consider the said submissions made on behalf of the petitioner (defendant), it is pertinent to note that in paragraph 9 of the written statement (Annexure 2 to the Writ Petition), only a vague allegation was made regarding non-maintainability of the Suit without the permission of the Wakf Board No specific objection on the basis of Section 90 of the Wakf Act, 1995 was raised in the written statement,
146. In order to appreciate the submissions made by the learned Counsel for the petitioner (defendant), it is necessary to refer to Section 90 of the Waqf Act, 1995, which is reproduced below:
90. Notice of suits, etc., by courts. --(1) In every suit or proceeding relating to a title to or possession of a wakf property or the right of a mutawalli or beneficiary, the court or Tribunal shall issue notice to the Board at the cost of the party instituting such suit or proceeding.
(2) Whenever any wakf property is notified for sale in execution of a decree of a civil court or for the recovery of any revenue, cess, rates of taxes due to the Government or any local authority, notice shall be given to the Board by the court, Collector or other person under whose order the sale is notified.
(3) In the absence of a notice under subsection (1), any decree or order passed in the suit or proceeding shall be declared void, if the Board, within one month of its coming to know of such suit or proceeding, applies to the court in this behalf.
(4) In the absence of a notice under subsection (2), the sale shall be declared void, if the Board, within one month of its coming to know of the sale, applies in this behalf to the court or other authority under whose order the sale was held.
147. Sub-sections (1) and (3) of Section 90 of the Wakf Act, quoted above, are relevant in the present case.
148. A perusal of Sub-section (1) of Section 90 of the Wakf Act, 1995 shows that if a suit or proceeding relates to any of the; following matters then the Court or Tribunal shall issue notice to the Wakf Board at the cost of the party instituting such suit or proceeding;
(i) Suit or proceeding relating to a title to a wakf property.
(ii) Suit or proceeding relating to possession of a wakf property, (iii) Suit or proceeding relating to the right of a mutawalli or beneficiary.
149. A perusal of Sub-section (1) of Section 90 of the Wakf Act, 1995 further shows that the said Sub-section requires only issuance of notice to the Wakf Board in case, a suit or proceeding relates to any of the aforesaid matters. There is no requirement in the said subsection (1) that the Wakf Board should be impleaded as a party to such suit or proceeding. The submission made by the learned Counsel for the petitioner (defendant) in this regard, therefore, cannot be accepted.
150. The said Sub-section (1) of Section 90 of the Wakf Act, 1995 further shows that the said Sub-section (I) applies where the dispute in a suit or proceeding is regarding title to a wakf property or regarding possession of a wakf property or regarding the right of a mutawalli or beneficiary.
151. The Suit in the present case, namely, S.C.C. Suit No, 4 of 1997 is a Suit for eviction of a tenant/lessee, [i.e. petitioner (defendant)] from the disputed shop after determination of the tenancy/lease of such tenant/lessee by the landlord.
152. Such a Suit for eviction is not a suit or proceeding regarding any dispute in respect of title to a wakf property or regarding any dispute in respect of possession of a wakf property or regarding any dispute in respect of the right of a mutawalli or beneficiary. No dispute of title to a wakf property or possession of a wakf property or the right of a mutawalli or beneficiary is involved in such a Suit for eviction of tenant/lessee after determination of tenancy/lease. The dispute involved in such a Suit for eviction is in regard to eviction of the tenant/lessee from the wakf property in view of the determination of his tenancy/lease.
153. Hence, Section 90, Sub-section (1) of the Wakf Act, 1995 is not applicable to the present case.
154. It is further note-worthy that the words occurring in Sub-section (1) of Section 90 of the Wakf Act, 1995, namely, "suit or proceeding relating to possession of a wakf property" will have to be interpreted in the context of other words occurring in the said Sub-section, namely, "suit or proceeding relating to a title to a wakf property", and "suit or proceeding relating to the right of a mutawalli or beneficiary.
155. Keeping in mind the context in which the words "suit or proceeding relating to possession of a wakf property" have been used in Sub-section (1) of Section 90 of the Wakf Act, 1995, it is evident that a suit for eviction filed by a landlord against tenant/lessee after determination of tenancy/lease is not covered within the purview of the words "suit or proceeding relating to...possession of a wakf property" as used in Sub-section (1) of Section 90 of the Wakf Act, 1995,
156. Suit for eviction of a tenant/ lessee filed by the landlord after determination of tenancy/lease is a suit based on the contract of tenancy/lease, and the determination/termination of such contract of tenancy/lease, and the consequent eviction of the tenant/lessee. Basic relief in such a suit is eviction of tenant/lessee on account of determination/termination of contract of tenancy/lease. Relief for possession of property is only incidental to the main/ asic relief for eviction.
157. Such a Suit is evidently not covered within the expression "suit or proceeding relating to...possession of a wakf property", having regard to the context in which the said expression occurs in Section 90, subsection (I) of the Wakf Act, 1995.
158. It is pertinent to refer in this regard to a decision of a Full Bench of this Court in Shakti Dhar v. D.D. Upadhyay 1980 (6) ALR 65 (FB).
159. The Full Bench opined as follow (at Pages 75 and 76 of the said ALR):
According to the learned Counsel In a suit filed by the landlord for the eviction of his tenant from immovable property the Court is not called upon to decide any question of title- to immovable property and that all that the Court is required to decide is whether the tenant should continue to enjoy the property, the right to enjoy which normally vests in the owner of the property. In other words, in such suits the Court merely decides the question whether personal relationship created between the landlord and the tenant by virtue of contract should be continued or should be terminated. The learned Counsel pressed that a decree passed in such a suit is, therefore, a personal decree against a tenant although it may be in respect of or for Immovable property, such a decree, according to the learned Counsel, is not against immovable property. We find force in the argument of the learned Counsel and accept the same. Acceptance of this argument would avoid rendering Sub-clause (iii) ineffective or surplus. This view will not militate against the position that lease creates interest in the immovable property leased out. Once the relationship of landlord and tenant which arose out of contract is terminated, the interest also ceases. Therefore, so far as the question of possession to immovable property is concerned, the important question that is decided in a suit for eviction is whether the contract of lease has been validly terminated so as to bring to end the personal relationship of landlord and tenant. This is an entirely personal matter and has no relation to the title to immovable property. In fact in view of the provision contained in Section 116 of the Evidence Act the tenant is debarred from denying the title of his landlord and consequently from raising the question of title in a suit filed by the landlord for his eviction. We accordingly hold, firstly that a decree for eviction of tenant in a suit filed by landlord is not a decree against immovable property but is a decree directed personally against the tenant, although the said decree is in respect of or for immovable property: and secondly that Sub-clause (iii) contemplates cases where decrees are realizable by proceeding against the judgment-debtor personally as well as against his immovable and movable properties but a decree is sought to be realized by proceeding against immovable property, that is, by attachment and sale or sale without attachment of immovable property. In such a case Small Causes Court will not be competent to execute the decree.
(Emphasis supplied)
160. There is another aspect of the matter. Sub-section (3) of Section 90 of the Wakf Act provides that in the absence of a notice to the Wakf Board as provided under subsection (1) of Section 90 of the Wakf Act, 1995, any decree or order passed in the suit or proceeding "shall be declared void, if the Board, within one month of its coming to know of such suit or proceeding, applies to the Court in this behalf.
161. Therefore, in view of Sub-section (3) of Section 90 of the Wakf Act, 1995, a decree or order passed without issuing notice to the Wakf Board as per the requirement of Sub-section (1) of Section 90 of the Wakf Act, 1995 will not be void ab-intitio. It is only if the Wakf Board, within one month of its coming to know of such suit or proceeding, applies to the Court in this behalf, that the decree or order will be declared void.
162. Hence, even if a suit for eviction of a tenant/lessee after determination of the tenancy/lease were to be treated as being covered under Sub-section (1) of Section 90 of the Wakf Act, 1995, and the notice to the Wakf Board were necessary, still the decree or order passed in such a suit would continue to remain valid till the Wakf Board applies to the Court for declaration of the decree or order as void. This has to be done by the Waqf Board within one month of its coming to know of such suit or proceeding.
163. In the present case, the Wakf Board has not made any application to the Court under Sub-section (3) of Section 90 of the Wakf Act, 1995, Hence, even if the Suit for eviction filed by the respondent (plaintiff-landlord) against the petitioner (defendant) for eviction from the disputed shop after determination of the tenancy/lease were assumed to be covered under Sub-section (1) of Section 90 of the Wakf Act, 1995, still the decree or order passed in the said Suit continues to remain valid.
164. Therefore, in any view of the matter, submissions made by the learned Counsel for the petitioner (defendant) on the basis of Section 90 of the Wakf Act, 1995, cannot be accepted.
165. Coming now to the submissions made by the learned Counsel for the petitioner (defendant) on the basis of Section 85 of the Wakf Act, 1995, it is submitted by the learned Counsel for the petitioner (defendant) that the bar contained in Section 85 of the Wakf Act, 1995 took away the right of the respondent (plaintiff-landlord) to file the said suit before the Civil Court.
166. Before proceeding to consider the said submissions, it is pertinent to reiterate that in paragraph 9 of the written statement (Annexure 2 to the Writ Petition), only a vague allegation was made regarding non-maintainability of the Suit without the permission of the Waqf Board. No specific objection on the basis of Section 85 of the Wakf Act, 1995 was raised in the written statement.
167. Reverting now to the submissions made on the basis of Section 85 of the Wakf Act, 1995, it is pertinent to refer to Section 85 of the Wakf Act, 1995, which is reproduced below:
85. Bar of jurisdiction of civil courts.--No suit or other legal proceeding shall lie in any civil court in respect of any dispute, question or other matter relating to any wakf, wakf property or other matter which is required by or under this Act to be determined by a Tribunal.
168. A perusal of Section 85 of the Wakf Act, 1995 shows that in case, there is any dispute, question or other matter "relating to any wakf, wakf property or other matter which is required by or under this Act to be determined by a Tribunal" then no suit or other legal proceeding shall lie in any civil court in respect of such dispute, question or matter. ;
169. As noted above, the present Suit is a Suit for eviction of the tenant [i.e., petitioner (defendant)] from the disputed shop after determination of the tenancy/lease. Such a Suit is not a Suit "in respect of any dispute, question or other matter relating to" any wakf or wakf property in the context in which the, said words have been used in Section 85 of the Wakf Act, 1995.
170. Further, analysis of various provisions of the Wakf Act, 1995, particularly, Sections 6, 7, 32, 33, 35, 40, 51, 52, 54, 64, 67, 69 and 83 thereof, shows that such a Suit for eviction of the tenant [i.e. petitioner (defendant)] after determination of the tenancy/lease is also not covered within the purview of the words "other matter which is required by or under this Act to be determined by a Tribunal.
171. In the circumstances, I am of the opinion that the bar created by Section 85 of the Wakf Act, 1995 does not apply in the present case, which pertains to a Suit for eviction of the tenant from the disputed shop after determination of the tenancy/lease. As such, in my opinion, the submissions made by the learned Counsel for the petitioner (defendant) in this regard, cannot be accepted.
172. In view of the aforesaid discussion, I am of the opinion that the present Writ Petition filed by the petitioner (defendant) lacks merit, and the same is liable to be dismissed,
173. The Writ Petition is accordingly dismissed. However, on the. facts arid in the circumstances of the case, there will be no order as to costs.