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HIGH COURT OF CALCUTTA
P. B. Mukharji
DEO CHAND SINGH - Appellant
Versus
SHAH MOHAMMAD - Respondent
Civil Revn. 1158 Of 1963
Decided On : NOVEMBER 17, 1964
WEST BENGAL PREMISES TENANCY ACT - SECTION 17 (3) - SECTION 114 OF THE TRANSFER OF PROPERTY ACT - RELIEF AGAINST FORFEITURE - INTERPRETATION OF STATUTORY PROVISIONS - SCOPE AND APPLICABILITY.
Fact of the Case:
The petitioner, a tenant, challenged the order of the Munsif allowing the plaintiff landlord's application to strike out the petitioner's defense against delivery of possession under Section 17 (3) of the West Bengal Premises Tenancy Act. The petitioner argued that a solenama between the parties provided a covenant that the petitioner would hold the premises as a tenant for ten years without liability to eviction on any ground, including failure to pay rent. The petitioner also claimed the right to deposit arrears of rent and interest under Section 114 of the Transfer of Property Act to relieve himself of forfeiture for non-payment of rent.
Finding of the Court:
The court held that the petitioner was entitled to raise the defense of relief against forfeiture under Section 114 of the Transfer of Property Act, as the West Bengal Premises Tenancy Act did not exclude the operation of Section 114. The court interpreted Section 17 (3) of the Act as striking out only the defense against delivery of possession, not all defenses in the suit. The court further held that the covenant in the solenama preventing eviction for non-payment of rent was void and unenforceable as it contravened Section 13 (1) (i) of the Act, which expressly recognized the landlord's right to eviction for default in payment of rent.
Issues: 1. Whether Section 114 of the Transfer of Property Act is excluded by Section 17 of the West Bengal Premises Tenancy Act. 2. Whether the defense of relief against forfeiture under Section 114 of the Transfer of Property Act can be raised in a suit under the West Bengal Premises Tenancy Act. 3. Whether a covenant in a lease preventing eviction for non-payment of rent is valid and enforceable under the West Bengal Premises Tenancy Act.
Ratio Decidendi: 1. The court interpreted Section 17 (3) of the West Bengal Premises Tenancy Act as striking out only the defense against delivery of possession, not all defenses in the suit. The court held that the defense of relief against forfeiture under Section 114 of the Transfer of Property Act was not a defense against delivery of possession and could therefore be raised in a suit under the West Bengal Premises Tenancy Act. 2. The court held that Section 114 of the Transfer of Property Act was not excluded by Section 17 of the West Bengal Premises Tenancy Act. The court reasoned that the Act did not expressly or impliedly repeal Section 114 and that the Act's intention was to provide additional protection to tenants, not to take away existing reliefs available under other laws. 3. The court held that the covenant in the solenama preventing eviction for non-payment of rent was void and unenforceable under Section 13 (1) (i) of the West Bengal Premises Tenancy Act. The court reasoned that the covenant contravened the Act's express recognition of the landlord's right to eviction for default in payment of rent.
Final Decision: The court discharged the Rule, with no order as to costs. The court directed that the petitioner could, when the court proceeded with the hearing of the suit, draw the court's attention to the service, validity, and sufficiency of the notice to quit and pray for relief under Section 114 of the Transfer of Property Act.
( 1 ) THIS Rule is directed against the order of the learned Munsif allowing the plaintiff's application to strike out the defendant's defence against delivery of possession under Section 17 (8) of the West Bengal Premises Tenancy Act.
( 2 ) THE petitioner tenant urges three main points in this Rule. His first point is that a solenama between the parties duly registered marked Ext. D, expressly provides a covenant that the petitioner tenant will hold the premises as tenant of the plaintiff for ten years with effect from April, 1955 and that during this period of ten years the tenant shall not be liable to be evicted on any ground whatever. It is, therefore, said that for the period of ten years from April, 1955 to March, 1965, the petitioner tenant was not liable to eviction on the ground of failure to pay rent and the only remedy of the landlord would be to sue for the rent. This covenant is claimed to protect the tenant from eviction on that ground. It is therefore said that he is entitled to raise this defence of the term of the lease itself contained in this solenama, and his defence should not have been struck off under Section 17 (3) of the Act.
( 3 ) HIS second point is that he has made a prayer for allowing him to deposit arrears of rent and interest and costs under the provisions of Section 114 of the Transfer of Property Act and if there is a forfeiture for failure to pay rent then the court should relieve him of that forfeiture. It is, therefore, contended on behalf of the petitioner that he is entitled to have this defence and his defence on that point should not be struck off.
( 4 ) HIS third point is that on the merits nothing is due to the plaintiff landlord. He made grocery supply to the landlord on which account the landlord owed a sum of Rs. 1936. 35 paise and there was an agreement between the parties that the rent should be set off or adjusted against this amount. It is contended on behalf of the petitioner that the decision rejecting the defence is erroneous.
( 5 ) NOW it is plain on the record that the defendant has not deposited the arrears of rent since 1961, no doubt for the reasons stated by the petitioner tenant that they have been set off or adjusted. It is also on record that though the summons had been served on him the petitioner has not deposited the amount of rent month after mouth as required by Section 17 (1) of the Act. The plaintiff therefore made this application to strike off the defence under Section 17 (2) of the Act on these two grounds. In answer the petitioner put up those defences which were overruled by the learned Munsif.
( 6 ) INTERESTING and important questions of law have been argued before me with a wealth of authorities not always unanimous on the point.
( 7 ) MR. Banerjee appearing for the petitioner has a Division Bench decision to support his contention about defence under Section 114 of the Transfer of Property Act. He relies on the decision of Luxmi Spinning and Weaving Mills Ltd. v. Md. Ibrahim Mutwalli. That decision lays down that even if the tenant is unable to get the protection of Section 12 or Section 14 of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950, it was still possible for him to get the special relief under Section 114 of the Transfer or Property Act because there was neither express nor implied repeal of the provisions of Section 114 of the Transfer of Property Act by the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950. On the facts of that case however" the court came to the conclusion that exercise of discretion in favour of the tenant under Section 114 of the Transfer of Property Act was rightly refused. But it establishes the principle that relief under Section 114 of the Transfer of Property Act remains open even after the penalty is suffered by the tenant under Section 12 (1) (i) of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950. This decision is based on t
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