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IN THE HIGH COURT OF ALLAHABAD
S. P. Mehrotra, J.
YASHPAL LALA SHIV NARAIN - Appellant
Versus
ALLATALA TALA MALIK WAQF AJAKHAN MUS - Respondents
C. M. W. P. 49675 Of 2002
Decided On : 12/22/2005
Whether the petitioner is entitled to the benefit of Section 114 of the Transfer of Property Act, 1882 (hereinafter referred to as the 'Transfer of Property Act') for relief against forfeiture for non-payment of rent.
Fact of the Case:
The petitioner was a tenant of a shop owned by the respondent. The respondent filed a suit for eviction of the petitioner from the shop on the ground of non-payment of rent. The petitioner contended that he was entitled to the benefit of Section 114 of the Transfer of Property Act, which provides for relief against forfeiture for non-payment of rent. The trial court dismissed the suit, but the appellate court allowed the appeal and decreed the suit for eviction. The petitioner filed a writ petition in the High Court challenging the appellate court's decision.
Finding of the Court:
The High Court held that the petitioner was not entitled to the benefit of Section 114 of the Transfer of Property Act. The court held that Section 114 applies only in cases where the lease is determined by forfeiture under Section 111(g) of the Transfer of Property Act. In the present case, the lease was determined by a notice to quit under Section 106 of the Transfer of Property Act. Therefore, Section 114 did not apply.
Issues: 1. Whether the petitioner was entitled to the benefit of Section 114 of the Transfer of Property Act for relief against forfeiture for non-payment of rent? 2. Whether the lease was determined by forfeiture under Section 111(g) of the Transfer of Property Act or by a notice to quit under Section 106 of the Transfer of Property Act?
Ratio Decidendi: Section 114 of the Transfer of Property Act applies only in cases where the lease is determined by forfeiture under Section 111(g) of the Transfer of Property Act. In the present case, the lease was determined by a notice to quit under Section 106 of the Transfer of Property Act. Therefore, Section 114 did not apply.
Final Decision: The High Court dismissed the writ petition.
( 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 counsels fee etc. in accordance with the provisions of Order XV, Rule 5 of the Code of Ci
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