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1998 Supreme(All) 1163
IN THE HIGH COURT OF ALLAHABAD
J. C. Gupta, J.
MOHAMMAD NASIR - Appellant
Versus
DISTRICT JUDGE, NAINITAL - Respondents
C. M. W. P. 20010 Of 1998
Decided On : 10/14/1998
RAJESH TANDON, VIVEK CHAUDHARY
Section 114 of the Transfer of Property Act (T.P. Act) cannot be applied where the tenancy has been determined by serving a notice to quit under Section 106 of the T.P. Act.
Headnote:
TRANSFER OF PROPERTY ACT - SECTION 106, 111(G), 114 - TENANCY - TERMINATION - FORFEITURE - NOTICE - INTERPRETATION - RELIEF AGAINST FORFEITURE - APPLICABILITY.
Fact of the Case:
Tenant filed a petition to quash the order of the Small Cause Court and the order of the revisional court dismissing the tenant's revision against the decree of the trial court for recovery of rent and ejectment. The dispute was related to a shop in Kashipur, Udham Singh Nagar. The landlord filed a suit for recovery of rent and ejectment, alleging that the shop was not governed by the provisions of the U.P. Act No. XIII of 1972 and that the tenant had been a tenant of the shop on a monthly rent of Rs. 500. The tenant contested the suit, claiming that the shop was constructed in 1980 and, therefore, the Act was applicable. The trial court decreed the suit of the landlord, holding that the shop was out of the purview of the Act and that the notice under Section 106 of the Transfer of Property Act (T.P. Act) was duly served. The tenant filed a revision under Section 25 of the Small Cause Court Act, but the revisional court dismissed the revision, holding that the tenant was not entitled to the benefit of Section 114 of the T.P. Act as the tenancy was not forfeited under Section 111(g) but was determined by serving a notice under Section 106 of the T.P. Act.
Finding of the Court:
The court held that the tenancy of the petitioner was terminated by a notice under Section 106 of the T.P. Act and not by forfeiture under clause (g) of Section 111 of the T.P. Act, hence Section 114, T.P. Act could not be attracted. The court further held that the tenant never pleaded before the trial court that he was entitled to the relief against forfeiture of tenancy for nonpayment of rent and thus he could not be allowed to raise that point before the revisional court. The court also held that the rent note relied upon by the petitioner was a unilateral document and was not binding on the respondent-lessor and in any view of the matter, there was no such forfeiture clause entitling the landlord of the right of re-entry on account of non-payment of rent.
Issues: 1. Whether the tenancy of the petitioner was terminated by a notice under Section 106 of the T.P. Act or by forfeiture under clause (g) of Section 111 of the T.P. Act? 2. Whether the tenant was entitled to the benefit of Section 114 of the T.P. Act? 3. Whether the rent note relied upon by the petitioner was a valid document?
Ratio Decidendi: 1. The court held that the tenancy of the petitioner was terminated by a notice under Section 106 of the T.P. Act and not by forfeiture under clause (g) of Section 111 of the T.P. Act, hence Section 114, T.P. Act could not be attracted. The court relied on the fact that the notice in question clearly mentioned that the tenancy was being terminated under Section 106. T.P. Act and that the demand of rent was made only in addition to the demand of vacant possession. 2. The court held that the tenant was not entitled to the benefit of Section 114 of the T.P. Act as the tenancy was not forfeited under Section 111(g) but was determined by serving a notice under Section 106 of the T.P. Act. The court further held that the tenant never pleaded before the trial court that he was entitled to the relief against forfeiture of tenancy for nonpayment of rent and thus he could not be allowed to raise that point before the revisional court. 3. The court held that the rent note relied upon by the petitioner was a unilateral document and was not binding on the respondent-lessor and in any view of the matter, there was no such forfeiture clause entitling the landlord of the right of re-entry on account of non-payment of rent.
Final Decision: The court dismissed the tenant's petition, holding that the tenancy of the petitioner was terminated by a notice under Section 106 of the T.P. Act and not by forfeiture under clause (g) of Section 111 of the T.P. Act, hence Section 114, T.P. Act could not be attracted.
( 1 ) THIS is tenants petition for issuing a writ of certiorari to quash the order dated 1. 10. 1996 passed by the Judge, Small Cause Court, respondent No. 2 and the order dated 25. 5. 1998 passed by respondent No. 1 dismissing the petitioners revision filed against the decree of the trial court.
( 2 ) THE dispute is in relation to a shop situate in Mohalla Ganj. Kashipur, district Udham Sing nagar (Nainital ). The respondent No. 3, landlord filed suil for recovery of rent and ejectment against the petitioner alleging that the shop in question was not governed by the provisions of U. P. Act No. XIII of 1972, hereinafter referred to as the Act and the petitioner has been tenant of the said shop on monthly rent of Rs. 500 per month. The rent from 1,6. 1994 to 31. 10. 1994 was not paid despite several requests. The tenancy of the defendant was terminated by a notice served upon him under Section 106 of the Transfer of Property Act on 10. 10. 1994 and when the notice was not complied with, the present suit was instituted. The defendant petitioner contested the suit. It was not disputed that he has been in occupation as tenant of the landlord. The rate of rent was also not disputed. However, according to the defence, since the shop was constructed in the year. 1980. the Act was applicable. The petitioner further pleaded that after the receipt of the notice of the plaintiff, he paid to him a sum of Rs. 3,500 which included rent from 1. 6. 1994 to 31. 10. 1994 and advance rent of October, 1995 but the plaintiff did not issue any receipt. The defendant further claimed protection of Section 20 (4) of the Act as the requisite deposit had been made in Court under the provisions of the said sub-section.
( 3 ) THE trial court decreed the suit of respondent No. 3 landlord holding that the shop in question was assessed for the first time in the year 1988-89, hence it was out of the purview of the Act as the suit was filed in the year, 1994 before the expiry of a period of ten years from the date of construction. It further came to the conclusion that rent was due from 1. 6. 1994 and disbelieved the defence plea of payment of Rs. 8,500. The notice under Section 106 of the T. P. Act was found to be duly served and since the Act was not applicable no benefit of the provisions of section 20 (4) of the Act could be availed of.
( 4 ) THE petitioner preferred revision under Section 25 of the Small Cause Court Act against the decree passed by the trial court and during the pendency thereof an application was moved on his behalf for extending him the benefit of provisions of Section 114 of the T. P. Act because entire rent claimed had already been deposited by the petitioner in Court under Section 20 (4) of the act. The reply of respondent No. 3 to this plea was that since tenancy of the petitioner was duly terminated by a notice served under Section 106 of the T. P. Act, Section 111 (g) of the T. P. Act had no application and, therefore, no benefit could be given to the tenant under Section 114 of the T. P. Act. It was further pleaded that there was no such condition in the terms of the tenancy that the landlord shall have a right of re-entry on breach of any of the conditions. The tenancy was from month to month and, the same, was duly determined by giving thirty days notice under section 106 of the T. P. Act. In any event the deposit made under Section 20 (4) of the Act was short by a sum of Rs. 444. The revisional court came to the conclusion that the defendant petitioner was not entitled to claim benefit of Section 114 of the T. P. Act as the tenancy was not forfeited under Section 111 (g) but was determined by serving a notice under Section 106 of the t. P. Act. It further came to the conclusion that the rent note was inadmissible in evidence as it was not a registered document. Since no other point was argued before the revisional court, the revision was dismissed by the impugned order.
( 5 ) I have heard Sri Rajesh Tandon, app
