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Om Shanti Swarup Vs. Prasanna Kumar - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtAllahabad High Court
Decided On
Case NumberCivil Revn. No. 1381 of 1974
Judge
Reported inAIR1975All227
ActsTransfer of Property Act, 1882 - Sections 114; Code of Civil Procedure (CPC) , 1908 - Sections 115 - Order 15, Rule 5; Uttar Pradesh Code of Civil Procedure (CPC) (Amendment) Act
AppellantOm Shanti Swarup
RespondentPrasanna Kumar
Advocates:K.C. Saxena, Adv.
DispositionRevision dismissed
Excerpt:
tenancy - forfeiture - section 114 of transfer of property act, 1882 and section 115 of code of civil procedure,1908 - suit for eviction filed for non payment of rent - decree granted - defendant filed appeal to ease the lease against fine - held, no efforts have been made to avoid forfeiture and to pay the arrears - optional powers vest in the trial court but unless there is violation of law revision cannot be made in the court under section 115. - - , that even earlier the defendant had failed to pay rent voluntarily and the plaintiff had to file a suit for recovery of the same, that the pleas taken in the suit by the defendant were false and the default in payment of rent was for a considerable period......of the same, that the pleas taken in the suit by the defendant were false and the default in payment of rent was for a considerable period. the revisional court took into consideration an additional fact that the payment in the court was not made voluntarily by the defendant, but it was made only after the plaintiff had applied for striking off the defence under order 15, rule 5 of the code of civil procedure, and even then the amount was not deposited immediately but extension of time was asked for by the defendant for making the deposit to save the defence from being struck off. in the opinion of the revisional court the payment was made under pressure. taking into consideration all the circumstances the courts below, in exercise of their discretion under section 114 of the.....
Judgment:
ORDER

Hari Swarup, J.

1. This is a revision under Section 115 of the Code of the Civil Procedure arising out of a suit for ejectment and recovery of arrears of rent and damages for use and occupation. Plaintiff instituted a suit on the allegations that the tenant was in arrears of rent, had not paid water tax which he was liable to pay and had not vacated the premises in spite of notice given by him to the tenant. The defendant contested the suit on merit and at the close of the argument prayed that benefit of Section 114 of the Transfer of Property Act be extended and decree for ejectment be not passed.

2. The trial court held that the tenancy had been validly terminated, the tenant was in arrear of rent and had not paid water tax which he was liable to pay. It also held that the defendant was not entitled to benefit of Section 114 of the Transfer of Property Act. The defendant went up in revision before the District Judge under Section 25 of the Provincial Small Cause Courts Act, That revision was also dismissed. The revisional court came to the conclusion that the lease had been determined under Section 106 of the Transfer of Property Act read with Clause (h) of Section 111 of the Act and hence Section 114 of the Transfer of Property Act was not applicable. It then went on to consider if the defendant was entitled to the benefit of Section 114 and came to the conclusion that the trial court committed no error in refusing the defendant the benefit of Section 114 of the Transfer of Property Act. The defendant has now filed this revision under Section 115 of the Code of Civil Procedure.

3. Learned counsel for the applicant has urged that the view of the court below that the tenancy had been determined under Section 111, Clause (h) of the Act and not under Clause (g) was erroneous. The further submission is that the discretion under Section 114 of the Transfer of Property Act had been wrongly exercised by the court below. As regards the first contention, the argument is that as one of the terms of the lease was that the plaintiff may re-enter in case the defendant commits default in payment of even a month's rent, the notice terminating the tenancy and requiring the defendant to vacate the premises must be deemed to be a notice under Clause (g) of Section 111 and not Clause (h) thereof. I need not go into this question as the effect of this will only be that Section 114 of the Transfer of Property Act will become applicable to the circumstances of the case. I accordingly proceed to decide if the revision is maintainable on the ground of wrong exercise of discretion under Section 114 of the Act.

4. The trial court for refusing to exercise the discretion under Section 114 in favour of the tenant took into account three circumstances viz., that even earlier the defendant had failed to pay rent voluntarily and the plaintiff had to file a suit for recovery of the same, that the pleas taken in the suit by the defendant were false and the default in payment of rent was for a considerable period. The revisional court took into consideration an additional fact that the payment in the court was not made voluntarily by the defendant, but it was made only after the plaintiff had applied for striking off the defence under Order 15, Rule 5 of the Code of Civil Procedure, and even then the amount was not deposited immediately but extension of time was asked for by the defendant for making the deposit to save the defence from being struck off. In the opinion of the Revisional Court the payment was made under pressure. Taking into consideration all the circumstances the courts below, in exercise of their discretion under Section 114 of the Transfer of Property Act, refused to relieve the tenant against forfeiture.

5. Section 114 of the Transfer of Property Act provides:

'Where a lease of immovable property has 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 cost 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.'

The power under Section 114 to relieve the lessee against the forfeiture is a power vested in the discretion of the court entitled to pass the decree.

6. Although Section 114 does not lay down any guiding principles on which the discretion should be exercised, it must impliedly have a reference to circumstances which may have compelled the tenant to commit such default as to make his lease become liable to forfeiture. If the circumstances were such which could have rendered the payment of rent by the tenant impossible or difficult, that will be a positive circumstance for consideration in exercise of the Court's discretion. The court can relieve the lessee against the forfeiture if there is sufficient cause shown by the defendant for committing default. In the present case there is nothing to show that the defendant was not able to pay the rent as and when it fell due. There is also nothing to show that he tried to avoid the forfeiture, but could not succeed in doing so. Instead, even though before the institution of the suit notice of demand had been given, no attempt was made by the lessee to pay the arrears of rent. No attempt was made even when the suit was instituted, and the tender was made only after an application was moved by the landlord for striking off the defence under Order 15, Rule 5, C. P. C. In the case of Namdeo Lokman Lodhi v. Narmadabai, AIR 1953 SC 228, the Supreme Court held that the conduct of the parties is a relevant consideration. It approved the observations of Lord Loreburn in Hymen v. Rose, 1912 AC 623 to the following effect :

'I desire in the first instance to point out that the discretion given by the section is very wide. The Court is to consider all the circumstances and the conduct of the parties. Now it seems to me that when the Act is so express to provide a wide discretion, meaning, no doubt, to prevent one man from forfeiting what in fair dealing belongs to some one else, by taking advantage of a breach from which he is not commensurately and irreparably damaged, it is not advisable to lay down any rigid rule for guiding that discretion.'

The Supreme Court then said :

'We are, therefore, unable to accede to the contention of Mr. Daphtary that though Section 114, T. P. Act, confers a discretion on the Court, that discretion, except in cases where third party interests intervene, must always be exercised in favour of the tenant irrespective of the conduct of the tenant. It is clear that in this case the tenant is a recalcitrant tenant and is a habitual defaulter.'

Hence it is clear that earlier default in payment of rent is a ground relevant for the exercise of discretion by the Court under Section 114 of the Transfer of Property Act. The other circumstances taken into consideration by the trial court can also not be said to be wholly unconnected with the matter. The discretion exercised by the trial court cannot, therefore, be said to be based either on no basis or on irrelevant consideration.

7. The contention of the learned counsel is that I should reconsider the matter on merits and, on taking into account all the facts and circumstances, determine if the trial court had properly exercised its discretion. This would be going beyond the scope of jurisdiction of this Court available under Section 115 of the Code of Civil Procedure.

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 illegality 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.

9. The revision accordingly fails and is dismissed.


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