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Riyasat Ali Khan Vs. Mirza Wahid Beg and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 1842 of 1956
Judge
Reported inAIR1966All165
ActsTransfer of Property Act, 1882 - Sections 106, 111 and 114; Uttar Pradesh (Temporary) Control of Rent and Eviction Act, 1947 - Sections 3(1)
AppellantRiyasat Ali Khan
RespondentMirza Wahid Beg and anr.
Appellant AdvocateG. Kumar and ;N. Kumar, Advs.
Respondent AdvocateSabd Saran, ;S.S. Chandwaria and ;J.L. Jaiswal, Advs.
DispositionAppeal dismissed
Excerpt:
.....advantage - held, notice is valid. (ii) right of forfeiture - sections 106, 111 and 114 of transfer of property act, 1882 and section 3(1)(a) of u. p. (temporary) control of rent and eviction act, 1947 - termination of tenancy - relief against forfeiture - suit for ejectment in exercise of his right under the ordinary law of landlord and tenant to terminate a tenancy which was determinable by either side by notice of one month - tenant fails to pay three months rent inspite of a demand notice - bar is removed - landlord determines tenancy by a notice under section 106 - nobody to invoke forfeiture clause - held, no relief against forfeiture. - - the latter filed a suit for his ejectment on the ground that he had illegally sub-let a portion of the house and also failed to pay arrears..........can be filed without the permission of the district magistrate unless he has failed to pay three months rent in spite of demand. this provision has created the impression that the landlord relying on section 3 (1) (a) invokes his right to forfeit the tenancy. that is not so. he flies the suit for ejectment in the exercise of his right, under the ordinary law of landlord and tenant, to terminate a tenancy which was determinable by either side by notice of one month or whatever the period. section 3 (1) (a) merely imposes a bar on this right. when the tenant falls to pay three months' rent in spite of a notice of demand this bar is removed. thereupon the landlord determines the tenancy by a notice under section 106 of the transfer or property act. he does not invoke any forfeiture clause.....
Judgment:

S.S. Dhavan, J.

1. This is a tenant's second appeal from the concurrent decisions of the courts below decreeing the plaintiff respondentssuit for his ejectment and recovery of arrears of rent from him.

2. The appellant Riyasat AH Khan was a tenant of a house in Moradabad of which the plaintiff respondent Mirza Wahid Beg is the Owner and landlord. The latter filed a suit for his ejectment on the ground that he had illegally sub-let a portion of the house and also failed to pay arrears of rent within one month of receiving a notice of demand. Both the courts below rejected the allegation of sub-letting, but have held that the appellant had not paid rent for more than three months in spite of demand. The appellant: has come to this court in second appeal.

3. Learned counsel for the appellant, Mr.N. Kumar urged two points in support of thisappeal. First, he argued that the notice wasinvalid because it asked the tenant to vacate theaccommodation on the last day of the 7th ofFebruary 1954 whereas the month of tenancyended on the 6th of February. I am not muchimpressed by this objection. The tenant cannot take advantage of a clerical error of a trivialnature. The landlord intended to give onemonth's notice and if he wrote 7th Februaryinstead of 6th February, this cannot invalidatethe notice. Moreover, the words '7th February'did not have the effect of extending the tenancybeyond the 6th of February because the landlorddid not ask for rent for the 7th February. Ifthe landlord while terminating the tenancy isconsiderate enough to allow the tenant an extraday for removing himself without demandingrent for that day, the latter cannot lake advantage of an act of kindness and attack the noticeas invalid.

4. Secondly, Mr. Kumar asked this Court to give the appellant relief under Section 114 of the Transfer of Property Act and save him from forfeiture of tenancy. T think this argument is based on a misapprehension of the scope of Section 114. As this request for relief is frequently made before me on behalf of tenants, I think it is desirable to explain the scope of this section. There are different ways of terminating a tenancy. One of them is by notice, another by forfeiture. A monthly tenancy is determin-able by one month's notice by either party. In such a case, there is no question of forfeiture. But a tenancy may be prematurely terminated by the landlord if there is a forfeiture, clause entitling him to do so. The right of forfeiture is ordinarily limited to cases where the tenant is guilty of some kind of misconduct as for example, non-payment of rent. Section 114 enables the Court to grant a tenant relief against forfeiture for non-payment of rent. It applies to those cases where the landlord invokes his rights under what is known as a forfeiture clause and determines the lease by forfeiture and sues to eject the tenant. For example, suppose there is a lease for 30 years containing a clause that the landlord may determine it if the tenant does not pay rent for a whole year. But for this clause, the lease must run for 30 years and the landlord has no right to eject the tenant before the expiry of this period. But if the tenant fails to pay rent for a year, the forfeiture clause enables the landlord to determine the lease before its full period has expired. In such a case, if he files a suit for ejectment the Court may grant the tenant relief against forfeiture on conditions specified in the Section. But in a tenancy which runs from month to month, no question of forfeiture arises if the landlord determines it by a valid notice of termination.

The confusion about the scope Section 8. 114 has been caused by Section 3 (1) (a) of the U. P. Control of Bent and Eviction Act which enjoins in effect that no suit for the ejectment of the tenant can be filed without the permission of the District Magistrate unless he has failed to pay three months rent in spite of demand. This provision has created the impression that the landlord relying on Section 3 (1) (a) invokes his right to forfeit the tenancy. That is not so. He flies the suit for ejectment in the exercise of his right, under the ordinary law of landlord and tenant, to terminate a tenancy which was determinable by either side by notice of one month or whatever the period. Section 3 (1) (a) merely imposes a bar on this right. When the tenant falls to pay three months' rent in spite of a notice of demand this bar is removed. Thereupon the landlord determines the tenancy by a notice under Section 106 of the Transfer or Property Act. He does not invoke any forfeiture clause because there is none to invoke.

5. Therefore no question of giving the appellant relief under Section 114 arises.

6. No other point was urged. The appeal is dismissed with costs.


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