L.N. Chhangani, J.
1. This is a defendant's second appeal against the appellate judgment and decree of the District Judge, Bharatpur dated 28-2-1959 con-finning the decree of the Munsif, Bayana decreeing the plaintiff-respondent's suit for ejectment and arrears of rent amounting to Rs. 408/-.
2. As the controversy between the parties is very narrow, only a few facts need be stated:
3. The plaintiff instituted a suit on 8-7-1957 in the court of the Munsif, Bayana and claimed ejectment of the defendant from the shop and arrears of rent for a period of 31 months. The ejecmtent was claimed on two grounds;
(1) That the shop was bona fide and reasonably required for the plaintiffs use.
(2) That, the defendant had defaulted more than three times during a period of 18 months and is not entitled to protection in view of second proviso to Section 13(1)(a) of the Rajashtan Premises (Control of Rent and Eviction) Act, 1950 (Act XVII of 1950) (hereinafter referred to as the Act).
4. The defendant contested the suit and traversed all the allegations. With regard to the arrears of rent, he admitted that the amount no doubt became due, yet he denied his liability to pay the amount. His case was that with the consent of the plaintiff and on an understanding given by the plaintiff, he spent Rs. 351/8/- in constructing a tin-shed and improving the shop, and that he was entitled to a deduction of this amount from the amount claimed by the plaintiff. He admitted the liability for an amount of Rs. 56/- which he said, he was prepared to give. In fact, he had despatched a money-order for arranging payment of this amount, but the same money-order was refused. Both the courts have concurrently arrived at the following findings:
(1) The plaintiffs case that the shop was bona fide and reasonably required by the plaintiff is not proved.
(2) That, the defendant is a defaulter and his claim for an amount of Rs. 351/8/- is not substantiated.
5. On these findings, the courts below have held that the plaintiff was entitled to a decree for ejectment and the defendant was not entitled to any protection against eviction in view of second proviso to Section 13(1)(a) of the Act.
6. In this second appeal, Mr. Gupta has pointed out and very rightly that in view of the decision of the Full Bench of this Court in Daulat Ram v. Lakhumal, ILR (1960) 10 Raj 289: (AIR 1960 Raj 66) the decree of the courts below cannot be supported on the ground relied by the courts below. In the Full Bench case, it was held that a tenant would be entitled to the protection provided by Section 13(4) even if he has made the defaults mentioned in the second proviso to Section 13(1) as it stood prior to Amendment Act No. XXIV of 1958.
7. Mr. Rastogi appearing for the respondent has conceded this position, He has, however, urged that even the protection afforded by Section 13(4) of the Act is not available on account of the defendant having contested his liability to pay the amount of rent due to him and, therefore, the question which has to be considered is whether the defendant appellant can claim protection against eviction under Section 13(4) of the Act
8. This question was considered by a Division Bench of this Court in Shambhooram v. Mangalsingh, 1958 Raj LW 574: (AIR 1959 Raj 59) and the learned Judges summed up the law as follows:
'Therefore, as soon as the tenant contests the suit on any ground whatsoever except as to the matter of arithmetical calculation of the amount at rent due up to date or interest or costs, he cannot claim the benefit of Sub-section (4)'.
In other words, a tenant having denied his liability to pay rent and having joined a contest on that pointy cannot subsequently claim the protection of Section 13(4) of the Act
9. This view was followed by me sitting with my lord the Chief Justice in Motiram v. Parmanand, Civil Ref No. 59 of 1959, D/- 7-1-1960 (Raj) and has been further followed in Vishambarlal v. Mohanlal, S. A. No. 69 of 1958, D/- 10-3-1960 (Raj) by Modi J.
10. In my opinion, it should now be treated as a settled law that a defendant tenant raising any kind of contest other than about arithmetical calculation, cannot claim protection against eviction under Section 13(4) of the Act. In these circumstances, although the decree is not supportable on the ground relied, upon by the courts below, it has to be maintained on this ground.
11. In the end, Mr. Gupta attempted to invoke the protection under Section 114 of the Transfer of Property Act. A prayer of this type is frequently-made from the bar and, therefore, it is necessary and desirable to examine the question as to when can tenants invoke Section 114 for relief. A bare perusal of the section will show that it contemplates a determination of lease by forfeiture for non-payment of rent. It implies a termination by way of penalty provided in the deed of a lease, which would have otherwise continued.
On the basis of a general principle that the-penalty should foe treated to have been intended to secure the performance of the act, discretion has been given, to the courts by this section to refuse to enforce the penalty and issue other directions for compensating the landlord. A reference to Section 111 of the Transfer of Property Act will show that there are various modes of determining tenancy besides the one of forfeiture.
Section 114 is confined to a case of determination of tenancy on account of forfeiture and that too of one kind connected with non-payment of rent. Obviously, it cannot be applied to other cases of determination of leases, including one by a valid notice to quit in accordance with the provisions of Section 111(h). It will be also relevant to point out that the word 'forfeiture' has been given a special meaning by Section 111(g).
It specifically mentions three kinds of forfeitures. We are concerned only with the first categorywhere a tenant loses his right to continue as lesseeon account of breach of a condition; the other two kinds being connected with the denial of title of the lessor by the lessee and the insolvency of the lessee.With regard to the first kind, to constitute forfeiture, it must be proved that there was an expresscondition in the lease to operate between the parties and there was a further provision that on the breach of the condition, the lessor may re-enter and further the lessor must serve a notice on the lessee expressing his intention to determine the lease on the ground of forfeiture.
It should be further remembered that Section 115 provides relief for forfeiture only in the case of a condition relating to the payment of rent, and not forfeiture for breach of other conditions or forfeiture of the two other kinds. Let us examine whether the appellant's case can be brought under Section 114 so understood.
12. The rent note shows that the tenancy created between the parties is mere tenancy-at-will or at the best a tenancy from month to month. It is determinable at the instance of either party on a proper notice to quit. In the present case, the lease has been so determined. It is impossible to treat the determination of the lease as one on account or forfeiture.
Mr. Gupta contends that under the RajasthanPremises (Control of Rent and Eviction) Act, eventhough a tenancy may be determined by a valid notice to quit, the tenant cannot be ejected except on the grounds provided for in Section 13 of the Act. With regard to non-payment of rent, there are special provisions giving sufficient protection to the tenants.
He argues that these provisions stand superimposed on the contract between the parties and therefore it will be fair and proper to equate a landlord's right to eject a tenant on the basis of default committed by the tenant under the Rent Control Act, depriving him of the protection, with a determination of lease on account of forfeiture.
I regret, I cannot accept this contention which is obviously based upon an omission to distinguish between the enforcement of a penalty in terms of the contract between the parties and loss of statutory protection on defaults committed in terms of the statute. The Rent Control Act in view of certain special emergent conditions provides for protection to the tenants irrespective of or despite an agreement and, a tenant having committed defaults and lost protection cannot be permitted to say that he is being penalised under an agreement and deserves some relief.
There is neither a forfeiture nor a case forrelief. The simple position resulting in such casesis that the special protection being not available, thetenancy is determined in the exercise of the ordinaryrights under the Transfer of Property Act. In theview expressed above, I am supported by Bhagwantv. Ramchandra, AIR 1953 Bom 129 relied upon byMr. Rastogi. There is absolutely no case for theI applicability of Section 114 Transfer of Property Actand Mr. Gupta cannot invoke it for any relief.
13. There are no merits in this appeal which is hereby dismissed. In the circumstances of thecase, there will be no order as to costs.
14. Mr. Gupta prays for leave to appeal. Theprayer is refused.