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Minor Meenakshisundaram and anr. Vs. Paul Asari - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai High Court
Decided On
Reported in(1977)1MLJ537
AppellantMinor Meenakshisundaram and anr.
RespondentPaul Asari
Cases ReferredVellathi and Ors. v. Smt. K. Kadervel Thayammal
Excerpt:
- - the plaintiff filed a suit for ejectment on the ground that the defendant, the tenant, had sub-let a portion of the house and also failed to pay arrears of rent within one month of receiving the notice of demand. the trial court as well as the first appellate court rejected the allegation of sub-letting; it was held that the court had power to give relief against forfeiture independently of the provisions of section 114, if justice, equity and good conscience required it......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.as to what is meant by forfeiture would be clear from a reading of section 111 (q) which runs as follows:111. a lease of immoveable property determines .... (g) by forfeiture, that is to say: (1) in case the lessee breaks an express condition which provides that, on breach thereof, the lessor may re-enter; or (2) in case the lessee renounces his character as such by getting up a title in a third person or by claiming title in himself; or (3) the lessee is adjudicated an insolvent and the lease provides that the lessor may re-enter on the happening of such event; and in any of these cases the lessor or his transferee gives notice in.....
Judgment:

V. Sethuraman, J.

1. The plaintiffs are the appellants. They are the owners of a site given in the plaint schedule. They purchased the site on 5th May, 1966 by means of a registered sale deed. The defendant had taken the site from the previous owners on ground rent and had put up a shed for his automobile workshop. The defendant orally attorned to the plaintiffs and continued as their tenant on a monthly rent of Rs. 30. He had agreed to pay the rent for each month on or before the last day of the month. However, the defendant defaulted to pay the rent from May, 1966 to November, 1966. The plaintiffs were, therefore, obliged to file a suit against me defendant for the recovery of the arrears upto November, 1967 in O.S. No. 43 of 1968 on the file of the District Munsif's Court, Tuticorin. A decree was passed against the defendant. The defendant again defaulted to pay the rent due from December, 1967 to November, 1969 amounting to Rs. 720. As the defendant had been defaulting to pay the rent for the site, a registered notice was sent to him on 28th March, 1969 demanding the arrears of rent also asking him to vacate the premises on 30th April, 1969 and deliver possession of the same to the plaintiffs on 1st May, 1969. The said notice intimating the plaintiffs' intention to terminate the tenancy was received by he defendant on 3rd April, 1969. The defendant neither paid the arrears of rent nor vacated the premises. Therefore, the plaintiff came forward with a suit which has given rise to the second appeal to evict the defendant and for recovery of possession and arrears of rent.

2. In the written statement the defendant contended that proceedings could be taken only under the Rent Control Act, that the rent covered by the decree in O.S. No. 43 of 1968 had also been, paid and that the plaintiffs had no right to demand future rent, as they had agreed to adjust the balance due to the defendant under the mortgage money reserved with the plaintiffs in their sale deed. According to the defendant, there was no arrear nor was there any wilful default. He disputed the receipt of the notice dated 3rd April, 1969 and contended also that the said notice was not a proper and valid one. He, therefore, contested the plaintiffs' claim for decree for future rent and also for eviction.

3. The trial Court rejected the defendant's contentions and decreed the suit as prayed for with costs. The defendant thereafter appealed. Before the learned Subordinate Judge, the learned Counsel for the defendant did not press the appeal on its merits. His only argument before the learned Subordinate Judge was that he paid the amount as decreed in the suit and that he was further depositing a sum of Rs. 360. He stated that he was prepared to pay any amount that might be found to be due and he undertook also to. pay the rent regularly thereafter. He wanted the Court to permit him in equity to pay the arrears and continue to be the tenant as before under Section 114 of the Transfer of Property Act. The learned Subordinate Judge, accepting this submission, held that the ends-of justice would be met by granting the defendant the relief he prayed for vis., to allow him to deposit the arrears and to continue in possession on the same terms as before.

4. In the present ,second appeal the learned Counsel for the appellants (plaintiffs ) submitted that this is not a case to which Section 114 of the Transfer of Property Act would have any application and that the Court below was wrong in granting the relief based on that provision to the defendant-respondent. Therefore, the only question that arises for determination in the present appeal is as to whether the provisions of Section 114 applied to the facts herein.

5. Section 114- runs as follows:

Where a lease of immoveable 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 prays or tenders to the lessor the rent in arrear, together with interest thereon and (sic) full costs 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.

As to what is meant by forfeiture would be clear from a reading of Section 111 (q) which runs as follows:

111. A lease of immoveable property determines .... (g) by forfeiture, that is to say: (1) in case the lessee breaks an express condition which provides that, on breach thereof, the lessor may re-enter; or (2) in case the lessee renounces his character as such by getting up a title in a third person or by claiming title in himself; or (3) the lessee is adjudicated an insolvent and the lease provides that the lessor may re-enter on the happening of such event; and in any of these cases the lessor or his transferee gives notice in writing to the lessee of his intention to determine the lease.

In the present case reference is necessary only to requirement No. (1) mentioned above viz., in case the lessee breaks an express condition which provides that, on breach thereof, the lessor may re-enter. The present is a case of an oral lease. There is no dispute about this on either side. There is no proof of any express condition providing that on breach thereof, the lessor may re-enter. Having regard to the averments in the plaint and the notice that passed prior to the suit, it is clear that in the present case the plaintiffs did not exercise any right available under Section 111 (.17) of the Transfer of Property Act. The plaintiffs stated in the plaint that the defendant had been in arrears requiring institution of two suits and that the defendant had been asked to vacate the premises on 30th April, 1969 and deliver possession of the same to the plaintiffs on 1st May, 1969. It is clear on the facts herein that there is no attempt at exercising any forfeiture clause by the plaintiffs. This is only a case of a determination of the tenancy as provided in Clause (h) of Section 111 of the Transfer of Property Act which runs as follows:

111. A lease of immoveable property determines....

(h) on the expiration of a notice to determine the lease, or to quit, or of intention to quit, the property leased, duly given by one party to the other.

Section 114 cannot, therefore, apply to a case where the lease has not determined by forfeiture for non-payment of rent.

6. In Riyasat Ali Khan v. Mira Wahid Beg and Anr. : AIR1966All165 , a learned Judge of the Allahabad High Court had occasion to consider the scope of the provisions of Section 114. That was a case of a tenancy of a building belonging to the plaintiff. The plaintiff filed a suit for ejectment on the ground that the defendant, the tenant, had sub-let a portion of the house and also failed to pay arrears of rent within one month of receiving the notice of demand. The trial Court as well as the first appellate Court rejected the allegation of sub-letting; but they held that the defendant had not paid the rent for more than 3 months in spite of demands. Therefore, they decreed the suit for eviction. In the second appeal, the learned Counsel for the defendant; who was the appellant, claimed the relief under Section 114 of the Transfer of Property Act so as to save him from forfeiture of tenancy. In disposing of this argument, the learned Judge pointed out as follows:

I think this argument is based on a misapprehention 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 determined 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 same kind of misconduct as for example non-payment of rent. Section 114 enables the Court to grant a tenant relief against for feiture 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.

The present is also a case not of forfeiture; but of determination of tenancy for non-payment of rent. Therefore, there is no scope for the application of Section 114 of the Transfer of Property Act as done by the lower appellate Court.

7. The learned Counsel for the respondent invited my attention to a decision of a Bench of this Court in Janab, Vellathi and Ors. v. Smt. K. Kadervel Thayammal (1957) 70 L.W. 1006 : (1957) M.W.N. 711 A.I.R. 1958 Mad. 232. That was a case of an agricultural lease and the question before this Court was whether Section 114 could be applied to such a case. It was held that the Court had power to give relief against forfeiture independently of the provisions of Section 114, if justice, equity and good conscience required it. Therefore, though in that case there was only an agricultural lease, which did not come within the purview of the Section, it was held that a Court exercising the powers which it had possessed even prior to the Act, would relieve against forfeiture for non-payment of rent of such conditions as might appear equitable on the facts of each particular case. In granting the relief, the Court, it was pointed out, was not bound by the conditions laid down in that Section. This decision has absolutely no application to the facts herein. I am not concerned with the question as to whether in relation to an agricultural lease the principles of Section 114 could be applied. This is a clear case of termination of tenancy for non-payment of rent and this is also a case to which the provisions of the Transfer of Property Act are strictly applicable. In the circumstances, though the provisions of Section 114 may, in a given case, apply, still on the facts of this particular case, in the absence of a forfeiture or the determination of the lease of immoveable property by forfeiture, it is clear that the provisions of Section 114 have no application.

8. The learned Counsel for the respondent submitted that even independently of Section 114 in the present case this Court may grant the equitable relief of saving the respondent from eviction and that this is what has been done by the judgment in the Court below. I do not find that there are any circumstances which would justify my exercising any powers available in the equitable jurisdiction so as to help the respondent from eviction. It is clear from the facts that the respondent has been chronic defaulter. The appellants had to file two suits for the purpose of realising the arrears of rent. Therefore, there is no scope for exercising any equitable powers for the purpose of relieving the respondent from eviction.

9. The learned Counsel then submitted that in the present case there were no arrears at all, because the respondent was the mortgagee of the property and the interest payable on the mortgage was liable to be adjusted as against the rent. There is absolutely no substance in this submission. This submission appears not to have been taken in the lower appellate Court. Though in the written statement there is a mention of some adjustments of the rent as against the interest due, still the learned Counsel for the respondent having given up any arguments on the merits of the appeal before the learned Subordinate Judge and confined his submission only to the applicability of Section 114. I do not think it possible to go into this new question at this stage.

10. The second appeal will, therefore, be allowed. There will be no order as to costs. No leave.


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