@JUDGMENTTAG-ORDER
Arun Bhansali, J.@mdashThis writ petition under Article 226 and 227 of the Constitution of India has been filed by the petitioner aggrieved against order dated 08.03.2013 passed by the trial court, whereby, the application filed by the petitioners under Section 114 of the Transfer of Property Act, 1882 (''the Act'') has been rejected.
2. The suit was filed by the respondent-plaintiff for eviction of the petitioners from the suit premises; it was, inter alia, indicated in the plaint that the suit property was let out by way of an oral agreement accompanied with delivery of possession; the defendants neither paid nor tendered agreed rent and committed default; a notice dated 27.08.2010 under Section 106 read with Section 111(h) of the Act was issued and the tenancy was terminated; based on the said averments, the plaintiff sought possession of the suit shop, arrears of rent and damages for use and occupation.
3. A written statement was filed by the petitioners disputing the averments made in the plaint; whereafter the present application under Section 114 of the Act was filed with a contention that the suit has been filed for forfeiture on account of default and, therefore, the petitioners were prepared to pay the rent of Rs. 20,000/- along with interest @ 6%, expenses and the same may be paid to the plaintiff and the suit be dismissed.
4. A reply to the application was filed by the plaintiff denying the averments made in the application, inter alia, indicating that the tenancy has been terminated by notice and the application be dismissed.
5. The trial court after hearing the parties came to the conclusion that the suit was primarily based on termination of tenancy by issuance of notice under Section 106 of the Act and, therefore, the provisions of Section 114 of the Act were not applicable and, consequently, dismissed the application.
6. Learned counsel for the petitioners submitted that the trial court fell in error in dismissing the application filed by the petitioners; the provisions of Section 114 of the Act were very much applicable to the facts of the present case and, therefore, with the payment as envisaged by Section 114 of the Act, the suit should have been dismissed.
7. Reliance was placed on
8. Learned counsel for the respondent vehemently opposed the submissions made by learned counsel for the petitioners; it was submitted that the provisions of Section 114 of the Act are not applicable; the tenancy having been terminated by issuance of notice under Section 106 of the Act; Section 114 of the Act is not applicable and, therefore, the order impugned does not call for any interference.
9. Reliance was placed on the judgment of this Court in Purshottam Dalal v. Smt. Shanti Devi : S.B. Civil First Appeal No. 346/2010 decided on 08.08.2011.
10. I have considered the rival submissions made by learned counsel for the parties.
11. Provisions of Sections 106(1), 111(g) and (h) and 114 read as under:--
"106. Duration of certain leases in absence of written contract or local usage.--(1) In the absence of a contract or local law or usage to the contrary, a lease of immovable property for agricultural or manufacturing purposes shall be deemed to be a lease from year to year, terminable, on the part of either lessor or lessee, by six months'' notice; and a lease of immovable property for any other purpose shall be deemed to be a lease from month to month, terminable, on the part of either lessor or lessee, by fifteen days'' notice."
"111. Determination of lease. - A lease of immovable property determines -
(a)...........
...........
...........
(g) by forfeiture; that is to say, (1) in case the lessee breaks an express condition which provide that, on breach thereof, the lessor may re-enter or (2) in case the lessee renounces his character as such by setting 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;
(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."
"114. Relief against forfeiture for non-payment of rent. - 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 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."
12. A bare look at the provisions of Section 114 of the Act would reveal that the said provision is applicable where a lease of immovable property is determined by forfeiture for nonpayment of rent and the lessor sues to eject the lessee; the determination by forfeiture is governed by provisions of Section 111(g) of the Act, wherein, in case the lessee breaks an express condition, which provides that on breach thereof, a lessor may re-enter and the lessor or his transferee gives notice in writing to the lessee of his intention to determine the lease.
13. In the present case, the plaintiff has issued a notice Annexure-1 through his counsel though noticing the default in payment of rent but thereafter expressly determining the tenancy in terms of Section 106 of the Act, which provides that a lease of immovable property is terminable on part of the lessor by 15 days'' notice other than a lease of immovable property for agriculture or manufacturing purposes and the mode of termination is provided under Section 111(h) of the Act, which in the present case has been invoked. Apparently, the provisions of section 111(g) of the Act are not attracted, which are prerequisite for applicability of provisions of Section 114 of the Act and the action in the present case having been taken under Section 106 of the Act provision of Section 114 is not at all applicable and the trial court was justified in dismissing the application filed by the petitioners.
14. The judgments cited by learned counsel for the petitioners in the case of Namdeo Lokman Lodhi (supra) and R.S. Lala Praduman Kumar (supra) are not applicable, inasmuch as, the notice in the said cases specifically pertained to Section 111(g) of the Act i.e. notice of intention to terminate lease on forfeiture, was given and there were not the cases based on provisions of Section 106 of the Act. The judgment in the case of Purshottam Dalal (supra) has apparently no application to the facts of the present case.
15. In view of the above discussion, no case is made out for interference in the order passed by the trial court. Consequently, the writ petition has no substance and the same is, therefore, dismissed. The stay petition is also dismissed. No order as to costs.
