Chhangani, J. - (1.)THIS is a defendant's second appeal against the appellate judgment and decree of the District Judge, Bharatpur dated 28th February, 1959 confirming 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 : The plaintiff instituted a suit on 8th July, 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 ejectment was claimed on two grounds - (l) That, the shop was bona fide and reasonably required for the plaintiff's 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 sec. 13 (l) (a) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (Act XVII of 1950) (hereinafter referred to as the Act ).
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 plaintiff's 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.

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 sec. l3 (l) (a) of the Act.

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 Daulatram vs. Lakhumal (1 ). 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 sec. 13 (4) even if he has made the defaults mentioned in the second proviso to S. 13 (1) as it stood prior to Amendment Act no XXIV of 1958.

Mr. Rastogi appearing for the respondent has conceded this position. He has however, urged that even the protection afforded by sec. 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 sec. 13 (4) of the Act.

This question was considered by a Division Bench of this Court in Shambhoo Ram vs. Mangal Singh (2) 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 of rent due up to date or interest or costs, he cannot claim the benefit of sub-sec. (4 ). In other words, a tenant having denied his liability to pay rent and having joined a contest on that point, cannot subsequently claim the protection of Sec. 13 (4) of the Act.

This view was followed by me sitting with my lord the Chief Justice in Motiram vs. Parmanand (3), and has been further followed in Vishambharlal vs. Mohanlal (4) by Modi, J.

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 sec. 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.

(3.)IN the end, Mr. Gupta attempted to invoke the protection under sec. 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 Sec. 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' be 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 sec. 111 of the Transfer of Property Act will show that there are various modes of determining tenancy besides the one of forfeiture. Sec. 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 sec. 111 (h ). It will be also relevant to point out that the word "forfeiture" has been given a special meaning by sec. 111 (g ). It specifically mentions three kinds of forfeiture. We are concerned only with the first category where a tenant loses his right to continue as lessee on 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 express condition 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 sec. 114 provides relief for forfeiture only in the case of a condition relating to the payment of rent, and not forfeiture of the two other kinds. Let us examine where the appellant's case can be brought under sec. 114 so understood.
The rent note shows that the tenancy created between the parties is mere ten-ancy-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 of forfeiture. Mr. Gupta contends that under the Rajasthan Premises (Control of Rent and Eviction) Act, even though a tenancy may be determined by a valid notice to quit, the tenant cannot be ejected except on the grounds provided for in sec. 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 super-imposed 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 defaults 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 for relief.-The simple position resulting in such cases is that the special protection being not available, the tenancy is determined in the exercise of the ordinary rights under the Transfer of Property Act. In the view expressed above, I am supported by Bhagwant vs. Ramchandra (5) relied upon by Mr. Rastogi. There is absolutely no case for the applicability of sec. 114 Transfer of Property Act and Mr. Gupta cannot invoke it for any relief.

There are no merits in this appeal which is hereby dismissed. In the circumstances of the case, there will be no order as to costs.

Mr. Gupta prays for leave to appeal. The prayer is refused. .

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