- (1.) The petitioner/tenant is before this Court assailing the judgment and decree dated 8 February 2015 passed by the Additional District Judge/Special Judge, Kanpur Nagar in SCC revision no. 58 of 2008 (Rama Kant vs. Om Prakash) arising from an order passed by the Small Causes Court, Kanpur Nagar decreeing the suit for eviction and arrears of rent/damages. The respondent/landlord by notice dated 2 August 2008 determined the tenancy in respect of premises being House No. 111/478 for arrears of rent. The notice was replied by the petitioner denying the allegations therein but it was admitted that the petitioner is the tenant of the premises in dispute. The Trial Court upon exchange of pleadings framed three issues regarding (1) service of notice; (2) whether Act 13 of 1972 is applicable on the disputed premises and (3) whether plaintiff is entitled to get the reliefs claimed for;
(2.) The Courts below upon considering the material and evidence on record held that the notice under Section 106 of the Transfer of Property Act is valid and legal, Act 13 of 1972 is not applicable on the premises in dispute thereby decreed the suit for eviction. In revision the petitioner contended before the revisional Court that the benefit of Section 110 and 114 of the Transfer of Property Act was not given to the petitioner, therefore, it was urged that the impugned order is bad in law. The Revisional Court affirmed the judgment and decree thereby rejecting the revision. The sole contention of the learned counsel for the petitioner is that the Courts below failed to appreciate that since the tenancy was determined on the ground of forfeiture (non-payment of rent) as provided in Section 111(g) of the Transfer of Property Act, therefore, the tenant is entitled to get the benefit of Section 114 of the Transfer of Property Act. It was contended that the petitioner deposited the entire rent after receiving notice, therefore, there was no breach of any condition of the agreement. The notice being invalid and illegal for the reason that 30 days notice was given as against 15 days notice provided under the Transfer of Property Act.
(3.) In rebuttal, Sri Nigam, learned counsel appearing for the respondent would submit that the impugned judgment and decree is lawful and valid, the benefit of Section 114 is not available. The tenancy was month to month therefore, was terminated on a simple notice for default and arrears of rent. I have considered the rival submissions of learned counsel for the parties. In order to appreciate the submissions made by the learned counsel for the parties, it is necessary to refer to the relevant provisions of the Transfer of Property Act. The provisions of Section 114 of the Transfer of Property Act would be attracted only where the lease of a immovable property is determined by forfeiture of non-payment of rent. Section 111 of the Transfer of Property Act sets out when a lease of immovable property is determined. Sub- section (g) of Section 111 of Transfer of Property Act, apart from other stipulations lays down that a lease of immovable property determines by forfeiture, that is, to say in case the lessee breaks an express condition which provides that on breach thereof the lessor may re-enter. Two things are necessary before the aforesaid provision under sub-section (g) of Section 111 of the Transfer of Property Act can come into operation, firstly, there should be an express condition in the lease for the payment of rent and secondly, there should be a clause for re-entry in the case of default. It is, therefore, obvious that unless there is an express condition in the lease for payment of rent and as a consequence of failure, to re-enter, there cannot be forfeiture of the lease. A tenant, therefore, while claiming a benefit available under Section 114 of the Transfer of Property Act has to clearly plead and establish that the lease under which he holds the demised premises contains a term that in the event of a certain default in payment of rent the lease might be terminated and that the plaintiff has based his claim on the lease having been determined as forfeiture had been incurred by the tenant according to the terms of the lease. It should not be lost sight of, that, it is open to the parties to agree that the landlords usual right of re-entry cannot be restricted by a term in the lease and such term may be that so long as the tenant goes on paying rent in the manner mentioned, landlord would not have the right of re-entry or the right of ejectment. In case there is such a specific term agreed upon forfeiture incurred for breach of the term may be relieved under the provisions of Section 114 of the Transfer of Property Act, but where there is no such agreement between the parties or the defendant fails to establish any such agreement the landlord has the right to terminate the tenancy in the manner mentioned in Section 106 of the Transfer of Property Act. In the absence of any specific term to the contrary the landlord has the right to terminate the lease and if the tenancy is terminated by a valid notice under Section 106 of the Transfer of Property Act the provisions contained in Section 114 of the Transfer of property Act cannot be invoked to protect the tenant from ejectment.;