- (1.) This writ petition under Article 226 and 227 of the Constitution of India has been filed by the petitioners aggrieved against order dated 28.02.2015 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 to the defendants and w.e.f. 01.01.2009 the rent of the premises was Rs. 550/- per month and the tenancy was renewed; the defendants have paid rent upto 30.06.2009, whereafter they have not paid the rent and despite repeated demands the same remains outstanding; the premises were required for personal necessity and despite demands the premises have not been vacated and the rent has not been paid; ultimately, by notice dated 19.12.2012 sent through counsel, the plaintiff has terminated the tenancy, which was the cause of action and sought possession of the suit property. 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 the contention that petitioners were ready and willing to deposit the outstanding rent as indicated in para 6 of the plaint and rent upto May, 2013 along with cost and interest and were tendering the same and, in case, the same is not accepted by the plaintiff the same be deposited in the Court and the suit be dismissed as infructuous. A reply to the application was filed by the plaintiff denying the averments made in the application and applicability of provisions of Section 114 of the Act, inter alia, indicating that the tenancy has been terminated by notice and that the application be dismissed.
(3.) The trial court after hearing the parties came to the conclusion that the suit has not been filed on account of forfeiture for non-payment of rent and the same has been filed after terminating the tenancy under Section 106 of the Act and, therefore, provisions of Section 114 of the Act were not applicable and, consequently, dismissed the application. 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. I have considered the submissions made by learned counsel for the petitioners and have perused the material placed on record. 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." 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.;