RAGHAVA PANICKER Vs. KOCHUMMINI

JUDGEMENT

(1.) S.A. No. 87 of 1985 arises from the decree and judgment in O.S. 1233 of 1979 and S.A. No. 864 of 1984 arises from the judgment and decree in O.S.No. 1237 of 1979. The common respondent in these two appeals filed the suit for recovery of shop room from the possession of the defendant. The defendant in O.S. 1233 of 1979 was in occupation of room No. 5 in a line building and the defendant in O.S. 1237 of 1979 was in occupation of room No. 6 of the very same building. Defendant in O.S. 1233 of 1979 is the son of the defendant in O.S. 1237 of 1979. The father has been conducting a stationery shop in room No. 6 and his son has been conducting a tea-shop in room No. 5. Room No. 6 was let out in 1964 on a monthly rent of Rs. 24/-. Thereafter room No. 5 was obtained on rent for Rs. 10/- by his son. Subsequently the rent was enhanced. The appellant caused to send a lawyer's notice on 18-8-1979 terminating the tenancy in favour of the defendants in both the suits. The plaintiff respondent alleged that the tenants caused damage to the building and therefore they are liable to be evicted. Respondent also alleged that the tenants failed to pay the arrears of rent. The appellants in their respective suits filed written statements denying the allegations in the plaint In both the suits the defendants stated that they have not committed any waste in the building. They also contended that they had paid rent and the respondents refused to accept the same. The trail court decreed the suit as prayed for and the amount deposited by the appellants were ordered to be adjusted towards arrears of rent. The tenants filed appeal before the District Court, Trivandrum challenging the decree and judgment. The main contention advanced by the appellants in the appeals was that the tenants had deposited the entire arrears of rent and there should not be any decree for eviction on the ground of arrears of rent. The appeals filed by the tenants were dismissed. Hence these second appeals. Both the appeals were heard together.

(2.) The learned counsel for the appellants contended that the notice issued by the respondent terminating the tenancy was not in strict compliance with the mandate of S.106 of the T.P. Act These appellants had not raised any such plea in the written statement. Before the lower appellate court also they did not contend that the notice issued by the respondent was not proper. It is also to be noticed that in view of the absence of challenge on the part of the appellants herein regarding the validity of notice, the contention of the appellant's counsel that the notice is not valid cannot be entertained at this stage.

(3.) The termination of tenancy on account of forfeiture is an entirely different concept and the concept of termination of tenancy by a notice to quit under S.106 of the T.P. Act is different from that S.114 does not come into play unless the forfeiture is incurred by the tenant pursuant to a forfeiture clause contained in the agreement of lease. S.114 is applicable only where a tenancy has been determined under Clause (g) of S.111 and not where it is determined by a notice under clause (h) of that section. (See Gangabisan v. Talakchand, AIR 1975 Bombay 242, Santosh Kumar v. Smt Chinmoyee Sen, AIR 1966 Cal. 615 , Asghar v. U.P. Government, AIR 1954 All. 649 and Geetabai v. B.D. Manjrekar, AIR 1984 Bombay 400).