ARULMIGU KARKOTI AMMAN TEMPLE Vs. N KRISHNASWAMI

JUDGEMENT

(1.) THE petitioner herein filed O. S. No. 5403 of 1982 against the respondent for recovery of possession of the suit property and for a sum of rs. 1,037 by way of arrears of rent besides mesne profits, for use and occupation at the rate of Rs. 200 per month from the date of plaint.

(2.) . Before filing the suit the petitioner issued a notice on 4-2-1982 terminating the tenancy of the respondent by the end of March, 1982. Two reasons were given in the notice; one was that the respondent was very irregular in payment of rent and as on 28-2-1982, there were arrears m a sum of Rs. 948. The other reason was that the respondent had sublet the premises and was collecting huge rents from the tenant. There was no reference whatever to any forfeiture of the lease. There was. no reply to the said notice by the respondent. The suit was filed on 9-4-1982. The respondent filed a written statement on 7-4-1983. In the written statement it was stated that the original tenancy was in favour of the respondents father and it was in writing. According to the respondent, there was a lease deed dated 25-11-1972 for a period of five years with an option for renewal for another five years. But, even the written statement admitted that there was no renewal of the lease deed, but the defendant continued as tenant under the plaintiff on the on the terms and conditions contained in the lease deed. In para 7 of the written statement the defendant raised a plea that he was entitled to the benefits of Section 114of the Transfer of Property Act, and to be relieved of forfeiture of tenancy. Though the plea was raised in the written statement there was no averment in the written statement that lease deed contained a clause providing for the forfeiture of the lease in the event of nonpayment of rent by the tenant.

(3.) A combined reading of section 114and 111 (g) shows that the latter section would apply only if there is a forfeiture on account of breach of an express condition in the lease. It there is no express condition in the lease that the lessor would re-enter the property on breach thereof, section 111 (g) would cont come into play. In the present case, the notice issued by the petitioner did not rely upon any forfeiture of the lease on account of a breach on the part of the respondent. Nor did it refer to any condition in the lease deed that there would be a forfeiture or breach of any condition. There was no reply to the said notice by the respondent herein. The respondent did not plead in the written statement or in the application for dismissing the suit that there was an express condition in the lease providing forfeiture. In the absence of pleading and evidence in support thereof, it cannot be assumed that the termination of tenancy in the present case was pursuant to the forfeiture of the lease within the meaning of section 111 (g ). A reading of the notice issued by the petitioner shows that it is only a notice under section 106 which is a mode under section 111 (h) of the Act. That is evident from another factor also. If the notice is based on forfeiture that need not terminate the lease with the expiry of the end of the month of tenancy. In case of forfeiture the notice of termination can be issued determining lease immediately and not with the expiry of the month. Consequently in the present case there is no doubt that notice issued is one under section 106 of the Act.