OM SHANTI SWARUP Vs. PRASANNA KUMAR

JUDGEMENT

(1.) THIS is a revision under Section 115 of the Code of the Civil Procedure arising out of a suit for ejectment and recovery of arrears of rent and damages for use and occupation. Plaintiff instituted a suit on the allegations that the tenant was in arrears of rent, had not paid water tax which he was liable to pay and had not vacated the premises in spite of notice given by him to the tenant. The defendant contested the suit on merit and at the close of the argument prayed that benefit of Section 114 of the Transfer of Property Act be extended and decree for ejectment be not passed.

(2.) THE trial court held that the tenancy had been validly terminated, the tenant was in arrear of rent and had not paid water tax which he was liable to pay. It also held that the defendant was not entitled to benefit of Section 114 of the Transfer of Property Act. The defendant went up in revision before the District Judge under Section 25 of the Provincial Small Cause Courts Act. That revision was also dismissed. The revisional court came to the conclusion that the lease had been determined under Section 106 of the Transfer of Property Act read with clause (h) of Section 111 of the Act and hence Section 114 of the Transfer of Property Act was not applicable. It then went on to consider if the defendant was entitled to the benefit of Section 114 and came to the conclusion that the trial court committed no error in refusing the defendant the benefit of Section 114 of the Transfer of Property Act. The defendant has now filed this revision under Section 115 of the Code of Civil Procedure.

(3.) THE trial court for refusing to exercise the discretion under Section 114 in favour of the tenant took into account three circumstances viz., that even earlier the defendant had failed to pay rent voluntarily and the plaintiff had to file a suit for recovery of the same, that the pleas taken in the suit by the defendant were false and the default in payment of rent was for a considerable period. The revisional court took into consideration an additional fact that the payment in the court was not made voluntarily by the defendant, but it was made only after the plaintiff had applied for striking off the defence under Order 15, Rule 5 of the Code of Civil Procedure, and even then the amount was not deposited immediately but extension of time was asked for by the defendant for making the deposit to save the defence from being struck off. In the opinion of the Revisional Court the payment was made under pressure. Taking into consideration all the circumstances the courts below, in exercise of their discretion under Section 114 of the Transfer of Property Act, refused to relieve the tenant against forfeiture.