BHUPENDRA SINGH Vs. ADDL. DISTRICT JUDGE/SPECIAL JUDGE

JUDGEMENT

(1.) THIS writ petition has been filed under Article 226 of the Constitution of India against the orders dated 28.(sic).1992 and 3.5.1994 passed respectively in SCC Suit No. 18 of 1990 and SCC. Review No. 4 of 1992 whereby the suit was decreed in favour of the respondents Nos. 3 and 4 for ejectment of the disputed shop and the revision against it was dismissed.

(2.) THE plaintiff in the SCC suit had claimed that the shop in question was a newly constructed shop and the provisions of U.P. Act No. 13 of 1972 did not apply to it and the tenancy had been terminated validly through a notice and, therefore, the petitioner-tenant was liable to ejectment. The defence was that the building was more than ten years old, hence the provisions of U.P. Act No. 13 of 1972 applied to it and that the petitioner was entitled to the benefit of Section 114 of the Transfer of Property Act because he had deposited the entire arrears due according to that provision. It was also pleaded that since during the pendency of the SCC suit, ten years had been completed even according to the plaintiff's claim, the provisions of U.P. Act No. 13 of 1972 would apply and the petitioner would get the benefit of the same.

(3.) THE other two questions may now be considered. Learned Counsel for the petitioner has urged that the provisions of Section 114 of the Transfer of Property Act are available to the petitioner. Learned Counsel for the contesting respondents has, however, argued that the provisions of Section 114 of Transfer of Property Act are attracted only when a forfeiture occurs. There is no question of forfeiture in a case where there is a monthly tenancy terminable by one month's notice by either party. In support of his contention the learned Counsel for the respondents has relied on R. A. Khan v. M. W. Beg, 1965 ALJ 607; Ram Raksha Pal v. Draupadi Devi, 1965 ALJ 249; Kartar Singh v. Phoolwati, AIR 1961 All 95. It would be pertinent to mention here the decision of the Supreme Court in A. K. Makhijani v. J. C. Tuliani, 1989 SCFBRC 500, wherein it was held that Section 114 of the Transfer of Property Act which provides : relief against forfeiture for non-payment of rent applies to a case where the lease of an immovable property has been determined by forfeiture for non-payment of rent. Section 111 of the Transfer of Property Act deals with various contingencies where a lease of immovable property determines. Clause (g) contains of such contingencies being forfeiture, inter alia, in case the lessee breaks an express condition which provides that on breach thereof the lessor may re-enter. In a case where forfeiture of lease is claimed for non-payment of rent, it would, therefore, have to be established that one of the express conditions of the lease provided that on breach of that condition, namely, on non-payment of rent, lessor was entitled to re-enter. It is only in those cases where such an express condition is contained in the lease and the lessee breaks the said condition and the lessor of his part gives a notice in writing to the lessee of his intention to determine the lease, that a lease of immovable property determines by forfeiture for non-payment of rent.