GANGABISAN DEOKARAN GATTANI Vs. TALAKCHAND WAGHAJIBHAI

JUDGEMENT

(1.) This is the defendant's appeal questioning the validity of the decree in ejectment passed by the trial Court and confirmed in appeal by the District Judges, Amravati.

(2.) To understand the submission made at the Bar, a few facts are necessary. The Plaintiff-landlord sought permission from the Rent Controller to determine the lease on the grounds under Clause 13 (3) (ii) and (vi) of the Rent Control Order. He was permitted to give quit notice for the tenant was found to be a hibitual defaulter within the meaning of Clause 13 (3) (ii) of the Order. This permission was givne to the landlord on September 5, 1967, and on the verynext day, thelandlord served a notice under Section 106 of hteTransfer ofPropertyAct determinignhte monthly lease of the present dcefendant by the end of the month of September 1967. The tenant filed an appeal under theprovisions of te Rent Control Order and the appellate Authority, on September 20, 1969 allowed the appeal and set aside the permission granted by the Rent Controller. Meanwhile, the landlord, acting upon the cause of actionof determining the lease under Section 106 of the Transfer of Propertyact, had rfiled a suit in ejectment on December 16, 1967. That suit was pending. Againsthte order made by the appellate authority, thelandlord took theproceedings unmder Article 227 of the Constitution and in these proceedings obtained an order directing the stay of that suit. Eventually onJuly 16, 1971, the High Court allowed thewrit petition, set aside theappellate order and resported the permission given by the Rent Controller. Thereafter the suit proceeded and a decree has been made in ejectment against the present appellant by the Third Joint Civil Judge (Junior Division), Amraoti, and has been affirmed in appeal by the District Judge, Amraoti.

(3.) Two submissions have been made on the basis of these facts. First, it is contended that as the landlord sought permission on the ground that he tenant was the habitual defaulter, he was essentially and in substance seeking permission to forfeit the tenancy or the lease of the present defendant for non-payment of rent under the terms of the lease. It is submitted that the determination of the lease, therefore, is on the cause of action of a forfeiture of a tenancy and that being the position, the Court having civil jurisdiction either under Section 114 of the Transfer of Property Act or on the equitable principles should have exercised the powers to relieve the forfeiture, for the tenant was always willing to abide by the terms of the lease and to undo the damage, i.e., the breach of the covenant with respect to payment of rent. In fact, it is submitted, that the tenant has paid all the arrears and was also paying during the pendency of the litigation every month the amount ordered by the Court. There is thus a plea that the Courts below could not have passed such a decree in ejectment without relieving the defendant of the penal consequences for mere non-payment of rent. Even assuming the learned counsel submits, as a second wing of his argument, that this is a determination of the lease under Section 106 of the Transfer of Property Act, there is no valid notice which can be the effective basis of decree in ejectment. Alternatively, it is said that once the permissions was vacated by the appellate order, mentioned above, the notice was merely conditional and its operation depended upon the chance of litigation undertaken by the landlord in the High Court. Such a notice by itself was invalid. Thus, it is submitted that the first notice given on the basis of the Rent Controller's permission was either vacated by the appellate order, or was invalid because it depended upon the chance of success in litigation.