JAGANNATH PRASAD Vs. SURAJ LAL

JUDGEMENT

(1.) THIS is a defendant's second appeal against the appellate judgment and decree of the District Judge, Bharatpur dated 28th February, 1959 confirming the decree of the Munsif, Bayana decreeing the plaintiff-respondent's suit for ejectment and arrears of rent amounting to Rs. 408/ -.

(2.) AS the controversy between the parties is very narrow, only a few facts need be stated : The plaintiff instituted a suit on 8th July, 1957 in the court of the Munsif, Bayana and claimed ejectment of the defendant from the shop and arrears of rent for a period of 31 months. The ejectment was claimed on two grounds - (l) That, the shop was bona fide and reasonably required for the plaintiff's use. (2) That, the defendant had defaulted more than three times during a period of 18 months and is not entitled to protection in view of second proviso to sec. 13 (l) (a) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (Act XVII of 1950) (hereinafter referred to as the Act ).

(3.) IN the end, Mr. Gupta attempted to invoke the protection under sec. 114 of the Transfer of Property Act. A prayer of this type is frequently made from the bar and, therefore, it is necessary and desirable to examine the question as to when can tenants invoke Sec. 114 for relief. A bare perusal of the section will show that it contemplates a determination of lease by forfeiture for non-payment of rent. It implies a termination by way of penalty provided in the deed of a lease, which would have otherwise continued. On the basis of a general principle that the penalty should' be treated to have been intended to secure the performance of the act, discretion has been given to the courts by this section to refuse to enforce the penalty and issue other directions for compensating the landlord. A reference to sec. 111 of the Transfer of Property Act will show that there are various modes of determining tenancy besides the one of forfeiture. Sec. 114 is confined to a case of determination of tenancy on account of forfeiture and that too of one kind connected with non-payment of rent. Obviously, it cannot be applied to other cases of determination of leases, including one by a valid notice to quit in accordance with the provisions of sec. 111 (h ). It will be also relevant to point out that the word "forfeiture" has been given a special meaning by sec. 111 (g ). It specifically mentions three kinds of forfeiture. We are concerned only with the first category where a tenant loses his right to continue as lessee on account of breach of a condition; the other two kinds being connected with the denial of title of the lessor by the lessee and the insolvency of the lessee. With regard to the first kind, to constitute forfeiture, it must be proved that there was an express condition in the lease to operate between the parties and there was a further provision that on the breach of the condition, the lessor may re-enter and further the lessor must serve a notice on the lessee expressing his intention to determine the lease on the ground of forfeiture. It should be further remembered that sec. 114 provides relief for forfeiture only in the case of a condition relating to the payment of rent, and not forfeiture of the two other kinds. Let us examine where the appellant's case can be brought under sec. 114 so understood.