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PETITIONER: PRADESH KUMAR BAJPAI

       Vs.

RESPONDENT: BINOD BEHARI SARKAR

DATE OF JUDGMENT21/03/1980

BENCH: FAZALALI, SYED MURTAZA BENCH: FAZALALI, SYED MURTAZA KAILASAM, P.S. KOSHAL, A.D.

CITATION:  1980 AIR 1214            1980 SCR  (3)  93  1980 SCC  (3) 348  CITATOR INFO :  E          1987 SC1823  (5)

ACT:      Double Protection-Once the requirements of Rent Act are satisfied, the  tenant cannot claim the double protection of invoking the  provisions of  the Transfer of Property Act or the terms  of the  contract-Section 114  of the  Transfer of Property Act,  (Act 4  of 1882)  and section  3 of  the U.P. (Temporary) Control of Rent and Eviction Act.

HEADNOTE:      The appellant  plaintiff filed  a suit  for eviction of the respondent  tenant and  for arrears  of rent  and  mesne profits.  Though   no  specific   plea  of   relief  against forfeiture for  non-payment of rent under section 114 of the Transfer of  Property Act was taken in the pleadings, during the course  of the arguments, the tenant claimed the benefit under section 114 of the Transfer of Property Act. The Trial Judge found  that the  respondent was  a defaulter  and held that the  notice to  quit was  a valid one but found that as section 114  of the  Transfer of Property Act was applicable to the  facts of  the case  and the  balance of  convenience being with  the respondent  tenant, dismissed  the suit  for possession, but gave a decree for arrears of rent. In appeal the first  appellate court  held that the trial Court was in error in  granting relief  against forfeiture  under Section 114 of  the Transfer of Property Act and decreed the suit as prayed for.      On second  appeal, the  High Court after making a fresh appraisal of the evidence came to the conclusion that as per the terms  of the  lease deed of 1955 six months’ notice was necessary  even   if  the   premises  were   not  taken  for manufacturing purposes  and as required notice of six months was not  given the  suit was  not maintainable  and as  such liable to be dismissed.      Allowing the  plaintiff’s appeal  by special leave, the Court, ^      HELD :  1.  Once  the  requirements  of  Rent  Act  are satisfied, the  tenant cannot claim the double protection of invoking the  provisions of  the Transfer of Property Act or

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the terms  of the  contract. The provision of section 114 of the Transfer  of Property  Act cannot therefore be read into the U.P. (Temporary) Control of Rent and Eviction Act. [99 B JUDGMENT:      In the instant case      (a)  The  question  of  termination  of  the  lease  by forfeiture does not arise on the facts of the case; [100 B]      (b) after  the Rent  Act came  into force, the landlord cannot  avail  himself  of  clause  12  which  provides  for forfeiture, even if the tenant neglected to pay the rent for over two months; [100 B]      (c) the landlord cannot enter into possession forthwith without notice.  The only remedy for him is to seek eviction under the provisions of the Rent Act; and [100 B C] 94      (d) in such circumstances, the tenant cannot rely on S. 114 of  Transfer of Property Act and claim that he should be given an opportunity to pay the arrears of rent, even though the requirements of section 3(1) had been fulfilled. [100 C]      V. Dhanapal  Chettiar v. Yasodai Ammal, [1980] 1 S.C.R. 334 at 350-51; followed.      2. Section  3 of  the U.P.  (Temporary) Control of Rent and Eviction Act III restricts the rights of the landlord to have the  tenant evicted.  But for the statutory provisions, the landlord would be entitled to evict the tenant according to the  terms of  the contract  or  the  provisions  of  the Transfer of Property Act. As the Rent Act has restricted the power  of  the  landlord  to  evict  the  tenant  except  in accordance with  the provisions of the Act, the terms of the contract and  the provisions of the Transfer of Property Act to that extent are no longer applicable. [97 C-E]      3. In the instant case :      (a) the  condition required  under section  3(1) of the U.P. Act  had been  satisfied and permission by the District Magistrate  was   rightly  granted   and   suit   filed   as contemplated by section 3(1); and [98 A]      (b) the  notice is  based on default of payment of rent for more  than three  months and  called upon  the tenant to vacate the  premises a month after the receipt of the notice if he  failed to pay the rent as required under section 3 of the U.P. Act. [98 B-C]

&      CIVIL  APPELLATE   JURISDICTION  :   Civil  Appeal  No. 1235/70.      Appeal by  Special Leave  from the  Judgment and  Order dated 25-9-1969 of the Allahabad High Court in Second Appeal No. 1520 of 1966.      P. Govinda  Nair, S.  Balakrishnan and  S. Q. Sambandan for the Appellant.      Yogeshwar Prasad, S. K. Bagga, Mrs. S. Bagga, Mrs. Rani Chabra and Shitla Prasad for the Respondent.      The Judgment of the Court was delivered by      KAILASAM, J.-This  appeal is  by special  leave by  the plaintiff against  the judgment and decree of the High Court of Judicature  at Allahabad  in Second  Appeal No.  1520  of 1966.      The plaintiff  Pradesh Kumar Bajpai who is the owner of premises No.  D48/128-129 let  a portion  of the premises to the respondent  Binod Behari  Sarkar in  the year  1949  for carrying on  his business  of manufacturing blocks and other printing materials.  In October, 1955, the plaintiff let out the entire  premises on  a monthly  rent of  Rs. 200/-.  The

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plaintiff filed  the suit  on the ground that the respondent had defaulted in payment of rent and prayed for a decree for ejectment and  for being  put in  possession of the premises and for arrears of rent 95 and or  mesne profits  pendentelite at the rate of Rs. 200/- per month.  The defendant  denied that  he was  a  defaulter stating that he was always ready and willing to pay the dues and the  respondent had  deliberately declined to accept the rent. Though  no specific  plea of relief against forfeiture for non-payment of rent under section 114 of the Transfer of Property Act  was taken  in the pleadings, during the course of the  arguments, the  tenant  claimed  the  benefit  under section 114 of the Transfer of Property Act.      The Civil  Judge who  tried the  suit  found  that  the tenant was  a defaulter  in a sum of Rs. 6269.86. He further held that  the notice to quit was a valid one but found that as s.114  of the  Transfer of Property Act was applicable to the facts  of the  case and the balance of convenience being with the  defendant, dismissed  the suit for possession, but gave a  decree  for  the  arrears  of  rent.  The  plaintiff aggrieved by  the decision  of the  trial Court  went up  in appeal to  the District Judge who allowed the appeal holding that the tenant was a defaulter within the meaning of S.3 of the U.P.  (Temporary) Control  of  Rent  and  Eviction  Act. Disagreeing with  the trial  Court, the  learned Judge  held that the trial court was in error in granting relief against forfeitures under  S.114 of the Transfer of Property Act and decreed the suit as prayed for.      The defendant  preferred a  Second Appeal  to the  High Court. The  High Court after making a fresh appraisal of the evidence came to the conclusion that the premises were taken for manufacturing  purposes in  1955. On  a consideration of the terms  of the  lease deed  of 1955  it  found  that  six months’ notice  was necessary  even if the premises were not taken for  manufacturing purposes  and as required notice of six months was not given the suit is not maintainable and as such liable to be dismissed.      The lease deed dated 28-9-1955 is marked as Annexure A- 2. The  relevant clauses  are, 3,  6, 9  and 12 which are as follows :-      "3. The  lessee will not sell, mortgage or in any other      manner transfer  or part  with the  possession  of  the      whole or  any part  of the  demised premises, structure      and buildings  or his  interest with  the same, and the      lessee will  also not  enter into  any partnership with      anybody regarding the business carried on or in any way      in  the  demised  premises.  But  the  lessee  will  be      entitled to  sublet part of the structure and buildings      with the  consent of  the lessor  in writing and lessee      will be  always responsible  for all loss and damage if      any. 96           6. The  lessee has  the  option  to  continue  the      tenancy   for   another  period of 3 years that is from      1-9-1956 to 31-8-1959 on the same terms and conditions.      The lessee  must exercise  the option of renewal within      30-6-1956 in writing.           9. That  it is  hereby agreed  by the parties that      after the  expiry of  the period  of  three  years  the      Lessor will have the option to revise the rent with the      consent of  the lessee.  It is  also agreed by both the      parties that the lease may, be terminated by the Lessor      on giving  six months’ written notice and after 4 years      at any  time. Lessor will also be entitled to terminate

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    the lease  on giving  six  months’  notice  in  writing      ending with English Calendar month.           12. If  the lessee  fails and/or  neglects to  pay      rent at the place and in the manner mentioned above for      two  months   and/or  breaks   any  of  the  terms  and      conditions hereinbefore  mentioned the  lessor will  be      entitled to  enter possession  forthwith without notice      and terminate the lease."      It may  be noted that the parties agreed that after the expiry of the period of three years the lessor will have the option to revise the rent with the consent of the lessee. It was further  agreed that  the lease may be terminated by the lessee on  giving six  months’ written notice and after four years at  any time, the lessor will be entitled to terminate the lease  on giving  six months notice in writing. If these clauses are applicable six months’ notice is necessary.      Clause 12  provides that  if the  lessee  fails  and/or neglects to  pay  rent  at  the  place  and  in  the  manner mentioned above  for two  months and/or  breaks any  of  the terms and  conditions mentioned, the lessor will be entitled to enter  possession forthwith  without notice and terminate the lease.  It is  not disputed that the lessee neglected to pay rent  for more than two months and as such if the clause is applicable  the lease  is liable  to be forfeited and the lessor is  entitled to  enter possession  forthwith  without notice.      Mr.   Govindan    Nair   learned    counsel   for   the plaintiff/appellant submitted  that the lease is governed by the provisions  of the  U.P. (Temporary) Control of Rent and Eviction Act and as the lease was entered into after the Act had come into force, the relationship between the parties is regulated by  the provisions of the enactment and not by the terms of the contract. He submitted that the requirements of S. 3  of the Act had been fulfilled and the defendant cannot resist the  suit for  eviction. The U.P. (Temporary) Control of Rent and Eviction 97 Act III  1947 came  into force  in 1948.  Though the Act was subsequently  repealed   by   the   U.P.   Urban   Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, as the lease was  of the  year 1955,  S.43 of  Act III,  1972 saves proceedings initiated under U.P. (Temporary) Control of Rent and Eviction  Act, 1947.  S. 43(2)(r) provides that any suit for the  eviction of a tenant instituted without or with the permission referred  to  in  S.3  of  the  old  Act  or  any proceeding arising  out of  such suit,  pending  immediately before the  commencement of  the Uttar  Pradesh  Civil  Laws Amendment Act,  1972, may  be continued  and concluded as if this Act  had not  been passed.  It is,  therefore,  not  in dispute that  the proceedings in this matter are governed by the 1947 Act.      As the  provisions of  the U.P.  (Temporary) Control of Rent and  Eviction Act  (III of  1947) are  applicable,  the terms  of  the  lease  deed  becomes  irrelevant.  The  only question that  arises and  which was seriously contended for on behalf  of the  respondent is  that in  addition  to  the safeguards provided  to the tenant under the Act, he is also entitled to  the  benefits  of  S.114  of  the  Transfer  of Property Act.  S.3 of  the U.P.  (Temporary) Control of Rent and Eviction Act III restricts the rights of the landlord to have the  tenant evicted.  But for the statutory provisions, the landlord would be entitled to evict the tenant according to the  terms of  the contract  or  the  provisions  of  the Transfer of Property Act. As the Rent Act has restricted the power  of  the  landlord  to  evict  the  tenant  except  in

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accordance with  the provisions of the Act, the terms of the contract and  the provisions of the Transfer of Property Act to that extent are no longer applicable. Section 3(1) of the Rent Act runs as follows :           "Subject to any order passed under sub-section (3)      no suit  shall, without  the permission of the District      Magistrate, be  filed in  any  Civil  Court  against  a      tenant for  his eviction  from any accommodation except      on one  or more  of the  grounds that  are mentioned in      sub-clause (a) to (g) of sub-section (1)."      The relevant  clause with  which we are concerned is S. 3(1)(a) which  provides that  a suit  may be  filed with the permission of  the District Magistrate when the tenant is in arrears of rent for more than three months and has failed to pay the same to the landlord within one month of the service upon him  of the  notice of  demand. The  notice Exhibit P.7 shows that  the tenant  was in  arrears for  more than three months. The notice dated 12-5-63 was served on the tenant on 14-6-63 and  no reply  was sent  by the tenant and it is not disputed that  the tenant  failed to  pay the  rent  to  the landlord within one month 98 of the  service upon  him of  the notice of demand. Thus the condition required  under S.  3(1) had  been  satisfied  and permission by  the District  Magistrate was  rightly granted and suit filed as contemplated under S. 3(1).      As the  tenant could  not rely  either on  the terms of lease or  provisions of  the Transfer  of Property  Act  and insist on six months’ notice, it was submitted on his behalf that as  the notice  was issued  not only  on the  ground of default in  payment of  rent as  contemplated in the Act but also under  clause 12  of the  agreement which  provides for forfeiture, he was entitled to the safeguards provided under S.114 of  the Transfer  of Property  Act. On the facts it is clear that the notice is based on default of payment of rent for more  than three  months, and  called upon the tenant to vacate the  premises a month after the receipt of the notice if he  failed to  pay the  rent as  required under  S.3. The notice is  not based  on the  forfeiture of  the lease under clause 12.  If clause  12 is  valid on default of payment of rent for  two months, the landlord is entitled to enter into possession forthwith without notice terminating the lease.      Although the  question of  termination of  the lease by forfeiture does  not arise  on the  facts of the case as the learned counsel  strenuously contended  that even  then  the tenant is  entitled to  the benefit of S.114 of the Transfer of Property  Act and  that plea  was accepted  by the  Trial Court, we  would briefly  deal with the point raised. During the trial  when the  arguments of the case were going on and the case  was due  to be closed, the learned counsel for the tenant prayed that the Court be pleased to confer benefit of S.114 of  the Transfer  of Property Act on the defendant. He tendered the full amount of rent alongwith full costs of the suit and  interest as  ordered by  the  Court.  The  learned counsel for  the  plaintiff  submitted  that  the  defendant should not  be allowed  the benefit  of S.114. S. 114 of the Transfer  of   Property  Act  provides  for  relief  against forfeiture on non-payment of rent on the following terms :-           "Where  a   lease  of   immovable   property   has      determined by  forfeiture for  non-payment of rent, and      the lessor sues to eject the lessee, if, at the hearing      of the  suit, the  lessee pays or tenders to the lessor      the rent in arrears, together with interest thereon and      his full  costs of  the suit, or gives such security as      the Court  thinks sufficient  for making  such  payment

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    within fifteen days, the Court may, in lieu of making a      decree for  ejectment,  pass  an  order  relieving  the      lessee against the forfeiture; and thereupon the lessee      shall hold the property leased as if the forfeiture had      not occurred." 99 If the  relief provided  for under the section is available, as the lessee had tendered the rent in arrears alongwith the interest thereon and his full costs in the suit, it was open to the  Court to  pass an order relieving the lessee against the forfeiture.  The plea  of the  learned counsel  for  the tenant is  that this  provision should also be read into the U.P. (Temporary)  Control of  Rent and  Eviction Act.  In  a decision of seven Judges’ Bench of this Court in V. Dhanapal Chettiar v.  Yasodai Ammal,  the question  as to  whether in order to  get a  decree for eviction, the landlord under the Rent Control  Act should give notice as required under S.106 of the  Transfer of  Property Act was considered. This Court held that  determination of the lease in accordance with the transfer of  Property Act  is unnecessary and that if a case is made  out for  eviction under  the Rent Act, it is itself sufficient and  it is  not obligatory to determine the lease by issue  of notice as required in accordance with S. 106 of the Transfer  of Property  Act. The  learned counsel for the tenant submitted  that the  decision is confined only to the question as to whether notice under S.106 of the Transfer of Property Act  is necessary  and did not decide as to whether the provisions of the other Sections of Transfer of Property Act are  applicable. It  is to  be noted,  however, that the question of determination of a lease by forfeiture under the Transfer of Property Act, was specifically dealt with by the Court and  it was  held that the claim of the tenant that he is entitled  to a  double protection  (1) under the Rent Act and (2)  under the  Transfer of Property Act, is without any substance. While  ruling thus  the Court noted the following passage occurring  in Manjujandra’s  case  and  quoted  with approval in Rattan Lal v. Vardesh Chander.           "We are  inclined to hold that the landlord in the      present  case  cannot  secure  an  order  for  eviction      without  first   establishing  that   he  had   validly      determined the  lease under  the Transfer  of  Property      Act". Disapproving this  view, the  Court framed  a question  "why this dual requirement?" and answered it as follows :-           "Even if  the lease  is determined by a forfeiture      under  the   Transfer  of   Property  Act,  the  tenant      continues to  be a  tenant, that is to say, there is no      forfeiture in the eye of law. The tenant becomes liable      to be evicted and forfeiture comes into play only if he      has incurred  the liability  to be  evicted  under  the      State Rent Act, not otherwise one 100      has to  look to  the provisions of law contained in the      four corners  of any State Rent Act to find out whether      a tenant  can be  evicted or  not. The theory of double      protection or  additional protection,  it seems  to us,      has been stretched too far and without a proper and due      consideration of all its ramifications." In the  case before  us, it is not in dispute that after the Rent Act  came into force, the landlord cannot avail himself of clause  12 which  provides for  forfeiture, even  if  the tenant neglected  to pay  the rent  for over two months. The landlord cannot  enter into  possession forth  with  without notice. The  only remedy  for him  is to seek eviction under the provisions  of the  Rent Act.  In such circumstances the

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tenant cannot  rely on S.114 of Transfer of Property Act and claim that  he should  be given  an opportunity  to pay  the arrears of  rent, even though the requirements of S.3(1) had been fulfilled.      We are satisfied that once the requirements of Rent Act are satisfied, the tenant cannot claim the double protection of invoking  the provisions  of the Transfer of Property Act or the terms of the contract.      In the result, we allow the appeal, set aside the order of the  High Court  and restore  that of the lower appellate Court and  decree the  suit for  possession and ejectment of the defendant.  The appellant  is entitled  to his  costs in this appeal. S.R.                                         Appeal allowed. 101