IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition 4530 of 2001 (M/S) Sri Waheed Ahmad S/o Sri Salim Uddin ..……… Petitioner. Versus Additional District Judge/Judge, Small Causes (U.M.C.), Dehradun and others ……… Respondents Mr. Sharad Sharma, the learned senior counsel assisted Mr. Kovid Bhatt, the learned counsel for the petitioner. Mr. Arvind Vashishtha, the learned counsel for the respondents Hon’ble Tarun Agarwala, J. Heard Shri Sharad Sharma, the learned senior counsel duly assisted by Shri Kovid Bhatt, the learned counsel for the petitioner and Mr. Arvind Vashistha, the learned counsel for the respondents. The opposite party No. 3 Sanatan Dharam Sabha Vikas Nagar, Dehradun is a charitable trust and has certain properties and, in one such property, which is a shop, the petitioner is a tenant. It is alleged that the rent was enhanced to Rs.450/- p.m. and that the petitioner committed a default of Rs.3,150/- for the period 01/09/1995 to 31/03/1996 and, consequently, the opposite party No. 3 issued a notice dated 01/04/1996 u/S 106 of the Transfer of Property Act indicating that he does not wish to keep the petitioner as his tenant and, consequently, terminated the tenancy. The said notice was sent by the registered post acknowledgment due and copy of the said notice was also sent by U.P.C. on 10th April, 1996. Since the petitioner did not vacate the premises upon the determination of the tenancy after the expiry of the stipulated period, a suit was filed for eviction and for arrears of rent and damages under the Provincial Small Cause Courts Act as contemplated u/S 15 read with Clause 4 of the IInd Schedule as amended in Uttar Pradesh. 2 The petitioner resisted the suit and deposited the entire arrears of rent, damages, etc. on the first date of hearing and claimed the benefit of Section 20 sub-clause (4) of the U.P. Act No. 13 of 1972. Various other issues were framed and, the trial court, after considering the matter, decreed the suit for arrears of rent and for eviction. The petitioner, being aggrieved by the order of the trial court, preferred a revision u/S 25 of the Provincial Small Cause Courts Act which also met the same fate. The petitioner, thereafter, has preferred the present writ petition. Both the courts below held that the opposite party No. 2 is a charitable trust and, in view of the Amendment Act No.5 of 1995 by which U.P. Act No. 13 of 1972 was amended, section 2 (1) (bb) was incorporated which provided that any building which belongs to or vests in a public charitable or public religious institution would be exempted from the operation of the Act. The Courts below held that in view of the provision of Section 2 (1) (bb), the respondent No.3, being a public charitable society, was exempted from the applicability of the Act. The trial court, consequently, held that the deposit of arrears of rent, damages, etc. was immaterial and the benefit of Section 20 (4) of the Act was not available to the tenant since the Act was not applicable. The Court below further held that notice dated 1st April, 1996 was validly issued and the tenancy was determined u/S 106 of the Transfer of the Property Act. The Court below affirmed that upon the determination of the tenancy, the petitioner who was the tenant was liable to be evicted. Shri Sharad Sharma, the learned senior counsel submitted that the benefit of deposit of entire arrears of rent, damages, etc. should have been made available to the petitioner, even though, the benefit of Section 20 sub-clause (4) of U.P. Act No. 13 of 1972 was not available but such benefit should have been given u/S 114 of the Transfer of the Property Act. The learned counsel submitted 3 that since the tenancy was determined under the Transfer of Property Act on the ground of arrears of rent, the benefit of Section 114 of the Transfer of Property Act should have been made available which was not considered by the courts below. A perusal of Section 114 of the Transfer of Property Act indicates that where a lease of immovable property has been 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, the court may, in lieu of making a decree for ejectment, pass an order relieving the lessee against the forfeiture. The submission of the learned counsel for the petitioner seems to be very attractive but, on a closer scrutiny, the stand taken by the petitioner cannot be accepted. The reason is not far to see. Section 111 (g) of the Transfer of Property Act provides that the lease of immovable property could be determined by forfeiture in which case the tenant could claim the benefit u/s 114 of the Transfer of Property Act. But, in the present case, the Court finds that the lease has been determined u/S 106 of the Transfer of the Property Act which fact has been determined as is clear from the notice dated 01/04/1996, a copy of which has been annexed as an annexure one to the supplementary affidavit filed by the petitioner. In my opinion, this is a notice u/s 106 of the Transfer of the Property Act and not a notice determining the lease u/S 111 (g) of the Transfer of the Property Act. Consequently, the relief u/S 114 of the Transfer of the Property Act cannot be claimed by the petitioner. In view of the aforesaid, the submission of the learned counsel for the petitioner that the benefit of having deposit the entire amount on the first date of hearing, should have been made available to the petitioner and that the petitioner should have been 4 exempted from such forfeiture is patently erroneous. No other point was raised nor argued. Consequently, this court does not find any merit in the writ petition. The writ petition fails and is dismissed. After the dismissal of the writ petition, the learned senior counsel submits that some time may be granted to vacate the premises and hand over the vacant possession to the landlord/opposite party. Considering the facts and circumstances that has been brought on record, coupled with the fact that the petitioner is a tenant in the shop in question for several decades, the Court in the interest of justice allows time till 31st December, 2010 to vacate the premises subject to the condition that the petitioner will file an undertaking before the trial court within four weeks from today indicating therein that he will hand over peaceful and vacant possession of the shop in question to the opposite party No. 3- landlord on or before 31st December, 2010. Further, the petitioner will deposit the entire arrears of rent till 31st July, 2010, if not deposited, within six weeks from today and will also deposit the rent for the month of August, 2010 to 31st December, 2010 on or before the 31st October, 2010. If any of the conditions are not fulfilled, it would be open to the opposite party to execute the decree in accordance with law. (Tarun Agarwala, J.) Dated 14.07.2010 Shiv