Case: Pradesh Kumar Bajpai Vs. Binod Behari Sarkar

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 material s. In October, 1955, the plaintiff let out the entire premises on a monthly rent of Rs. 200/-. The 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 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 PropertyCivil 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.

Reasoning:
The relevant clausewith 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 ofdemand. 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 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 thethe 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 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 beenare 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 thefor 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.