The tenant should pay the amount provisional assessment by the controller at the first hearing of the expulsion application: Tripura High Court

 HIGH COURT OF TRIPURA RSA No.318 Sri Krishna Sudam Roy son of late Jogesh Chandra Roy resident of Noagaon P.S. Kamalpur P.S. Kamalpur District: Dhalai Appellant(s) Respondent(s) Sri Debasish Bhowmik son of Sri Shanti Bhushan Bhowmik Kamalpur Town P. S. Kamalpur District: Dhalai For Appellant(s) For Respondent(s) Date of hearing Mr. S. Deb Sr. Adv. Mr. K. Nath Adv. Mr. H. Laskar Adv. Date of judgment & order : 04.06.2021 Whether fit for reporting HON’BLE MR. JUSTICE S. TALAPATRA Judgment & Order By means of this appeal under Section 100 of the CPC the defendant has challenged the judgment dated 16.04.2018 delivered in Title Appeal No.017 by the Addl. District Judge Unakoti Judicial District Kamalpur as it then was. By the said judgment the Addl. District Judge has dismissed the first appeal being Title Appeal No.01 of 2017 by returning the finding that the defendant is not entitled to get the benefit of Section 114 of the Transfer of Property Act 1882. Analogy has been drawn from R.S. Lala Praduman Kumar vs. Virendra Goyal and Others reported in 1969 SCC 714 where the apex court has stated that in a suit of eviction against the tenant the appellate court in appropriate case may relieve the tenant of default. It is open to the appellate court at the hearing of the appeal to give relief to the tenant in default against forfeiture but the aforesaid power of the court is no doubt is to exercise discretion for equity. The appellate court should verify the conduct of the tenant before granting such equitable relief. 02. In the case in hand on appreciation of the records it appears that the defendant has made a conditional offer for getting such relief against forfeiture. In that backdrop the appellate court has denied to exercise discretion in favour of the defendant for giving the relief against forfeiture as provided under Section 114 of the Transfer of Property Act 1882. The said finding has been challenged by the defendant the appellant herein. Briefly stated the relevant facts are that the plaintiff entered into a rent agreement with the defendant for letting out his rooms situated in his premises appertaining to Khatian No.904 plot No.1188 of mouja Kamalpur under Kamalpur Sub Division opposite to the Kamalpur Super Market. The plaintiff had put up the defendant in the rooms No.6 & 7 as a temporary monthly tenant. At one point of time a serious dispute broke out between the plaintiff and the defendant and with other tenants. The defendant and other tenants filed a writ petition before this court being W.P.(C) No.83 of 2009. The said writ petition was disposed of on compromise by recording the conditions in the Miscellaneous Application being CM Appl. No.289 of 2014 which had arisen from the said writ petition. On the basis of the said settlement compromise by the order dated 25.06.2014 the said writ petition was disposed of with further direction as under: “The instant writ petition was partly heard earlier and today when the matter is taken up the learned counsel for the petitioners submits that the disputes between the Landlord the respondent No.3 and 4 and the petitioners have been settled and both of them have filed a compromise petition stating the terms and conditions of the settlement which is registered as C.M. Application No.2814. The writ petition in question was filed for setting aside the memorandum dated 05.03.2009 issued by the Executive Officer Nagar Panchayet Kamalpur Dhalai wherein the owner of the building where the petitioners are tenants was directed to deposit the cost of demolition to the office of Nagar Panchayet in consultation with the Asstt. Engineer Jr. Engineer in the office of the Nagar Panchayet Kamalpur within seven days from the date of issue of the memo as the petitioners are providing rent for the said dangerous building. As the petitioner tenants and the landlord respondents 3 and 4 have compromised the matter on the basis of the terms and conditions stated in the compromise petition the writ petition is disposed of directing the petitioners and the respondents 3 and 4 to act on the basis of the terms and conditions mentioned in the compromise petition. At the same time when the matter is settled between the tenant petitioners and the landlord respondent No.3 and 4 the respondent No.1 and 2 Kamalpur Nagar Panchayet is directed not to act upon the impugned memorandum dated 05.03.2009as the landlord himself will go for necessary repairing and renovation as required for the building. The compromise petition will form as a part of this order.” There is no dispute that in the settlement it was 03. agreed between the plaintiff and the defendant that the respondents No.3 & 4 the land lord would take up the necessary renovation work and such renovation work would be completed within a defined period from the date of commencing the work. To facilitate the said repairing work and renovation work the petitioners shall hand over the vacant possession of their respective rented rooms which were under their occupation possession within a period of 7(seven) days from the date of order disposing the writ petition. It was further agreed upon that after completion of the repairing renovation work the tenants shall be given possession in their respective rooms which they had vacated for enabling the landlord) carry out the renovation. It had been agreed that before re handing over the possession the petitioners shall execute separate rent agreements with the respondents No.3 and 4 delineating the period of tenancy etc. It was agreed that the tenancy shall be for a period of five years from the date of execution of the tenancy agreement with a further clause for renewal for another period of six years after completion of the initial five years period on 10% enhancement of the rent after every two years thereafter. 04. It was agreed that the rent shall be Rs.750 per month per door shall themselves carry on business in their respective premises and shall not induct any sub tenant without the prior written consent from the respondents No.3 & 4. Rent for every month shall be paid by the tenants within the first week of the following month. The plaintiff complied with the terms and conditions of settlement as afore stated and entered into a rent tenancy agreement with the defendanton 06.04.2011. It was also agreed that the tenant shall deposit an amount of Rs.5000 per door meaning total Rs.10 000 for fixing of rolling shutters over the doors of the rented premises which will however be refunded at the time of termination of the tenancy. It was in addition decided that the said agreement shall continue for a tenure of five years from the date of execution of the tenancy agreement and on expiry of five years term the said agreement can be renewed for another period of six years with 10% enhancement in the rent which shall be enhanced after every two years. 05. As stated on the basis of the said agreement of tenancy the defendant was inducted as temporary monthly tenant in the suit premises and he paid the monthly rent up to August 2015. From the month of September 2015 the defendant did not pay monthly rent that fell due and therefore the defendant has become defaulter in payment of monthly rent. Since the defendant has failed to make payment of monthly rent for more than five consecutive months the defendant has become liable to be evicted from the suit premises described in schedule below. 06. The plaintiff served a notice on the defendant on 10.02.2016 through a lawyer demanding handing over of vacant possession of the suit premises described in the schedule of the plaint within a period of one month from the date of the receipt of the said notice. But the defendant did not vacate the said premises nor did he pay the outstanding rent. The plaintiff thereafter instituted the suit for ejectment and recovery of possession as consequential relief. The defendant did not deny the facts laid in the plaint. The defendant filed the written statement and stated that he incurred expenditure of Rs.8000 for purpose of renovation and repairing of the suit premises. The defendant the appellant herein has further asserted in the written statement as follows: “That the contention of the Para 8 and 9 to the effect that the Plaintiff is entitled to get the vacant possession of the suit premises on the purported ground of default of the Defendant in making payment of the monthly rent is hereby strongly denied and disputed by the Defendant. It is the Plaintiff who has been refusing to accept the monthly rent from the Defendant on the ground the adjustment of the monthly rent with the expenditure incurred by the Defendant for the purpose of repairing the suit premises has not yet being In the said written statement most of the pleadings 07. have been disputed by the defendant. But in para 16 he made a solemn statement which reads as under: 08. 09. “16. That in respect to contention of Para 13 the Defendant submits that the Defendant has not become defaulter in making payment of monthly rent since September 2015 monthly rent is being adjusted with Rs.8 000 which had incurred by the Defendant for the repairing of the suit premises However the Defendant is ready with the monthly rent from September 2015 till date and is willing to tender the monthly rent for the aforesaid period before the Ld. Court at once without waiving his claim right to adjustment of monthly rent with Rs.8 000 Rupees eight thousand) that was incurred by the Defendant for the repairing of suit premises.” Based on the said rival pleadings as it appears several issues have been framed by the Civil Judge Junior Division Kailashahar Unakoti District. The issues are as follows: 1. Whether the suit is maintainable in its present form and nature 2. Whether there is any cause of action for filing the present suit 3. Whether the defendant has not been paying rent of the suit premises and consequently has been illegally possession the suit premises 4. Whether the plaintiff is entitled to relief(s) as prayed for 5. Whether the plaintiff is entitled to any other relief(s) The plaintiff adduced three witnesses and introduced few documentary evidencewhich was incurred by the Defendant for the repairing of the suit premises. However the Defendant is ready with the monthly rent from September 2015 till date and is willing to tender the monthly rent for the aforesaid period before the Ld. Court at once without having his claim right to adjustment with Rs.8 000 that was incurred by the Defendant for the repairing for the suit Mr. S Deb learned senior counsel assisted by Mr. S 15. Bhattacharjee has submitted that a notice for eviction as sent by the respondent is not a notice in terms of Section 106(1) of the Transfer of Property Act 1882. According to Mr. Deb learned senior counsel on a reading of the said notice dated 29.01.2016 it would appear. The said notice was drawn up completely on different premise. Mr. Deb to buttress his submission has referred the following passages from the said noticeto demonstrate that the said notice cannot be considered as a notice under Section 106(1) of the Transfer of property Act. For purpose of reference the passages as indicated above are “7. That you the Notice Receiver being defaulter in payment of monthly rent have no right to continue with the tenancy in terms of said agreement and you the Notice Receiver have become liable to be evicted from the said rented premises and therefore my said client is entitled to get vacant possession of the said rented premises. 8. That since you the Notice Receiver have become defaulter in payment of monthly rent you the Notice Receiver are required to put my said client into possession of the vacant rented premises described in schedule below. You the Notice Receiver are required to vacate the said rented premises in favour of my said client within a period of one month from the date of receipt of this notice failing which if my client is compelled to take shelter of law you the Notice Receiver would be liable for all civil and criminal consequences and 9. That since the said tenancy agreement was made by you the Notice Receiver and my said client after the order of the Hon’ble High Court passes in W.P.(C) No.83 of 2009 in terms of compromise as aforesaid and you the Notice Receiver as a party to the said case agreed with such terms and conditions reduced therein were are bounded by the terms and conditions reduced therein. In fact the said Deed of Agreement was made following the terms and conditions of the parties of the said W.P.(C) No.809 and in such case you the Notice Receiver was a party. In that view of the matter by not paying the due monthly rent to my said client you the Notice Receiver have committed an offence punishable under Contempt of Court Act. Therefore my said client reserves right to take appropriate action against you the Notice Receiver for willful disobedience of the order of the Hon’ble High Court and or any other offence which may be constituted by you the Notice Receiver by violating the terms and conditions reduced in the said compromise petition. Under the above circumstances it is demanded and expected that you the Notice Receiver shall vacate the said rented premises described in schedule below in favour of my said client within a period of one month from the date of receipt of this notice and you the Notice Receiver would vacate the said rented premises in schedule below by putting my said client into vacant possession of the said rented premises in schedule below within the aforesaid period failing which if my said client is compelled to take shelter of law you the Notice Receiver would be liable for all civil and criminal consequences and costs.” 16. Mr. Deb learned senior counsel has further submitted that the said notice has been issued under Section 108 of the Transfer of Property Act 1882 which deals with rights and liabilities of lessors and lessees. Section 108 of the Transfer of Property Act 1882 deals with the modalities rights and liabilities of the lessor and lessee in particular in two different parts has categorically stated to the court that “I am ready to pay the rent to Debasish Bhowmik right now even in the court also. I do not have any malice regarding rent. I do not want to keep rent with me and I can pay it whenever it is required.” 18. Mr. Deb learned senior counsel has drawn attention of this court to the clear admission made by the respondent the plaintiff of the suit. In his cross examination hehas stated that “the deed of rent submitted by me has not been registered. It is a fact that I have not submitted any document to show that I have conducted repairing works on the suit 19. Finally Mr. Deb learned senior counsel having criticized the impugned judgment dated 16.04.2018 passed in Title Appeal No. 01 2017 has contended that the first appellate court while revisiting the issues has observed that the defendant is entitled to get the benefit of Section 114 of Transfer of Property Act 1882 but the said power of the court can only be exercised with due regard to conducts of the tenant has failed to prove that there was anything for adjustment. The defendant made no expenditure for repairing of the suit premises. 20. Mr. Deb learned senior counsel has quite strenuously submitted that a technical interpretation of Section 114 of the Transfer of Property Act 1882 would frustrate the very object of such provision. According to him if the intention is conjointly read the court should give the tenant an opportunity to remove the defect when the defect is relating to default in payment of rent. In support of his contention Mr. Deb learned senior counsel has referred a decision of the apex court in Rakesh Wadhawan and Ors Vs Jagadamba industrial Corporation Ors. reported in5 SCC 440. 21. In Rakesh Wadhawan the apex court has observed that it will be for the tenant to pay or tender the amount provisionally assessed by the Controller on the first date of hearing of the application for ejectment. On compliance the Controller would proceed to adjudicate upon the controversy arising for decision by reference to pleadings of the parties and by holding a summary enquiry for the purpose. Such adjudication shall be provisional and subject to the later final adjudication. The finding that may ultimately be arrived at by the Controller may be one of the following three: the Controller may hold that the quantum of arrears as determined finally isthe same as was found to be due and payable under the provisional order is less than what was determined by the provisional order oris more than the one what was held to be due and payable by the provisional order. In the first case the Rent Controller has simply to pass an order terminating the proceedings. In the second case the Controller may direct the amount deposited in excess by the tenant to be refunded to him. In the third case it would not serve the purpose of the Act if the tenant was held liable to be evicted forthwith. The Controller directing the eviction of the tenant may pass a conditional order affording the tenant one opportunity of and a reasonable time for depositing the amount of deficit failing which he shall be liable to be evicted. This power in the Rent Controller can be spelled out from the use of the word “may” in the expression “the Controller may make an order directing the tenant to put the landlord in possession” as also from the principle of equity and fair play that the tenant having complied with provisional order passed by the Controller should not be made to suffer if the finding arrived at by the Controller at the termination of the proceedings be different from the one recorded in the provisional order. It has been further observed that while exercising the discretion to make a conditional order of eviction affording the tenant an opportunity of purging himself of the default the Controller may also take into consideration the conduct of the tenant whether he has even after the passing of the provisional order continued to pay or tender the rent to the landlord during the pendency of the proceedings as a relevant factor governing the exercise of his discretion. Such a course would be beneficial to the landlord too as he would be saved from the trouble of filing a civil suit for recovery of rent which fell due during the pendency of proceedings for eviction before the Controller. 22. The said approach no doubt as Mr. Deb learned senior counsel has pointed out advances the object sought to be achieved by the legislation and it best serves interest of the landlord and the tenant both. It removes uncertainty in litigation and obscurity in drafting of the provision and also accords with the principle of justice and equity. Even if it is an innovation it is in the field of procedural law without affecting the substantial rights and obligation of the landlord and the tenant and such innovation is permissible on the basis of the authority and supported by the principle of justice good sense and reason. 23. Mr. Deb learned senior counsel has also referred a decision of this court in Banamali Debnath Vs. Debasish Bhowmik where this court had occasion to observe as follows on a similar type of rent agreement: 16. From a cumulative reading which is material before us is that this court is constrained to observe that the first appellate court did not make any mistake in accepting that the notice under Section 106 inasmuch as an un registered deed of lease cannot be treated as the lease as per the requirement of Section 107 of the Transfer of Property Act 1882. Thus that will be treated as the tenancy beyond any cognate reason and the requirement of the notice period is fifteen days. The second substantial question on the face of it is devoid of any merit inasmuch as no such statement is made in the written statement nor was there any endeavour to derive the benefit of Section 114 of the Transfer of Property Act. That apart Section 114 has very restricted application. It applies in case of the lease. Mr. H. Laskar learned counsel for the respondent has 24. clearly submitted that the decision of the apex court in Rakesh Wadhawan was under the Rent Control Act and not under the Transfer of Property Act. Mr. Laskar learned counsel has submitted that hence the ratio as laid by the apex court may not apply in the present case. He has stated that due notice was served but the provision under which notice was served wrongly quoted in the notice. But all the ingredients of a notice under Section 106(1) of the Transfer of Property Act 1882 are available and the demand has clearly spelled out. Despite such notice the defendant the appellant herein did not pay the arrear rent as claimed in the said notice. Even after appearing in the court of the civil judge Jr. Division he did not take any attempt to deposit the rent or urge the court to decide provisionally the arrears of rent. Moreover in the written statement he has disputed the account of arrear rent. Only in his statement before the court he had stated that he is ready to deposit the said amount even waiving his demand of adjustment as stated for the time being. 25. Mr. Laskar learned counsel has categorically stated that the plaintiff has categorically in his statement in the trial that the defendant did not make any expenditure for repairing of the shop. The first appellate court has further inferred that there is no evidence to hold that the defendant had spent an amount of Rs.8 000 for repairing the shop. No document whatsoever has been placed in the trial. 26. According to Mr. Laskar since the agreement cannot be treated as lease within the meaning of Sections 105 and 107 of the Transfer of Property Act the provision of Section 114 of the Act cannot be applied. Thus he has emphatically stated that this court should not interfere with the impugned judgment as the question of equity has been taken care of but the conduct of the defendant did not generate any confidence in the court to provide him relief in equity. 27. Having appreciated the rival contentions raised by the parties and having due regard to the substantial questions of law which were framed while admitting the appeal on 05.08.2019 this court would formulate a common question which reads as Whether terms of the agreement dated 16.11.2014 where it was undertaken that the arrears of rent would be paid to the landlord the order of eviction was justified by treating the notice as given by the respondent as valid 28. For purpose of reference however the substantial questions of law as formulated by this Court are reproduced 29. i) Whether in the event of undertaking in terms of the agreement dated 16.11.2014 that arrears rent will be paid to the land lord the Civil Court could have considered of not passing the order of eviction ii) Whether for non consideration that the tenure of the agreement being yet to expire the undertaking of making payment of arrear rent vis a vis the impugned judgment has suffered illegality or for illegality not giving a valid notice under Section 106 of the Transfer of Property Act Having perused the content of the notice of ejectment eviction this Court is convinced that the notice bears all requirements of a notice under Section 106(1) of Transfer of Property Act 1882. Merely for referring a wrong Section Section 108 of the Transfer of Property Act 1882 the notice cannot be held invalid for purpose of eviction. It is not the case of the defendant that the notice did not reveal the details why the eviction or ejectment has been sought by the plaintiff. Thus it will not be appropriate to hold the said notice as invalid. 30. What remains thereafter is to verify whether the order of ejectment is valid Despite the undertaking made in the court or in the agreement dated 16.11.2014 that the arrears of rent would be paid that was not paid. Hence the first appellate court was justified in returning the finding that the appellant be evicted and the vacant possession shall be restored in favour of the plaintiff. 31. With all earnestness this Court has considered the submission of Mr. Deb learned senior counsel on relieving the defendant against for feiture and the decision in Rakesh Wadhawan to deposit the amount “at the first instance” in the court of the civil judge. Not only that he had challenged the arrear but later on the defendant has admitted in his statement that he had been faulting in payment of the agreed rent for his two doored shop since the month of September 2015 till then but he has not deposited any amount either in the court of the first instance or in the first appellate court. 32. Such conduct does not instill confidence in the court to apply discretion by affording opportunity for purging out of the default by way of making payment of arrears to the landlord. Thus this Court does not find any infirmity in the impugned judgment either in law or in refusal to the equity jurisdiction. Hence this appeal stands dismissed. Draw the decree accordingly. Send down the LCRs thereafter. Pending application(s) if any also stand disposed of. Moumita 

Summary: It will be for the tenant to pay or tender the amount provisionally assessed by the Controller on the first date of hearing of the application for ejectment. On compliance, the Controller would proceed to adjudicate upon the controversy arising for decision by reference to pleadings of the parties and by holding a summary enquiry for the purpose. The judgement was passed by the High Court of Tripura in the case of Sri Krishna Sudam Roy v. Sri Debasish Bhowmik [RSA No.37 of 2018] by Single Bench consisting of Hon’ble Justice S. Talapatra. The facts of the case are that the plaintiff entered into a rent agreement with the defendant for letting out his rooms situated in his premises, opposite to the Kamalpur Super Market. The plaintiff had put up the defendant in rooms as a temporary monthly tenant. At one point in time, a serious dispute broke out between the plaintiff and the defendant and with other tenants. The defendant and other tenants filed a writ petition before this court. The said writ petition was disposed of on compromise by recording the conditions, which had arisen from the said writ petition. Learned counsel for the petitioner has submitted that a notice for eviction as sent by the respondent is not noticed in terms of Section 106(1) of the Transfer of Property Act, 1882. The said notice has been issued under Section 108 of the Transfer of Property Act, 1882 which deals with rights and liabilities of lessors and lessees. Section 108 of the Transfer of Property Act, 1882 deals with the modalities, rights and liabilities of the lessor and lessee in particular, in two different parts. It has been provided in the said section that the lessee can also raise a notice to demand or remove any defects. Certain prohibitions have also made against the lessee. What has been provided in the agreement is that when the lease is determined, the lessee is bound to put the lessor in the possession of the property. Learned Counsel for the respondent has submitted that the decision of the apex court in Rakesh Wadhawan and Ors Vs Jagadamba industrial Corporation &amp; Ors. was under the Rent Control Act and not Page under the Transfer of Property Act. He further, submitted that hence the ratio as laid by the apex court may not apply in the present case. He has stated that due notice was served, but the provision under which notice was served wrongly quoted in the notice. But all the ingredients of a notice under Section 106(1) of the Transfer of Property Act, 1882 are available and the demand has spelt out. Despite such notice, the defendant, the appellant herein, did not pay the arrear rent as claimed in the said notice.