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HIGH COURT OF JUDICATURE AT ALLAHABAD

AFR
Reserved

Civil Misc. Writ petition No. 49414 of 2008

Raj Kumar Rajppot

Versus
Smt. Usha Devi Lahauti and others

Hon'ble V.K. Shukla, J.

This is tenant's petition questioning the validity of judgment and order dated 20.04.2005 and
1107.2008 passed by Judge Small Cause Court as affirmed by Additional District Judge, Court No. 1,
Bijnor on 02.09.2008.
Brief background of the case is that petitioner is tenant of shop in dispute at the rate of Rs.500/- per
month, as mentioned by petitioner. Petitioner has stated that his tenancy is on month to month
payment basis. In the said premises in question, petitioner is running jewellery shop for his livelihood.
Notice was sent on 21.11.2002 informing and intimating the petitioner that since 01.09.2002 rent at
the rate of Rs.600/- has not been paid. It was mentioned therein that landlord did not any further
intend to retain the tenant as such, from the date of receipt of notice after 30 days, tenancy would be
terminated and after expiry of the period of 30 days possession of the premises in question was
asked to be handed to the landlord, and in the event of failure to comply with the directions contained
in the notice, landlord would be initiating proceedings. Said notice was replied on 10.02.2002.
Thereafter, JSCC suit No.6 of 2002, Smt. Usha Devi Lahauti vs. Raj Kumar Rajpoot, was filed,
clearly and categorically mentioning therein that provisions of U.P. Act No. XIII of 1972 were not
applicable. Suit was contested by the petitioner by filing written statement. Petitioner also mentioned
that entire amount was being deposited by him in order to save himself from being evicted. In the
proceedings, so undertaken, Yogendra Kumar Lahuati was examined. On the basis of evidence led,
Judge Small Cause Court concluded that the provisions of U.P. Act No. XIII of 1972 were not
applicable and petitioner was liable to be ejected, as his tenancy has been validly terminated. JSCC
revision filed against the same has also been dismissed. At this juncture present writ petition has
been filed.
Sri Harish Kumar Yadav, learned counsel for the petitioner, appearing with Sri R.D. Agrahari,
Advocate, contended with vehemence that- (i) the provisions of U.P. Act No. XIII of 1972 were fully
applicable in the present case on the own admission made by Yogendra Kumar Lahauti in regard to
the date of construction, as such the provisions of U.P. Act No. XIII of 1972 not being attracted,
finding recorded on this score is perverse; (ii) in the present case admittedly on the first date of
hearing entire amount which was due towards rent had been paid, as such benefit as enshrined
under Section 114 of the Transfer of property Act was liable to be extended to the petitioner, as such
writ petition deserves to be allowed.
Countering the said submission, Sri K.M. Garg, learned counsel representing the landlord, contended
that in the present case date of the first assessment of the building in question was known fact, and
as such as per provisions of Explanation- (I) to Section 2 (2) of U.P. Act No. XIII of 1972, the date of
the first assessment has to be accepted as the date of construction by legal fiction, as such no
interference be made. The argument advanced for extending the benefit of Section 114 of the
Transfer of Property Act is totally misconceived, as here in the present case there has been no
forfeiture of lease on account of non-payment of rent and to the contrary this is a case where tenancy
has been terminated under Section 106 of the Transfer of Property Act, as such writ petition is liable
to be dismissed.
In order to consider the first argument advanced as to what would be the date of construction of
building in question, the provisions of U.P. Act No. XIII of 1972 has to be looked into.
Relevant portion of Section 2(2) of the Act is as follows-
"Except as provided in sub-section (5) of Section 12, sub-Section (1-A) of Section 21, sub-Section (2)
of section of Section 24, Sections 24-A, 24-B, 24-C or sub-section (3) of Section 29, nothing in this
Act shall apply to a building during a period of ten years from the date of which its constructions is
completed.
Provided...............................................
Provided further that where constructions of a building is completed on or after April 26,1985 then the
reference in this sub-section to the period of ten years shall be deemed to be a reference to a period
of (forty years) from the date on which its construction is completed.
Explanation 1- For the purpose of this Section-
(a) the construction of a building shall be deemed to have been competed on the date on which the
completion thereof is reported to or other wise recorded by the Local Authority having jurisdiction,
and in the case of building subject to assessment the date on which the first assessment thereof
comes into effect, and where the said dates are different, the earliest of the said dates, and in the
absence of any such report, record or assessment, the date on which it is actually occupied (not
including occupation merely for the purposes of supervising the construction or guarding the building
under construction) for the first time:
Provided that there may be different dates of completion of construction in respect of different parts
of a building which are either designed as separate units or are occupied separately by the landlord
and one or more tenants or by different tenants.
(b) "construction" includes any new constructions in place of an existing building which has been
wholly or substantially demolished;
(c) where such substantial addition is made to an existing building that the existing building becomes
only a minor part thereof the whole of the building the existing building shall be deemed to be
constructed on the date of completion of the said addition."

As it is evident from the above wordings of Section 2(2) of the Act the construction of a building shall
be deemed to have been completed on the date on which the completion thereof is reported to or
otherwise recorded by Local Authority having jurisdiction and in the case of a building subject to
assessment the date on which the first assessment thereof comes into effect, and there the said
dates are different, the earliest of the said dates and in absence of any such report, record or
assessment the date on which it is actually occupied.
As held by this Court in the case of Raj Kumar Sharma Vs. District Judge Haridwar and others 1993
(2) ARC 103 the word 'deemed' is normally used to create a statutory fiction. While interpreting a
provision creating a legal fiction it has to be ascertained as to for what purpose a fiction is created
and it is only after ascertaining this all those facts and consequences which are incidental or
inevitable corollaries to the giving effect to the fiction have to be assumed. It is well settled that in
constructing the scope of legal fiction it would be proper and even necessary to assume all those
facts on which alone the fiction can operate.
That Explanation 1 to Section 2(2) was also considered by the Apex Court in the case of Gopal
Krishna Andely V. Vth Additional District Judge, Kanpur and others reported in 1982 (1) ARC 391
(SC) and the Apex Court took the following view:-
" A perusal of Explanation I makes it abundantly clear that the date of occupation would be taken to
be the date of completion of the construction only when there is no report on record of the completion
of construction or no assessment thereof. If there is an assessment as in the present case it is, it will
be the date of the first assessment which will be deemed to be the date of completion of the
construction, and in that view of the matter the building had not become more than ten years old on
the date when the revision came to be decided by the High Court."

Hon'ble Apex Court in the case of Suresh Kumar Jain @ Sunni Vs. Shanti Swarup Jain and others
reported in 1996 (1) ARC 316 has held as follows:
" 30. There is no dispute that the defendant appellant is a monthly tenant covered by the provisions
of the said Rent Act. It is apparent that for mitigating the hardship likely to be meted out to a landlord
who has made new constructions by incurring substantial expenses the landlord in case of tenancy in
a newly constructed building has been favoured with exemption of the rigours of the Tenancy Act in
the matter of evicting a tenant inducted in such newly constructed premisses. But such exemption is
not unfettered but controlled by the provisions of Section 2 (2) of the said Rent Act read with
Explanation I and proviso to such Explanation I. The outer limit of the period of exemption in respect
of newly constructed building is ten years. Such outer limit of the period of exemption has been
introduced for balancing the enquires between the landlord and tenant. In order to ensure that such
exemption in favour of the landlord is not extended indefinitely, the legislature has provided a
mechanism for determining the date with reference to which the building in question will be deemed
to have been constructed by indicating four distinct alternatives. As such four dates are likely to be
different, Legislature, in its anxiety to ensure that the period of exemption is not unjustly extended
beyond the period intended has indicated that such period of exemption is to be reckoned from the
date which is on the earliest point of time amongst four different deemed dates provided for in
Explanation I to sub-section (2) of the U.P. Rent Act. The four different dates for the purpose of
exemption as to whether a newly constructed building is ten years old or not are as follows:-
(i)the date on which completion of the building in reported to local authority.
(ii)The date on which the completion of the building is otherwise; recorded by the local authority
having jurisdiction;
(iii)the date on which the assessment of property tax is first made;
(iv)in the absence of any such report, record or assessment, the date on which the building was
actually occupied.
31. in our view, in the facts of the cases, both the dates namely the date on which the completion of
the building is reported to the local authority and the date on which the completion of the building is
otherwise recorded by the local authority having jurisdiction, are available. On January, 30,1978 the
building constructed by the respondent landlord was inspected by the Section Head Clerk of the Etah
Municipality and a report was filed by the said Head Clerk recording that the ground floor and the first
floor had been rented at Rs. 75 and Rs. 60 per month respectively and the second floor of the
building was in possession of the respondent owner. In the said report it was also indicated that the
shop was well constructed. The Etah Municipality thereafter issued a letter on January, 30, 1978 to
his respondent landlord that the date of hearing the objection to the assessment of house tax was
fixed at 11.00 a.m. On February 1 1978. Such notice as a consequential action on the report of the
Head Clerk only indicates that Municipality has also noted the factum of completion of the building at
least from the date of receipt of the said report. In our view, Dr. Singhvi has rightly contended that the
import of the expression "otherwise recorded" used in Explanation I to Section 2 (2) of the Rent Act
should be constructed in a broad-based manner having wide amplitude, keeping in mind the
beneficial purpose of the U.P. Rent Act for protecting the interest of tenants covered by the said Rent
Act. We may also indicate here that such recording of the date of completion of the tenanted
premises in question fully satisfies the recording of deemed date of construction under Section 2(2)
of the U.P. Rent Act and it is not necessary to investigate whether for the purpose of assessment of
rates and taxes of a building, inspection of the building had been done strictly in accordance with the
Municipality Act.

Hon'ble Apex Court, in the case of Smt. Sudha Rani Garg v. Jagdish Kumar, 2004 (57) ALR 220, has
again reiterated the view to the similar effect, that fourth option of fixing date of option can be
exercised, when none of the earlier three options are available. Paragraphs 8, 9, 10, 11 and 12 of the
said judgment are being quoted below:

"8. The Explanation I is a deeming provision. The word 'deemed' is used to a great deal in modern
legislation. Sometimes it is used to impose for the purpose of a Statute an artificial construction of a
word or phrase that would not otherwise prevail. Sometimes, it is used to put beyond doubt a
particular construction that might otherwise be uncertain. Sometimes, it is sued to give a
compressive description that includes what is obvious, what is uncertain and what is, in the ordinary
sense, impossible". (per Lord Radcliffe in St. Aubyn (L.M.) v. A.G. (No.2) (1951) 2 All. ER 473 (HL).
9. "Deemed", as used in statutory definitions, "to extend the denotation of the defined term to things,
it would not in ordinary parlance denote, is often a convenient device for reducing the verbiage of an
enactment, but that does not mean that wherever it is used, it has that effect; to deem means simply
to judge or reach a conclusion about something, and words, 'deem' and 'deemed' when used in
statute, thus simply state the effect or meaning which some matter or thing has the way in which it is
to be adjudged; this need not import artificially or fiction; it may, simply be the statement of an
undisputable conclusion" (per Windener, J. in Hunter Douglas Australia Pty. v. Prema Blinds, 1970
(44) ALJR 2577.
10. When a thing is to be "deemed" something else, it is to be treated as that something else with the
attendant consequences, but it is not that something else (per Cave, J., R. v. Norfolk County Court,
60 LJQB 380).
"When a statute gives a definition and then adds that certain things shall be 'deemed' to be covered
by the definition, it matters not whether without that addition the definition would have covered them
or not" (Per Lord President Cooper in Ferguson v. MicMillan, 1954 SLT 109.)
11.Whether the word "deemed" when used in a statute, established a conclusive or a rebuttable
presumption depended upon the context (See St. Leon Village Consolidated School District v.
Ronceray, 1960 (23) DLR (2d) 32.)
"I .......regard its primary function as to bring in something which would otherwise be excluded" (per
Viscount Simonds in Barclays Bank v. I.R.C., (1961) AC 509.)
"Deems" means "is of opinion" or "considers" or "decides" and there is no implication of steps to be
taken before the opinion is formed or the decision is taken" (See R. v. Brixion Prison Governor ex. p.
Soblen, 1962 (3) All ER 611 ( See Ali M.K. and others v. State of Kerala and others, 2003 (7) AIC 166
(SC) .
12. It is not in dispute that the first assessment came into effect from 1.4.1983 and in the relevant
column relating to enhancement or reduction of the tax, "Q September, 1982" is recorded."

On the touchstone of the provisions quoted above once this admitted fact that the first assessment of
the building in question has been shown to be 01.04.1986, then in such contingency once first date
of assessment is available, then by legal fiction, said date has to be treated as date of construction
and the admission by any one in respect of the date of construction would in no way wipe out the
effect of deeming provision, the date of occupation of the premises in question could have been
taken into account only in the contingency when three dates as provided for were not available. Here,
in the present case the first date of assessment is available, and in this background, finding of fact
has been returned that he building in question was assessed for the first time in the year 1986, as
such the conclusion which have been drawn to the effect that the provisions of U.P. Act No. XIII of
1972 are not applicable, are rightful conclusion and warrants no interference by this Court.
The next question to be adverted to is as to whether in the facts of the case benefit of Section 114 of
Transfer Property Act could have been extended to the petitioner or not. In order to appreciate the
above contentions of the learned counsel for the parties, it would be convenient to have a look to the
relevant provisions of the Transfer of property Act.
Section 106 of the Transfer of Property Act runs as under:
"In the absence of a contract or local law or usage to the contrary, a lease of immovable property for
agricultural or manufacturing purpose shall be deemed to be a lease from year to year, terminable on
the part of either lessor or lessee, by six month's notice expiring with the end of a year of the
tenancy; and a lease of immovable property for any other purpose shall be deemed to be a lease
from month to month, terminable on the part of either lessor or lessee, by fifteen days' notice expiring
with the end of a month of the tenancy.
Every notice under this section must be in writing signed by or on behalf of the person giving it and
either be sent by post to the party who is intended to be bound by it or be tendered or delivered
personally to such party or to one of his family or servants, at his residence or (if such tender or
deliver is not practicable) affixed to a conspicuous part of the property."

Section 111 reads as under:

"A lease of immovable property, determines :
(a)by efflux of the time limited thereby;
(b)whether such time is limited conditionally on the happening of some event- by the happening of
such event;
(c)where the interest of the lessor in the property terminates on, or his power to dispose of the same
extends only to the happening of any event- by the happening of such event;
(d)in case the interest of the lessee and the lessor in the whole of the property become vested at the
same time in one person in the same right;
(e)by express surrender: that is to say, in case the lessee yields up his interest under the lease to
lessor, by mutual agreement between them;
(f)by implied surrender;
(g)by forfeiture, that is to say (I) in case the lease breaks an express condition which provides that on
breach thereof the lessor may re-enter; or (2) in case the lessee renounces his character as such by
setting up a title in a third person or by claiming title in himself; or (3) the lessee is adjudicated an
insolvent and the lease provides that the lessor may re-enter on the happening of such event; and in
any of these cases the lessor or his transferee gives notice in writing to the lessee of his intention to
determine the lease;
(h)on the expiration of a notice to determine the lease, or to quit or of intention to quit, the property
lease duly given by one party to the other."
Section 114 runs as under:
"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 arrear, together with interest thereon and his full costs of the suit or gives such
security as the Court thinks sufficient for making such payment within fifteen days, the Court may, in
lieu of making a decree of ejectment, pass an order relieving the lease against the forfeiture and
thereupon the lessee shall hold the property leased as if the forfeiture had not occurred."

Section 116 of the Transfer of property Act runs as under:

"116. Effect of holding over.- If a lease or under-lease of property remains in possession thereof after
the determination of the lease granted to the lessee,and the lessor or his legal representative
accepts rent from the lessee or under-lease, otherwise assents to his continuing in possession, the
lease is, in the absence of an agreement to the contrary, renewal from year to year or from month to
month, according to the purpose for which the property is leased, as specified in Section 106."

From the perusal of the above provisions, it would be seen that there are different ways of
terminating tenancy. Under Section 106 of Transfer of Property Act, a lease for year to year is
terminable by giving six month's notice by either party and a month to month tenancy may be
determined by serving upon the other party one month's notice. Lease can also be determined in any
of the modes laid down in Section 111 of the Transfer of Property Act and one of such modes being
by forfeiture under clause (g). The word "forfeiture" has not been defined under the Transfer of
Property Act, but it means the loss of a legal right by means of some breach of an obligation.
Forfeiture, is the divestiture of specific property without compensation in consequence of some
default or act forbidden by law. Clause (g) provides that a lease may be determined by forfeiture, that
is to say:
(1) Where the lessee -
(a) breaks an express condition of lease and a right of re-entry is provided on such breach; or
(b) denies the lessor's title; or
(c ) is adjudicated as insolvent and the lease provides, on such contingency, for a right of re-entry.

(2) And in any of these cases the lessor gives a notice in writing to the lessee of his intention to
determine the lease. Thus, it is noteworthy that for determining the lease by forfeiture not only
existence of one or more of the three aforesaid contingencies is necessary but the lessor wishing to
determine the lease for forfeiture must also give a notice in writing to the lessee of his intention to
determine the lease. The right of forfeiture is limited to those cases where the tenant has been guilty
of some kind of misconduct which provided a right of re-entry to the lessor.

On general principle, a suit for ejectment against a tenant is not maintainable unless a previous
notice to quit or a notice demanding possession either under Section 106 or 111 (g) of the Transfer of
Property Act is given. There is, however, a distinction between a notice to quit and a notice
determining tenancy under clause (g) of Section 111 of the Transfer of Property Act. In determination
of tenancy by forfeiture, a right is exercised while tenancy is still subsisting but in a notice to quit, the
tenancy is not subsisting and in such a case, there arises no question of relief against forfeiture.
Section 114 of the Transfer of Property Act confers a power on the Court to grant an equitable relief
to the defaulting lessee. In order to claim benefit under this section, it has to be shown by the tenant
that one of the terms of the lease was that the landlord will have a right of re-entry if the rent for any
specified period remained unpaid and he has to show further that forfeiture has been incurred as
provided under Section 111 (g). Section 114 of Transfer of Property Act thus postulates existence of
determination of lease by forfeiture as a condition precedent and provisions contained in this section
will have no application where the lease has been determined by service a notice to quit under
Section 106 of the Transfer of Property Act. The relief under section 114 of Transfer of Property Act is
confined to those cases only which are strictly covered under Section 111 (g) and not to those cases
which fall under Section 106 of the said Act. A monthly tenancy is determinable by one month's
notice by either party and if the tenancy is terminated by serving one month's notice under Section
106, there is no forfeiture of tenancy and in that event section 114 cannot be applied. Thus a notice
under section 106 of the Transfer of Property Act by no means could be treated as one under Section
111 (g).
Section 114 applies to those cases where the landlord invokes his rights under what is known as
forfeiture clause and determines the lease by forfeiture and sues for ejectment of the tenant. In such
a case, the subsisting tenancy cannot be determined by serving a notice simpliciter under Section
106 of the Transfer of Property Act, and it can only be determined where the landlord forfeits the
tenancy by serving notice under Section 111(g). In such an event, Section 114 can be pressed into
service but where the tenancy runs from month to month and the same has been determined by a
valid notice under Section 106 of the Transfer of Property Act, Section 114 of the Transfer of Property
Act shall have no application. Similarly in cases, where lease period has already come to an end, the
possession of tenant lessee would be that of holding over month by month under the provisions of
Section 116 of the Transfer of Property Act, in such a situation also tenancy can be determined by
simpliciter notice under Section 106 of Transfer of Property Act.
On the parameters of the provisions quoted above, the facts of the present case are being adverted
to. In the present case, notice had been sent to the petitioner terminating his tenancy vide notice
dated 21.11.2002, clearly and categorically mentioning that from the date of receipt of notice after
expiry of the period of 30 days, tenancy would come to an end, and thereafter, the petitioner should
hand over peaceful vacant possession of the premises in question. In the said notice it was also
mentioned that since 01.09.1992, petitioner had not paid rent and petitioner should also pay rent
within a period of one month from the date of receipt of notice. There were two parts of said notice.
One part related to the fact that after receipt of notice, petitioner should ensure making of payment of
rent and the other part was terminating tenancy after expiry of 30 days' period from the date of
receipt of notice. Once tenancy was terminated by giving 30 days' notice, certainly it was notice
under Section 106 of the Transfer of Property Act. Relief under section 114 of Transfer of Property
Act is confined to those cases only which are strictly covered under Section 111 (g) and not to those
cases which fall under Section 106 of the said Act. Section 114 applies to those cases where the
landlord invokes his rights under what is known as forfeiture clause and determines the lease by
forfeiture and sues for ejectment of the tenant.
In the present case on the own showing of petitioner, it is clear that notice which was sent to the
petitioner was under Section 106 and not at all under Section 111 (g) of the Transfer of Property Act,
inasmuch at no point of time, any authority had been exercised by the landlord by invoking forfeiture
clause for non payment of rent. Demand of rent was made only in addition to the demand of vacant
possession. Hon'ble Apex Court in the case of Tharumal vs. Masjid Hajum, 1994 SCC 556, has taken
the view that mere fact, that while terminating tenancy under Section 106 of the Transfer of Property
Act, landlord also made demand of arrears of rent and the possession, will not convert the notice as
one under Section 111 (g) of the Transfer of Property Act. Relevant paragraphs 9 and 10 are being
extracted below:
"9. In so far as the plea of the present being a case of forfeiture and not of determination of tenancy,
we would state that the requirements of forfeiture as mentioned in Section 111 (g) of the Transfer of
Property Act being not satisfied and the notice as given by the respondent to the appellants
(Annexure P-1) having stated about determination of tenancy, the present cannot be taken to be a
case of forfeiture. We have said so because of the three situations visulaised by clause (g), it is
apparent that it is the first alone which could get attracted - the same being breaking of any express
condition which provides that on breach thereof the lessor may re-enter. Shri Sachar submits that
from the notice (Annexure P-1) it would appear that it was the non-payment of rent as agreed upon
by the appellants which was the cause of action for issuance of notice and as such this condition is
satisfied. To support his submission it is urged that in the suit as filed arrears of tent has also been
claimed which would show that the respondent's case was breaking of condition regulating to
payment of rent in time.
10. Though a perusal of notice, which is dated 29-5-1980 does show that it mentioned about non-
payment of rent but it also stated about termination of tenancy and demanded vacant possession by
31-7-1980 or "the last date of of the month...". In the suit as filed rent had not been claimed on and
from 1-8-1980, it was rather damages on account of illegal use and occupation. For the first of three
situations mentioned in Section 111 (g) to operate the condition has to be one the breach of which
had provided he lessor a right to re-enter. In the present case, there is nothing to show that such was
the condition of the tenancy. That apart, the notice itself would show that it was clause (h) of Section
111 which was pressed into service, because the requirements of notice of termination as mentioned
in Section 106 of the Transfer of Property Act were duly borne in mind, as per which section in case
of monthly tenancy, the notice must expire with the "end of a month of tenancy". The perusal of the
notice shows that the tenancy at hand was a monthly tenancy as per English calendar and it is
because of this that vacant possession was demanded from 31-7-1980, the end of an English
calendar month stating simultaneously about "the last date of the month of ....". These silent features
do not leave any doubt in our mind that the present was not a case of forfeiture but of determination
of vacancy. We, therefore, reject the second contention as well of Shri Sachar."

Hon'ble Apex Court in the case of Rakesh Wadhwa vs. Jagdamba Industrial Corporation, 2002, ACJ
1453 has taken the view that Section 114 of the Transfer of Property Act is based on equitable
consideration and therein it has been mentioned that rule of equity enshrined under Section 114 is
that where a lease of immoveable property has been determined by forfeiture for non-payment of
rent and the lessor files a suit for ejectment of the lessee, the Court exercises a discretionary
jurisdiction of passing an order relieving the lessee against the consequences of forfeiture if at the
hearing of the suit the lessee pays or tenders to the lessor the rent in arrears with interest and costs
or furnishes such security as the Court thinks sufficient. Relevant extract of the said judgment
contained in paragraph 20 is being quoted below:
"20. Even if Section 13(2)(i) and the proviso would not have been enacted there was Section 114 of
the Transfer of Property Act to take care of such situation. The provision in the Rent Control
Legislation which obliges the tenant to pay or tender the arrears of rent during the course of hearing
and relieve the tenant from the consequences of default in payment of rent is founded on the doctrine
of forfeiture of lease for non-payment of rent and equitable principle of granting relief against
forfeiture within the exercise of discretion vesting in the Court. The Transfer of Property Act, 1882 did
not in terms apply to the State of Punjab however principles underlying or contained in such of the
provision of the Transfer of Property Act as are essentially the principles of equity, justice and good
conscience have been held applicable to the State of Punjab and Haryana. Section 114 of T.P. Act
embodies one such principle. (See Namdeo. Lokman Lodhi vs. Narmadabai and Ors. - AIR 1953 SC
228; Guru Nanak Ex. Servicemen Cooperative T.F. Society Group No. 2 and Ors. vs. The State of
Haryana and Ors. - AIR 1972 Punjab and Haryana 83 D.B.: Aziz-Ud-Din and Ors. vs. Guru Bhagwan
Das and Anr.- (1912) 17 IC 991). The rule of equity enshrined in Section 114 of Transfer of Property
Act is : Where a lease a of immoveable property has been determined by forfeiture for non-payment
of rent and the lessor files a suit for ejectment of the lessee, the Court exercises a discretionary
jurisdiction of passing an order relieving the lessee against the consequences of forfeiture if at the
hearing of the suit the lessee pays or tenders to the lessor the rent in arrears with interest and costs
or furnishes such security as the Court thinks sufficient. Having appointed a time for payment, the
Court still retains jurisdiction to extend the time (Chandless -Chandless vs. Nicholson 1942 (2) All ER
315). Even the time appointed by a consent decree can be extended (Smt. Amiya De vs. Dhirendra
Nath Mandal - AIR 1971 Calcutta 263). The discretion conferred by Section 114 of TP Act is of wide
amplitude guided by the principles of justice, equity and good conscience and the Court would
examine the conduct of the parties, the comparative hardship and lean in favour of one whose hands
are clean (Namdeo Lokman Lodhi vs. Narmadabai and Ors. AIR 1953 SC 228. The discretion to
grant relief again forfeiture is available not only to the trial court but also to appellate court (R.S. Lala
Praduman Kumar vs. Virendra Goyal (dead) by his Lrs. And Ors. - 1969 (1) SCC 714."

This Court in the case of Vinod Kumar Rastogi vs. III Additional District Judge, 2003 (2) ARC 377 has
taken the view that even if the provisions of U.P. Act No. XIII of 1972 does not apply, the provisions of
Section 114 of the Transfer of Property Act will not become applicable automatically unless lease is
determined for non-payment of rent. Thus, inevitable conclusion is that where the provisions of U.P.
Act No. XIII of 1972 are not applicable, after giving notice of 30 days, under Section 106 of Transfer
of Property Act landlord has got unfettered right to terminate the tenancy without assigning any
reason, whatsoever, and at the time of terminating tenancy other additional grounds can be taken for
filing suit. For getting the benefit of Section 114 of the Transfer of Property Act, tenant will have to
show that landlord has exercised his right of forfeiture under Section 111 (g). The provisions of
Section 114 are not at all applicable when lease is determined by serving notice to quit under Section
106 of Transfer of Property Act.
Now so far as case in hand is concerned, notice given, was clearly and categorically notice under
Section 106, and at no point of time any notice of forfeiture of lease had been given in the present
case. Once there was no forfeiture of lease under Section 111 (g), by no stretch of imagination,
benefit can be extended under Section 114 of the Transfer of Property Act. In the facts of the present
case, the provisions of Section 111 (g) read with Section 114 of the Transfer of Property Act are not at
all applicable or attracted, as there is no forfeiture of lease on account of non-payment of rent, rather
tenancy has been terminated in plain and simple manner as enshrined under Section 106 of the
Transfer of Property Act.
Consequently, writ petition fails and the same is dismissed. Petitioner is accorded six month's time to
vacate the premises in question and hand over its peaceful vacant possession to the respondent-
landlord, subject to the condition that within one month from today affidavit shall be filed by the
petitioner before the Prescribed Authority that premises in question will be vacated on or before
expiry of the period as aforesaid. In the event of affidavit not being filed within one month from today,
the interim protection shall cease to operate, and landlord would be at liberty to proceed accordingly,
and interim protection of this Court would not come to rescue of petitioner.
30.09.2008
SRY

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