Sasidharan and another vs Kochummini Kolappan and Another

K.G. Balakrishnan, J.—S. A. No. 87 of 1985 arises from the decree and judgment in O.S. 1233 of 1979 and S. A. No. 864 of 1984 arises from the judgment and decree in O. S. No. 1237 of 1979. The common respondent in these two appeals filed the suit for recovery of shop room from the possession of the defendant. The defendant in O. S. 1233 of 1979 was in occupation of room No. 5 in a line building and the defendant in O. S. 1237 of 1979 was in occupation of room No. 6 of the very same building. Defendant in O. S. 1233 of 1979 is the son of the defendant in O. S. 1237 of 1979. The father has been conducting a stationery in room No. 6 and his son has been conducting a tea-shop in room No. 5. Room No. 6 was let out in 1964 on a monthly rent of Rs. 24/-. Thereafter room No. 5 was obtained on rent for Rs. 10/ by his son. Subsequently the rent was enhanced. The appellant caused to send a lawyer''s notice on 18-8-1979 terminating the tenancy in favour of the defendants in both the suits. The plaintiff-respondent alleged that the tenants caused damage to the building and therefore they are liable to be evicted. Respondent also alleged that the tenants failed to pay the arrears of rent. The appellants in their respective suits filed written statements denying the allegations in the plaint. In both the suits the defendants stated that they have not committed any waste in the building. They also contended that they had paid rent and the respondent refused to accept the same. The trial court decreed the suit as prayed for and the amount deposited by the appellants were ordered to be adjusted towards arrears of rent. The tenants filed appeal before the District Court, Trivandrum challenging the decree and judgment. The main contention advanced by the appellants in the appeals was that the tenants had deposited the entire arrears of rent and there should not be any decree for eviction on the ground of arrears of rent. The appeals filed by the tenants were dismissed. Hence these second appeals. Both the appeals were heard together. The learned counsel for the appellants contended that the notice issued by the respondent terminating the tenancy was not in strict compliance with the mandate of section 106 of the T. P. Act. These appellants had not raised any such plea in the written statement. Before the lower appellate court also they did not contend that the notice issued by the respondent was not proper. It is also to be noticed that in view of the absence of challenge on the part of the appellants herein regarding the validity of notice, the contention of the appellant''s counsel that the notice is not valid cannot be entertained at this stage.

1A The next contention urged by the appellants is that the courts below have erred in holding that the appellants-tenants committed default in paying arrears of rent. It is pointed out that the appellants deposited the entire arrears of rent on 22-11-1979 and in view of section 114 of Transfer of Property Act there cannot ae eviction on the ground of arrears of rent. Section 114 is as follows:

Relief against forfeiture for non-payment of rent - Where a lease of immovable property has determined by forfeiture for nonpayment 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 the 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 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.

It is important to note that in this case the respondent had not sent any notice demanding arrears of rent and intimated the defendant regarding the forfeiture of tenancy for non-payment of rent. The respondent issued a notice u/s 111 (h) of the T. P. Act to determine the lease. The forfeiture of the tenancy was not for the non-payment of rent. Section 114 is applicable only in a case where there was forfeiture of tenancy for non-payment of rent. The appellants have no case that the respondent issued a notice demanding arrears of rent and there was forfeiture of tenancy for non-payment of rent by the respondent.

The termination of tenancy on account of forfeiture is an entirely different concept and the concept of termination of tenancy by a notice to quit u/s 106 of the T. P. Act is different from that. Section 114 does not come into play unless the forfeiture is incurred by the tenant pursuant to a forfeiture clause contained in the agreement of lease. Section 114 is applicable only where a tenancy has been determined under Clause (g) of Section 111 and not where it is determined by a notice under clause (h) of that section. (See Gangabisan v. Talakchand- AIR 1975 Bombay 242, Santosh Kumar v. Smt. Chinmoyee Sen- AIR 1966 Cacl. 615, Asghar Vs. Uttar Pradesh Govt., , and Geetabai v. B.D. Manjrekar AIR 1984 Bombay 400).

The learned counsel for the appellants also contended that the respondent had not adduced sufficient evidence to prove that the appellants caused damage to the building. The respondent alleged in the petition that the appellants have impaired the value and utility of the building by making an additional door from room No. 5 to room No. 6. A commission was taken out to prove this fact. He filed report to the effect that the appellants interfered with the concrete wall of the building and constructed a new door from room No. 5 to room No. 6. The defendants-appellants did not file any objection to the commission report. The commissioner had also noted some cracks on the wall. There are sufficient materials to show that the appellant caused some damage to the building. It is pointed out by the appellant''s counsel that the two lease deeds executed by the appellants, viz., Exts. A3 and A4 did not contain any provision regarding the manner in which the building should be kept. It is true that Exts. A3 and A4 do not provide any express condition that the lessor can re-enter if the tenant causes any damages to the building. The counsel for the respondent submitted that the respondent has not claimed relief on the basis of section 114A of the T. P. Act and as the tenancy was determined on the basis of the notice issued u/s 111-H the appellants are not entitled to seek the protection of section 114A of the Act. So, even if the respondent did not specify a particular breach complained of, eviction cannot be denied to the respondent. No other points were urged in this second appeal. I find no reason to interfere with the findings of the courts below. The second appeals are dismissed with costs.