Holding

Once the requirements of the Rent Act are satisfied, the tenant cannot claim the double protection of the Transfer of Property Act or the contractual forfeiture clause.

Summary

Pradesh Kumar Bajpai, the landlord, sued Binod Behari Sarkar for eviction, arrears of rent and mesne profits. The tenant argued that, despite the Uttar Pradesh (Temporary) Control of Rent and Eviction Act being applicable, he was entitled to the relief under Section 114 of the Transfer of Property Act, which would allow him to pay arrears and avoid forfeiture. The Supreme Court held that once the statutory requirements of the Rent Act are satisfied, a tenant cannot invoke the provisions of the Transfer of Property Act or the contractual forfeiture clause for a "double protection". Accordingly, the landlord could not rely on clause 12 of the lease to enter possession without notice and must seek eviction only under the Rent Act. The Court allowed the appeal, set aside the High Court order, and restored the decree for possession and ejectment in favour of the landlord.

Issues considered

Whether a tenant can claim protection under Section 114 of the Transfer of Property Act in addition to the provisions of the Uttar Pradesh (Temporary) Control of Rent and Eviction Act after the statutory requirements are met.
Whether the forfeiture clause in the lease deed (clause 12) is enforceable after the Rent Act came into force.
Whether the landlord may take possession without notice when the tenant defaults on rent.

Legislation cited

Transfer of Property Act, 1882s. 106, s. 114
U.P. (Temporary) Control of Rent and Eviction Act, 1947s. 3, s. 3(1)(a)
U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972s. 43

Subjects

rent controlevictiontransfer of property actforfeituredouble protectionlease agreementnotice periodsection 114section 3Uttar Pradesh Rent Act

Judgment

93

PRADESH KUMAR BAJPAI A
v.
BINOD BEHARI SARKAR
March 21, 1980

I
rs. MURTAZA FAZAL ALI, P. s. KAILASAM AND A. D. KosHAL, JJ.] H

Double Protection-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 the contract-Section 114 of the Trans-
fer of Property Act, (Act 4 of 1882) and section 3 of the U.P. (Temporary)
Control of Rent and Eviction Act.
c
The appellant plaintiff filed a suit for eviction of the respondent tenant and
for arrears of rent and mesne profits. Though no specific plea of re1 ief
against forfeiture for non-payment of rent under section 114 of the Transfer
<>f 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 Property
Act. The Trial Judge found that the respondent \\'as a defaulter and held tha~
the notice to quit was a valid one but found that as section 114 of the Trans D
fer of Property Act was applicable to the facts of the case and the balance of
convenience being with the respondent tenant, dismissed the suit for possessipn,
but gave a decree for arrears of rent. In appeal the first appellate court held
that the trial Court was in error in granting relief against forfeiture under Sec-
tion 114 of the Tansfer of Property Act and decreed the suit as prayed for.

On serond appeal, the High Court after making a fresh appraisal of the E
evidence came to the conculsion that as per the terms of the lease deed of 1955
six months' notice was necessary even if the premises were not taken for manu·
facturing purposes and as required notice of six months was not given the suit
was not maintainable and as such liable to be dismissed.

Allowing the plaintiff's appeal by special leave, the Court,
HELD : 1. Once the requirements of Rent Act are satisfied, the tenant F
cannot claim the doubfe protection of invoking the provisions of the Transfer
·.""- of Property Act or the terms of the contract. The provision of section 114 of
the Transfer of Property Act cannot therefore be read into the U.P. (Tempo-
rary) Control of Rent and Eviction Act. [99 B & D, 100 DJ

In the instant case :
G
(a) The question of termination of the lease by forfeiture does not aris~
on the facts of the case; [100 BJ
(b) after the Rent Act cante into force, the landlord cannot avail himself
of clause 12 which provides fdr forfeiture, even if the tenant neglected to pay the
rent for over two months; [100 BJ
(c) the landlord cannot enter into possession forthwith without notice. The H
only remedy for him is to seek eviction under the provisions of the Rent Act;
and [100 B C:1
94 SUPREME COURT REPORTS [1980] 3 S.C.R.

A (d) in such circumstances, the tenant cannot rely on S. 114 of Transfer cf
l'roperty Act and claim that he should be given an opportunity to pay the ~
arrears of rent, even though the requirements of section 3(1) bad been fulti.lled,
[100 CJ
V. Dhanapal Chettiar v. Yasadai Amma/, [1980] I S.C.R. 334 at 350-51;
followed.
B 2. Section 3 of the U.P. (Temporary) Control of Rent and Eviction Act Ill
-restricts the rights of the landlord to have the tenant evicted. But for the
statutory provisions, the landlord would be entitled to evict the tenant accord:
ing 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
c longer applicable. [97 C-EJ
3. -Jn the instant case :
(a) the condition required under section 3(1) of the U.P. Act had been
satisfied and permission by the District Magistrate was rightly granted and suit
ftled as contemplated by section 3(I); and [98 A]
D (b) 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 =nth after the
rec.eipt of the notice if he failed to pay the rent as required under section 3 of
the U.P. Act. [98 B-CJ

CrVJL APPELLATE JURTSDICTION : Civil Appeal No .. 1235/70.
E Appeal by Special Leave from the Judgment and Order dated
25-9-1969 of the Allahabad High Court in Second Appeal
No. 1520 of 1966.
P. Govinda Nair, S. Ba'akrishnan and S. Q; Sambandan for the
Appellant.
Yogeshwar Prasad, S. K. Bagga, Mrs. S. Bagga, Mrs. Rani Clrabra
F
and Shit/a Prasad for the Respondent.
The Judgment of the Court was delivered by
KAILASAM, J,-Tbis appeal is by special leave by the plaintiff
against the judgment and decree of the High Court of Judicature at
Allahabad in Second Appeal No. 1520 of 1966,
The plaintiff Pradesh Kumar Bajpai who is the owner of premises
No. 048/128-129 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 materials. In October,
1955, the plaintiff let out the entire premises on a monthly rent of Rs,
H 200/-. The p!ilintiff 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
PRADESH KUMAR v. BINOD BEHAR! (Kailasam, J.) 95

and or mesne profits pendente/ite at the rate of Rs. 200/· per month. A
Tue 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
I arguments, the tenant claimed the benefit under section 114 of the B
Transfer of Property Act.
The Civil Judge who tried the suit found that the tenant was a
d~faulter 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 Pro-
c
perty 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 D
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.

·Tue defendant preferred a· Second Appeal to the High Court.
The High Court after making a fresh appraisal of the evidence came E
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 pre-
mises 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. F

The lease deed dated 28-9-1955 is marked as Annexure A-2.
The relevant clauses are, 3, 6, 9 and 12 which are as follows :-
"3. The lessee will not sell, mortgage or in any
,. other manner transfer or part with the possession of the
G
• whole or any part of the demised premises, structure and
buildings or his interest with the same, and the lessee will
also not enter into any partnership with anybody regard-
ing the business carried on or in any way in the demised
premises. But the lessee will be entitled to sublet part of
the structure and buildings with the consent of the lessor B
in writing and lessee will.be always responsible for all loss
and damage if any.
96 SUPREME COURT REPORTS [1980] 3 S.C.R.

A 6. The lessee has the option to continue the tenancy for
another period of 3 years that is from 1-9-1956 to 31-8-1959
on the same terms and conditions. The lessee must exer-
cise the option of renewal within 30-6-1956 in writing.
9. That it is hereby agreed by the parties that after
the expiry of the period of three years the Lessor will have
B
the option to revise the rent with the consent of the lessee.
It is also agreed by both the parties that the lease may, be
terminated by the Lessor on giving six months' written
notice and after 4 years at any time. Lessor will also be
· entitled to terminate the lease on giving six months' notice
c in writing ending with English Calendar month.
12. If the lessee fails and/or neglects to pay rent at
the place and in the manner mentioned above for two
months and/or breaks any of the terms and conditions here-
in before mentioned the lessor will be entitled to enter
possession forthwith without notice and terminate the
D lease."

It may be noted that the parties agreed that after the expiry of the
period of three years the lessor will have the option to revise the ren_t
with the consent of the lessee. It was further agreed that the lease ,._
may be terminated by the lessee on giving six months' written notioe
E and after four years at any time, the lessor will be entitled to termi-
nate the lease on giving siJi: months notice in writing. If these clauses
are applicable six months' notioe is necessary.

Clause 12 provides that if the lessee fails and/or neglects to pay
rent at the place and in the manner mentioned above for two months
F and/or breaks any of the terms and conditions mentioned, the lessor
will be entitled to enter possession forthwith without notice and termi- _ ~-·
nate the lease. It is not disputed that the lessee neglected to pay rent
for more than two months and as such if the clause is applicable the
lease is liable to be forfeited and the lessor is entitled to enter posses-
sion forthwith without notice.
G
Mr. Govindan Nair learned counsel for the plaintiff/appellant
submitted that the lease is governed by the provisions of the U.P.
(Temporary) Control of Rent and Eviction Act and as the lease was
entered into after the Act had come into foroe, the relationship bet-
'
ween the parties is regulated by the provisions of the enactment and
H not by the terms of the contract. ·He submitted that the requirements
of S. 3 of the Act had been fulfilled and the defendant cannot resist the
suit for eviction. The U.P. (Temporary) Control of Rent and Eviction
PRADP.:m KUMAR v. B!NOD BEHARI (Kailasam, J.) 97

Act III 1947 came iuto force in 1948. Though the Act was subse· A
quently repeakd by the \r.P. Urban Buildings (Regulation of Letting,
Rent and Eviction) Act, 1972, as the lease was of the year 1955, S.43
of Act III, 1972 saves proceedings initiated under U.P. (Temporary)
Control of· Rent and Eviction Act, 1947. S. 43(2)(r) provides that
any suit for the eviction of a tenant instituted without or with the
I permission referred to in S.3 of the old Act or any proceeding arising B
out of such suit, pending immediately before the commencement of
the Uttar Pradesh Civil Laws Amendment Act, 1972, may be conti·
nued and concluded as if this Act had not been passed. It is, there·
fore, not in dispute that the proceedings in this matter are governed
}. by the 1947 Act.
c
As the provisions of the U.P. (Temporary) Control of Rent and
Eviction Act (III of 1947) are applicable, the terms of the lease deed
becomes irrelevant. The only question that arises and which was
seriously contended for on behalf of the respondent is that in addi·
tion to the safeguards provided to the tenant under the Act, he is also
entitled to the benefits of S.114 of the Transfer of Property Act. S.3 D
of the U.P (Temporary) Control of Rent and Eviction Act III resc
tricts the rights of the landlord to have the tenant evicted. But for the
statutory provisions, the landlord would be entitled to evict the tenant
according to the terms of the contract or the provisions of the Trans·
fer of Property Act, As the Rent Act has restricted the power of the
landlord to evict the tenant except in accordance with the provisions E
-0f the Act, the terms of the contract and the provisions of the Trans·
fer of Property Act to that extent are no longer applicable. Section
3(1) of the Rent Act runs as follows :
"Subject to any order passed under sub-section (3)
no suit shall, without the permission of the District Magis- F
trate, be filed in any Civil Court against a tenant for his
eviction from any accommodation except on one or more
of the grounds that are mentioned in sub-clause (a) to (g) of
sub-section(!)."

The relevant clause with which we are concerned is S. 3(l)(a) G
·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 of demand.
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 B
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
-98 SUPREME COURT REPORTS (1980] 3 S.C.R.

A 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 Dis-
trict 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 pro-
visions of the Transfer of Property Act and insist on six _ months'
B 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
c 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 unc'er clause 12. If
clause 12 is valid on default of paymert of rent fer two months, the
landlord is entitled to enter into possession forthwith without notice
D terminating the lease.
Although the question of termination of the lease by forfeiture
does not arise on the facts of the case as the learned counsel strenuously
contended that even then the tenant is entitled to the benefit of S.114
of the Transfer of Property A"t and that plea was accepted by the Trial
Court, we would briefly deal with the point raised. During the trial
E when the arguments of the case were going on and the case was due
to be closed, the learned ccunsel for the tenant prayed that the Court
be pleased to confer benefit of S.114 of the Transfer of Property Act
on the defendant. He tendered the full amount of rent alongwith
full costs of the suit and interest as ordered by the Court. The learn-
ed counsel for the plaintiff _submitted that the defendant should not
r be allowed the benefit cf S.114. S. 114 of the Transfer of Property
Act provides for relief against forfeiture en non·payment of rent on
the following terms :-
"Where a lease of immovable property has deter-
mined by forfeiture for non-payment of rent, and the
lessor sues to eject the lessee, if, at the hearing of the suit,
G
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 within fifteen days, the Court may,
in lieu of making a decree for ejectment, pass an order
H relieving the lessee against the forfeiture; and thereupon the
lessee shall hold the property leased as if the forfeiture had
not occurred."
PRADESH KUMAR v. BINOD BEHARl (Kailasam, J.) 99

If the relief provided for under the fecticn is available, as the lessee A
J had tendered the rent in arrears alongwith the intue&t therecn and his
full costs in the suit, it was open to the Court to pass an order relieving
the lessee against the forfeiture. The plea of the karmd counsel for·
the tenant is that this provision should alrn le r«d into the U.P.
(Temporary) Control of Rent and Eviction Act. In a decision of
seven Judges' Bench of this Court in V. Dhanapa/ Chettiar v. Yasodai B·
I
Ammal,(l-) the question as to whether in order to get a decree for evic-
.tion, the landlord under the Rent Control Act should give notice as
required under S.106 of the Transfer of Property Act was considered.
This Court held that determination of the lease in accordance with
the transfer of Property Act is unnecessary and that if a case is made
out for eviction under the Rent Act, it is itself sufficient and it is not
c
obligatory to determine the lease by issue of notice as required in
accordance with S. 106 of the Transfer of Property Act. The learned
counsel for the tenant submitted that the d.ecision is confined only
to the question as to whether notice under S.IC6 of the Transfer of
Property Act is necessary and did not decide as to whether the provi- D.
sions of the other Sections of Transfer of Property Act are applicable.
It is to be noted, however, that the question of determination of a
lease by forfeiture under the Transfer of Property Act, was specifically
dealt with by the Court and it was held that the claim of the tenant
that he is entitled to a double protection(!) under the Rent Act and (2)
under the Transfer of Property Act, is without any substance. While E
ru1ing thus the Court noted the following passage occuring in ·Manju-
jandra's case(2) and quoted with approval in Rattan Lal v. Vardesh
Chander.(l)
"We are inclined to hold that the landlord in the pre-
sent case cannot secure an order for eviction without first
F
establishing that· he had validly determined the lease under
the Transfer of Property Act".
Disapproving this view, the Court framed a question "why this dual
requirement?" and answered it as follows :-
"Even if tlie lease is determined by a forfeiture under G
the Transfer of Property Act, the tenant continues to be
a tenant, that is to say, there is no forfeiture in the eye of
law. The tenant becomes liable to be evicted and forfei-
ture comes into play only if he has incurred the liability
to be evicted under the State Rent Act, not otherwise*** one
(I) [1980] I S.C.R. 334 at 350-51. H
(2) [1967] I S.C.R. 475.
(3) (1976] 2 S.C.R. 906.
100 SUPREME COURT REPORTS [1980] 3 S.C.R.

A has to look to the provisions of law contained in the four
corners of any State Rent Act to find out whether a tenant '\ ..
can be evicted or not. The theory of double protection
or additi.onal protection, it seems to us, has been stret-
·ched too far and without a proper and due consideration of
all its ramifications".
B
In the 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 pro-
vides 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 _,,.
C 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 been fulfilled.
We are satisfied that once the requirements of Rent Act are
D satisfied, the tenant cannot claim the double protection of invoking
the provisions of the Transfer of Property Act or the terms of the
contract.
In the result, we allow the appeal, set aside the order of the High
Court and restore that of the lower appellate Court aud decree the
E suit for possession and ejectment of the defendant. The appellant
is entitled to his costs in this appeaL

S.R. Appeal allowed.

•