Syed Robiun Nabi vs Sk. Forhad Ali Molla
2022 Latest Caselaw 7732 Cal

S/L 10
22.11.2022

Court No.652 SD CO 1532 of 2019

Syed Robiun Nabi Vs.

Sk. Forhad Ali Molla

Mr. Debdatta Basu Mr. Sandip Ghosh ... for the Petitioner.

Mr. Prasanta Kumar Banerjee Ms. Indrani Nandi ... for the Opposite Party.

Being aggrieved and dissatisfied with the Order No.14

dated 13.12.2018 passed by the learned Civil Judge (Junior

Division), 2nd Court, Hooghly in Title Suit No.173 of 2015,

present revisional application has been preferred.

The petitioner has contended that the plaintiff and the

defendant entered into a registered tenancy agreement dated

04.3.2009 for a shop room specifically mentioned in the

schedule to the agreement for a period of 5 years starting from

January 2009 upto January 2014 for a monthly rent of

Rs.250/- for the year 2009 and Rs.300/- from January 2010

with an option to renew after the expiry of 5 years on certain

terms and conditions as agreed by the parties.

The petitioner further submits that after expiry of the

period mentioned in the agreement dated 04.3.2009 the

plaintiff being the landlord instituted a suit for eviction against

the defendant for reasonable requirement and default of

payment of rent preceded with a prior notice to quit as alleged

in the plaint.

During pendency of the said suit, the

defendant/petitioner filed an application under the provisions

of Transfer of Property Act read with Section 151 of the Code of

Civil Procedure for a leave to deposit the arrears of the rent in

the suit and also to continue depositing the rent for the current

months during pendency of the suit. The plaintiff/opposite

party herein filed a written objection to the defendant's

application for depositing of arrear rent along with current

monthly rents in the suit. After contested hearing, learned

court below was pleased to reject the defendant/petitioner's

aforesaid prayer for deposit of rent before the Court with the

following observation:-

"It is clearly provided in the Transfer of Property Act that Section 114 is applicable only in cases where registered lease deed is present between the parties. I have gone through the pleadings of this case carefully. No where I have found it is mentioned that there is any registered lease deed existing and binding the parties of this suit with respect to the present suit property, neither any such document has been produced before me. Being so, this suit for eviction falls under the purview of Section 106 and 107 of Transfer of Property Act. As a result I am of the view that present prayer of the defendant for depositing rent following the provision of Section 114 of T.P. Act is not fit to be entertained. Reliance is placed on this point on the ruling given in Gopinath Mukherjee v Uttam Bharti AIR 2009 Cal 58."

Mr. Debdutta Basu, learned counsel appearing on behalf

of the petitioner, submits that the trial court misconstrued the

principle of law in holding that Section 114 of the Transfer of

Property Act applied only when there is any lease deed existing

and binding the parties to the suit. In this context, he relied

upon a judgment of the Hon'ble Apex Court in Commissioner

of Income Tax, Bihar and Orissa vs. M/s. Kirkend Coal Co.

reported in AIR 1969 SC 1352 and contended that unless the

aforesaid prayer of the defendant/tenant be not allowed, he will

not be entitled to get benefit of protection against eviction.

In this context, he also relied upon another judgment of

this Court in Sri Uttam Kayal vs. Sri Sunil Pal reported in

2008(2) CLJ (Cal) 134.

Per contra, Mr. Prasanta Kumar Banerjee, learned

counsel appearing on behalf of the opposite party, submits that

in a suit for eviction of a tenant under the Transfer of Property

Act on termination of relationship of landlord and tenant by

service of notice under Section 106 of the Transfer of Property

Act upon the tenant, there is no provision under which a tenant

can be permitted to deposit the arrear rent in such a suit.

Considered the submissions made by the parties.

It is not the case of the defendant/petitioner that the

registered deed in question dated 04.3.2009 is a lease deed.

Mr. Basu, learned counsel for the petitioner vehemently argued

that language and the intention of the parties as reflected in the

deed clearly reveals that it is a registered deed of tenancy

agreement in respect of a shop room. From the aforesaid

registered deed, it also appears that the aforesaid tenancy

agreement came to an end with the expiry of December 2014.

The plaintiff has admittedly filed the suit for eviction in the

year 2015. Since this is not a suit for eviction on termination of

lease on the ground of forfeiture due to non-payment of rent.

Section 114 does not attract in the present case.

In order to attract under Section 114 of the Transfer of

Property Act, there must be a registered lease for a fixed period

between the lessor and the lessee and if the suit is filed for

recovery of possession by the lessor on the ground of forfeiture

of the lease for non-payment of rent before expiry of the lease

then only, the tenant can be permitted to deposit the arrear

rent in order to get the relief against forfeiture as per the

provisions contained in Section 114 of the Transfer of Property

Act.

In the present case, the deed is admittedly not a lease

deed and the suit for recovery of possession by the lessor has

also not been filed before the expiry of the period mentioned in

the deed.

In view of the above, I do not find any merit in this

revisional application and I do not find anything to interfere

with the impugned order.

Accordingly, C.O. 1532 of 2019 is dismissed.

Learned trial court is directed to make every endeavour

to expedite the trial of the suit and to conclude the trial of the

proceeding preferably within a period of eight months from the

date of communication of the order.

(Ajoy Kumar Mukherjee, J.)