ORDER
Srinivasan, J.
1. The petitioner herein filed O.S. No. 5403 of 1982 against the respondent for recovery of possession of the suit property and for a sum of Rs. 1,037 by way of arrears of rent besides mesne profits, for use and occupation at the rate of Rs. 200 per month from the date of plaint.
2. Before filing the suit the petitioner issued a notice on 4-2-1982 terminating the tenancy of the respondent by the end of March, 1982. Two reasons were given in the notice; one was that the respondent was very irregular in payment of rent and as on 28-2-1982, there were arrears in a sum of Rs. 948. The other reason was that the respondent had sublet the premises and was collecting huge rents from the tenant. There was no reference whatever to any forfeiture of the lease. There was no reply to the said notice by the respondent. The suit was filed on 9-4-1982. The respondent filed a written statement on 7-4-1983. In the written statement it was stated that the original tenancy was in favour of the respondents father and it was in writing. According to the respondent, there was a lease deed dated 25-11-1972, for a period of five years with an option for renewal for another five years. But, even the written statement admitted that there was no renewal of the lease deed, but the defendant continued as tenant under the plaintiff on the on the terms and conditions contained in the lease deed. In para 7 of the written statement the defendant raised a plea that he was entitled to the benefits of Section 114 of the Transfer of Property Act, and to be relieved of forfeiture of tenancy. Though the plea was raised in the written statement there was no averment in the written statement that lease deed contained a clause providing for the forfeiture of the lease in the event of nonpayment of rent by the tenant.
3. The respondent filed I.A. No. 8054 of 1984 for dismissing the suit and relieving the defendant from the forfeiture to tenancy under Section 114 of the Transfer of Property Act. In the affidavit filed in support of the application the averments made in the written statement were repeated and it was prayed that the written statement should be treated as part and parcel of the affidavit. Again there was no allegation that there was a clause for forfeiture in the lease deed. The application was opposed by the petitioner. But, the trial Court ordered the same relying upon a decision of the Bombay High Court in Bhaghawant v. Ramachandra . Consequently the trial Court dismissed the suit.
4. This revision petition is against the order of the trial Court in I.A. No. 8954 of 1986. It is admitted that an appeal is pending against the decree dismissing the suit in the Court of the 9th Additional Judge, City Civil Court, Madras. The number of the appeal is said to be A.S. No. 755 of 1984. It is also stated that the hearing of the appeal has been stayed till the disposal of this revision petition as the appeal would entirely depend upon the decision in the present revision petition.
5. Section 114 of the Transfer of Property Act is in the following terms:
Where a lease of immovable property has 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 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 15 days, and 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.
The section would apply to cases of determination of lease by forfeiture for non-payment of rent Section 111(g) provides for determination of lease by forfeiture. It is significant that the opening words of Section 114 are almost the same as those of Section 111. While Section 114 begins with the words “Where a lease of immovable property has determined,” Section 111 begins with the following words: “A lease of immovable property determines.
6. Clause (g) of Section 111 read as follows:
By forfeiture that is to say, in case the lessee breaks an express condition which provides that, on breach thereof, the lessor renounces his character as such by setting up a title in a third person or by claiming title on himself; or 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.
7. A combined reading of Section 114 and 111(g) shows that the latter section would apply only if there is a forfeiture on account of breach of an express condition in the lease. It there is no express condition in the lease that the lessor would re-enter the property on breach thereof, Section 111(g) would cont come into play. In the present case, the notice issued by the petitioner did not rely upon any forfeiture of the lease on account of a breach on the part of the respondent. Nor did it refer to any condition in the lease deed that there would be a forfeiture or breach of any condition. There was no reply to the said notice by the respondent herein. The respondent did not plead in the written statement or in the application for dismissing the suit that there was an express condition in the lease providing forfeiture. In the absence of pleading and evidence in support thereof, it cannot be assumed that the termination of tenancy in the present case was pursuant to the forfeiture of the lease within the meaning of Section 111(g). A reading of the notice issued by the petitioner shows that it is only a notice under Section 106 which is a mode under Section 111(h) of the Act. That is evident from another factor also. If the notice is based on forfeiture that need not terminate the lease with the expiry of the end of the month of tenancy. In case of forfeiture the notice of termination can be issued determining lease immediately and not with the expiry of the month. Consequently in the present case there is no doubt that notice issued is one under Section 106 of the Act.
8. The respondent is not entitled to the benefit of Section 114 of the Transfer of Property Act. The decision of the Bombay High Court relied on by the trial Court is really in favour of the petitioner and not in support of the respondent’s claim. The following passage in the judgment of the Division Bench of the Bombay High Court in Bhagawant v. Ramachandra , makes the position clear:
There is one more point which may incidentally be considered and that is, whether the tenant is entitled to the protection of Section 114 of the Transfer” of Property Act. This section gives jurisdiction in the court to grant relief to the tenant against forfeiture for nonpayment of rent and there can be no doubt that this power can be exercised even by the appellate Court. The difficulty in exercising this power in the present case, however arises from the fact that it is not shown that forfeiture has been incurred as required by Section 111(g) of the Transfer of Property Act, The word ‘forfeiture’ used in Section 114 has a technical sense which may be as certained by reference to Section 111(g) of the Said Act. Forfeiture in this technical sense is incurred in case the lessee breaks an express condition which provides that on breach thereof the lessor may re-enter, and even in such a case, the lessor has to give notice in writing to the lessee of his intention to determine the lease. The lease between the parties in the present case is not on the record and it is impossible to say that the requirements of Section 111(g) of the Transfer of Property Act have been satisfied.
9. If the principle laid down in the above pass age is applied to the present case the case of the respondent had to fail. He had not proved that he is entitled to the benefit of Section 114 of the Transfer of Property Act.
10. A similar view was taken by Sethuraman, J., in Meenakshi Sundaram v. Paul Agari . The learned Judge has held that the determination of tenancy in that case was not pursuant to any forfeiture, but one under Section 106 of the Transfer of Property Act. The learned Judge has relied on the following passage in the judgment of S.S. Dawan, J., Riyagat Ali v. Mina Wahid Bega and Anr. .
I think this argument is based on a misapprehension of the scope of Section 114. As this request for relief is frequently made before me on behalf of the tenants, I think it is desirable to explain the scope of this section. There are different ways of terminating tenancy. One of them is by notice, another by forfeiture. A monthly tenancy is determined by one month’s notice by either party. In such a case, there is no question of forfeiture. But a tenancy may be prematurely terminated by the landlord if there is a forfeiture clause entitling him to do so. The right of forfeiture is ordinarily limited to cases where the tenant is guilty of some kind of misconduct as for example non-payment of rent. Section 114 enables the Court to grant a tenant relief against forfeiture for non-payment of rent. It applies to those cases where the land-lord invokes as a forfeiture clause and determines the lease by forfeiture and sues to eject the tenant.
With respect, I agree.
11. The court below is an error in holding that the respondent is entitled to the benefit of Section 114 of the Transfer of Property Act. Consequently, the order of the trial court allowing I.A. No. 8056 of 1984 is set aside, the said application is dismissed, and the civil revision petition is allowed. The IX Additional Judge, City Civil Court, Madras, before whom the appeal against the decree in that suit is said to be pending, will dispose of the appeal on the footing that the respondent herein is not entitled to the benefits of Section 114. The respondent here shall pay costs in this revision petition to the petitioner.