Honble Dr. Justice Vineet Kothari

1. Heard Learned Counsel for the parties. This first appeal has been filed by the appellant defendant-lessee being aggrieved by the judgment and decree dated 19.08.2011 passed by learned court Additional District Judge, Deedwana in Civil Original Suit No. 15/2007- Manna Lal & Anr. Vs. Suraj Bhan Singh, in respect of shop in question given on lease situated at Ladnu, near Rahu-Kua at monthly rent of Rs. 500/- per month.

2. The respondents-plaintiffs, namely, Manna Lal S/o Kalu Ram and Premsukh S/o Kalu Ram terminated the said lease by serving a notice (Exhibit-1) dated 02.05.2007 since the defendant-appellant failed to pay monthly rent for the period 31.12.1994 to 02.05.2007 which would come to Rs. 26,757/-.

3. The upon service of the summons of the eviction suit, filed his written statement submitted that since the lease was for three years, however, the rent note was neither properly stamped nor registered one and as such the same was not admissible in the evidence. The appellant-defendant also denied the factum of subletting the shop to Mohan Singh and in this respect, the defendant averred that the said Mohan Singh is his real brother, who is also residing with him. In the written statement, the defendant-lessee also averred that he is ready and willing to pay the monthly rent, however, the plaintiffs have refused to accept the same. In support of his case, the defendant produced himself as DW.1, however, did not produce any documentary evidence.

4. The learned court below after hearing the arguments of defendant-appellant vide the judgment and decree dated 19.08.2011 decreed the suit filed by the respondent-plaintiff for eviction.

5. The present first appeal has been filed by the defendant in this Court on 01.09.2011 and the same was heard at the admission stage by the consent of both the Learned Counsels for the parties.

6. Mr. Rajesh Panwar, Learned Counsel for the appellant defendant heavily relied upon a decision of Honble Supreme Court in the case of R.S. Lala Praduman Kumar Vs. Virendra Goyal (dead) by his Legal Representatives & Ors. reported in : AIR 1969 SC 1349 . The appellant-defendant-lessee has also filed an application (IA No. 20656/2011, wherein it has been averred that since the defendant-appellant is now ready to deposit the entire arrears of rent in terms of Section 114 of the Transfer of Property Act, therefore, the forfeiture of the lease may be released and the eviction decree may not be passed against the defendant-lessee.

7. On the other hand, Mr. Vishal Sharma, Learned Counsel for the respondents-plaintiffs placing reliance on a decision of this Court in the case of Purshottam Dalal Vs. Smt. Shanti Devi (SBCFA No. 346/2010, decided on 08.08.2011) and decision of Calcutta High Court in the case of Gopinath Mukherjee Vs. Uttam Bharati reported in : AIR 2009 Cal 58 submitted that the application filed by the defendant-lessee is not even bonafide, which has not only been filed at the initial stage of the suit itself which is mandatory for Section 114 of the Transfer of Property Act. Even after the pendency of the present appeal before this Court for considerable time has been elapsed ever since filing the same on 01.09.2011, the present application (IA No. 20656/11) has been filed on 28.11.2011. The defendant has not paid any rent, interest thereon and cost of litigation and has not tendered any such payment. He, therefore, submitted that no such relief of forfeiture under Section 114 of the Transfer of Property Act can be made in his favour.

8. He also submitted that the relief granted in the case before the Honble Supreme Court in the case of R.S. Lala Praduman Kumar (supra), was in the peculiar facts and that case, the defendant made huge investment on the premises and for showing his bonafides, he had deposited the entire money of dues of rent by filing application and, therefore, the Honble Apex Court granted that indulgence in a particular case. He, however, submitted that same cannot operate as a precedent or as a law declared binding on this Court under Article 141 of the Constitution of India and, therefore, the same of no avail to the defendant-appellant.

9. This Court in the case of Purshottam Dalal (supra) has held as under:

In the present case, nothing of this sort in terms of compliance with the provisions of section 114 of the Transfer of Property Act was done at the time of filing of the suit. On the other hand, such payment of arrears of rent was made by the defendant tenant after the decree has been passed by the trial court, admittedly, on 3/1/2011. This cannot be said to be in terms of Section 114 of the Act, therefore, this Court in appeal, which even though technically may be treated as continuation of suit, cannot grant such relief. The purpose of Section 114 of the Transfer of Property Act is to avoid ejectment decree if the defendant tenant or the lessee makes a complete surrender and not only makes the payment of entire arrears of rent along with interest thereon for delay in payment of rent but also the costs of the such suit and thus invokes the discretion of learned trial court to release him from forfeiture. If all such amount are actually paid or sufficient security, in the opinion of trial court, is furnished then in its discretion, the trial court may pass appropriate orders giving relief from the forfeiture in favour of lessee. The point of time for making such compliance and praying for relief is important. The purpose of Section 114 of the Act is not to continue such possibility of granting relief to the lessee even before the appellate forums. Therefore, prayer of Learned Counsel for the appellant defendant before this Court that benefit of Section 114 of Transfer of Property Act may be given to the defendant at this stage, cannot be accepted and is liable to be rejected and same is accordingly rejected.

10. The Honble Calcutta High Court in the case of Gopinath Mukherjee (supra) has held as under:

6. In my view, 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. That apart, this is not a suit for eviction on termination of lease on the ground of forfeiture due to nonpayment of rent. In order to attract the provision under Section 114 of the Transfer of Property Act, there must be a registered lease and if the suit if 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.

11. In view of aforesaid legal position, this Court is of the firm opinion that benefit of Section 114 of the Transfer of Property Act cannot be granted to the appellant-defendant at this stage and the application (IA No. 20656/2011) filed by at the belated stage cannot be entertained and the same cannot be said to be bonafide. This Court has already held that such application could only be filed at the initial stage of filing of the suit itself and as soon as the defendant is served with the summons of the trial court. It is permitted to the defendant-lessee to make his best efforts and to show his bonafide, by surrendering to the Court and paying not only the rent but interest for the alleged delay, cost of litigation as well, and in that case only, the release from forfeiture can be granted by the Court in its discretion under Section 114 of the Transfer of Property Act, howevr, the same cannot be not extended now providing endless opportunity to the defendant-lessee at the appellate forums. The judgment relied upon by the Learned Counsel for the appellant-defendant delivered in the case of R.S. Lala Praduman Kumar (supra) is absolutely in the different facts and, therefore, is of little avail to the defendant-appellant in the present case and on the contrary the judgment relied upon by the Learned Counsel for the respondent-plaintiff clearly help and support his case.

12. Admittedly, the notice terminating the lease was served upon the defendant-lessee and the lease stood terminated, therefore, the position of the appellant-defendant in the suit premises is nothing more than that of an encroacher or trespasser. In view of this, the decree of ejectment granted by the learned court below is not liable to be interfered with and the same deserves to be upheld.

13. Accordingly, the present first appeal filed by the appellant-defendant-lessee is found to be bereft of any merit and devoid of any force and the same is hereby dismissed. No costs. The appellant-defendant-lessee shall hand over the peaceful and vacant possession of the suit shop in question to the respondents-decree holder within a period of one year from today and shall pay mesne profit @ Rs. 1,500/- per month commencing from August, 2012 and will further continue to pay the mesne profit each month by 15th day of the next succeeding month or in advance to the respondents also and in case there is any default in payment of mesne profit, the period of one year for eviction shall stand reduced and the decree of eviction would become executable forthwith. The appellant-tenant shall also clear all the arrears of rent and the mesne profit within two months from today, otherwise the amount will carry interest @ 9% per annum. The appellant shall also not sub-let, assign or part with the possession of the suit premises or any part thereof in favour of any one else and would not create any third party interest in the same during the aforesaid period and the same would be treated as void. The appellant-defendant shall furnish a written undertaking incorporating the aforesaid conditions in the trial court within one month and one copy thereof along with affidavit, in this Court. It is made clear that if the peaceful and vacant possession of the suit premises is not handed over to the respondent-decree holder within a period of one year from today, besides execution of the decree in normal course, the respondents-plaintiffs shall also be entitled to invoke the contempt jurisdiction of this Court against the present appellant or person found to be in possession.