Das Gupta, J.:— The respondent, who is the Mutwali of a Wakf Estate, brought this suit for ejectment of the Luxmi Spinning and Weaving Mills Ltd. on the allegation that the lease had determined and on the allegation that the defendant did not pay any rent to the plaintiff from the month of October, 1950 to June, 1951. The plaintiff also prayed for a decree for a sum of Rs. 1,105-11-3 as arrears of rents. The defendant denied that there had been any default and also the fact that the plaintiff had, by notice, determined the lease. In the trial court a dispute seems to have been raised whether or not the tenancy was from month to month or a yearly tenancy. The learned Subordinate Judge being of opinion that it was a monthly tenancy terminable by fifteen days' notice expiring with the end of a month, held that there was a proper notice under section 106, Transfer of Property Act and as it was not disputed that this notice was duly served, held that there was a valid determination of the tenancy. On the question of default, the trial court held that the defendant was in default for more than three periods of two months each within a period of eighteen months prior to the institution of the suit and that the defendant was not, therefore, entitled to any protection under section 14 of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950. Accordingly, he gave the plaintiff a decree for ejectment and also, a decree for Us. 1,105-11-3 as arrears of rent, but, directed that this sum as well as the further sum of Rs. 250 which he allowed as mesne profits for the month of July, 1951, the plaintiff would be at liberty to realise by adjustment against the deposits made before the Rent Controller, Calcutta. As regards further mesne profits from August, 1951 to September, 1953 also, the trial court directed that the plaintiff would be at liberty to adjust them against the deposits lying with the Rent Controller, Calcutta. He decreed also further mesne profits up to the date of recovery of possession at the rate of Rs. 250 per mensem. The Defendant appealed.
2. In the Appellate Court, it appears to have been first realized by the parties that the real question was not whether there was a proper service of notice to quit under section 106 of the Transfer of Property Act, but whether there was a determination of the tenancy under the provisions of section 111(g) of the Transfer of Property Act. The learned Judge held that the tenancy was validly determined by service of notice of forfeiture on the Defendant under section 111(g) of the Transfer of Property Act. It appears that on the date when the arguments were heard, there was some offer on behalf of the Appellant “to pay all the arrears of rent together with interest and full costs of the suit” in order to get the advantage of the provisions of section 114 of the Transfer of Property Act. The learned Judge was of opinion that after the enactment of. The West Bengal Premises Rent Control (Temporary Provisions) Act, 1950, section 114 of the Transfer of Property Act no longer applied to suits for ejectment, even though the determination alleged was on the ground of forfeiture. He held, however, that even if the Defendant was entitled to invoke the assistance of section 114 of the Transfer of Property Act, the discretionary powers of the court should not be exercised in his favour, in view of all the circumstances of the case. Accordingly, he dismissed the appeals
3. The first question for consideration in the Appeal is whether there has been a determination of the tenancy under section 111(g) of the Transfer of Property Act.
4. On reference to the terms of the lease, we find that it was clearly stipulated there that in case of default for three consecutive months in payment of rent, the lessee would be liable to vacate the premises and the lessor would be entitled to terminate the lease and exercise the right of reentry From the copy of the notice on the record, we find that notice was given that as the tenant-defendant had neglected to pay rent from October, 1950, that is, for more than three consecutive months, the landlord “hereby forfeits and terminates the lease” and that the tenant was “to quit, vacate and deliver peaceful possession” of the premises to the landlord on the expiry of June, 1951. It is obvious that the use of the words “to quit” in this notice misled the trial court into thinking that it was an usual notice under section 106 of the Transfer ox Property Act. It is quite clear, however, that this was a notice under section 111(g) which provides that in order that there should be determination by forfeiture by the lessee breaking an express condition which provides that on breach thereof the lessor may re-enter, the lessor must give notice in writing to the lessee of his intention to determine the lease. It was with these provisions in mind that the notice in question was drafted and, in my judgment, it fully satisfies the requirements of clause (g) of section 111 of the Transfer of Property Act. It is not disputed that his notice was duly served on the Defendant. There was thus a valid determination of the leaase.
5. On the question of default, the decision of the courts below that there were three defaults within the meaning of section 12(1)(i) of the West Bengal Premises Rent Control Act (Temporary Provisions) Act, 1950, within a period of eighteen months prior to the date of the institution of this suit is no longer disputed.
6. Clearly, therefore, the landlord is entitled to a decree for ejectment. The question arises whether the court, in-stead of giving the landlord a decree for ejectment, should exercise its discretionary powers under section 114 of the Transfer of Property Act. The learned Court below was of opinion that the provisions of section 114 are no longer available to a tenant in view of the provisions of section 12(1) and section 14 of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950. It appears that in the view of the learned Court below, sections 14 and 12 together constitute a complete code of protection to the tenant and exhaust all the ways that the tenant can be protected against ejectment. With this, I am unable to agree. There is no doubt that section 12 gives considerable protection to the tenant. Section 14 gives further protection even where a landlord would be otherwise entitled to a decree for ejectment on the ground of default within the meaning of section 12(1)(i) of the West Bengal Premises Rent Control (Temporary Provision's) Act, 1950. I am unable to see, however, why these two sections should be considered to exhaust all the protection under the law. It is well to remember that the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950, does not say that special protection of section 114 of the Transfer of Property Act will no longer be available to the tenant. There is certainly no express repeal of section 114 by the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950 and I am unable to see any implied repeal of the provisions of that section. In my opinion, the position in law is clear that even if the tenant is unable to get the protection of section 12 or section 14 of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950, it may still be possible for him to get the special relief under section 114 of the Transfer of Property Act. It is worth mentioning that in an action for ejectment brought when the Rent Act of 1920 was in force, a contention of the landlord that section 114 of the Transfer of Property Act had no application having regard to the provisions of that Rent Act was rejected by Greaves, J. (vide I.L.R XLIX Calcutta, 150 Ahindra Nath Chatterjee v. Twiss) (1).
7. The question that still remains is whether the Court of Appeal below exercised its discretion properly in refusing to give relief under this section. It is necessary to mention, first of all, that in the trial court the defendant does not seem to have thought of asking for any relief under the provisions of this section. When the appeal was presented in the District Judge's Court, there was also no application for any relief under the provisions of that section. On the date arguments were heard, some additional grounds were put in and a complaint was made that the trial court had wrongly refused to grant any relief under the provisions of section 114 of the Transfer of Property Act. That this complaint is wholly unjustified is obvious from the fact that there was never any prayer for relief under that section in the trial court and neither any payment nor tender of any amount whatsoever as required by that section. It is curious that even when the additional grounds were filed and this complaint was made against the trial court, no application was made stating that the appellant wanted to pay to the lessor the rent in arrear together with the interest thereon and the full costs of the suit or in the alternative any prayer for an order enabling him to give security for making such payments within fifteen days We find, however, in the judgment of the court below a statement in these terms:
“The learned advocate for the appellant contended that if the tenancy was determined by a service of notice not under section 106 T.P Act but under section 111(g) T.P Act the tenant was entitled to the protection of section 114 T.P Act and it was the duty of the court to relieve him against forfeiture and the appellant offered to pay all the arrears of rent together with interest and full costs of the suit.”
8. As far as one can understand this language, this offer was conditional on the decision of the court that the tenancy was determined by service of notice under sec. 111(g) and was not an unconditional offer. There is no clear indication from the language used by the learned judge whether the learned advocate stated also that his client, the appellant, had the full amount to pay up the arrears of rent, in court. It is well to remember that after the date of the decree of the trial court to the date of hearing of arguments in the court below, when the learned advocate advanced this argument, the defendant could not pay any rent and the rent for ten months, that is, from. October, 1953 to July, 1954 was in arrears. Though there is no clear indication that the money had been brought into court, the “offer” itself appears to me to have been conditional on the finding of the court on the question whether there was determination of the tenancy under section 114 of the Transfer of Property Act. It appears to me that in the Court of Appeal also, as before us, the appellant contended that there had been no determination of the tenancy at all. All that the learned advocate seems to me to have said is that if the court ultimately found that there had been determination of the tenancy under section 114, then his client would be prepared to pay the rent in arrear together with the interest thereon and the full costs of the suit in order to get the advantage of section 114 of the Transfer of Property Act. In my judgment, this is not the kind of tender or payment, which section 114 of the Transfer of Property Act contemplates.
9. That, however, is not all. On the materials before us, I find it impossible to say that the defendant-tenant acted in a fair and straightforward manner. His very defence that there had been no default in the payment of rent has been found by the courts below to be false. His further defence that there had been no determination of the tenancy is equally false. The service of the notice was admitted. The notice itself spoke of the landlord's intention to determine the lease because of the default in the payment of rent for three consecutive months. The lease, it must have been well known to the Defendant, provided that on such default the lessor may re-enter. In spite of all these facts, the Defendant fought the case tooth and nail and wanted to say that there was no determination of the tenancy and there was no default. Along with this one has to take into consideration, as already mentioned, the fact that not only was there no prayer for relief under section 114 in the trial Court but that the prayer that was made in the Court of Appeal was not only made at a late stage but was also made in a very unsatisfactory way through the Advocate for the Appellant staling that if a certain question was determined in a certain way then the Appellant offered to pay all the arrears of rent together with interest and full costs of the suit. I am unable to see that in these circumstances the learned Court of Appeal can be said to have exercised its discretion improperly in refusing to give relief. The question is not whether some other Judge might have exercised the discretion in a different manner. The question really is whether the learned Court of Appeal having exercised its discretion in a particular way, it will be proper for us to interfere with his decision on the ground that there was not a judicial exercise of discretion. I find it impossible to hold that the learned Judge did not exercise his discretion properly and judicially.
10. Before us, in this court also, there has been no application in writing praying for relief under section 114 of the Transfer of Property Act. A ground was taken in the memorandum of appeal to the effect that “there was nothing in the case which could induce the Appellate Court not to exercise the power of giving relief to the tenant”.
11. At the time of argument, the learned Advocate submitted that we should exercise powers under section 114 of the Transfer of Property Act and that, as at this date no rent was in arrear, all he had to put in was the costs of the suit and that he was prepared to put that in as soon as an order was made
12. After careful consideration of this matter, I nave come to the conclusion that in the circumstances of this case, it will not be proper for us to give relief under section 114 of the Transfer of Property Act. In addition to the circumstances already mentioned, there is now the further circumstance that the Company has gone into liquidation and it is the Liquidator appointed by the court who is prosecuting the Appeal. It is obvious that the Company—the tenant—is no longer interested in continuing its own possession of the same and the purpose of the Company in liquidation is only to transfer the tenancy right to some other person. In my judgment, the omission of the tenant to make any prayer for relief under section 114 of the Transfer of Property Act in the trial Court, the fact that false defences were taken by him on all the points, that even before the Appellate Court a conditional offer was only made and the fact that for many years now after the determination of the tenancy and defaults made in payment of rent the landlord has been kept out of possession, cannot be lightly brushed aside.
13. On consideration of all these facts I am of opinion that we shall not be justified in exercising our discretion in favour of the Appellant.
14. I would, accordingly, dismiss this appeal with costs.
Law, J.:— I agree.
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