The present revision has been filed under Section 25 of Provincial Small Cause Act, challenging the judgment and order dated 31.5.2000 in JSCC Case No. 3 of 1999, Kumaun Plaza Limited Bajpur Road, Kashipur, District Udham Singh Nagar Vs. Dr. Arvind Sharma.

2. The facts giving rise to the present revision are that the plaintiff No. 1 Kumaun Plaza Pvt. Ltd; Kashipur is a private limited company of which the applicant No. 2 Sri Anand Gopal Badhwar is the Managing Director. It was stated in the plaint that Kumaun Plaza Pvt. Ltd; is the landlord of the premises, the premises was constructed in the year 1990 and during that period nine shops were constructed. The first assessment according to plaintiff was made by Nagarpalika Kashipur in the year 1991-92.

3. According to the plaintiff the de­fendant opposite party is a tenant at the rate of Rs. 2,100/- per month. The tenancy according to the plaintiff was started from 19.2.1993 for a period of three years.

4. According to the averment made in the plaint since the first assess­ment was made in the year 1991-92 and further the rent was more than ru­pees two thousands, therefore, provi­sions of UP Act 13 of 1972 are not ap­plicable to the building in dispute.

5. According to Paragraph 5 of the plaint, the plaintiff and defendant both agreed to continue the tenancy for a further period of three years after en­hancing the rent to 20% i.e. Rs. 2,520/ - and the tenancy of the extended pe­riod also expired on 19.2.1999 but the defendant opposite party failed to va­cate the premises. The plaintiff has fur­ther alleged that when the tenancy had commenced, the defendant deposited a sum of Rs. 21,000/-, the same was re­fundable after the period of tenancy is over. The plaintiff, therefore, after de­ducting the amount of rent of January 1999 to the extent of Rs. 2520/- as well as the rent from 1.2.1999 to 19.2.1999 amounting to Rs. 1680/-, total Rs. 4,200/- from the security deposit of the defendant a sum of Rs. 16,800/- was refunded to the defendant vide cheque No. 614903 dated 21.2.1999. It was stated by the plaintiff that inspite of the fact that rest of the security amount has been refunded to the defendant and the period of tenancy was also expired the defendant failed to vacate the premises, therefore, the plaintiff has sent a notice on 6.4.1999 terminating the tenancy simpliciter under Section 106 of the T .P Act and after expiry of the period of notice, the suit was filed.

6. The defendant opposite party has filed a written statement and in Paragraph 3 of the written statement, it was admitted that the tenancy was started on 19.2.1999 for a period of three years on a sum of Rs. 2100/-. Further in Paragraph 5 of the written statement the defendant has admitted that the rent was enhanced to Rs. 2520/ - however, it was not admitted that the tenancy stands only up to 19.2.1999. It appears that by way of amendment the defendant has introduced Para­graph 8 (Aa) by which according to the defendant the tenancy stands up to 1.8.2001 on a monthly rent of Rs. 2,800/-per month. According to the defendant he was given a right to re­main in possession after a period of three years on an enhanced amount of 20% and as such the defendant has stated in his written statement that he is not liable to be evicted.

7. Paragraph 4 of the written state­ment is quoted below

8. Further in Paragraph 14 of the written statement, the defendant has stated that the original deed between the plaintiff and defendant dated 19.2.1993 is not admissible in evidence and it is not properly stamped. The defendant has further stated in Para­graph 15 that he has deposited the entire amount of arrears of rent, Coun­sel's fee, etc. and as such no decree for eviction can be passed.

9. The plaintiff has denied the amended Paragraph 8-Aa and has stated that tenancy expired on 19.2.1999. Further no agreement was executed between the parties on

18.3.1999 and the original tenancy has already expired on 19.2.1999 and the defendant has no right to remain in possession after 19.2.1999. Neither any oral agreement nor written agreement was executed by the plaintiff and the amount of Rs. 2800/- was never settled by the parties.

10. The parties were also exam­ined oath before the Judge Small Cause Court.

11. The learned Additional District Judge, (Judge Small Cause Court), Kashipur has dismissed the suit of the plaintiff after giving the benefit of Sec­tion 114 of the T.P Act, hence the present revision has been filed.

12. 1 have heard the Counsel for the applicant Smt. Tehmina Punwani and Sri Jagdish Prasad Counsel for the defendant at great length.

13. I have perused the record of the case, oral evidence as well as pleading of the parties.

14. The lease agreement dated 19.2.1993 is on the record. Clauses a, b, c, d, e, f and g are quoted below (a) Upon the lessee paying rent as hereby agreed and observing and performing, terms and con­ditions herein contained in the lease the lessee shall quietly and peacefully hold possession and enjoy the said shop during the terms of this tenancy as men­tioned in the deed without any disturbance and interruption. (b) The lessee shall maintain the in­ternal structure of the shop prop­erly and the furnishing of the shop shall be at his cost.

(c) The lessee during terms of agree­ment shall carry out business of dispensary only.

(d) The lessee shall not have provi­sion for any air conditioning in the premises rented.

(e) The lessee shall pay of electric­ity used in shop shown by sepa­rate meter every month.

(f) The lesser reserves the 'right to inspect the shop at any time dur­ing working hours to enforce terms and conditions agreed upon or on their violation in the agreement.

(g) That at the end of lease i.e. Au­gust 2001 the lessee shall give up quite and peaceful vacant possession of the shop executed on 18.4.1999, contains a clause (1) to the following effect

"In consideration of monthly rent agreed and the terms and conditions hereinafter mentioned in this Deed and Lesser hereby granted transfer demise by way of lease dated 18th March 1999 shop in Kumaun Plaza Hotel Building on ground Floor con­sisting one shop area 15:10'x16 `6' -257 Sq. ft. approximately for a pe­riod of 2 1/2 (two and half year) years from 1st March 1999 at a monthly rent of Rs. 2800/- (Rupees two thousand eight hundred only) inclusive of all taxes payable on 7th day of each month."

15. The plaintiff has denied the same in his rejoinder affidavit in Para­graph 5 as forged and fabricated. Para­graph 5, 6, and 8 are quoted below:

"5. That the contents of the Para­graph 4 of the counter affidavit denied in the manner stated and the contents of Para 5 of the supplementary affidavit are reit­erated. The forged agreement dated 18.3.1999 was mentioned for the first time in the reply dated 8.4.1999 sent by the re­spondent in response to the re­visionist notice for vacation dated 6.4.1999. The same was fabricated and concocted as an after thought by the respondent to circumvent and avoid his eviction from the premises in question the tenancy of which had expired on 19.2.1999.

6. That the contents of Paragraph 5 of the counter affidavit need to reply as the contents of Para 6 of the supplementary affidavit have not been denied. Without admit­ting the same, but if for the sake of argument it is presumed that the forged agreement dated 18.3.1999 is genuine even then the alleged creation thereby of the tenancy with effect from 1.3.1999 for a period of 2 and a 1/2 years has expired on 1.8.2001. This has not been de­nied by the respondent.

8. That the contents of Paragraph 6 of the counter affidavit are de­nied and the contents of the Para 7 of the supplementary affidavit are reiterated."

16. A perusal of the record shows that the parties are alleging the follow­ing lease agreements

a. Lease agreement dated 19.2.1993 for a period of three years.

b. The extension of the same for another period of three years ex­piring on 19.2.1999.

c. The so called agreement alleged to have been fabricated by the defendant dated 18.3.1999.

17. The learned Judge Small Cause Court has recorded a finding that it is admitted to both the parties that on 19.2.1999 the parties entered into an agreement for a period of three years on a sum of Rs. 2100/- and fur­ther the same was extended for another period of three years. However, the plaintiff has denied the further exten­sion as alleged on 19.2.1999 by the defendant that is paper No. 37-Ga/3 and 37-Ga/4. The plaintiff has also ar­gued before the trial Court that the document dated ,19.2.1999 is inadmis­sible in evidence, as the same is not registered. The learned Judge Small Cause Court although has come to the conclusion that the documents alleged by the defendant although unregistered but still he can save his eviction as he has deposited the entire amount on the first date of hearing and as such he is entitled under Section 114-A of Trans­fer of Property Act.

18. Smt. Tehmina Punvani has ar­gued that the Judge Small Cause Court has acted illegally by accepting the un­registered documents which was for a period of more than 11 months and re­quired compulsorily registration and further without giving any opportunity to lead evidence of Hand-writing Expert it was not possible for the Court below to accept the said document a extension of lease for another period of three years. Further the photocopy of the document was not admissible in evidence.

19. On the other hand Sri Jagdish Prasad, Advocate has supported the judgment of Judge Small Cause Court on the ground that he having deposited the amount of lawyer's fee arrears etc. he is entitled of the benefit of Section 114A of the Transfer of Property Act.

20. To my mind the Judge Small Cause Court has not examined the case in the light of the pleadings of the par­ties and has relied upon a document which was wholly inadmissible. Refer­ence may be made to the observations of the Apex Court in Satish Kumar Vs. Zarif Ahmed and others, 1997 (3) A.W.C. 1841 (SC). Their Lordships have held as under

"A conjoint reading of the first part of Section 107 read with Section 17 (1) (d) of the Registration Act, as ex­tracted hereinbefore, does indicate that a lease of immovable property from year to year, or for any term exceeding one year or reserving a yearly rent should be made only by a registered instrument and all other instruments though reduced to writ­ing and possession is delivered thereunder, are not compulsorily registrable instruments."

21. Further no benefit of Section 53A of the Transfer of Property Act can be extended to the tenant without ex­amining the ingredients of section 53a of tp act, as unregistered document are not covered under Section 54 of Transfer of Property Act.

22. The lease agreement executed in the year 1993 in the year 1999 or thereafter as alleged and the defendant admittedly was on a rent of more than of Rs. 2000/- and further the first as­sessment being made in the year 1991­92, the building was fully exempted under the provisions of up act no. 13 of 1972. The averments made in Para­graph 4 of the plaint has also not been controverted by the defendant. Section

2 (g) of UP Act No. 13 of the 1972 as amended reads as under

"Nothing in this Act shall apply to the buildings whose monthly rent exceed rupees two thousands."

23. None of the parties have stated that the provisions of UP Act 13 of 1972 are applicable or the building is an old one so as to cover under the Rent Control Act. Thus admittedly the building in dispute is outside the pur­view of the Rent Control Act. Act No. 13 of 1972 being inapplicable, the de­posit of the rent, cost of the suit etc. are wholly immaterial. No benefit can be extended to the tenant under the pro­visions of Act No. 13 of 1972. This as­pect of the matter has not been consid­ered by the Judge Small Cause Court and straight away benefit of Section 114 of the Transfer of Property Act has been given to the defendant.

24. So far as applicability of Sec­tion 114A of Transfer of Property Act, the Judge Small Cause Court has not examined the relevant provisions of said section so as to give benefit to the tenant. Section 114A of Transfer of Property Act reads as under

"Where lease of immovable prop­erty has been 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 pay or tenders to the lessor the rent in arrear, 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 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."

25. The aforesaid provision of the Transfer of Property Act contained a clause `where a lease of immovable property has been determined by for­feiture' the forfeiture has been defined under Section 111 (g). It reads as un­der

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"by forfeiture that is to say (1) in case the lessee breaks an express condition which provides that on breach thereof the lessor may re­enter; or (2) in case the lessee re­nounces his character as such by setting up a title in a third person or by claiming title in himself or (3) the lessee is adjudicate 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 given notice in writing to the lessee of his intention to determine the lease."

26. In the case Shiv Shanker Vs. Additional District Judge reported in 2002 (1) A.R.C. 13, it has been held that Section 114 of Transfer of Property Act is applicable only where the lease of immovable property has been deter­mined by forfeiture. Relevant observa­tions of Allahabad High Court are quoted below

"Section 114, Transfer of Property Act quoted above, gave an option to a tenant to make deposits contem­plated therein within the prescribed period mentioned in this section. In the case of forfeiture only the ex­pression used in the said Section 114, Transfer of Property Act, "Where a lease of immovable prop­erty has been determined by forfei­ture........ leaves no doubt that right of lessee to avoid suit for ejectment can be resorted to only in a case where a lease of immovable prop­erty determines by forfeiture and not otherwise. Consequently, defendant petitioner cannot take advantage of the aforesaid Section 114, Transfer of Property Act in a case where lease of a transferee determine only itself or to quit the property leased, duly given by one party to the other, as contemplated under Section 111 (h) of Transfer of Property Act."

27. 1 have examined the lease agreement made in the year 1993 as well as the lease agreement alleged to have been brought by way of amend­ment made in Paragraph 8 of the writ­ten statement by the defendant, al­though both of them are unregistered and has been executed for the period of three years. In absence of registra­tion both are inadmissible. Alternatively there being no forfeiture clause in either of the agreements and Section 114A is wholly inapplicable and the Judge Small Cause Court has illegally given the benefit to the defendant under Sec­tion 114A of the Transfer of Property Act.

28. The Counsel for the respond­ent has referred the judgment of Allahabad High Court in Surjeet Singh Vs. Addl. District Judge, Hardwar, 1993 (2) ARC 470, the case law is wholly in­applicable in as much as already stated above the lease agreement was wholly inapplicable for want of registration as well as for want of any forfeiture clause in the agreement. The case of Surjeet Singh (supra) has further been distin­guished in Mohamad Nasir Vs. District Judge, Nainital and others 1999 (1) ARC 202. In the case of Mohd. Nasir (Supra) it has been held as under

"In order to claim benefit under this Section, it has to be shown by the tenant that one of the terms of the lease was that the landlord will have a right of re-entry if the rent for any specified period remained unpaid and he has to show further that for­feiture has been incurred as pro­vided under Section 111 (g) Section 114 T P Act thus postulates exist­ence of determination of lease by forfeiture as a condition precedent and provisions contained in this sec­tion will have no application where the lease has been determined by serving a notice to quit under Sec­tion 106 TP Act. The relief under Section 114 T.P Act is confined to those cases only which are strictly covered under Section 111 (g) and not to those cases which fall under Section 106 T.P Act. A monthly ten­ancy is determinable by one month's notice by either party and if the tenancy is terminated by serv­ing one month's notice under Sec­tion 106 TP Act, there is no forfei­ture of tenancy and in that event Section 114 cannot be applied. Thus a notice under Section 106 T P Act by no means could be treated as one under Section 111 (g)."

29. In Surendra Kumar Vs. A.D.J. Nainital, 2002 (2) ARC 106, the case of Surjeet Singh (supra) has been dis­tinguished. The observations in the case of Chandra Sekhar Prosad Vs. Special Judge Balia and other, 2000 (2) ARC 160, are quoted below

" Section 114 of the Transfer of Property Act is applicable when three conditions are satisfied, Firstly there is an agreement of lease be- tureen the parties, secondly there is a condition in the lease deed that the lease will be forfeited if the rent is not paid to the lessor in accord­ance with the conditions mentioned in the lease deed and thirdly the lease is forfeited by the lessor on the ground that the lessee has not com­plied with the terms of payment of rent as contained in the lease deed. Learned Counsel for the petitioner has placed reliance upon the deci­sion Surjeet Singh Vs. Additional District Judge, Haridwar and others, 1993 (2) ARC 470, where the Court granted relief against eviction were the tenancy was forfeited on the ground on nonpayment of rent. This case has no application, as in this case there was an agreement of for­feiture of lease on the ground of non-payment of rent."

30. I do not find any express con­dition that in case of non-payment of rent the landlord shall have a right of re-entry. I have also examined the no­tice it was a simple notice under Sec­tion 106 of the Transfer of Property Act, stating therein in the following words

"APKO APAKE CHIKITSA KE BYWASAY HET RS. 21.00/- MASIK KIRAYE PER........ APKO YAH BHI SUCHIT KIYA JATA HAI KI NIMAN DUKAN KA NIRMAN BARSH 1990 ME HUA HAI TATHA NIMN DUKAN UP ACT NO. 13/1972 KI PARIDHI MEN NAHI AATI HAI."

31. In the case Mohd. Nasir Vs. District Judge Nainital question of no­tice was also considered and relying upon the judgment of Apex Court it has been held as under

"The mere fact that while terminat­ing this tenancy under Section 106 of the TI? Act the landlord also made demand of arrears of rent and possession will not convert the no­tice as one given under Section 111 (g). For this view I am supported by a Supreme Court decision in the case of Tharumal and another Vs, Masjid Hajum Pharsoan Vs. Madrassa alimulislarn, Mirza Ismail Road, Jaipur (1994) 3 SCC 375.

32. Similarly in Laxman Deo Vs. District Judge, Nainital, 2000 (2) ARC 32, it has been held as under

"It has been found that the peti­tioner is not entitled to the benefit of Section 114 of the Act as the lease not determined on the ground that it has a right to re--enter the premises under the forfeiture clause under the tenancy. Respondent No. 1 rightly decreed the suit."

33. Similarly in Ram Bali Pandey Vs. 2nd Addl. District Judge, Kanpur, 1998 (2) ARC 362, it has been held that for the applicability of Section 114, the existence of an agreement contain­ing a stipulation empowering the land­lord to re-enter is essential. Relevant observations are quoted below

"For the applicability of Section 114, existence of an agreement containing a stipulation empowering the landlord to re-enter in the demised premises in case of breach of a con­dition regarding payment of rent is essential. In the present case there was no such agreement and as up act no. 3/ 47 was not applicable to the premises, there was simpliciter termination of tenancy under Sec­tion 106 TP Act serving a notice there under. The mere fact that the notice stated about non payment of rent also besides by exercising the power under clause (h) of Section 111 of the T.P Act. No authority is required for the proposition that where there is simpliciter termina­tion of tenancy under Section 106 of the T .P Act and not under Sec­tion 111 (g) of the T.P Act then pro­vision of Section 114 of the TP Act, cannot be attracted."

34. Thus in absence of any stipu­lation with regard to re-entry, in my opinion the tenant is not entitled for the benefit of Section 114A of Transfer of Property Act and the findings of the learned Judge Small Cause Court while giving the benefit of section 114a of transfer of properties act cannot be sustained.

35, Apart from the aforesaid it has been held in Vannattankandy Ibrayi, 200.1 (1) ARC 325, where, the reliance has been made of, 1993 (3) SCC 271, it has been held that provisions con­tained under the Rent Control Act be­ing a special provision would exclude the operation of Section 114 of the Transfer of Properties Act. The obser­vations of the Apex Court are as under

"In Prithvichond Ramchand Sablok Vs, S. Y Shinde, 1993 (3) SCC 271, it was held that the provisions con­tained under the Rent Control Act being a special provision would ex­clude the operation o: Section 114 of the Transfer of Property Act. In substance it was held that a build­ing cannot be governed by the pro­visions of two Acts, one by the State Rent Act and other by the Transfer of Property Act."

From the aforesaid decisions there is no doubt that if a building is gov­erned by the State Rent Act the tenant cannot claim benefit of the provisions of Section 106, 108 and 114 of the Act.

36. In the light of the judgment of the Apex Court since the special Act i.e. Rent Control Act gives benefit to the landlord in cases which falls under the exemption from operation of the Act and, therefore, in view of provisions of Section 38 of U.P Act No. 13 of 1972, it will exclude the applicability of Sec­tion 114 of Transfer of Property Act. Section 38 reads as under

"The provisions of this Act shall have effect notwithstanding any­thing inconsistent therewith con­tained in the Transfer of Property Act, 1882 (Act No. IV of 1882), or in the Code of Civil Procedure, 1908 (Act No. V of 1908)."

37. No further arguments have been raised from either side.

38. In my opinion, therefore, the order passed by the Judge Small Cause Courts dated 31.5.2000 giving benefit under Section 114 of Transfer of Prop­erty Act to the tenant and thereby dis­missing the plaintiff's suit cannot be sustained for any of the reasons as stated aforesaid.

39. The revision, therefore, is al­lowed. The case is remanded to the trial Court for deciding it afresh in the light of the observations made above within a period of one month from to­day.

Revision allowed.