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PETITIONER:

PRITHVICHAND RAMCHAND SABLOK

Vs.

RESPONDENT:

S.Y.SHINDE

DATE OF JUDGMENT13/05/1993

BENCH:

AHMADI, A.M. (J)

BENCH:

AHMADI, A.M. (J)

MOHAN, S. (J)

CITATION:

1993 AIR 1929 1993 SCR (3) 729

1993 SCC (3) 271 JT 1993 (3) 348

1993 SCALE (2)948

ACT:

Bombay Rents, Hotel and Lodging House Rates Control Act,

1947-Section 12(3)-Terms of compromise before court

including non-execution of decree for possession where

entire arrears paid by specified date-Character of the com-

promise terms whether penal or a concession-Held, where

defendant benefits for complying with a requirement, and

does not suffer for failing to abide by it, it is not penal-

Civil Procedure Code, order XXI Rule 35.

Bombay Rents, Hotel and Lodging House Rates Control Act,

1947-Section 12(3) (b)-Transfer of property Act, 1882-

Section 114-Held, Section 12(3) (b) is a special provision

and cases governed by the Bombay Act must be resolved in

accordance with Section 12(3) of the Act and not under

section 114 of Transfer of property Act.

HEADNOTE:

The appellant-landlord filed an eviction suit for possession

of the demised premises mainly on the ground of arrears of

rent under Section 12(3) of the Bombay rent Act, 1947.

The suit was settled between the parties. By the terms of

the compromise, possession would be given by the tenant to

the landlord by 10 October 1970, or the landlord may recover

possession by execution based on this decree; but, if the

tenant paid the entire arrears in full by 10 October 1970,

the landlord would not execute the decree for possession.

The tenant failing to pay the entire arrears as stipulated

the landlord decree holder filed execution proceedings. The

executing Court issued a warrant for possession but the

Appellate Court set aside the order and dismissed the prayer

for eviction.The High Court remanded the matter to the

Appellate Court to determine the character of the compromise

terms. That court again allowed the appeal and dismissed

the execution proceedings altogether.

On appeal, the High Court agreed with the Appellate Court.

It found

730

that clause permitting eviction was penal in nature and

therefore, not enforceable.

The questions before this court were:did the parties to the

compromise intend to create or continue the relationship of

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landlord and tenant; whether the compromise terms in the

consent decree were penal in nature or merely gave a

concession; and whether Section 114 Transfer of Property Act

could be invoked while executing a decree for possession,

notwithstanding Section 12(3) of the Bombay Act.

Allowing the appeal, this Court,

HELD: It is well-settled that a decree passed on the basis

of a compromise by and between the parties is essentially a

contract between the parties which derives sanctity by the

court superadding its seal to the contract. But all the

same the consent terms retain all the elements of a contract

to which the court's imprimaturs is affixed to give it the

sanctity of an executable court order.The court will not add

its seal to the compromise terms unless the terms are

consistent with the relevant law. (735-H)

If the law vests exclusive jurisdiction in the court to

adjudicate on any matter, the court will not add its seal to

the consent terms unless it has applied its mind to the

question.

In such a case it is the independent satisfaction of the

court which changes the character of the document from a

mere contract to a court's adjudication which will stop the

tenant from contending otherwise in any subsequent

proceedings and operate as resjudicata. (736-B)

The character of the con-sent -decree will depend on the

nature of the dispute resolved and the part played by the

court while superadding its seal to it. (736-C)

(2) If a defendant is required to suffer the consequence of

his failure to abide by terms stipulated, such consequence

would he penal in nature. But if the defendant gets some

benefit by complying with a requirement, such as clause can

never be penal in character. (739-B)

(3) Admittedly the tenant had failed to pay or tender in

court the

731

standard rent and permitted increases due to the landlord.

(736-E)

The clause in the consent terms whereby, upon payment of the

entire rent etc. due from the tenant, by a stipulated date

was dearly to secure his dues i.e. arrears of rent etc.

This is in the nature of a concession.

Where a landlord grants a concession and agrees that if the

entire arrears is cleared by a stipulated date, he will not

insists possession that will not render the clause penal in

nature. (739-E)

(4) If the condition precedent for availing of the benefit

of concession under clause (3) of the consent terms is

satisfied, the relationship of landlord and tenant continues

but if the tenant fails to comply with the condition

precedent for availing (of the benefit or concession the

forfeiture operates and the tenant becomes liable for

eviction under the decree. (739-G)

(5) After the enactment of clause (b) to section 12(3) which

is a special provision incorporating the equity provision

contained in section 114, T.P. Act, in a modified form,

cases governed under the Act must he resolved in accordance

with section 12(3) of the Act and not under section 114,

T.P. Act. The landlord's right to seek eviction has been

drastically reduced and circumscribed by sections 12and 13

of the Act. Similarly the tenant must also seek protection

from eviction by complying with the requirements of the Act.

(740-B)

If such is not the legal position, Sections 12 (3) (a) and

12 (3) (b) would be rendered wholly nugatory. Under the Act

a tenant is allowed to continue in possession

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notwithstanding the termination of the contractual tenancy

if the abides by the provisions of the Act. If he fails to

abide by the requirement of section 12(3) of the Act, he

must take the consequences flowing therefrom. There is no

question of granting him double protection. (740-C-E)

Krishnabai v. Hari, 8 BLR 813 and Gajanand Govind v.

Pandurang Keshav, 53 B.L.R. 100, referred to. (840-B)

Pradesh Kumar Bajpai v. Binod Behari Sharkar, [1980] 3S.C.R.

93, relied on. (840-H)

732

JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2881 of 1993.

From the Judgment are Order dated 16.1.85 of the Bombay High

Court in W.P. No. 1755 of 1983

V.M. Tarkunde, R. Karanjawala, Rajesh Kumar and Ms. Suruchi

Aggarwal for the Appellant.

S.B. Bhasme and A.S. Bhasme for the Respondent.

The Judgment of the Court was delivered by.

AHMADI, J. Special leave granted.

The appellant, landlord, filed an eviction suit No. 419 of

1968 for possession of the demised premises mainly on the

ground of arrears of rent under section 12(3) of the Bombay

Rents, Hotel and Lodging House Rates Control Act, 1947

(hereinafter called 'the Act'). That suit was settled

between the parties, the relevant terms whereof read as

under:

(1) The possession of the suit premises is to

be given by the defendant to the plaintiff by

10th October, 1970. If the defendant does not

give possession, then the plaintiff is to take

possession by execution on the basis of this

decree.

(2)............................

(3)The defendant is given a concession that if

the defendant paid the entire amount mentioned

in clause (2) above, i.e., the amount involved

in the suit, future mesne profits, electricity

charges, water charges, the rent of the

godown, expenses of the suit by 10th October,

1970, the plaintiff will not execute the

decree for possession."

Under clauses (2) and (4) of the compromise terms the rent

in respect of the suit premises was to be calculated on the

basis of standard rent of Rs. 30 per month, the rent of the

store room (godown) was to be calculated at the standard

rent of Rs. 9 per month and electricity and water charges at

Rs. 3 per month and so calculated. the entire arrears had to

be paid on or before 10th October, 1970 to avail of the

concession given in clause (3) of the compromise terms. The

Trial Court passed a decree in terms of the compromise.

733

The arrears so calculated worked out to Rs. 3353. 58p. as on

10th October, 1970. The tenant, however, paid a sum of Rs.

2040only on 9th February, 1970 and, therefore, did not

comply with the terms regarding payment of entire arrears on

or before 10th October, 1970. Thereupon, the decree holder

filed execution proceedings on 2nd November, 1970. The

tenant raised objections in regard to the executability of

the decree. The Executing Court rejected the objections

raised by the tenant and issued a warrant for possession of

the demised premises under order 21 Rule 35 of the Code of

Civil Procedure, 1908 (hereinafter called 'the Code'). The

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tenant preferred an appeal against the order of the

Executing Court which came to be allowed. The order of the

Executing Court was set aside and the prayer for eviction

was dismissed. The decree-holder moved the High Court under

Article 227 of the Constitution. The High Court set aside

the order of the Appellate Court and remitted the matter to

the Appellate Court with a direction to decide the

character of the compromise terms on the basis of which

eviction was sought. After the matter went back to the

Appellate Court that court reconsidered the matter and once

again allowed the appeal setting aside the order of the

Executing Court directing issuance of warrant under Order 21

Rule 35 of the Code. The Appellate Court dismissed the

execution proceedings altogether. Against that order passed

by the Appellate Court the decree-holder once again moved

the High Court under Article 227 of the Constitution. The

High Court considered the various submissions made before

it by the rival parties and summarised the propositions

emerging from the relevant provisions and the case law in

paragraph 32 of the judgment as under

"(1) If by a consent decree the status of a

landlord and tenant is established between the

plaintiff and the dependent, the Court in

exercise of its equitable jurisdiction is not

precluded from granting relief against

forfeiture of a term contained in the consent

decree.

(2)Where the question is not one of the

creation of a tenancy or the continuation of a

tenancy and where a decree passed either by

consent or in invitum permits payment of the

decrement amount in installments and provides

that the decretal amount becomes payable at

once in the event of failure in the payment of

one or more installments, there is no question

of granting relief. The Courts are bound to

execute the decree in accordance with its

terms.

(3)Where. however, the relationship of

landlord and tenant is continued between the

parties by a compromise decree. the judo-

734

ment-debtor, who is a tenant. would be

entitled to relief against forfeiture

resulting from his failure to pay the rent on

the stipulated date.

(4)Where the consent decree provides for the

continuance of the possession of the tenant up

to a particular date beyond which he has no

right to remain in possession at all and on

which date the landlord is entitled to execute

the decree for possession, the time given from

the date of the decree till the other date is

by way of concession and in such a case, there

is no creation of new tenancy or continuation

of the existing tenancy.'

((5) If the consent decree provides possession

for the continuation of' the of the tenant on

certain terms up to a particular date and also

provides for the continuation of the tenant's

possession after the date if lie complies with

certain conditions, then such a decree

provides for the continuance of the possession

of the tenant from the date of the consent

decree itself. In such a case, it cannot be

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said that the plaintiffs allowing the

defendant to continue up to and beyond that

specified date is by way of concession."

The High Court, therefore, concluded that the refusal by the

Appellate Court to exact the tenant on the basis of the

consent decree was correct in law and hence it was not

required to interfere with the order of the Appellate Court.

It came to the conclusion, on a true interpretation of the

relevant clauses of the consent decree, that the clause by

which eviction was permitted was penal in nature and,

therefore, not enforceable. Clause (3) of the compromise

term was treated is granting relief' against forfeiture. In

this view of the matter the judgment-creditor, landlord,

having failed to secure possession of the demised premises

by putting the consent decree to execution, has approached

this Court under Article 136 of the Constitution.

The Act was enacted to amend and consolidate the law

relating to the control of rents and of evictions from

demised premises. It imposes certain restrictions on the

right of the landlord from recovering possession so long as

the tenant pays or is ready and willing to pay standard rent

and permitted increases and observes and performs the other

conditions of' the tenancy which are consistent with the

provisions of the Act. If the tenant has failed to pay the

rent and permitted increases due from him he can be evicted

for that neglect in the manner set out in section 12

735

of the Act. The other provision which confers a right of

eviction is section 13 of the Act with which we are not

concerned in this case. The facts of the case clearly

reveal that the landlord had sought eviction under section

12of the Act as the tenant had committed a breach of sub-

section ( 1) thereof, in that, he had failed to pay the rent

to the landlord. To comply with the requirement of sub-

section (2) of that provision the landlord had served the

tenant with a notice prior to the institution of the suit

seeking eviction under section 12(3) of the Act. This sub-

section is in two parts and may be extracted for ready

reference

"12 (3) (a) Where the rent is payable by the

month and there is no dispute regarding the

amount of standard rent or permitted in-

creases, if such rent or increases are in

arrears for a period of six months or more and

the tenant neglects to make payment thereof

until the expiration of the period of one

month after notice referred to in sub-section

(2), the court may pass a decree for eviction

in any such suit for recovery of possession.

12(3) (b) In any other case no decree for

eviction shall be passed in any such suit if

on the day of hearing of the suit or on or

before such other date as the court may fix,

the tenant pays or tenders in court the

standard rent and permitted increases then due

and thereafter continues to pay or tender in

court regularly such rent and permitted

increases till the suit is finally decided and

also pays costs of the suit as directed by the

court."

Clause (a) sets out the circumstances in which the tenant

forfeits the protection of the statute and entitles and

landlord to evict him. If the case does not fall within the

scope of clause (a) the question to be considered is whether

eviction should be ordered under clause (b). This is clear

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from the opening words, "in any other case," If, however,

the tenant satisfies the conditions of the said clause, the

law protects him from eviction as is clear from the words,

"no decree of eviction shall be passed in any such suit".

The suit in the present case was filed under section 12(3)

of the Act but before the court could adjudicate whether

clause (a) or clause (b) was attracted the parties arrived

at a settlement, the relevant terms hereof have been

extracted hereinbefore. It is well-settled that a decree

passed on the basis of a cc, promise by and between the

parties is essentially a contract between the names which

derives supporting by the court superadding its seal to the

contract. But all the same the consent terms retain all the

elements of a contract to which the court's imprimatur is

affixed to give it the sanctity of an executable court

736

order. We must, however, point out that the court will not

add its seal to the compromise terms unless the terms are

consistent with the relevant law. But, if the law vests

exclusive jurisdiction in the court to adjudicate on any

matter, e.g. fixation of standard rent, the court will not

add its seal to the consent terms by which the parties have

determined the standard rent unless it has applied its mind

to the question and has satisfied itself that the rent

proposed by consent is just and reasonable. In such a case

it is the independent satisfaction of the court which

changes the character of the document from a mere contract

to a court's adjudication which will stop the tenant from

contending otherwise in any subsequent proceedings and

operate as resjudicata. If the standard rent is fixed

solely on the basis of agreement between the parties, such a

decree in invitum will not preclude the tenant from

contending in any subsequent proceeding that the rent is

excessive and require the Court to fix the standard rent.

Therefore, the character of the consent decree will depend

on the nature of the dispute resolved and the part played by

the court while superadding its seal to it.

Under clause (a) of section 12 (3) of the Act, if the

conditions stated therein are satisfied, the court has to

pass a decree to evict the tenant from the demised premises.

So also under clause (b) of that sub-section, if the tenant

fails to pay or tender in court the standard rent and

permitted increases due on the first date of hearing of the

suit or on or before such date as the court may fix, the

court has to pass a decree for ejectment. In the present

case the suit was governed by section 12(3) of the Act and

even if we assume that it fell within the purview of clause

(b), the tenant was liable to be evicted as admittedly the

tenant had failed to pay or tender in court the standard

rent and permitted increases due to the landlord as is

obvious from clause (2) of the consent terms. It is for

this reason that the tenant suffered a decree for eviction

and agreed to deliver possession of the suit-premises by

10th October, 1970. By clause (2) of the consent terms the

tenant further agreed to pay to the landlord by 10th

October, 1970 the entire amount due including legal fees and

expenses from the date of the suit till delivery of

possession. Clause (3) of the consent terms carries the

crucial term that the tenant is given a concession, and that

concession is that if he pays the entire amount mentioned in

clause (2) by 10th October, 1970, the landlord will not

execute the decree for possession. That has given rise to

the question whether clause (1) of the consent decree is in

the nature of a penalty for non-payment of the outstanding

dues upto 10th October, 1970 or clause (3) of the consent

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decree is merely a concession given to the tenant if he

complies with the terms or requirements of that provision.

Now as pointed out earlier the ejectment suit was filed on

the allegation that the tenant had neglected to pay the rent

and other charges in respect of the demised

737

premises. The suit was, therefore, founded on the right to

evict conferred by section 12(3) of the Act. We will assume

that it was a case to which clause (b) to that sub-section

was attracted. It is evident from the terms of the

compromise that even on the date of the compromise in July

1970 the tenant was in arrears of rent. If the suit had

gave to trial the landlord may have secured a decree in

ejectment for the tenant's failure to comply with the

requirements of clause (b) of section 12(3) of the Act. By

clause (1) of the compromise decree it was, therefore,

provided that the tenant will vacate and deliver possession

of the demised premises by 10th October, 1970. Failure to

deliver peaceful possession by that date would entitle the

landlord 'to take possession by execution' of the decree.

Clause (2) indicates the rate at which the arrears will be

calculated and clause (4) describes those rates as standard

rent. Clause (4) describes those rates as standard rent.

Clause (3) which is the crucial clause gives a concession.

What is that concession? It is that if the tenant pays up

the entire amount of arrears, i.e., the amount involved in

the suit meaning thereby the claim of arrears set out in the

suit, future mesne profits, electricity and water charges,

the rent of the godown, cost of the suit, by 10th October,

1970, the landlord will not execute the decree for

possession. Counsel for the appellant argued that as the

tenant had failed to clear the arrears of rent and other

charges payable under the terms of the lease, he was liable

ton be evicted under clause (b) of section 12(3) of the Act.

That is reflected in clause (1) of the compromise terms.

However, the landlord gave a concession by clause (3) to the

effect that if the entire arrears are cleared by 10th

October, 1970, he would not execute the decree for

possession. This, counsel argued, does not show that the

decree for possession was provided for as in terrorism to be

construed as a penalty and not a concession. Counsel

contended that while a penal stipulation on cannot be

enforced, a grant of a concession cannot undo the main

operative part of the eviction decree unless it is shown

that the tenant had done all that was necessary to avail of

the concession. Counsel for the tenant, however, insisted

that the provision for delivery of possession is in the

nature of a penalty and was, therefore, unenforceable. He

supported the judgment of the High Court and submitted that

the appeal should be dismissed with costs.

It is settled law that unless the terms of contract are

ambiguous the intention of the parties must be gathered from

the terms themselves. It is only where the terms are

ambiguous and capable of more than one meaning that evidence

aliunde can be permitted to gather the intention of the

parties. In our view, the terms forming the basis of the

consent decree in the instant case are clear and unambiguous

and do not call for extrinsic material to gather the

intention of the parties. Two questions, therefore, arise

for consideration, namely, (i) did the parties to the

compromise intend to create or continue the relationship of

landlord and tenant?

738

and, (ii) is the Clause providing for eviction penal in

character? Now. as pointed out earlier by clauses (1) and

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(2) of the compromise terms, the tenant is required to

deliver vacant possession of the demised premises to.-,ether

with arrears of rent etc. by 10th October, 1970. It is

further provided that if the tenant fails to deliver

possession and defaults in paying the arrears due from him

by 10th October, 1970, the landlord will be entitled to

recover both possession and arrears of rent, etc., by

executing the decree. Thus by the first two clauses of the

consent terms, the landlord secured a decree for possession

as well as arrears of rent, etc.-, giving a grace period to

the tenant to comply therewith by 10th October, 1970.

Thereafter by clause (3) of the consent terms, the tenant is

given a concession, in that, if he pays the entire arrears

of rent, mesne profits, electricity and water charges, cost

of the suit, etc. by 10th October, 1970, the landlord agrees

not to execute the decree for possession. In other words on

the fulfillment of the obligation to clear the entire

arrears of rent and other charges by 10th October, 1970, the

tenant is given a concession that the decree for possession

passed against him will not be put to execution. Such a

clause cannot, in our opinion, be said to be penal in

character. It is necessary to understand when a clause in

the contract can be described as penal in character. Let us

illustrate by taking two concrete situations. A plaintiff

files a suit to recover Rs. 20,000 with interest and costs

from the defendant. They enter into a compromise, the terms

whereof are as under:

Situation 1:

The defendant shall pay to the plaintiff a sum

of Rs. 15,000 and costs on or before 31st

December, 1993. If, however, he fails to pay

the said amount of Rs. 15,000 with costs

within the time stipulated, the plaintiff will

be at liberty to recover the entire sum of Rs.

20,000 with interest and costs from the

defendant by executing the decree.

The latter clause of such a decree will

clearly be in terrorem and, therefore, penal

in character. No court will execute the same.

Situation 2:

The decree provides that the defendant shall

pay Rs. 20,000 with interest and costs to the

plaintiff. However, if the defendant pays Rs.

1 5,000 and costs on or before 3 1 st

December, 1993 to the plaintiff, the plaintiff

will treat the decree as fully satisfied and

will not claim the balance amount from the

defendant.

In such a case the latter clause operates as a

concession and the

739

plaintiff waives his right to the balance

amount. Such a decree will be executable to

the full extent if the defendant fails to

avail of the concession by paying Rs. 15,000

and costs on or before 3 1 st December, 1993.

From the above two illustrations it should become clear that

if the defendant is required to suffer the consequence for

his failure to abide by the terms by a stipulated date such

a consequence would be penal in nature but on the other hand

if the defendant gets some benefit by complying with the

requirement by the stipulated date such a clause granting

benefit can never be treated as penal in character.

Applying this test to the decree in question, it is obvious

that by the first two clauses of the consent terms a decree

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for possession of the demised premises as well as arrears of

rent, etc. is passed and the tenant. is given a grace period

upto 10th October, 1970 to comply with the same failing

which the landlord is given the right to put the decree to

execution and obtain possession of the premises and recover

the arrears of rent, etc. through court. By clause (3) of

the consent terms, however, the tenant is granted a

concession that if he pays the entire rent etc. due from him

by 10th October, 1970, the landlord will not put the decree

to execution for recovery of possession. This stipulation

is clearly to secure his dues i.e. arrears of rent, etc.

Depending on the situation in which a landlord is placed, he

may grant the concession to the tenant to ensure that the

huge amount of arrears is not lost. If he grants such a

concession and agrees that if the entire arrears is cleared

by a. stipulated date he will not insist on possession that

will not render the clause penal in nature. In a given

situation where the tenant is in financial difficulty and is

not in a position to comply with the requirement of section

12(3) of the Act, he can request the landlord to grant him a

concession in the nature of relief against forfeiture. If

such a concession is to be read as penalty rendering the

decree nonexecutable even where the tenant fails to satisfy

the requirements of availing the concession, no landlord

will in future grant such a concession, thereby causing

hardship in deserving cases. We are, therefore, of the

opinion that the First Appellate Court as well as the High

Court were in error in treating clause (3) of the consent

terms as penal in character and incapable of execution. If

the condition precedent for availing of the benefit or

concession under clause (3) of the consent terms is

satisfied, the relationship of landlord and tenant continues

but if the tenant fails to comply with the condition

precedent for availing of the benefit or concession the

forfeiture operates and the tenant becomes liable for

eviction under the decree.

The High Court has placed reliance on the Full Bench

decision in Krishnabai v. Hari, 8 BLR 8 13 and Gajanand

Govind v. Pandurang Keshav, 53 BLR 100. in

740

taking the view that the Executing Court can rant relief

against forfeiture on the strength of section 114 of the

Transfer of Property Act, 1882. The High Court seems to

think that in execution of a consent decree, such as the one

with which we are concerned, it is open to the Executing

Court to go behind the decree by invoking section 114,

T.P.Act, notwithstanding section 12(3) of the Act. In our

view After the enactment of clause (b) to section 12(3)

which is a special provision incorporating the equity

provision contained in section 1 14,T.P.Act, in a modified

form, cases governed under the Act must be resolved in

accordance with section 12(3) of the Act and not under

section 1 14, T.P.Act The landlord's right to seek eviction

has been drastically reduced and circumscribed by section 12

and 13 of the Act. Similarly the tenant must also seek

protection from eviction by complying with the requirements

of the Act. If such is not the legal position, section

12(3) (a) of the Act which mandates the Court to pass a

decree for eviction if the requirements of that clause are

satisfied would be rendered wholly nugatory. Same would be

the position in the case of application of section 12(3) (b)

of the Act because that clause precludes the passing of the

decree if the tenant satisfies the requirements of that

provision. It must be remembered that after the enactment

of the Act the landlord's right to reenter on expiry of the

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lease is curtailed by the provisions of the Act which has

made special provisions granting protection from eviction if

the tenant abides by his obligations under the Act. Under

the Act a tenant is allowed to continue in possession

notwithstanding the termination of the contractual tenancy

if he abides by the provisions of the Act. If he fails to

abide by the requirement of section 12(3) of the Act, he

must take the consequences flowing therefrom. There is no

question of granting him double protection. That is what

this Court clarified in Pradesh Kumar Bajpai v. Binod Behari

Sharkar, [1980] 3 SCR 93. That was a case arising under the

provisions of the U.P. (Temporary) Control of Rent and

Eviction Act, 1947. The question which was seriously

debated at the Bar before this Court was whether in addition

to the safeguards provided to the tenant under the said Act,

the tenant was also entitled to the benefit of section 1 14,

T.P.Act. The right of the landlord to have the tenant

evicted was restricted under the said rent restriction

legislation. As that law had restricted the power of the

landlord to evict the tenant except in accordance with the

provisions therein contained, the terms of the contract and

the provisions of the T.P.Act, it was urged, were no longer

attracted. Clause (a) of section 3(1) inter alia provided

that the suit may be filed with the permission of the

District magistrate when the tenant is in arrears of rent

for more than three months and has failed to pay the same to

the landlord within one month of the service upon him of the

notice of demand. Dealing with this contention this Court

held that once the requirements of the rent legislation are

satisfied, the tenant cannot claim the double protection of

invoking the provisions of the T.P.Act or the terms of the

contract and the provision of

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section 114, T.P.Act, cannot be read into the rent

legislation.

This Court concluded thus :

"In the case before us, it is not indispute

that after the Rent Act came into force, the

landlord cannot avail himself of clause 12

which provides for forfeiture, even if the

tenant neglected to pay the rent for over two

months. The landlord cannot enter into

possession forthwith without notice. The only

remedy for him is to seek eviction under the

provisions of the Rent Act. In such

circumstances the tenant cannot rely on

section 114of the Transfer of Property Act and

claim that he should be given an opportunity

to pay the arrears of rent, even though the

requirements of section 3(1) had been

fulfilled."

It is, therefore, obvious that the tenant cannot avail of

the benefit of section

114, T.P.Act since his case was governed by the provisions

of section 12(3) (b) of the Act.

For the foregoing reasons, we are of the opinion that the

executing court was right in issuing a warrant for

possession under order 21 Rule 35 of the Code against the

tenant since the tenant had failed to take advantage of the

concession clause by clearing the arrears of rent, mesne

profits, etc. by 10th October, 1970. The First Appellate

Court as well as the High Court were in error in holding

that the decree was not executable as clause (3) thereof was

in the nature of a penalty. We set aside the order of the

First Appellate Court as well as the High Court and remit

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the matter to the executing court to proceed further in

accordance with law. We may, however, make it clear that if

there have been subsequent developments between, the parties

creating any de novo relationship that will not be affected

by this order. In the facts and circumstances of the case,

we make no order as to costs.

U.R.

Appeal allowed.

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