Shiv Dayal, J.
1. This second appeal arises out of a suit for ejectment and arrears of rent instituted by the appellant against the respondents on the ground that the defendants did not pay rent to the plaintiff nor did they vacate the premises in spite of notice. The trial Judge passed a decree for ejectment and arrears of rent in favour of the plaintiff. The first appellate Court decided all the points raised before it in favour of the plaintiff, but dismissed the suit? for ejectment by giving relief to the defendants under Section 114 of the Transfer of Property Act because they had deposited rent with the written statement and continued to deposit recurring rent in the appellate Court.
2. The plaintiff's grievance is that Section 114 of the T. P. Act must be deemed to be suspended so long as the Accommodation Control Act, which is a special enactment is in force. This, contention is untenable because provisions of the T. P. Act have not been abrogated or pro tanto repealed by the Accommodation Control Act under which certain restrictions have no doubt been imposed on the right of eviction. So far as the eviction of a tenant is concerned, the landlord cannot claim any additional right under the Accommodation Control Act; he has to establish his substantive right of eviction under the provisions of T. P. Act. Section 4 of the Control Act does not furnish any additional ground for ejectment, but only restricts the rights of the landlord as regards eviction.
3. However, in my opinion, Section 114 has been misapplied in the present case. That section can be invoked to give relief to a tenant when a lease is determined by the landlord on the ground of forfeiture. Here, the lease was determined by notice. To put it differently, the landlord's right to eviction accrued to him not under Section 111(g) but under Section 111(h) of the Transfer of Property Act. Section 114 does not apply to ejectment under Clause (h) of Section 111,
4. Shri Patankar's argument is that this suit is really based on the non-payment of arrears of rent but for which the suit could not he, and, for that reason, Section 114 of the T. P. Act is attracted. I find myself unable to accept this argument. Truly speaking the landlord's right of eviction is contained in Section 108(q), where the tenancy is determined under Section. 111 of that Act. That is the substantive right of the landlord and the corresponding liability of the tenant. Section 4 of the Accommodation Control Act merely creates a barrier which is not lifted unless and until there exists one of the grounds contained in that section.
No sooner the barrier is removed by showing any ground under that section, the fate of the suit depends upon the rights and liabilities under the T. P. Act. In that view of the matter it is not correct to say that where a landlord brings a suit for eviction of his tenant on the ground that he has determined the tenancy under Section 111(h) of the Transfer of Property Act, the eviction is sought on the ground of forfeiture so as to attract Section 114 of the T. P. Act.
5. It is then argued by the learned counsel for the tenant that Section 4 of the Control Act in essence creates certain terms which by fiction must be deemed to be incorporated in the terms of the lease itself. I see no warrant for such a proposition, and in my opinion it is stretching too far when the grounds contained in Section 4 of the Accommodation Control Act are called "statutory terms of the tenancy".
6. The result of the above discussion is that Section 114 of the T. P. Act has been wrongly applied to this case. Since the tenant failed to make payment to the landlord of the arrears of rent within one month of service of notice on him the barrier of Section 4 of the Control Act was lifted and the rights and liabilities of the parties were then to be determined under the provisions of the T. P. Act and since in this case the tenancy had been determined by notice under Section 111(h) of that Act, a decree for eviction was rightly passed by the trial Judge.
7. This appeal is allowed. The judgment and decree passed by the first appellate Court are set aside and those passed by the trial Judge are restored with costs throughout.