BUDHI BALLABH AND OTHERS Vs. JAI KISHAN KANDPAL

JUDGEMENT

(1.) The following two questions have been referred to us for answer:-

(2.) The trial court decreed the suit holding that a default had been made in payment of rent and in accordance with the clause in the lease forfeiture had been incurred. It also held that the clause relating to subletting had been violated. The respondent appealed against the decree. When the appeal came up for hearing he requested the appellate court to grant the relief to him against the forfeiture under Sec. 114 of the Transfer of Property Act. The lower appellate court acceded to that request and passed an order directing the respondent to pay the rent in arrears together with interest at 6% per annum and full costs of the suit within ten days. It directed that the appellant tenant thereupon would be relieved against the forfeiture clause and would continue in possession as before. The appellant landlord then filed a second appeal in this Court and challenged the decree of the lower appellate court mainly on two grounds. The first was that under Sec. 114 of the Transfer of Property Act relief against forfeiture could have been granted only by the trial court and the appellate court had no power to grant that relief. The other was that in the present case the amount stipulated under Sec. 114 of the Act had neither been paid nor tendered. Mere willingness to pay neither amounted to payment nor to tender. Therefore in the present case the relief against forfeiture could not have been granted.

(3.) When the case came up before Mr. Justice Dhavan, in support of the first contention the appellant relied on two single Judge decisions of this Court reported in Habib Ahmad Vs. Keoti Kuer, A.I.R. 1946 Allahabad 328 = 1946 A.L.J. 121 and Northern India Coal. Co. Vs. Bitti Kuer, I.L.R. 1950 All. 523 . The respondent on the other hand relied on Srikishanlal Vs. Ramnath Jankiprasad, AIR 1944 Nagpur 229 Vellathi Vs. Smt. K.K. Thayammal, AIR 1958 Madras 232 Vidyapurna Thirtha Swamiar Vs. Rangappayya, 21 I.C. 405 and Bhagwant Vs. Ramchandra, AIR 1953 Bombay 129 . There was an obvious conflict between the cases relied upon by the two parties and the learned Judge felt inclined to differ from the view taken in the single Judge decision of this Court.