THAKUR GOPALJI Vs. DINA NATH

JUDGEMENT

(1.) DEOKI Nandan, J. This is a defendant's Second Appeal in a suit for possession from the premises in suit known as lalawala Pench,' and situate at Sadabad Gate, Hathras. in the district of Aligarh, by eviction of defendants first and second sets, and for recovery of the sum of Rs. 2,690/-on account of rent and mesne profits and expenses of notice from the defendants first and second sets, as also pendente lite and future mesne profits. The land of the premises in suit was held under a permanent lease (Ext. A-1), dated the 20th July,) 889. The rent reserved was Rs. 360/- payable annually, and the lease provided that the lessor could evict the lessee, if, at any time, the rent for three years fell into arrears. The lease was granted for storing and ginning cotton. A clause in the lease made provision that, if the lessor ever refused to receive the rent, the lessee could send the same by money order or deposit it in Government treasury. The lease expressly conferred on the lessee a right of unrestricted transfer of his interest to any one he pleased. The rent was not liable to be increased and the lease was permanent, but the lessee could, if he so liked, surrender the lease. The lessor was to be the owner of the trees and the pucca well on the land. Although the lease was granted for the pur poses of storing and ginning cotton, it did not contain any condition entitling the lessee to re-enter in case the lessee or is transferees used the land for any other purpose. The defendant second set are the present lessees, being transferees from the defendant first set of the premises in suit. The defendants third set were plaintiff's co-sharers, and the plaintiff along with them had acquired the les sors interest in the land under a sale deed dated the 1st August, 1956, but under a family settlement, the plaintiff claims to have become the sole lessor. There is no dispute about these facts. The ground, on which the lease was said to have been forfeited and the plaintiff claimed the right of re- entry, was primarily non-payment of rent for the period 20th July, 195 5 to 20th July, 1965, except for the sum of Rs. 180 which alone was said to have been paid towards the rent for this period on 10th January, 1956. The lease was said to have been determined firstly by a notice dated the 28th March, 1966 (Ext. 17) served on the defendants first set and finally by a notice dated the 27th March, 1967 (Ext. 18) served on defendants second set. I may here point out that the date of the second notice is wrongly specified as 28th March, 1967 in paragraph 11 of the plaint, and of the defendants second set, while the name of Ghanshyam Das, defen dant No, 16, appears at two places in the notice, the name of defendant No. 21 (since deceased) is missing from the notice. I need not refer to the pleas taken in defence, nor it is necessary to refer to any of the thirteen issues, on which the parties went to trial in this case, or the findings thereon of the trial court". Suffice it to say that the trial Court having decreed the suit for possession and for recovery of Rs. 2690 as arrears of rent and mesne profits and costs of notice up to the date of the suit together with pendente lite and future mesne profits at the rate of Rs. 360 par month, the defendants second set except of some of the heirs of defendant No. 21), who had, in the mean-while, died, appealed to the Court of the District Judge from that decree and along with the appeal, which was filed on the 10th October. 1979, made an application, which was originally paper No. 9 C but now hears paper No. 320-C of the lower court record, stating that the appellants went to deposit the sum of Rs. 11075 towards the rent in arrears, interest and costs of the suit and appeal, for which a tender was annexed therewith, "in order to avoid legal complication and to take benefit of Section 114 of the Transfer of Property Act " It, however, appears that the appeal, that was filed on the 10th October,1979, was defective in certain respects, and the order admitting the appeal and directing It to be registered was passed on the 27th November, 1979. The tender for Rs. 11,075/ -. appears to have been passed by the Court on the 5th December, 1979 and the amount of Rs. 11,075/-appears to have been deposited in the State Bank on the 6th December, 1979 vide paper No. 331-C which was filed in the lower appellate Court on the 7th December 1979. The following are the substantial questions of law, which where formula ted after bearing the appeal under order 41 Rule 11, C. P. C. "1. Whether the lower appellate Court was in error in not considering the effect of the deposit of Rs. 11. 075/- made and tendered along with an application dated 10th October, 1979 for relieving the appellants from forfeiture under Section 114 of the Transfer of Property Act in view of the decision of the Supreme Court in R. S. Lala Praduman Kumar v. Virendra Goyal (A. I. R. 1969 S C. 1349) 1. Whether the lower appellate Court was justified in holding that on the facts and in the circumstances of the case the defence of the appellants was liable to be struck off under Order, 15 Rule 5, C. P. C. 3. Whether the lower appellant Court was justified in holding that the permanent lease in favour of the defendant-appellants stood forfeited on account of breach of covenant. " Having heard learned counsel for the parties and having perused the judgment of the lower appellate Court as also an order passed by it rejecting an application (21-C)by the plaintiff for withdrawal of the money that had been deposited under Section 114 of the Transfer of Property Act, I am rather surprised at the manner in which the lower appellate Court has dealt with this case. It is clear from the judgment of the lower appellate Court that the claim for relief under Section 114 of the Transfer of Property Act from forfeiture incurred by non-payment of rent was pressed before it at the hearing of the appeal, and yet the lower appellate Court has, after taking note of the provi sions of law and the rulings cited before it in this context not given any fin ding on the question whether the defendant-appellants were entitled to relief under Section 114 of the Transfer of Property Act. All that the lower appellate court has observed by way of its opinion or decision on the point runs as follows; - "in the present case the defendant-appellants attempted to claim the benefit of Section 114. T. P. Act after depositing total amount as late as on 7 12. 1979 while this appeal was filed on 17. 10. 79. " A connected question was raised before the lower appellate Court on behalf of the plaintiff-respondent that the defence was liable to be struck off under Order 15 Rule 5, C. P. C. On this point also, the finding recorded by the lower appellate Court is rather curious;- "learned counsel for the plaintiff-respondents could not show me any such circumstances or fact on record to oblige the Court to struck off the defence of the defendant-appellants. I, therefore, find sufficient ground for striking off the defence of the defendant-appellants, as they had been tendering the rent in the sum of Rs. 3690/- paper No. 156/-C-1 from 21. 7. 64 to 20. 7. 1975 and in another tender a sum of Rs. 360/-from 20 7. 77 to 19. 7. 78. ''learned counsel for the defendant-appellants filed three papers per list 45-C-1. Paper No. 47/c-1 was the tender showing a deposit of Rs. 1080/-dated 20. 7. 61 Misc, Case No. 10/61 but learned trial Court had rightly mentioned in paragraph 47 of the judgment that there was no tender showing the deposit of the rent from 21. 7,75 to 20. 7. 77 and 20. 7. 78 to 19. 7. 79 for a period of three years. Therefore, again the breach of the terms and conditions of the lease deed were committed by the defendant-appellants as well as it was a sufficient ground for striking of the defence under Order 15 Rule. C. P. C. in this particular case. " I have been unable to comprehend what the lower appellate Court meant to convey by these sentences which have been quoted verbatim from its origi nal judgment so that there may be no mistake about the language used. The first point urged by Mr. G. P. Bhargava, Senior Advocate, for the appellants, was that, if the aforesaid observations of the lower appellate Court amount to saying that the defence of the appellants was liable to be struck off under Order 15 Rule 5 of the Code of Civil Procedure as it now stands amen ded in Uttar Pradesh, that view or finding is patently erroneous in law. The learned counsel referred me to an application dated the 18/19th October, 1976 (Paper No. 151-C), that Was made before the trial Court, and the order dated the 10th January, 1977 whereby the trial Court rejected that application with the observation that the rent for the period 21st July, 1974 to 20th July, 1975 had been deposited on the 10th September, 1975 and rent was again depo sited on the 19th October, 1976 and the 13th December, 1976, and thus the entire rent in arrears had been deposited and it did not consider it proper to strike off the defence. Learned counsel then referred me to another tender showing a deposit of Rs. 360/- on 6th July, 1978. I may here point out that a tenant is required to deposit only that rent which is admittedly due up to the date of the suit and rent at the admitted rate during the pendency of the suit. It was not suggested that the deposits so made did not account for the entire arrears admitted to be due up to the date of suit and for the period thereafter at the admitted rate of Rs. 360 per month. However, it appears from the trial Court's judgment that, after holding on issue No. 11 that the plaintiff was entitled to a decree, the trial Court procee ded to hold that the defence was liable to be struck off and ordered it to be struck off on the ground that the rent for the period 21st July. 1975 to 20th July, 1977 and 20th July, 1978 to 19th July, 1979 had not been deposited. In passing that order, the trial court omitted to take into consideration the deposits that were made on the 19th October, 1976, 13th December, 1976 and the 6th July, 1978; and so far as the period 20th July, 1978 to 19th July, 1979 was concerned, the hearing of the suit commenced on the 17th, 1979 and ended on the 11th September. 1979 and judgment was pronounced on the 17th September, 1979. There does not appear to have been any application from the side of the plaintiff to the trial Court to strike off the defence at that stage. To me the exercise seems to have been pointless, in as much as after the whole case was dealt with and decided in the judgment on the merits, it was only by way of an epilogue that the learned Munsif ordered that the defence be struck off in pursuance of a ruling of this Court in Sohan Lal v. Hotal Singh (AI. R. 1979 All. 230.) wherein it appears to have been held that the court is bound to strike off the defence for failure of a tenant to deposit rent under Order 15 Rule 5, C. P. C. That view stands overruled by the Supreme Court in Bimal Chand Jain v. Sri Gopal Agarwal. ( 1981 A. W. C. 529) So far as the lower appellate court is concerned the appeal was filed on the 10th October, 1979. A tender for depositing Rs. 11,075/- comprising the entire arrears of rent including even that which had become time barred rent and was not admitted to be due together with interest and costs, was presented along with the memorandum of appeal on the 10th October 1979. and the amount was deposited on the. 6th December 1979, the next day after the date 5th December 1979 on which the tender was passed by the court. The rent was payable annually, and it could not be said, by any stretch, that the defendant-appellants had defaulted in complying with the conditions of Order 15 Rule 5. C. P. C. unless it be held that although the rent was payable annuallv, the defendant-appellants were bound to deposit it every month. I may, in this context, refer to the ruling of Hon'ble C. S. P. Singh. J. , wherein he held that, on its langu age, Order 15 rule 5, C. P. C. could not be applied to a case where the rent reserved was payable annually and not monthly. With respect, that appears to be the correct position of the law and this is sufficient for holding that the appellant's defence could not have been struck off under Order 15 rule 5, C. P. C. as it now stands amended in Uttar Pradesh. Even if the rule applied, the deposit of rent annually within a reasonable time of its becoming due was sufficient ground for the exercise of the court's discretion in the matter by not striking off defence, altogether rent had not been deposited monthly. That the court has a discretion in the matter is amply borne out by the ruling of the Supreme Court in Bimal Chand Jain's case (supra), f, therefore, hold that the two courts below were in error in holding that there was sufficient ground for striking off the defence of the appellants under Order 1 5 Rule 5, C. P. C. This disposes of the second Question of law formulated as aforesaid which I would answer by saying that, on the facts and in the circumstances of the case, the defence of the appellants was not liable to be struck off under Order 15 rule 5 C. P. C. and that the two Courts below were in error in having ordered its striking off. The next question, which requires consideration in the case, is the third question formulated as aforesaid whether the lease stood forfeited, or could be forfeited on recount of breach of covenant. I have already referred to the terms of the lease. The breach of covenant complained of was the use of the premises for purposes other than cotton industry. Having read the lease, I do not find anything mandatory about the terms of the lease that it was for pur poses of storing and ginning cotton. At any rate, a right of re-entry was not given on breach of that covenant. If covenant it may be called and unless a right of re-entry is specifically given by the lease a permanent lease does not stand forfeited on any such breach of covenant and the lessor cannot re-enter thereon. This is what plainly follows from clause (g) of section 111 of the Transfer of Property Act and if any authority were needed, a Division Bench ruling of this Court in Netra Pal Singh v. Kalyan Das (1906 A. L. J. 196) is ample authority for the same. I would accordingly answer the third question by saying that the lower appellate court was wrong in holding that the permanent lease in favour of the defendant-appellants stood forfeited on account of any breach of co venant. Coming to the first question I am constrained to observe that the man ner, in which the lower appellate Court has dealt with the matter, Is regretta ble. There is the clear authority of a Division Bench of this Court in Budhi Ballabh v. Jai Kishan Kandpal (1963 A. L. J. 132) which, was approved by the Supreme Court in Praduman Kumar v. Virendra Goyal (supra) that relief against forfeiture of a lease for non-payment of rent can be bad not only at the hearing before the trial court, but may also be had at the hearing of an appeal from the decree. The lower appellate court has not found that the amount deposited was not full and sufficient or that it did not have the jurisdiction to grant relief against forfeiture. All that it had said of its own on this point, to quote it again is, in the present case the defendant-appellants attempted to claim the benefit of Section 114 T. P. Act after depositing total amount as late as on 7. 12. 79 while this appeals was filed on 17. 10. 1979. " The tender was submit ted on 10th October, 1979 along with the appeal with an application for relief against forfeiture under Section 114 of the Transfer of Property Act. The tender was passed on the 5th December, 1979. The amount was deposited in bank on the 7th December, 1979 and the tender was filed in court again on 7th December, 1979. Even before the appeal was heard, an application dated 8th February 1980, which was paper No. 21-C of the lower appellate court's record, but has now been renumbered as paper No. 332-C was moved by the plaintiff-respondent No. 1 for withdrawal of the amounts deposited by the appellants. That application was rejected by the lower appellate court's order dated the 25th July, 1931, with the observation that the application was for withdrawal of the amount deposited under Section U4 of the Transfer of Property Act and there was no sufficient ground to refund it to the plaintiff-respondent. This shows that the lower appellate court was seized. . . . . . of the defendant-appellants' prayer for relief against forfeiture for the non-payment of rent under Section 114 of the Transfer of Property Act before the hearing of the appeal had commenced, and the amount having been deposited almost before that it could not be said that the appellants were guilty of any delay or laches in invoking the jurisdiction of the lower appellate Court to grant that relief against forfeiture for non-payment of rent at the hearing of the appeal by depositing the entire amount of rent, interest and costs for payment to the lessor. The lower appellate Court has referred to the decision of the Supreme Court in Praduman Kumar's case (supra) and has even quoted the observations of the Supreme Court in that regard, but strangely enough, the lower appellate Court did not take the trouble of exercising its mind by applying the law to the facts of the case and exercising its discretion whether for or against the defendant-appellants. The lower appellate Court was, in my opinion, in error in having failed to exercise the jurisdiction vested in it by law. The facts have been stated. The circumstances have been narrated. The case was a fit one in which the discretion should have been exercised in favour of the defendant-appellants by granting them relief against forfeiture of the lease in their favour for non-payment of rent. The non-payment of rent in the present case was not wiflul. A series of documents have been placed on the record showing that repeated attempts were made to tender the rent by money orders which were persistently refused. Learned counsel for the plaintiff-respondent did not say that the amouts deposited fell short of the amount required to be deposited under the terms of Section 114 of the Transfer of Property Act. His argument was that the payment should have been made by the lessee to the lessor, that is, by the defendant-appellants to the plaintiff-respondent and that the payment must have been unconditional. The expression "the lessee pays or tenders to the lessor" as used in Section 114 of the Transfer of Property Act, does not mem that the payment must have been made by the defendant-appellants directly to the plaintiff-respondent outside court before making the application The normal mode of paying money to the lessor for obtaining relief against for feiture under Section 114 of the Transfer of Property Act. , that has come to be established is by depositing the required amount in court for being held for the benefit of the lessor and being paid over to him, in case the application for relief thereunder is accepted. I may, in this context, refer to the fact that besides rent in arrears, interest is also required to be paid or tendered. It may be as in the present case, there is no agreement for payment of interest on the rent in arrears. The rate, at which interest should be paid, if at all, in such a case could only be determined by the Court in the exercise of its discretion under Section 114 of the Transfer of Property Act. There may also be a case where the lessor has persistently refused to accept the tender of rent made to him. as in the present case again, and the lessee could very well say that, if the rent etc. were tendered to the lessor, he would have refused to accept the same because he was interested in forfeiting the lease and evicting the lessee and not in relieving the forfeiture. The only proper mode of payment of the amount required to be paid to the lessor under Section 114 of the Transfer of Property Act appears to be by depositing it in the court where the suit or the appeal is pending. The next contention of the learned counsel for the plaintiff-respondent was that the payment of tender of the amounts required to be paid or tender ed to the lessor under Section 114 of the Transfer of Property Act must be unconditional and that, in the present case, the defendant-appellants did not even give the details or the manner in which they had worked out the amount of Rs. 1107/- in the application dated the 10th October, 1979, and it was impossible to say, on its face, that the conditions of Section 114 of the Transfer of Property Act were satisfied. Reference was made in this context to the decision of the Supreme Court in Mangal Sen v. Kanchhid Mal. ( A. I. R. 1981 S. C. 1716) given in the context of Section 20 (4) of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, It was also suggested, on the basis of the reply dated 26. 9. 1980, 346-C, that was filed by the defendant-appellants the plaintiff-respondent's application dated the 8th February, 1980 332-C) for withdrawal of the amount deposited, and which ultimately rejected by the lower appellate Court's order dated the 25th July, 1981 referred to above that the defendant-appellants prevented the plaintiff-respondent from with drawing the amount, which is said to have been deposited for their benefit and they were, therefore, not entitled in equity to the benefit claimed by them on the basis of that deposit It was said that he who goes to equity must do equity. Having heard learned counsel for the plaintiff-respondent on this point, I do not think that there is any merit in any of the conditions raised by him, The deposit made was undoubtedly unconditional. The prayer in the appli cation accompanying the deposit was to the effect that the deposit may be received, and that the defendant-appellants may be relieved against the forfeiture of the lease for non payment of rent. The defendant-appellants could not 03 blamed for the time taken by the lower appellate court In deciding that appli cation The amount having been deposited under Section 114 of the Transfer of Property Act, it could surely not be allowed to be withdrawn on the plain tiff-respondent's application 312-C when was for refund of deposit of the admitted the amount of rent made under order 15 rule 5, C. P. C. The amount could be paid over to the plaintiff-respondent only if he accepted it as full payment of the entire amount due and payable by the defendant-appellants for being relief against forfeiture for non-payment of rent, under Section 114 of the Transfer of Property Act or when the Court held that it was so and the defendant-appellants were entitled to the benefit of the said provision. The plaintiff- respondent could not have the amount and yet contend that the defendant-appellants were not entitled to the benefit of Section 114 of the Transfer of Property Act. Another argument advanced by the learned counsel for the plaintiff respondent was that the amount of Rs. 11075/- was deposited on the 6th Dece mber, 1979 in pursuance of the condition imposed by the stay order. The stay order, which was passed on the 4th December, 1979, was that the eviction of the appellants shall remain stayed" on deposit of the decretal amount in ten days. "the amount of Rs. 11075/-, that was deposited on the 6th Decem ber, 1979 did partly comprise of the balance due towards the decretal amount, but the bulk of it was towards the time barred arrears of rent, interest and costs of the appellate court, for which there was no decree in view of the application, which was made on the 10th October 1979 with the tender for its acceptance and for relief from forfeiture for non- payment of rent under Section '14 of the Transfer of Property Act. It cannot be said that the deposit of Rs. 11075/ -. that was made by the defendant-appellants on 6th December, 1979, was made in pursuance of and to take the benefit of the stay order, al though the making of that deposit also amount to compliance of the terms of the stay order. I accordingly hold that the defendant-appellants were entitled to be relie ved against forfeiture for non- payment of rent on their application dated the 10th October 1979, made before the lower appellate court under Section 114 of the Transfer of Property Act, and the lower appellate court is in error in not granting that relief to the appellants. I answer the first question accordingly. In the result, the appeal succeeds and is allowed. The judgment and decree of the two Courts below are set aside, and instead the plaintiff-respon dent's suit is dismissed. The plaintiff respondent is held entitled to receive the entire amount deposited in the Courts below towards arrears of rent, interest at 9 per cent per annum and costs of the suit and the appeal in the lower appellate court, as per detail given below:- 1. Tender dated 10. 9. 1975 (156 Ga ). Rs. 3. 960/-

(2.) TENDER dated 19. 10 1976 (157-Ga) Rs. 360/-

(3.) TENDER dated 10 10. 1979 (331-C) Rs. 11075/-