GAJANAN GOVIND PATHAK Vs. PANDURANG KESHAV PUNTAMBEKAR

JUDGEMENT

(1.) THIS appeal arises in execution proceedings and the only question which it raises is, whether the judgment-debtor is entitled to be relieved against forfeiture. The decree in question is a compromise decree and it was passed by the Civil Judge, Junior Division Poona, in civil Suit No. 551 of 1946 on 22-8-1947. This suit had been filed by the landlord against his tenant claiming to recover possession of the premises let to the tenant on the ground that he had committed default in the payment of rent. According to the plaint the tenant was liable to pay Rs. 84 as past rent before the date of the suit. By the compromise decree the deft. was ordered to pay the said amount of Rs. 84, costs of the suit and the rent which had accrued due since the institution of the suit up to the end of Aug. 1947. It was admitted by the pltf. that this amounted in all to Rs. 188, out of which Rs. 100 had already been paid by the deft. In effect, therefore, the deft. was ordered to pay the balance of Rs. 88 and Rs. 4-8-0 as the rent for September. The whole of this amount of Rs. 92-8-0 had to be paid by the deft. before the end of Sept. 1947. On these terms the consent decree allowed the deft. to remain in possession of the premises as a tenant of the pltf. The consent decree further provided that in case the deft. made a default in paying the amount as aforesaid, the pltf. should recover possession of the property through Ct. The judgment-debtor did not pay the amount on or before 30-9-1947, but paid Rs. 92 on 1-10-1947. Thereupon, the decree-holder filed the present execution appln. and claimed to recover possession of the premises in question. Pending the hearing of this appln. the judgment-debtor paid annas eight which he had failed to pay even on 1-10-1947, and he also tendered in Ct. the amount of rent which had become due subsequent to the filing of the execution appln. It was on these facts that the question which the Cts. below had to consider was, whether the judgment-debtor should be relieved against forfeiture. Both the Cts. have accepted the judgment-debtor's plea for relief against forfeiture and have dismissed the darkhast for possession. It is this order which the decree-holder seeks to challenge in the present second appeal before us.

(2.) THIS appeal had come on for hearing before Chainani J. on 10-8-1950, and has been referred to a Division Bench by him. Before Chainani J. it was urged that there was a conflict between the view taken by a F. B. of this Ct. in Waman Vishwanath v. Yeshwant Tukaram, 50 Bom. L. R. 688 : (A. i. R. (36) 1949 Bom. 97 F. B.) and that accepted by an earlier F. B. in Krishna Bai v. Hari, 8 Bom. l. r. 813 : (31 Bom. 15 F. B.), as also by a D. B. in Balambhat v. Vinayak, 13 Bom. L. R. 154 : (85 Bom. 239), Chainani J. felt prima facie impressed with this argument and so he referred this case to a Division Bench. That is how this matter has come before us today for final disposal.

(3.) THERE can be no doubt the present case falls within the principle laid down by the F. B. of this Ct. in Krishna Bai's case (8 Bom. L. R. 813 : 31 Bom. 15 F. B. ). In the said case the pltf. was seeking to enforce by a suit her right to forfeiture which had been declared in a consent decree. The decree was merely declaratory and could not have been executed. That is why the decree-holder had to file a separate suit to enforce the terms of the said decree. The defence raised by the judgment-debtor in the said suit was that he should be relieved against forfeiture and the said plea of the deft. was accepted by the F. B. It was then thought necessary to refer the question to F. B. because an earlier decision of this Ct. in Shirekuli Timapa v. Mahablya, 10 Bom. 435 was entirely against the deft's plea and it was thought that the view expressed in Shirekuli's case, (10 Bom. 435) required reconsideration. This view was that the doctrine of penalties was not applicable to stipulations contained in decrees; and that such stipulations have to be strictly enforced without regard to any equitable consideration. In taking this view, Birdwood and Jardine JJ. had purported to follow the observations made by West J. in Balprasad v. Dharnidhar Sakharam, (1875) P. J. 366 where West J. had emphasised the fact that the doctrine of penalties is not applicable to the class of cases covered by decrees and added that "those who, with their eyes open, have made alternative engagements and invited alternative orders of the Ct. , must, if they fail to perform the one, perform the other, however greatly severe its terms may be. " it may be pointed out that both in the case of Shirekuli Timapa v. Mahablya, (10 Bom. 435) as well as the earlier judgments on which it relied, the plea for relief had been urged by the judgment-debtor in execution proceedings, whereas in Krishna Bai's case, (8 Bom. L. R. 813 : 31 Bom. 15 F. B.) the F. B. were dealing with the same plea made by the deft. in the suit filed against him to enforce a decretal clause. Jenkins C. J. who delivered the principal judgment of the F. B. referred to this distinction, but he proceeded to deal with the question of the principle involved and he came to the conclusion that on principle the earlier view was unsound. On principle there can be no doubt that as between the landlord and the tenant, the tenant, would be entitled to relief against forfeiture resulting from the non-payment of rent. The principles underlying Section 114, T. P. Act, have been applied on equitable grounds even apart from the provisions of the said section. In England it has always been recognised that a forfeiture clause for non-payment of rent amounts merely to a security for the rent and so relief was always given to the defaulting tenant on the ground that if the tenant pays the lessor the rent in arrear together with interest thereon and his full costs of the suit, the lessor is deemed to have recovered full compensation and to have been put in the same position as if rent had been paid to him when it was originally due. The same view has been taken by all the Indian H. Cs. in dealing with the claims for possession made by landlords against their tenants on the ground that the tenants have committed default in the payment of rent. It is this equitable principle which has received statutory recognition in the provisions of Section 114, T. P. Act. In dealing with the question raised before the F. B. , Jenkins C. J. observed that if the tenant was entitled to relief principle against forfeiture under this equitable principle, it is difficult to see why he should not get the same relief merely because the agreement between the parties has merged in a consent decree. It was an incident of the relationship of landlord and tenant, observed Jenkins C. J. , that the right of forfeiture was subject to relief and so that incident must still apply when those relations are established by a decree passed in accordance with the agreement. He then referred to the decision in Wentworth v. Bullen, (1829) 9 B. and C. 840 : (9 L. J. (O. S.) K. B. 33), and observed that the principle had been repeatedly affirmed that "the contract of the parties is not the less a contract and subject to the incidents of a contract because there is superadded the command of a Judge. " the result of this F. B. decision was that the earlier view in Shirekuli's case, (10 Bom. 435), was overruled and it was treated as settled that in cases where the relationship of landlord and tenant is created between the parties by a compromise decree, the judgment-debtor who is a tenant would be entitled to relief against forfeiture resulting from, his failure to pay the rent at the stipulated time. In the present case there is no doubt that the compromise decree did create or continue the relationship of landlord and tenant between the decree-holder and the judgment-debtor, and the forefeiture which the decree-holder seeks to enforce has resulted from the judgment-debtor's failure to pay the amount in question within the stipulated period. The Cts. below have held, following the earlier F. B. decision, that the judgment-debtor is entitled to the relief as claimed by him, and so long as that decision stands, there can be no doubt that he is entitled to such relief.