ZENITH INVESTMENTS PVT. LTD. Vs. PANNA DEBI

JUDGEMENT

(1.) In this rule we are concerned with order No. 17 of October 27, 1971, in T.S. No. 36 of 1971 of the First Subordinate Judge, 24 -Parganas. By this order the Subordinate Judge has allowed a tenant's application under Sec. 114 of the Transfer of Property Act for granting relief against forfeiture. It appears that the owner of the premises in suit is a private limited company. The Directors are two brothers and their mother is the tenant of the premises. There were two other ejectment suits - -one instituted on April 15, 1961, and the other on April 29, 1964. In both the suits there were applications under Sec. 114 and these applications were allowed. This is the third ejectment suit and the third application under Sec. 114.

(2.) Mrs. Manjula Bose, learned Counsel for the Petitioner, placed before us the judgment of the Subordinate Judge and contended that he had erroneously exercised his discretion under Sec. 114. Mrs. Bose's point is that the Subordinate Judge has taken into consideration various irrelevant matters. He had only to see whether at all material times the tenant was unable to pay. Various income -tax records of the tenant were produced before us to show that she had sufficient money in her hands to make payment of rents, but she did not choose to pay. On these documents alone, says Mrs. Bose, the Subordinate Judge should have disallowed the application under Sec. 114.

(3.) Reference was made on behalf of the Petitioner to numerous decisions in support of the proposition that in an application under Sec. 115 of the Code of Civil Procedure it is open to us to interfere with the discretion exercised by the Subordinate Judge. The decisions which Mrs. Bose cited are Gopi Nath Auddy v/s. Thackers Press and Directories Ltd. and Anr. : 66 C.W.N. 449, Varanasi Ramabrahman v/s. Kota Rani Reddi and Ors. : A.I.R. 1928 Mad. 250, Printers (Mysore) Private Ltd. v/s. Pathan Joseph : A.I.R. 1960 S.C. 1156, Karnani Singh Sobti v/s. Sri Protap Chand and Anr. : A.I.R. 1964 S.C. 1305, Har Prasad Agarwala v/s. Shankarlal and Ors. : A.I.R. 1933 All. 957, Joginder Singh Harnam Singh v/s. Hardial Singh and Ors. : A.I.R. 1967 P&H. 385, Mukan Kunwar v/s. Ajeetchand : A.I.R. 1958 Raj. 322, Santokh Singh v/s. Bhai Siri Ram and Ors. : A.I.R. 1955 P&H. 47, Swaminatha Odayar and Ors. v/s. Raja Muhammad Rowther : (1958) 1 M.L.J. 402, Jogesh Chandra Roy v/s. State of West Bengal and Ors : A.I.R. 1968 Cal. 528, Prabir Ram Borooah v/s. Albert David Ltd., Calcutta, A.I.R. 1957 Ass. 120, Kamal Prosad Biswas v/s. Chandra Shekhar Prosad : 70 C.W.N. 807, Shankar Ram Chandra Abhyankar v/s. Krishnji Dattatraya Bapat : A.I.R. 1970 S.C. 1 and Tolaram v/s. State of Bombay : A.I.R. 1954 S.C. 496.