BAL KISHAN Vs. TEKA ALIAS TEKLA

JUDGEMENT

(1.) THIS second appeal is directed against the decision of the Senior Subordinate Judge, Rohtak, reversing, on appeal, the decision of the trial Court, decreeing the Plaintiff's suit.

(2.) PLAINTIFF is the grand son of the original lessor and the Defendants are the grand sons of the original lessee, Kalu, grand father of the Defendants, took on perpetual lease, the land in dispute from the grand father of the Plaintiff at a rent of Rs. 1/ - per annum. It was stipulated in the lease deed that if the rent was not paid for two years running, the tenants would forfeit the lease and the landlord would be entitled to enter into possession. The present suit was filed to enforce the forfeiture of the tenancy as rent tor more than two years was in arrears. The suit was for rent and for possession of the tenanted land. A number of defences were raised by the defendants . But we are not concerned with them because the lower appellate Court has proceeded to dismiss the suit on the basis of the rule enunciated in Section 114 of the Transfer of Property Act, which is a rale of justice, equity and good conscience. The tenant has been granted the relief against forfeiture.

(3.) THE controversy, whether this rule could only be applied at the stage of the trial in the first Court or it could be applied even at the appellate stage, has been resolved by the decision of the Allahabad High Court in Budhi Ballabh and Ors. v. Pt. Jai Kishan Kandpal,, I.L.R. (1962) All. 420. The consencuous of opinion seems to be that the Appellate Court can also grant the relief against forfeiture in appropriate cases. Therefore the lower appellate Court had the power to grant relief against forfeiture. The only question is, whether that discretion was soundly exercised by the lower appellate Court, for it is not disputed that to grant relief against forfeiture is a discretionary matter with the Courts. The only ground, which has been strenuously argued by the learned Counsel for the Appellant, is that the conduct of the tenant in this case has been such that this relief should not have been granted the conduct being, that in spite of repeated notices, the rent was not paid and that a plea was taken that the rent had been paid. However. I find, that in the written statement, the tenant did take the plea that he was prepared to pay the rent twice over. But this matter was not adverted to by the trial Court. It is also true that no application was made to the trial Court claiming relief against forfeiture. In my opinion these circumstances do not outweigh the exercise of its discretion by the lower appellate Court so as to enable me to hold that the lower appellate Court, wrongly or illegally, exercised the discretion in favour of the tenant in relieving him against forfeiture. My attention has been drawn to the decision of the Supreme Court in Namdeo Lokman Lodhi v. Narmadabai, : A.I.R. 1953 S.C. 228 by the learned Counsel for the Appellant for the contention that the discretion in this case has been wrongly exercised and, therefore, I should interfere in the exercise of that discretion. The facts in the Supreme Court case were totally different. The tenant had driven the landlord to repeated suits to recover arrears of rent and it was in that situation that their Lordships observed that Such a tenant was not entitled to claim that in the exercise of the equitable jurisdiction he should be relieved against forfeiture. In the present case, the suit has been filed for the first time and even at the stage of the written statement, an offer was made to pay the rent with interest and costs and at the appellate stage, it was actually tendered In this situation, it is very difficult to hold that the lower appellate Court, wrongly or illegally, exercised its discretion in relieving the tenant against forfeiture.