KUNDUN LAL Vs. KALLU

JUDGEMENT

(1.) The suit out of which this appeal has arisen was brought by the plaintiff to eject the principal defendants from a piece of land and a building erected thereon. A perpetual lease of the laud was granted to three persons, Kallu, Nathu and Nura, on the 21st of April 1888 on a rent of Rs. 12 a year. The plaintiff has acquired the interest of defendant No. 76 who was one of the lessors. His case was that the defendant No. 4, who is the successor-in-title of Nathu, had sold his interests in the premises to Saudagar Mal, defendant : that by reason of this sale the lease was forfeited by the defendants and that it was also forfeited because there was a failure to pay the rent for two years, as provided in the lease. At the hearing of the suit the defendants paid into Court for payment to the plaintiff the amount of arrears of rent claimed as well as interest thereon and costs of the suit. The Court, therefore, refused to make a decree for ejectment, purporting to act under Section 114 of the Transfer of Property Act. This decree of the Court of first instance having been affirmed on appeal by the lower Appellate Court, the present second appeal has been preferred. The lease contains two conditions, (1) that if the rent remained in arrears for 11/2 years, the lease would be forfeited and the lessor would be entitled to re-enter into possession and to have the building removed : (2) that if the lessees transferred the building or the land, the transfer would be void and they would be liable to be ejected.

(2.) The defendants stated in their written statement that the defendant No. 4 had sold his interests in the house to Saudagar Mal, defendant No. 5, who was a servant of the plaintiff, that the plaintiff had pulled down the portion of the house belonging to defendant No and removed the materials : that the other lessees had sent by money order Rs. 9 a year for their shares of the rent but that the plaintiff had refused to receive the amount.

(3.) The lower Appellate Court found that the plaintiff was not the purchaser of the interests of defendant No. 4, but it agreed with the Court of first instance in holding- that the rent having been paid into Court the defendants were not liable to be ejected. In a case in which non-payment of rent entails forfeiture and the lease can be determined by reason of such forfeiture, if the lessee pays or tenders the rent in arrear together with interest thereon and the full costs of the suit at the hearing of the suit, the Court has under Section 114 of the Transfer of Property Act, a discretion not to make a decree for ejectment, and may pass an order relieving the lessee against the forfeiture. In the present case the amount of the rent in arrear and interest and costs of the suit having been paid at the hearing, the Court could, if the forfeiture depended only on tile non-payment of rent, refuse to make a decree for ejectment. So far, therefore, as the claim was based on the ground of forfeiture, for non-payment of rent, the Court clearly had a discretion, and it having exercised its discretion this Court should not, in my opinion, interfere.