APPAYYA SHETTY, MANAGER, TILE FACTORY Vs. PMMAHAMMADE BEARI

JUDGEMENT

(1.) I have had the advantage of reading the judgment which my learned brother is about to deliver. As the question is one of considerable importance and as the decisions bearing on it are not consistent with each other, 1 think it desirable to state my views on the subject shortly.

(2.) The lease to defendants Nos. 1 and 2 is a permanent one. The plaint says that the produce was set apart for a religious service. I take it that the grantor was only anxious that he should be paid the rent. He gave up rights of possession, etc., when he granted this permanent lease. The original grantees paid the rent regularly for 16 years. It was after the transfer of their interests to the 3rd defendant in 1907 that default was made. There were three years arrears of rent when the suit way brought. The document in question provides for the payment of the first year s rent with that of the second year. If rent remained unpaid even then, the lessees were liable to be evicted. The question is whether, under the circumstance above set forth, the defaulting lessees are entitled to be relieved from forfeiture. There is no statutory provision for forfeiture on non-payment of rent regarding agricultural leases. It is open to Courts to look at legislative provisions regarding the liability of other lessees and tenants as embodying the principles of equity, justice and good conscience. I cannot accede to the proposition that such a guidance should be sought only from English decisions and not from statutory provisions in this country.

(3.) Let us first see how the Legislature has treated tenants under the Estates Land Act. Chapter VI of the Act deals exhaustively with the remedies open to the landholder. He can sue for the rent or distrain. The proceedings to be taken on distraint are hemmed in with strict conditions. The landholder has to exhaust all available sources before he sells the defaulter s interest in the holding. The distress will have to be withdrawn, if the arrears are deposited or security given for their payment. Even after the commencement of the sale, the tenant is given a locus poenitentiae to save his property. It is thus clear that the Legislature has provided very salutary restrictions against turning out a tenant from his fields. As regards other lessees, the Transfer of Property Act lays down that the forfeiture clause must be express. Section 114 provides for relief from the forfeiture incurred even after the institution of the suit. The Indian Statute Law, therefore, distinctly leans against forferture for non- payment of rent. I may also refer to Section 71 of the Contract Act, which has abolished the distinction between penalty and liquidated damages and has enacted a general rule affording relief to the defaulting party under certain limitations. Now, turning to the English Law, the course of decisions leaves no room for doubt that Courts have striven against evicting tenants from their holdings. The case of Peachy v. Duke of Somerset 1 Strange 447 : 93 E.R. 626 : 8 Wh. & T.L.C. 255 to which our attention was drawn by Mr. Sitarama Row and which was followed in the earlier decisions of this Court, enunciates the proposition that where the intention of the parties is only to enforce punctual payment, the forfeiture clause will be relieved against, In Bowser v. Colby 1 Hare 109 : 11 L.J. Ch. 132 : 5 Jur. 1106 : 66 E.R. 969 the tenant applying to redeem a forfeited lease was not required to pay the rent and costs into Court before being decreed possession. All the cases have been reviewed in Peachy v. Duke of Somerset 1 Strange 447 : 93 E.R. 626 : 8 Wh. and T.L.C. 255 and the result of the authorities is stated to be that the proviso for re-entry on non-payment of rent is regarded in equity as merely a security for the rent and that relief will be given on payment of the arrears and of the expenses incurred. In England, there can be relief after suit is brought and before judgment. There is a further indulgence given even after judgment, provided the costs of the suit are paid in addition. The period within which this latter remedy is available is now restricted to six months after judgment (15 & 16 Victoria, Chapter 76, Section 210). Belief after decree may not be granted in India, as the effect of it will be to enable the executing Court to vary the decree. The decision in Nagappa v. Venkat Bao 24 M. 265 proceeded on the footing that the compromise decree was only evidence of the contract between the parties and that the Court was not varying the decree in such cases. Balambhat Ravjibhat Joshi v. Vinayak Ganpatrao Patwardhan 10 Ind. Cas. 746 : 35 B. 239 : 13 Bom. L.R. 154 is to the same effect.