A. P. Srivastava, J. - (1.) The following two questions have been referred to us for answer:- (1) Under Sec. 114 of the Transfer of Property Act can the relief against forfeiture of the tenancy incurred for non-payment of rent be claimed by the lessee from the trial court only or does the appellate court have the power to entertain and grant a similar prayer for relief under that section? (2) Do the words 'tender to the lessee' in Sec. 114 of the Transfer of Property Act mean actual payment or tender of such payment when applying for relief, or do they extend to an undertaking or offer by the tenant to the Court that he is willing to make the payment forthwith or within the time granted by the Court? The circumstances in which these questions arose may briefly be stated. The appellant was the landlord. He had let out the land in dispute to the respondent on a permanent basis for building purposes. The lease was an unregistered one but in pursuance of it the lessee had taken possession over the land and had constructed a house and a shop on it. The rent agreed upon was Rs. 12 a year. One of the conditions of the lease was that if the rent was not paid regularly or default was made in its payment the lease would be forfeited and the landlord would get back possession. The appellant sued for the ejectment of the respondent on the allegation that the rent for three years had not been paid and therefore forfeiture had been incurred. There was an allegation of subletting also. The suit was contested and it default denied that there had been any default in payment of rent. Subletting was also denied. In the written statement the respondent expressed his, willingness to pay any rent that might to be found due from him.
(2.) The trial court decreed the suit holding that a default had been made in payment of rent and in accordance with the clause in the lease forfeiture had been incurred. It also held that the clause relating to subletting had been violated. The respondent appealed against the decree. When the appeal came up for hearing he requested the appellate court to grant the relief to him against the forfeiture under Sec. 114 of the Transfer of Property Act. The lower appellate court acceded to that request and passed an order directing the respondent to pay the rent in arrears together with interest at 6% per annum and full costs of the suit within ten days. It directed that the appellant tenant thereupon would be relieved against the forfeiture clause and would continue in possession as before. The appellant landlord then filed a second appeal in this Court and challenged the decree of the lower appellate court mainly on two grounds. The first was that under Sec. 114 of the Transfer of Property Act relief against forfeiture could have been granted only by the trial court and the appellate court had no power to grant that relief. The other was that in the present case the amount stipulated under Sec. 114 of the Act had neither been paid nor tendered. Mere willingness to pay neither amounted to payment nor to tender. Therefore in the present case the relief against forfeiture could not have been granted.
(3.) When the case came up before Mr. Justice Dhavan, in support of the first contention the appellant relied on two single Judge decisions of this Court reported in Habib Ahmad v. Keoti Kuer, A.I.R. 1946 Allahabad 328 = 1946 A.L.J. 121 and Northern India Coal. Co. v. Bitti Kuer, I.L.R. 1950 All. 523 . The respondent on the other hand relied on Srikishanlal v. Ramnath Jankiprasad, AIR 1944 Nagpur 229 Vellathi v. Smt. K.K. Thayammal, AIR 1958 Madras 232 Vidyapurna Thirtha Swamiar v. Rangappayya, 21 I.C. 405 and Bhagwant v. Ramchandra, AIR 1953 Bombay 129 . There was an obvious conflict between the cases relied upon by the two parties and the learned Judge felt inclined to differ from the view taken in the single Judge decision of this Court.;