- (1.) The suit that has wended to this Court in this second appeal was instituted by the respondent-lessor for eviction of the appellant-lessee from the lease-hold premises on the ground of determination of the lease by forfeiture under the provisions of Section 111(g) of the Transfer of Property Act, 1882, the provisions relating to eviction as under the West Bengal Premises Tenancy Act, 1956 not being applicable to the lease in view of Section 3 of the said Act as the lease was for more that 15 years. Eviction has been decreed by the trial court and the said decree has also been confirmed by the first appellate court and hence this second appeal by the lessee.
(2.) In assailing the concurrent finding of the courts below as to the determination of the lease by forfeiture, Mr. Saktinath Mukherjee, the learned counsel for the appellant, has mainly urged that even assuming that there was forfeiture of the lease on the ground of non-payment of rent and sub-letting as alleged, there was a clear waiver of forfeiture on the part of the lessor and as a result of such waiver eviction could in no way be decreed on the ground of determination of the lease by such forfeiture. This plea, though taken in a way in paragraph 17 of the written statement as amended, does not appear to have been pressed in the courts below and has not also been urged in the Memorandum of Appeal to this Court. But even then we have allowed the appellant to urge the point as it appears to us to be a question of law apparent on the face of the record involving no further development of evidence of fresh investigation of facts. The entire plea of waiver of forfeiture have been made out on the averments in the plaint itself, and there can therefore be no legitimate objection on the ground of prejudice or surprise to the plaintiff-respondent as a result of such plea being allowed to be raised. A plea made out on the averments in the plaint itself can never be regarded to cause any prejudice or surprise to the plaintiff. Even though no citation may be necessary for the purpose, Yet reference may be made to he observations of Supreme Court in Keshablal v. Lalbhai (AIR 1958 SC 512 at 517, paragraph 10) where it has been ruled that the High Court may allow a plea of law to be raised before it for the first time in second appeal, even though the same was not raised in the courts below nor taken even in the Memorandum of Appeal. We must also note that Mr. B. C. Dutt, the learned counsel for the plaintiff-respondent, has not, with his usual fairness, seriously argued that the defendant-appellant, not having urged the plea of waiver of forfeiture J the courts below and also in the Memorandum of Appeal, can no longer be allowed to urge the same before us, but Mr. Dutta has mainly argued that there was or could be no waiver of forfeiture in this case. Let us, therefore proceed to consider, Whether there was any waiver of forfeiture in this case and this is undisputed that if there was any such waiver, this second appeal must be allowed on reversal of the concurrent decrees of the courts below, while the appeal must be dismissed and the decrees must be affirmed if their was no such waiver.
(3.) Determination of lease by forfeiture is dealt with in Section 111(g) of the Transfer of Property Act which reads as hereunder :- " 111. A lease of immovable property determines - (g) by forfeiture; that is to say, (1) in case the lessee breaks an express condition which provides that on breach thereof, the lessor may re-enter; or (2) in case the lessee renounces his character as such by setting up a title in a third person or by claiming title himself; or (3) the lessee is adjudicated an insolvent and the lease provides that lessor may re-enter on the happening of such event; and in any of these cases the lessor or his transferee gives notice in writing to the lessee of his intention to determine the lease".;