D.K.Mahajan, J. - (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. 2. The trial Court found that the rent claimed had not been paid and that there was no tender made at the trial ; and in this view of the matter, decreed the suit. In appeal, an application was made by the tenants on the 27th of March, 1963, wherein a prayer was made that "The Appellants now tender arrears of rent at six per cent interest and the costs assessed in the lower Court and any costs assessed in the Appellate Court and pray that relief against forfeiture may be granted." This application was contested by the landlord and the reply of the landlord is dated the 22nd of April, 1963. The main burden of the reply is that "The landlord gave prior notice to the tenants to pay the arrears of rent, but the rent was not paid ; that in the lower Court, during the pendency of the suit, no rent was paid. On the other hand, a false plea was raised that the tenants were not in arrears of rent." On the application of the tenant, the learned Senior Subordinate judge passed the following order on the 27th of March, 1963: Present -Counsel for the parties. The applicant had tendered a sum of Rs. 50/ -, in my presence for payment to the Respondent. The Respondent's counsel refuses to accept this amount. It is in these circumstances that the appellate Court granted relief against forfeiture. The landlord's counsel raised two points before the lower appellate Court, against the granting of relief, to the tenant, namely: (1) that such a relief could not be granted - at the stage of the first appeal ; and (2) that there was no valid tender. The lower appellate Court came to the conclusion that the consensus of judicial opinion was that relief against forfeiture could be granted at the stage of appeal and that the tender was a proper tender. As already observed, for these reasons, the decision of the trial Court was set aside and the Plaintiff's suit dismissed. The landlord has come up in second appeal to this Court. 3. The first contention of the learned Counsel for the landlord is that no relief under Section 114 of the Transfer of Property Act could have been allowed because this section was not applicable to Punjab; and in any case, Section 114 will only come into play where there is a determination of the tenancy under section III of the Transfer of Property Act. In support of this contention, the learned Counsel relies upon the decision of the Mysore High Court in Tippayya Kuppaya Vaidya v. Rama Narayana Hedge, A.I.R. 1961 Mys 131,. In my opinion, this decision has no relevancy so far as the present case is concerned. It is well settled that in Punjab, though the provisions of Section 114 do not in terms apply, yet the underlying rule of this provision applies as a rule of equity justice and good conscience. Before the Transfer of Property Act, 1882, was enacted, along with Section 114, second paragraph of Section 78 of the Bengal Kent Act 10 of ly59 provided for relief against forfeiture and read as follows: In all cases of suits for the ejectment of a raiyat or the cance -Iment of a lease, the decree shall specify the amount of the arrears and, if such account together with interest and costs of suit be paid into Court, within fifteen days from the date of the decree, execution shall be stayed. And it is this principle which was basically adopted, though in different terms, in Section 114 of the Transfer of Property Act. It is undoubtedly true that Section 114 was inapplicable at the time when the lease deed was executed. But it has been repeatedly held that the general principle, on which this section is based, will be applicable; and the Courts can grant relief against forfeiture on such conditions and in such circumstances as may appear equitable and that Courts are not bound by the conditions laid down in the section. This view is held by Nagpur, Madras and Lahore High Courts. No decision has been brought to my notice of any other High Court which takes a contrary view. So far as I am concerned, I am bound by the Division Bench decision of the Lahore High Court in Kallan v. Jawahar Singh : A.I.R. 1924 Lah. 49.
(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.;