- (1.) HEARD learned counsel for the parties.
(2.) THIS first appeal has been filed by the appellant- defendant-lessee being aggrieved by the judgment and decree dated 19.08.2011 passed by learned court Additional District Judge, Deedwana in Civil Original Suit No.41/2007- Premsukh Vs. Tola Ram, in respect of shop in question given on lease situated at Ladnu, near Rahu-Kua at monthly rent of Rs.500/- per month. The respondent-plaintiff, Premsukh S/o Kalu Ram terminated the said lease by serving a notice (Exhibit-1) dated 03.08.2007 since the defendant-appellant failed to pay monthly rent for the period 01.08.2003 to 31.07.2006 at the rate of Rs.665/- per month for 36 months, would come to Rs.23,940/- and for the period 01.08.2006 to 31.07.2007 at the rate of Rs.730/- per month, would come to Rs.31,970/-. The suit was decreed exparte since the defendant- appellant failed to file any written statement despite nine opportunities granted to him for the said purposes and, therefore, closing the opportunity to file written statement on 12.07.2010, the learned trial court after hearing the arguments of defendant-appellant vide the judgment and decree dated 19.08.2011 decreed the suit filed by the respondent-plaintiff for eviction. The present first appeal has been filed by the defendant in this Court on 01.09.2011 and the same was heard at the admission stage by the consent of both the learned counsels for the parties. Mr. Rajesh Panwar, learned counsel for the appellant- defendant heavily relied upon a decision of Hon'ble Supreme Court in the case of R.S. Lala Praduman Kumar Vs. Virendra Goyal (dead) by his Legal Representatives & Ors. reported in AIR 1969 SC 1349. The appellant-defendant-lessee has also filed an application (IA No.20655/2011, wherein it has been averred that since the defendant-appellant is now ready to deposit the entire arrears of rent in terms of Section 114 of the Transfer of Property Act, therefore, the forfeiture of the lease may be released and the eviction decree may not be passed against the defendant-lessee.
(3.) ON the other hand, Mr. Vishal Sharma, learned counsel for the respondent-plaintiff placing reliance on a decision of this Court in the case of Purshottam Dalal Vs. Smt. Shanti Devi (SBCFA No.346/2010, decided on 08.08.2011) and decision of Calcutta High Cuort in the case of Gopinath Mukherjee Vs. Uttam Bharati reported in AIR 2009 Calcutta 58 submitted that the application filed by the defendant-lessee is not even bonafide, which has not only been filed at the initial stage of the suit itself which is mandatory for Section 114 of the Transfer of Property Act. Even after the pendency of the present appeal before this Court for considerable time has been elapsed ever since filing the same on 01.09.2011, the present application (IA No.20655/11) has been filed on 28.11.2011. The defendant has not paid any rent, interest thereon and cost of litigation and has not tendered any such payment. He, therefore, submitted that no such relief of forfeiture under Section 114 of the Transfer of Property Act can be made in his favour. He also submitted that the relief granted in the case before the Hon'ble Supreme Court in the case of R.S. Lala Praduman Kumar (supra), was in the peculiar facts and that case, the defendant made huge investment on the premises and for showing his bonafides, he had deposited the entire money of dues of rent by filing application and, therefore, the Hon'ble Apex Court granted that indulgence in a particular case. He, however, submitted that same cannot operate as a precedent or as a law declared binding on this Court under Article 141 of the Constitution of India and, therefore, the same of no avail to the defendant-appellant. This Court in the case of Purshottam Dalal (supra) has held as under: "In the present case, nothing of this sort in terms of compliance with the provisions of section 114 of the Transfer of Property Act was done at the time of filing of the suit. On the other hand, such payment of arrears of rent was made by the defendant tenant after the decree has been passed by the trial court, admittedly, on 3/1/2011. This cannot be said to be in terms of Section 114 of the Act, therefore, this Court in appeal, which even though technically may be treated as continuation of suit, cannot grant such relief. The purpose of Section 114 of the Transfer of Property Act is to avoid ejectment decree if the defendant tenant or the lessee makes a complete surrender and not only makes the payment of entire arrears of rent along with interest thereon for delay in payment of rent but also the costs of the such suit and thus invokes the discretion of learned trial court to release him from forfeiture. If all such amount are actually paid or sufficient security, in the opinion of trial court, is furnished then in its discretion, the trial court may pass appropriate orders giving relief from the forfeiture in favour of lessee. The point of time for making such compliance and praying for relief is important. The purpose of Section 114 of the Act is not to continue such possibility of granting relief to the lessee even before the appellate forums. Therefore, prayer of learned counsel for the appellant defendant before this Court that benefit of Section 114 of Transfer of Property Act may be given to the defendant at this stage, cannot be accepted and is liable to be rejected and same is accordingly rejected." ;