D. H. SHUKLA, M. K. SHAH, J. ( 1 ) THERE is a Public Trust by name The Surat Parsi Panchayat Funds and Properties No. 15/1938 which is registered as a Public Trust at No. C 168 (Surat) under the Bombay Public Trusts Act 1950 on 6-3-1954. The said Trust is shown to be in Surat District Baroda Region. The certified copy of its registration is at Exh. 54. The said Trust owns several immovable properties and the Schedule to Exh. 54 shows that Survey Nos. 57 58 63 68 69 70 and 71 along with others are owned by the said Trust. These Survey Nos. pertain to the agricultural grass lands situate in the sim of village Umerwada Taluka Chaurasi. The trustees of the said trust made plots of different size in the same agricultural lands and leased out different plots to different persons after obtaining the permission of the Charity Commissioner. In all the cases of the leases so made their respective duration was for a period of 30 years all of them were registered and the plots were leased out for industrial purposes. It was alleged by the trustees that the lessees of several plots were in arrears of rent for more than six months and thus those lessees had committed a breach of a condition of the lease which breach consequently resulted into the termination of their respective leases by the trustees who then filed suits against the lessees for the recovery of the possession of the leased lands along with the arrears of rents and mesne profits. Originally six suits were filed by the trustees against different defendants in the Court of the Civil Judge (S. D ) at Surat. Those suits were bearing Nos. 18/70 27 124 136 161 and 25/70 They were treated as companion suits in which the plaintiffs were the same and the questions of law and fact were also common to them. At the time of the hearing of the suits they were consolidated and the evidence was recorded in Suit No. 18/70. All the six suits were decreed by the judgment and order of the Civil Judge (S. D.) Surat and the defendants were directed to hand over to the plaintiffs the possession of the land leased to the respective defendants and they were further directed to pay the rent and the mesne profits as stated therein. . . All the six suits were decreed by the judgment and order of the Civil Judge (S. D.) Surat and the defendants were directed to hand over to the plaintiffs the possession of the land leased to the respective defendants and they were further directed to pay the rent and the mesne profits as stated therein. . . . . . . . . . . . . . . . . . . . . . ( 2 ) THE main contention which was raised before the Trial Court and which was also pressed before us related to the question of the jurisdiction of the Civil Court to try the suits. The defendants had challenged the jurisdiction of the Civil Court on the first ground that it was the Civil Court as constituted under the Bombay Rent Hotel and Lodging House Rates Control Act 1947 (referred to hereinafter as the Bombay Rent Act) which had the jurisdiction to try the suit and not the ordinary Civil Courts. In the alternative it was contended that as the suit lands were agricultural lands it would be the Court constituted under the Bombay Land Revenue Code which could entertain and try those suits. In the alternative it was further contended that under the Provisions of the Bombay Tenancy and Agricultural Lands Act 1948 (hereinafter referred to as the Tenancy Act) the proper forum will be the competent authority constituted under the Tenancy Act. ( 3 ) SO far as the question of jurisdiction under the Bombay Rent Act is concerned the learned trial Justice has rightly relied upon a ruling in the case of Mst. Subhadra v. Narsaji Chenayi Marwadi reported in A. I. R. 1966 Supreme Court page 806 and another ruling in the case of Vasudev Dhanjibhai Modi v. Rajabhai Abdul Rehman and Ors. reported in 12 G. L. R. page 55 to reach a conclusion that the suit lands were not covered by the provisions of the Bombay Rent Act. It is an undisputed position that the suit lands were agricultural lands and were assessed as such on the date of letting. This factual position is not gainsaid by the defendants and hence the ratio of the ruling squarely applies. It is an undisputed position that the suit lands were agricultural lands and were assessed as such on the date of letting. This factual position is not gainsaid by the defendants and hence the ratio of the ruling squarely applies. The Supreme Court upheld the view of the Courts below holding that the concerned plot being one used for agricultural purpose at the time of letting was not premises as contemplated in sec. 5 (8) of the Bombay Rent Act. It was further held that the material date for ascertaining whether the Plot is premises for purposes of sec. 6 is the date of letting and not the date on which the application for fixation of standard rent is made by the tenant or the landlord. The facts of the present appeals before us as stated above are analogous in nature. Furthermore there is one added feature in the facts of the present cases namely that the Non Agricultural Permission was not obtained till the suits were filed whereas in the reported case such a permission was obtained before the application for fixation of standard rent was submitted. ( 4 ) IN the ruling reported in 12 G. L. R. page 55 (supra) also the same view is taken namely It is plain that the Court exercising power under the Bombay Rents Hotel and Lodging House Rates (Control) Act 1947 has no jurisdiction to entertain a suit for possession of land used for agricultural purposes the crucial date is the date on which the right conferred by the Act is sought to be exercised. Mr. K. C. Shah who appeared for the appellants before us could not submit any argument or material which would persuade us to take a contrary view. We therefore uphold the finding of the learned trial Judge that the Bombay Rent Act had no application to the present suit lands and that therefore these suits could not be entertained by the Special Courts created under the Bombay Rent Act. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ( 5 ) THE learned trial Judge was also right in coming to the conclusion that the competent authority constituted under the Bombay Tenancy Act had no jurisdiction to try these suits as so far as the suit lands are concerned the plaintiffs had obtained exemption certificate under the provisions of sec. 88b of the Tenancy Act. The said Certificate is found to be produced in original at Exh. 73. Under sec. 88b of the Bombay Tenancy Act only the provisions of secs. 3 4 8 9 9 9 9 10 10 11 13 and 27 and the provisions of Chapters VI and VIII in so far as they are applicable to any of the matters referred to in the Sections mentioned above are applicable to lands in respect of which an Exemption Certificate is granted by the Collector. In view of the Exemption Certificate (Exh 73) and further in view of the provisions of sec. 88b of the Bombay Tenancy Act the competent authority constituted under the Bombay Tenancy Act would not have jurisdiction to try these suits. In this view of the matter the suits were rightly held to be triable by the Civil Court. ( 6 ) MR. K. C. Shah submitted that the Exemption Certificate which was granted to the plaintiffs was not granted according to the provisions of the section and therefore the said certificate was a nullity. This argument was also advanced before the trial Court but it was negatived on the ground that when the Exemption Certificate was granted it was a conclusive evidence in that behalf. Mr. Shah submitted that such a certificate could be granted only with respect to an institution which was for public religious worship whereas in the present case the plaintiff trust has as its object the maintenance of a tower of silence which is not a place for public religious worship. That being so Mr. Shah submitted that the Exemption Certificate was void ab initio and the Civil Court had jurisdiction to examine the legal effectiveness of a Certificate if it was challenged on the ground of nullity. It is expressly provided in sec. 88b sub-sec. That being so Mr. Shah submitted that the Exemption Certificate was void ab initio and the Civil Court had jurisdiction to examine the legal effectiveness of a Certificate if it was challenged on the ground of nullity. It is expressly provided in sec. 88b sub-sec. (2) For the purposes of this section a certificate granted by the Collector after holding on inquiry that the conditions in the proviso to sub-sec. (1) are satisfied by any trust shall be conclusive evidence in that behalf. It is for the competent authority namely the Collector therefore to inquire into the question whether the contentions stated in the provisions of sub-sec. (1) were satisfied or not and once he comes to the conclusion after holding an inquiry that those purposes were satisfied by any) trust his conclusion would be a conclusive evidence in the matter The Prant Officer Surat who is covered within the definition of a Collector as given in the Bombay Tenancy Act has held that the trust is for a tower of silence and tower of silence is an institution for Public religious worship and that conclusion is expressly saved from any challenge before the Civil Court under the provisions of the statute reproduced above. To accept the argument of Mr. K C. Shah would be to contravene the provisions of sec. 88b (2) which are clear express and unambiguous. This argument was also advanced before the trial Court but it was negaatived and even after hearing Mr. Shah on the question we confirm the view taken by the learned trial Judge in this regard. ( 7 ) MR. Shah advanced one more argument to convince us that Civil Court did not have the jurisdiction to try the suits. He submitted that even when an exemption certificate was granted as envisaged under sec. 88b of the Bombay Tenancy Act certain sections nevertheless continued to apply. They included sections 8 9 9 9 and 9c. Under sec. 8 a standard is specified for the fixation of maximum and minimum rent and under sec. 9 it is the Mamlatdar who is empowered to fix the rate of rent payable by a tenant for the lease of different classes of land situate in such village or group of villages or areas as the case may be. Mr. Under sec. 8 a standard is specified for the fixation of maximum and minimum rent and under sec. 9 it is the Mamlatdar who is empowered to fix the rate of rent payable by a tenant for the lease of different classes of land situate in such village or group of villages or areas as the case may be. Mr. Shah submitted that the suit lands were governed by the Bombay Tenancy Act at least so far as the application of secs. 8 and 9 were concerned and therefore the Civil Court could not determine the amount of rent or mesne profits payable by the defendants to the plaintiffs. He submitted that for this purpose the Civil Court had no jurisdiction to pass a decree for the rent and mesne profits against the defendants and the Civil Court should have referred that dispute for its determination by the Mamlatdar. Now the first observation which we must make in connection with this argument is that it is raised for the first time before us. It was not raised in the trial proceedings. No specific plea was raised in the written statement that rent was required to be ascertained or fixed by the Mamlatdar under the provisions of sec. 9 of the Bombay Tenancy Act and that therefore till that was done the Civil Court should stay its hands. On the contrary in the written statement (Exh. 15) it is submitted that the defendants were willing and prepared to deposit such rent as the Civil Court trying the suit would fix. It is also specifically stated in paragraph 5 of the same written statement that the rent charged was excessive considering the rent charged for the lands in the surrounding area and it was prayed that the Civil Court may fix the standard rent of the suit lands. It is in this light now that the authority cited by Mr. Shah reported in A. I. R. 1956 Bombay page 691 (Subraya Ram Bhatta v. Pyara Krishna Gauda and another) may be looked into. It is in this light now that the authority cited by Mr. Shah reported in A. I. R. 1956 Bombay page 691 (Subraya Ram Bhatta v. Pyara Krishna Gauda and another) may be looked into. ( 8 ) THIS authority on the contrary goes to show that the Civil Court has a jurisdiction in the matter of the recovery of the rent and the only aspect which is envisaged to be left to the Mamlatdar is the fixation of the rent but so far as that aspect is concerned such a plea must be raised and the Civil Court must be prayed to stay its hands till such rent is fixed by the Mamlatdar. In our case not only such a plea is not raised but as seen above the defendants had invited the Civil Court to fix the standard rent. We therefore cannot accede to the argument of Mr. Shah that the Civil Court had no jurisdiction to deal with the question of recovery of rent. . . . . . . . . . . . . . . . . . . . . ( 9 ) THERE is no force therefore in the plea of the defendants that the Civil Court had no jurisdiction to try the suits and we confirm the finding of the learned trial Judge that he had the jurisdiction to try those suits. ( 10 ) THE last argument which Mr. Shah pleaded before us was that the plaintiffs had terminated the tenancies for non payment of rent and this was a fit case in which the defendants should be given relief against forfeiture. He conceded that it was true that no such plea was raised in the written statement filed by the defendants nor was any such plea raised althroughout during the trial proceedings. He agreed that he was raising such a plea on behalf of the defendants for the first time but he cited an authority reported in A. I. R. 1969 Supreme Court. 1349 (R. S. Lala Praduman Kumar v. Virendra Goyal (dead) by his legal Representatives and others) to show that such a plea could be raised for the first time even at the appellate stage. 1349 (R. S. Lala Praduman Kumar v. Virendra Goyal (dead) by his legal Representatives and others) to show that such a plea could be raised for the first time even at the appellate stage. It is observed and reiterated that The covenant of forfeiture of tenancy for non payment of rent is regarded by the Courts as merely a clause for securing payment of rent and unless the tenant has by his conduct disentitled himself to equitable relief the Courts grant relief against forfeiture of tenancy on the tenant paying the rent due interest thereon and costs of the suit. It is further observed that Sec. 114 makes payment of rent at the hearing of the suit in ejectment a condition of the exercise of the Courts jurisdiction but an appeal being a rehearing of the suit in appropriate cases it is open to the appellate Court at the hearing of the appeal to relieve the tenant in default against forfeiture. It is further observed that Failure of the tenants to avail themselves of the opportunity does not operate as a bar to the jurisdiction of the appellate Court. The appellate Court may having regard to the conduct of the tenancy decline to exercise its discretion to grant him relief against forfeiture. The question is not one of jurisdiction but of discretion. So far as the reported case is concerned the District Court had observed that valuable constructions had been put upon the land leased and tenants had deposited an amount very much larger than the amount due to the landlord. Having regard to the circumstances the District Court was of the view that discretion should be exercised in favour of the tenants. The High Court summarily dismissed the appeal. The Supreme Court therefore felt that the High Court must be taken to have confirmed the view of the District Court and the Supreme Court did not think it proper to interfere with an order made in exercise of the discretion by the Courts below especially when there was no evidence that the tenants were guilty of conduct disentitling them to relief against forfeiture for non payment of rent. ( 11 ) MRS. ( 11 ) MRS. Mehta submitted that when the plaintiffs gave a notice to the defendants before filing the suits they were not exercising the right of forfeiture but they were exercising a right arising under the contract to terminate the lease. Since the right of forfeiture was not exercised she submitted there was no question of granting any relief against forfeiture Even when it is true that the plaintiffs had exercised their right arising under the lease deeds to terminate the tenancy for non payment of rent it was nonetheless exercising a right of forfeiture. The leases were for a fixed period of 30 years and if a lease of a fixed duration is terminated prematurely it is exercising the right of forfeiture. Under sec. 111 of the Transfer of Property Act the modes of determination of lease are specified and under sec. 111 sub clause (g) a lease is terminated by forfeiture when the lessee breaks an express condition which provides that on breach thereof the lessor may reenter. It is precisely under these circumstances that the right of forfeiture is exercised by the plaintiff. We therefore do not accept the argument of Mrs. Mehta. ( 12 ) THE second consideration which now arises is as to whether the defendants are required to be given a discretionary relief against forfeiture. It is a settled legal position that the relief against forfeiture prayed under sec. 114 of the Transfer of Property Act is not a matter of right but it is within the discretion of the Court whether to grant the relief against forfeiture or not and the exercise of such discretion calls for taking into consideration inter alia the conduct of the tenants althroughout the period of lease and during the litigation. ( 13 ) IN Suit No. 18/70 (First Appeal No. 131/74) from the perusal of the plaint we find that the defendants had paid rent only for three months and thereafter they were in arrears from 1-3-1967 onwards till the suit was filed that is on 1-2-1970. The plaintiffs claimed arrears of rent of Rs. 12 670 inclusive of the rent and the mesne profits. It means that the defendants fell into the arrears of rent after paying rent only for a period of three months. It appears that they have not deposited rent or mesne profits during the pendency of the suits. The plaintiffs claimed arrears of rent of Rs. 12 670 inclusive of the rent and the mesne profits. It means that the defendants fell into the arrears of rent after paying rent only for a period of three months. It appears that they have not deposited rent or mesne profits during the pendency of the suits. ( 14 ) IN Suit No. 124/70 (First Appeal No. 132/74) the tenants were in arrears from 1-10-1966 to 31-7-1979 for a period of 34 months and thereafter they were further in arrears so far as the mesne profits were concerned and that period was between 1-8-1969 and 31-8-1970. The suit was filed on 19-9-1970. The plaintiffs claimed a sum of Rs. 17 531 as the arrears of rent and mesne profits. ( 15 ) IN Suit No. 161/70 (First Appeal No. 271/74) the defendants were in arrears from 1-4-1967 to 31-3-1970 for rent and thereafter for mesne profits till the suit was filed on 19-11-1970. The plaintiffs claimed in all Rs. 14 490 for rent and mesne profits from the defendants in the suit. ( 16 ) IN Suit No. 25/70 (First Appeal No. 272/74) the defendants were in arrears of rent from 1-3-1967 to 31-8-1969 and thereafter for mesne profits till the suit was filed on 16-2-1970. The plaintiffs claimed in all Rs. 12 775 by way of rent and mesne profits from the defendants in the suit. ( 17 ) AS observed earlier the defendants never prayed for relief against forfeiture by tendering the amounts claimed by the plaintiffs with interest costs but they fought the suit tooth and nail by raising all sorts of defences and nothing was paid or deposited by them during the trial of the suit. ( 18 ) EVEN after the appeals were filed by them nothing has been paid or deposited in two Appeals namely F. A. No. 271/74 and F. A. No. 272/74 and in both these appeals the stay was required to be vacated as the condition for payment was not complied with. The order was vacated on 6th of March 1975 by the order of the Court and even till today nothing has been paid or deposited by them. The order was vacated on 6th of March 1975 by the order of the Court and even till today nothing has been paid or deposited by them. ( 19 ) IN other two appeals namely F. A. No. 131/74 and F. A. No. 132 the defendants had paid the amount of rent and mesne profits in order to obtain the stay of execution. ( 20 ) SO far as First Appeals Nos. 271/74 and 272/74 are concerned no prayer is made for relief against forfeiture whereas in First Appeals Nos. 131/74 and 132/74. Civil Applications bearing Nos. 3462/74 and 3463 were filed on 23-11-1979. These applications sere obviously therefore delayed and were filed only when the appeals were placed on daily board for final hearing. . ( 21 ) WE have reproduced these details only in order to show how the defendants persisted in being in arrears and this conduct is very relevant to be taken into account for granting a discretionary relief. ( 22 ) THE defendants not only did not pray for relief against forfeiture at the hearing of the suit as required under sec. 114 of the Transfer of Property Act but they raised all sorts of contentions against the plaintiffs. They even went to the extent of challenging the registration of the plaintiff trust as well as the fact that the plaintiffs were the trustees of the said trust. The defendants are businessmen carrying on trade in the city like Surat and it is observed that all of them are assessible to income tax and sales tax. The defendants of this status have taken a contention that their signatures were obtained on the lease deeds the contents of which they did not understand. They further contended that they were not given the possession of the suit lands although it is expressly recited in the lease deeds that the possession of the suit lands have been given to the respective lessees. They took up the contention that the plaintiffs were not entitled to recover rent as they did not comply with the conditions of the lease deed by which they would be enabled to make the use of the suit land for the purpose for which they had taken it. In our opinion the conduct of the defendants does not merit granting of the discretionary relief of relief against forfeiture. In our opinion the conduct of the defendants does not merit granting of the discretionary relief of relief against forfeiture. In the ruling reported in A. I. R. 1963 Supreme Court 228 (Namdeo Lokman Lodhi v. Narmadabai and others) it is observed that The granting of relief against forfeiture under sec. 114 is no doubt in the discretion of the Court but in exercising the discretion each case must be judged by itself the delay the conduct of parties and the difficulties to which the landlord has been put should be weighed against the tenant. It is further observed that It is a maxlm of equity that a person who comes in equity must do equity and must come with clean hands and if the conduct of the tenant is such that it disentitled him to relief in equity then Courts hands are not tied to exercise it in his favour. It is further observed and held that Hence the contention that though sec. 114 confers a discretion on the Court that discretion except in cases where third party interests intervene must always be exercised in favour of the tenant irrespective of the conduct of the tenant cannot be accepted. We may state that so far as the present defendants are concerned it is not even their case that the interest of the third party has intervened and we may also further state that the suit lands are kept in the same condition by them that is to say no construction has been made upon them the removal of which might cause hardship. ( 23 ) IN the ruling reported in A. I. R. 1969 Supreme Court 1349 (Supra) the Supreme Court refused to intervene in the exercise of the discretion by the District Judge which discretion was exercised in the circumstances that the tenants have put up valuable constructions upon the lease lands. The facts of that case are therefore not applicable to the present case. ( 24 ) IN another ruling of the Division Bench of the Calcutta High Court reported in A. I. R. 1967 Calcutta 612 (Dwarka Prasad Arya v. Om Prokash Mohta and others) the relief against forfeiture was refused to the tenants under circumstances similar to the present case. ( 24 ) IN another ruling of the Division Bench of the Calcutta High Court reported in A. I. R. 1967 Calcutta 612 (Dwarka Prasad Arya v. Om Prokash Mohta and others) the relief against forfeiture was refused to the tenants under circumstances similar to the present case. The following observations are apposite:"from the records before us it is clear that since the date of default namely August 1957 until the present time the defendant has been proved to be a recalcitrant tenant who has never agreed to pay the landlords dues or make any payment of rent except under compulsion through legal proceedings and it is only under orders of Court that he has made deposits from time to time on account of arrears of rent. . He has been in our opinion since that time a habitual defaulter. He has also harassed the landlords by false pleas both in the instant suit where he raised the question of suspension of rent. which was not eventually pressed or pursued and also in the proceedings under O. 9 R. 13 read with sec. 151 of the Code of Civil Procedure. He also allowed the arrears to accumulate to an enormous figure at the rental rate by withholding payment for a considerable time and as we have already said he never made any payment since August 1957 except under Courts intervention or when compelled under the Courts directions". ( 25 ) SIMILAR observations are also to be found made by the Division Bench of the Allahabad High Court in a ruling reported in A. I. R. 1962 Allahabad 65 (Narsingh Das and another v. Permeshwari Das ). It is observed therein The relief against forfeiture provided in sec 114 is based on equitable principles. The purpose of this section appears to be to extend a special indulgence in favour of a tenant who is prepared to purge himself of his conduct as a persistent defaulter by making an honest offer to clear off his entire liability. His unconditional readiness to wipe off his legal dues is therefore made a condition precedent to his prayer that the Court might invoke this section in his favour. In that case also the suit for eviction of tenants was filed and both the tenants contested the suit on a large number of grounds. His unconditional readiness to wipe off his legal dues is therefore made a condition precedent to his prayer that the Court might invoke this section in his favour. In that case also the suit for eviction of tenants was filed and both the tenants contested the suit on a large number of grounds. The suit was filed on 21st of January 1954 and it was prayed for the first time on the 21st February 1955 that all the pleas taken by them were given up and that the benefit of sec. 114 of the Transfer of Property Act be given to them. Even then they did not deposit the full amount of arrears of rent together with costs and interest. It was held that it was not a fit case for exercise of the discretionary power of the Court in favour of the tenants. In that case even though the prayer for relief against forfeiture was made almost within an year after the suit was filed the relief was denied to the tenants whereas in our case there was no such prayer made althroughout during the trial proceedings. ( 26 ) IN a ruling reported in A. I. R. 1956 Assam Page 113 (Kishanlal Singol and another v. Hari Kisson Lohia) the discretion to grant specific relief was not exercised in favour of the tenants where it did not appear that the conduct of the tenants in withholding payment of rent to the landlord was for a reasonable cause. It was observed (Page 114) The Court has discretion under sec. 114 T. P. Act to grant the relief against forfeiture or to refuse the same. In this case it does not appear to me that the conduct of the defendants in withholding payment of rent to the plaintiff as they had done for about a year and a half without any adequate cause justifies any such relief. In the cases before us the defendants were in arrears of rent and mesne profits for a much longer period. We are therefore fortified by these rulings when we do not consider this to be a fit case to exercise the discretion of granting reliefagainst forfeiture to the defendants. Mr. Shahs last argument thorefore by which he prayed for a relief against forfeiture is required to be rejected under the circumstances of the case and in view of the conduct of the defendants. Mr. Shahs last argument thorefore by which he prayed for a relief against forfeiture is required to be rejected under the circumstances of the case and in view of the conduct of the defendants. ( 27 ) IN the result all the four First Appeals are dismissed with costs. Appeals dismissed. .