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1986 DIGILAW 442 (CAL)

SHYAMAL AGARWALA v. NANDA RANI DASSI

1986-11-27

A.M.BHATTACHARJEE, S.K.SEN

body1986
A. M. BHATTACHARJEE, S. K. SEN ( 1 ) THE suit-tenancy, created in 1962 by a registered Deed of Lease for a period of more than 20 Years, was admittedly not governed by the provisions of the West Bengal Premises Tenancy Act, 1856 in view of Section 3 there of and was governed by the provisions of Chapter V of he Transfer of Property Act, a lease of immovable property stands determined by forfeiture for non-payment of rent if the lease provides for re-entry on the part of he lesser for such non-payment and the lesser gives notice in writing to the lessee of his intention to determine the lease. But Section 114 of the Transfer of Property Act, however, provides that notwithstanding such forfeiture and resultant determination of lease, if the lessee, on being sued for adjustment, "pays or tenders to the lesser" "at the hearing of the suit" the rent in arrear, together with interest thereon and his full costs of the suit. . . . . . The court may, in lieu of making a decree for adjustment, pass an order relieving the lessee against the forfeiture" and "thereupon the lessee shall hold the property leased as if the forfeiture had not occurred. " ( 2 ) THE expression "at the hearing of the suit" in Section" in Section 114 is likely give rise to the impression that the provisions thereof give rise to the impression that the provisions thereof may be invoked by the lessee only in the trial court before the suit is heard and disposed of and not for the first time in the court of appeal. In fact the decision of a learned single-Judge of the Allahabad High Court in Northern India Coal co. v. Bitti Kuer (ILR 1950 Allahabad 532) is to the same effect where it was held that the benefits of the provisions of Section 114 of the Transfer of Property Act could have been availed of only at a stage prior to the decree of the trial court. But a "suit" includes Section 2 (1) of the Limitation Act, 1963 does and, therefore, in that view, "the hearing of he suits" continues during he hearing of the appeal thereform. ( 3 ) THE expression "law abhors a forfeiture" has almost become a legal maxim. But a "suit" includes Section 2 (1) of the Limitation Act, 1963 does and, therefore, in that view, "the hearing of he suits" continues during he hearing of the appeal thereform. ( 3 ) THE expression "law abhors a forfeiture" has almost become a legal maxim. There are high authorities, both judicial and textual, for the view that law abhors and leans strongly against forfeiture. That is why this Court as clearly as in 1864 in Alam Chunder. v. William Moran (1864, Weekly Reporter - Gap No.- Act X Ruling - P 31 at 320 ruled that Court would not enforce forfeiture where there was no injury which could not be repaired by making compensation. If law abhors forfeiture, it would favor relief against forfeiture wherever possible. In that vies of the matter, when the expression "at the hearing of the suit" in Section 114 of the Transfer of Property Act is capable of being construed to cover the appellate stage of the suit also, such construction must be accepted as that would clothe the provisions of Section 114 of the Transfer of Property Act with wider amplitude and would enable courts to relieve lessees form the operation of forfeiture with greater plentitude. ( 4 ) THIS was the view adopted by a Division Bench of the Mardras High Court as early as in 1913 in vidyapurna v. Rangappayya (21 India cases 405) which has been followed by the same High Court in the much later decision in Janab Vallathi v. K. Kederval ( AIR 1958 Mad 232 ). ( 4 ) THIS was the view adopted by a Division Bench of the Mardras High Court as early as in 1913 in vidyapurna v. Rangappayya (21 India cases 405) which has been followed by the same High Court in the much later decision in Janab Vallathi v. K. Kederval ( AIR 1958 Mad 232 ). We would have respectfully agreed with this view, but we are now bound to accept this view whether of not we concur therein as the same has been endorsed by the Supreme Court in Praduman Kumar v. Viendra Goyal (AIR 1969 Supreme Court 1349) where the Supreme Court has observed that though "in terms Section 114 makes payment of rent at the hearing of the suit in adjustment a condition of the exercise of the court's jurisdiction", but "an appeal being a re-hearing 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" and "passing of decree in adjustment against a tenant by the court of the First Instance does not take away the jurisdiction of the appellate Court to grant equitable relief" under Section 114, Transfer of Property Act. ( 5 ) IN the case at hand, the appellant-tenant clearly committed a breach of the condition of the lease relating to payment of rent and obviously incurred forfeiture for such non-payment of rent and Mr. Roy Chowdhury, the learned Advocate appearing for the tenant appellant, has fairly conceded that he is not in a position to assail the finding of the trial court that the lease stood determined as a result of forfeiture as aforesaid. The defendant-tenant, however, applied before the trial court for relief against forfeiture under Section 114 of Transfer of Property Act, but his application was rejected as no interest on the rent in arrear, as provided in the deed of lease, was paid a or tendered as required under that Section. Mr. Roy Chowdhury with his usual fairness has not also challenged that the application was liable to be rejected as no interest was paid or tendered. But Mr. Mr. Roy Chowdhury with his usual fairness has not also challenged that the application was liable to be rejected as no interest was paid or tendered. But Mr. Roy Chowdhury has very strongly urged that notwithstanding all these, the tenant-appellant is entitle to invoke afresh the provisions of Section 114 of Transfer of Property Act before us in this court on payment of all that was required to be paid or tendered under Section 114 of the Transfer of Property Act and has reeled on the aforesaid decision of the Supreme Court in Praduman Kumar v. Virendra Goyal (supra) for the purpose. We have no doubt that the tenant-appellant would have been entitled to do so and that we would have allowed big to do so but for the fact that the lease under which the tenant held, being for a fixed period of 22 years form 1962, has already expired in 1984 during the tendency of the appeal in this Court and the lease would thus stand determined by elf flux of time even if forfeiture is relieved against. For under the express terms of Section 114, Transfer of Property Act, even if the forfeiture is relieved against, there lessee would have held the property only for the period fixed up to 1984 "as if the forfeiture had not occurred". ( 6 ) IT is true that the determination of the tenancy by efflux of time in this case is a post-suit subsequent development and ordinarily a lies is governed by the facts as they stand on the date of the initiation of the lies. But it is well-settled that when the relief prayed, though otherwise appropriate on the date of the commencement of the lies, has become wholly inappropriate or would become entirely futile as a result of subsequent post-suit developments, courts must take notice there of to mould to do real justice between the parties and to shorten litigation. If any citation is necessary for such a well-established proposition, reference may be made to the old leading decision of this court in Raicharan v. Biswanath (AIR 1915 Calcutta 103) and also the decision of the Supreme Court in Sikharchand v. Digamber ( AIR 1974 SC 1178 at 1182) which has approved the former. As the tenancy in this case has now, as conceded by Mr. As the tenancy in this case has now, as conceded by Mr. Roy Chowdhury, stood determined by efflux of time, relieving the tenant-appellant against earlier determination of tenancy by forfeiture for non-payment of rent would be an empty formality without any substance and since equity always looks to the substance and not to the form, the grant of equitable relief under Section 114 of the Transfer of Property Act in this case would be entirely out of place. We, therefore, decline the prayer made by Mr. Roy Chowdhury on behalf of the tenant-appellant as equity shall never act in vain. ( 7 ) THE appeal is, therefore, dismissed and the judgment and decree under appeal are confirmed with this modification that the appellant tenant shall be allowed time to vacate the suit-premises till 31st of January, 1987, failing which the plaintiff-respondent shall be entitled to recover possession in execution of the decree under appeal. In the facts of this case, we, however, make no order as to costs in this appeal. Appeal dismissed. Shyamal Kumar Sen, J. I agree.