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Krishnaji Govind Joshi Vs. Sitaram Hanmant Ramdashi - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai
Decided On
Case Number Second Appeal No. 82 of 1920
Judge
Reported inAIR1921Bom403; (1920)22BOMLR1439
AppellantKrishnaji Govind Joshi
RespondentSitaram Hanmant Ramdashi
DispositionAppeal allowed
Excerpt:
.....of three months, the, lease was to stand forfeited. there having been default in payment of rent for two years, the plaintiff forfeited the lease and sued to recover possession of the lands:-;dismissing the suit, that under the circumstances the court should relieve the defendants against forfeiture, though the rent was not paid within the period of grace allowed.;naraina naika v. vasudeva bhatt (1903) i.l.r. 28 mad. 389, dissented from. ;the court will ordinarily relieve a tenant against forfeiture clause in a lease, unless the tenant has done something to forfeit his right to bring himself within the principles of equity. - - that was a perfectly correct order to make and an order within the powers of the judge to make......property together with rs. 35-8-0 as arrears of rent. admittedly there had been a default. the learned judge in the trial court said that it would be a hardship if the land which the defendants had been cultivating for so many years should be taken from them for two defaults in payment. he therefore passed an order relieving them against forfeiture under section 114 of the transfer of property act provided they paid the arrears of rent with interest and costs within fifteen days. that was a perfectly correct order to make and an order within the powers of the judge to make. but in appeal the learned appellate judge relying on the decision in naraina naika v. vasudeva bhatta i.l.r. (1903) mad. 389 appeared to think chat the forfeiture could not be relieved against. the learned judge.....
Judgment:

Norman Macleod, Kt., C.J.

1. In this case the plaintiff sued to recover possession of the suit property together with Rs. 35-8-0 as arrears of rent. Admittedly there had been a default. The learned Judge in the trial Court said that it would be a hardship if the land which the defendants had been cultivating for so many years should be taken from them for two defaults in payment. He therefore passed an order relieving them against forfeiture under Section 114 of the Transfer of Property Act provided they paid the arrears of rent with interest and costs within fifteen days. That was a perfectly correct order to make and an order within the powers of the Judge to make. But in appeal the learned appellate Judge relying on the decision in Naraina Naika v. Vasudeva Bhatta I.L.R. (1903) Mad. 389 appeared to think chat the forfeiture could not be relieved against. The learned Judge said that 'the exercise of the discretion of the Court to relieve against forfeiture might depend upon the circumstance whether the lease allowed a period of grace or not and whether the period of grace was a reasonable period having regard to the nature and terms of the lease.' Each case must depend upon its own facts. It may be that if a period of grace is allowed and yet the tenant does not pay rent within that period, the Court will not relieve against forfeiture. There can be no hard and fast rule and the general principle of equity is, that the Court will relieve against forfeiture unless the tenant has done something to forfeit his right to bring himself within the principles of equity. We do not think this is such a case.

2. The decree of the trial Court must be restored.

3. Appellants will get their costs in this Court and in the Court below.


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