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Habib Ahmed Vs. Mt. Keoti Kuer - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1946All328
AppellantHabib Ahmed
RespondentMt. Keoti Kuer
Excerpt:
- - the civil court was perfectly within its right to pass a decree in spite of the order of the collector......any authority is needed for the proposition that the rent accepted must have accrued after the date of forfeiture and not preceding to it. in this view of the matter the acceptance of this rent did not amount to a waiver of the forfeiture. it is no doubt true that in the court of appeal the defendant-appellant for the first time showed his readiness to pay the amount but that is not what is contemplated by section 114, t.p. act. there must be actual payment or tender before the court. mere readiness to pay would not suffice. i am also not prepared to accept the view that this tender or payment can be made in the appellate court. the learned counsel for the appellant has relied on two rulings, one of nagpur, shrikishanalal v. ramnath jankiprasad ('44) 31 a.i.r. 1944 nag. 229 and other.....
Judgment:

Mathur, J.

1. This is a defendant's second appeal. It arises out of a suit brought by the plaintiff-respondent for ejectment of the appellant and for recovery of some arrears of rent. The defence among other things was that as the plaintiff had accepted rent after the notice to quit she was not entitled to enforce the forfeiture clause. Another point raised before the appellate Court was that as the defendant was prepared to pay the amount at that stage he should have been given the benefit of Section 114, T.P. Act. It was also urged that in view of order promulgated by the Collector of Saharanpur under the Defence of India Rules no order for ejectment could be passed by the Courts below. Both the lower Courts, however, repelled these contentions and decreed the suit. I have heard the learned Counsel for the parties, and I find that there is no force in this appeal. It is common ground that a lease was executed by the defendant-appellant on 20th March 1941 for a period of one year, and that there was a clause saying that if he did not pay rent from month to month he would be liable to be ejected. It is also not disputed that at the time when the notice to quit was given the defendant had not paid rent for two months, that is from 3rd October 1941 to 2nd December 1941. Subsequent to this notice to quit, the plaintiff accepted the rent for the period ending 2nd December 1941. It is argued on this basis that she waived the forfeiture as provided in Section 112, T.P. Act. As I read the section, I find 'a forfeiture under Section 111, Clause (g) is waived by acceptance of rent which has become due since the forfeiture.'

2. I do not think any authority is needed for the proposition that the rent accepted must have accrued after the date of forfeiture and not preceding to it. In this view of the matter the acceptance of this rent did not amount to a waiver of the forfeiture. It is no doubt true that in the Court of appeal the defendant-appellant for the first time showed his readiness to pay the amount but that is not what is contemplated by Section 114, T.P. Act. There must be actual payment or tender before the Court. Mere readiness to pay would not suffice. I am also not prepared to accept the view that this tender or payment can be made in the appellate Court. The learned Counsel for the appellant has relied on two rulings, one of Nagpur, Shrikishanalal v. Ramnath Jankiprasad ('44) 31 A.I.R. 1944 Nag. 229 and other of Madras, Vidyapurna Tirtha v. Rangappayya ('13) 21 I.C. 405 (Mad.), but with all respect I do not agree with them. It is a concession which has been extended to the defaulting lessee and its advantage can only be taken at the very first opportunity. It would be unfair to the lessor if the lessee is allowed to take advantage of that provision after a decree has been obtained. In this view of the matter the defendant appellant cannot make a grievance of it. The notification of the Collector of Saharanpur was in the first instance subsequent to the date of the forfeiture and could not have a retrospective effect. Even if it were of a prior date, I do not think that it can debar a civil Court from passing a decree for ejectment. Whether the decree could be executed or not would be another matter. The order is only 'binding on the landlords and if they disobey the order they would render themselves liable to prosecution under the Defence of India Rules. The civil Court was perfectly within its right to pass a decree in spite of the order of the Collector. In any view of the case this appeal has got no force and is dismissed with costs.


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