1. This second appeal arises out of a suit for the ejectment of the defendant from two shops and two rooms of which he was the lessee under the terms of an agreement dated August 18, 1927. The covenant was that the lease should be deemed to have commenced on June 17, 1927, that rent should be paid at the rate of Rs. 610 a year, but that two years' rent should be paid in advance. A sum of Rs. 70 had been paid before the document was executed and registered. A further sum of Rs. 450 was paid at the time of registration. There was left for payment a sum of Rs. 90 on account of advance of rent for one year and the sum of Rs. 610 for the advance of rent for the second year. Under the agreement, the sum of Rs. 90 was to be paid on January 14, 1928, and the sum of Rs. 610 on April 15, 1928. Thereafter rent was to be paid each year in the month of Asarh for 10 years. The rent of the last two years was to be set off as it became due against the advance. Sometime after the agreement was executed a dispute arose between the parties. The defendant was a Halwai who made and sold sweets. He wished to build an oven in one of the rooms which had been leased to him. The plaintiff objected upon the ground that the building of an oven would be contrary to the Municipal bye-laws.
2. Eventually the defendant instituted a suit in order to obtain an injunction against the plaintiff restraining him from interfering with the building of the oven. The defendant also asked for a sum of Rs. 70 as damages. That suit was dismissed in the Courts below, but a decree was passed in favour of the present defendant by this Court on November 30, 1931. The suit for the injunction had been instituted on February 28, 1928.
3. The suit which has given rise to this appeal was instituted on April 23, 1928. The plaintiff sued for the ejectment of the defendant upon the ground that the defendant had failed to pay the two sums of Rs. 90 and Rs. 610 on January 14, 1928, and April 15, 1928, respectively. There was a covenant in the lease that failure to pay these sums on the due date would give a right to the plaintiff to eject the defendant. It is not denied that the sums were not paid, nor is it denied that there was a covenant that failure to pay would give rise to a claim for ejectment.
4. The argument is that the plaintiff had substantially interfered with the defendant's possession over the property and that for this reason the payment of rent was suspended. The argument is that the rent not having become due owing to this suspension there could be no forfeiture for failure to pay it. The answer to that is that there was a distinct covenant that certain sums of money would be paid on certain dates and that failure to pay them would entail forfeiture of the lease. It is possible that different considerations might apply if the covenant had been that failure to pay rent due within a certain period might entail forfeiture. It is also possible that the plaintiff might not have succeeded if he had instituted a suit for recovery of the arrears of rent at that time.
5. The point, however, is that the defendant is striving to maintain his right to possession under the lease and at the same time is repudiating his agreement to pay certain sums of money on certain dates by way of advance of rent. I do not think that he can be allowed to do this. In so far as the plaintiff caused him any loss by interfering with his building of the oven, he has already obtained a decree for damages and no further question of loss can arise.
6. I have no doubt that the suit was rightly decreed and that the lower Court was correct in dismissing the appeal. I dismiss this appeal with costs. Leave to appeal under the Letters Patent is refused.