1. This is an appeal filed by Ram Singh and others plaintiffs against the judgment dated 5th March, 1962 of Shri S. C. Goyal, Senior Subordinate Judge, Karnal, by which he accepted the appeal of the defendants and set aside the decree passed by the trial Court and dismissed their suit with costs throughout.
2. The facts of this case are that Ram Singh, Har Sarup, Parsa Ram and Dalip Singh plaintiff-appellants are owners of land measuring 3 Bighas 9 Biswas situate in the estate of Karnal and they leased out the same on the basis of deed dated 12th January, 1947 for a period of 99 years to the respondent-defendants. The latter were entitled to erect residential houses thereon and later on other members of their brotherhood could construct their houses which after the expiry of the period of lease were to become the property of the lessors. The defendants are Harijans. The original lease was granted in favour of the defendants. But according to the terms of the lease deed they had given that land to some other persons and in all 26 Harijans constructed houses thereon. The rent reserved was Rs. 68/- per annum, and it was to be paid six monthly. It was agreed that the rent shall fall due on 1st July and on 1st January, every year. The lease was to be forfeited on the failure of the defendants to pay rent for four successive six monthly intervals.
The other conditions of the lease were that the defendants were made responsible to pay house or municipal taxes or any other taxes if assessed on the property, but they were entitled to enjoy the fruits of the trees which they might grow and the ownership of the trees would vest with the lessors. The plaintiffs filed this suit for ejectment of the defendants on the allegations that the lease stood forfeited as they had failed to pay Rs. 272/- on account of arrears of rent from 1st January 1956 to 31st December 1959, and Rs. 15/14/- on account of house tax for the years, 1956-57 to 1959-60 and Rs. 49/- on account of special assessment made from 27th April, 1956. The plaintiffs gave notice to the defendants on 14th March, 1960, informing them that the tenancy stood terminated on account of their failure to pay the rent and taxes and also they had cut and removed branches of mulbery trees.
3. The suit was resisted by the defendants. It was averred that the plaintiffs refused to accept the rent when offered to them and that they remitted through money order a sum of Rs. 136/- on account of rent for two years in the year 1958 and also a sum of Rs. 272/- on account of four years rent on 10th March, 1960. But the defendants illegally refused to accept the same. On 23rd March, 1960, they deposited a sum of Rupees 272/- in the Court of the Rent Controller for payment to the plaintiffs and they were liable to pay house tax, special assessment, cost of suit, interest and other amount, if the defendants proved that they had actually paid those amounts. It was averred that the suit was barred by the provisions of the East Punjab Urban Rent Restriction Act. They claimed Rs. 40,000/- as the price of the superstructure of their houses in case decree for ejectment was passed against them. On these pleadings of the parties the following issues were framed by the trial Court:--
'1. Whether the provisions of East Punjab Urban Rent Restriction Act of 1949 apply to the facts and property in suit and as such this suit does not lie?
2. Whether the plaintiffs are entitled to possession on the grounds in the plaint?
3. Whether the defendants have removed any branches of the mulbery trees as alleged? If so to what effect?
The Subordinate Judge decided issue No. 1 against the defendants and issue No. 3 against the plaintiffs. However, issue N. 2 was decided in favour of the plaintiffs and their suit for possession of the land together with superstructure thereon was decreed with costs. Feeling dissatisfied the defendants filed appeal against this decree in the Court of the Senior Subordinate Judge who accepted the same on 5th March, 1962, and set aside the decree of the trial Court and dismissed the suit of the plaintiffs with costs throughout. Feeling aggrieved the plaintiffs filed this appeal to set aside the decree of the lower appellate Court and to restore that of the trial Court.
4. The only contest between the parties is regarding issue No. 2 and the only point for determination is whether the defendants committed any default in payment of rent and forfeiture of the tenancy took place and whether the defendants were entitled to relief against this forfeiture under Section 114 of the Transfer of Property Act. Exhibit P-2 is the lease deed dated 12th January 1947. The defendants had been paying the rent regularly from 12-1-1947 upto the end of the year 1955. The disputed period is from 1-1-1956 to 31-12-1959. The dispute arose between them from the year 1956 when the plaintiffs refused to accept the rent sought to be paid to them. They started making the demand of house tax and all the other taxes levied as a measure of special assessment of this property. The defendants agreed to pay this amount provided it was proved that the plaintiffs have paid these taxes as a matter of fact.
5. Paras Ram plaintiff as P.W. 5 simply repeated the allegations made in the plaint. In his cross-examination he admitted that Rs. 136/- had been sent to him by money order as rent by the defendants, but he refused to accept the same because the house tax amount had not been sent to him. He denied that any money order of Rs. 272/- was sent by the defendants to them. He further admitted that after 1956, whenever the defendants came to him for making the payment of rent they did not tender the amount of house tax and therefore he refused to accept rent from the defendants. He thus admitted that the defendants had been tendering the rent to him after 1st January, 1956, but he had been refusing to receive the same. He did not state that he told them that so much amount was due on account of house tax and special assessment. Therefore this refusal to accept payment of rent was not justified.
6. Atma Ram defendant as D.W. 3 testified that the defendants had been offering rent etc. to Paras Ram plaintiff but he refused to accept the same. Similar is the statement of Nathan defendant as D.W. 2 Atma Ram (D.W. 3) stated that in the year 1957 he went to Paras Ram plaintiff and offered the arrears of rent, but he refused to accept the same. Thereafter he had also been going and paras Ram Plaintiff No. 3 had been refusing to accept the same. The defendants sent Rs. 132/- on account of arrears of rent from 1st January, 1956 to 31st December, 1957 to Paras Ram plaintiff No. 3 but he refused to receive the same on 17th October, 1958, vide postal money order acknowledgment Exhibit D-6. There was a shortage of Rs. 4/- when this amount was sent but the receipt of the same was also refused vide postal money order Exhibit D-1.
7. Even thereafter the defendants had been tendering the amount to Paras Ram plaintiff but he refused to accept the rent. Money order for Rs. 272/- as arrears of rent for four years from 1st January, 1956 to 31st December, 1959, was sent in March, 1960, but Paras Ram plaintiff No. 3 refused to receive the same as is clear from the postal money order acknowledgment, Exhibit D-4. The defendants thereafter deposited this sum of Rs. 272/- in the Court under the provisions of Section 31 of the East Punjab Relief of Indebtedness Act, on 20th March, 1960, and the treasury chalan regarding the same is Exhibit D-7.
8. The learned counsel for the appellants contended that it was the duty of the defendants to have offered the house tax and other taxes levied on this property in the year 1956, and since those amounts were not tendered, therefore, this tender was not proper and was rightly refused by the plaintiffs. It is correct that according to the terms of the lease, Exhibit P-2, dated 12th January, 1947, the defendants were liable to pay the house tax and other taxes levied on this property, but it was the duty of the plaintiffs to intimate the defendants the amount of such taxes levied on this property and paid by them to the authorities. There is no evidence on the file to show that any such intimation was given to the defendants and they refused to make the payment. Consequently the refusal to accept the rent by the plaintiffs was not justified.
9. The defendants made an application on 21st December, 1960, in the trial Court that they were ready to make the payments of the sum of Rs. 136/- on account of arrears for the year, 1960-61 in addition to Rs. 272/- which they had already deposited on account of rent for four years from the years 1956 to 1959 besides Rs. 30/- on account of interest, Rs. 25/- on account of house tax and Rs. 40/- on account of cost of the suit. But the plaintiffs refused to accept this amount. After the decision of the case the defendants deposited Rs. 130.40 on account of cost of the suit and interest and house tax. But the plaintiffs refused to accept the same and notice was served upon them by the Court. Even in their written statements the defendants expressed readiness to pay the taxes if the plaintiffs had actually paid the same. In Namdeo Lokman Lodhi v. Narmadabai, AIR 1953 SC 228, it was observed (para 23 at p. 233) as under:
'That sections 105 to 116 of the Transfer of Property Act gives statutory recognition to principles of justice, equity and good conscience and they are applicable also to cases which are not governed by the provisions of that Act.'
10. Although the Transfer of Property Act is not applicable to the State of Haryana yet the principles embodied in Sections 105 to 116 of the Transfer of Property Act, are applicable.
11. Section 114 of the Transfer of Property Act lays down that when the lease of immovable property has been determined by forfeiture for non-payment of rent and the lessor sues to eject the lessee, if at the hearing of suit lessee pays or tenders the lessor the rent in arrear, together with interests thereon and his full cost of the suit or gives such security as the Court thinks sufficient for making such payment within 15 days, the Court may, in lieu of making a decree for ejectment 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.
12. In Lala Praduman Kumar R. S. v. Virendra Goyal, (1969) 2 SCA 242=(AIR 1969 SC 1349) it was held as under:--
'The appellate Court has jurisdiction, under Section 114 of the Transfer of Property Act, 1882, to relieve the tenant in default against forfeiture. The passing of a decree in ejectment against the tenant by the Court of first instance does not take away the jurisdiction of the appellate Court to grant equitable relief.'
Similar was the law laid down in Namdeo Lokman Lodhi's case AIR 1953 SC 228 (supra).
13. In the instant case the defendants had been ready and willing to pay the arrears of rent and the house tax to the plaintiffs regularly. There was no dispute regarding payment of arrears of rent from 12th January, 1947 to 31st December, 1955. It appears that in the year, 1956, house tax and other special assessments were levied and the plaintiffs refused to accept the arrears of rent although offered by the defendants simply on the plea that they had not offered to pay the arrears of house tax. The plea of the defendants was that they were not told as to what was the amount of house tax assessed on the property which had been paid by the plaintiffs to the authorities concerned and therefore they could not make payment.
It is significant that after 1st January, 1956, the plaintiffs did not give any notice to the defendants that so much amount was due from them on account of arrears of house tax and other taxes levied on the property. This suit was instituted on 28th June, 1960. The defendants were ready and willing to pay all the arrears of rent, the arrears of house tax, interest thereon and the cost of the application to the plaintiffs, but they refused to accept the same. As a matter of fact they had not committed any default in making the payment of the arrears of rent and therefore no forfeiture of lease took place. If the lessors refused to accept the arrears of rent they cannot take advantage of their own fault and claim forfeiture of the lease.
14. For all these reasons it is held that the decisions of the lower appellate Court that no forfeiture of the lease took place and that the defendants were not at fault and the plaintiffs are not entitled to get possession of the property is correct and is affirmed. There is no force in this appeal and it is dismissed with costs.
15. Appeal dismissed.