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Dwarka Prasad Arya Vs. Om Prokash Mohta and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtKolkata High Court
Decided On
Case NumberA.F.O.D. No. 646 of 1963
Judge
Reported inAIR1967Cal612
ActsTransfer of Property Act, 1882 - Section 114
AppellantDwarka Prasad Arya
RespondentOm Prokash Mohta and ors.
Appellant AdvocateAbinash Chandra Basu and ;Baidya Nath Sarkar, Advs.
Respondent AdvocateHirendra Chunder Ghosh and ;Mrityunjoy Palit, Advs.
DispositionAppeal dismissed
Cases ReferredNamdeo Lokman Lodhi v. Narmadabai.
Excerpt:
- .....through legal proceedings, and it is only under orders of court that he has made deposits from time to time on account of arrears of rent. indeed, after the cheque had been dishonoured sometime in or about december. 1957, no attempt was made by the defendant to make the payment, covered by the said dishonoured cheque. he has been, in our opinion, since that time, a habitual defaulter. he has also harassed the landlords by false pleas, both in the instant suit, where he raised the question of suspension of rent, which was not eventually pressed or pursued and, also, in the proceedings under order 9, rule 13, read with section 151 of the code of civil procedure. he also allowed the arrears to accumulate to an enormous figure at the rental rate by with holding payment for a considerable.....
Judgment:

P.N. Mookerjee, J.

1. This appeal is by the defendant and it arises out of a suit for ejectment.

2. The suit was instituted on 22ncl September. 1958. It had a long chequered career, and eventually, when it was decreed by the learned trial Judge on 30th March, 1963, the defendant's prayer for relief under Section 114 of the Transfer of Property Act was refused by him as not being in accordance with law.

3. It is from this decree that the present appeal has been filed by the tenant defendant, and the only point, which has been urged in support of this appeal, is that, in the circumstances of this case, the defendant appellant should be given relief under Section 114 of the Transfer of Property Act and the ejectment on the ground of forfeiture of the lease for nonpayment of rent, as stipulated therein, should be refused.

4. In our view, relief against forfeiture under Section 114 of the Transfer of Property Act being a discretionary relief--the discretion, no doubt being a judicial discretion--in the circumstances of the instant case, that relief should be refused to the defendant.

5. In support of the above view, it is necessary to state the facts in some details. The suit tenancy originated under a lease, dated 1st December, 1965. It was for a period of 18 years. The stipulated rent was Rs. 600 per month, payable according to the Hindi Calendar (Sambat year). The commencement of the lease as given above, was in the Hindi Sambat year 2012. The payment of rent for Bhadra, 2014 S. Y., corresponding roughly to August, 1957, was made by the defendant by a cheque, which was dishonoured. Since then, no attempt was made to make this payment, and there was also no payment of rent since then until the present suit was brought on 22nd September, 1958.

6. The suit was originally decreed ex parte on 25th September, 1959. For setting aside that decree, the defendant applied on 3rd November, 1959, under Order 9, Rule 13 of the Code of Civil Procedure, read with Section 151.

7. The learned trial Judge disbelieved' the defendant's pleas, upon which the above application was made. But in spite of that, he gave the defendant opportunity to have the decree set aside by depositing arrears, calculated by him at Rs. 17,400 on the date (6-1-60), by 30th January, 1960. On this date, namely, 80th January. 1960, the Misc. Case was dismissed as no deposit was made as required under the above order of the learned trial Judge.

8. Against the above dismissal, the defendant came up to this Court in F. M. A. No. 86 of 1960 and got an appropriate order of injunction in the connected Civil Rule No. 514(m) of 1960 on 19th February, 1960.

9. On 1st February, 1961, the above Appeal was allowed by modifying the amount to deposited by the defendant to the reduced figure of Rs. 8,400 and by extending the time for such deposit. The findings of the learned trial Judge on the merits against the defendant on his above application under Order 9 Rule 13 of the Code of Civil Procedure, read with Section 151, were not, however, interfered with by this Court. The above deposit appears to have been made by the defendant, upon which the above ex parte decree was set aside and the suit was restored to file. Then, on 21st February, 1963, the defendant's petition for time was rejected and the suit was taken up for hearing, when the defendant made a prayer for relief under Section 114 of the Transfer of Property Act. But obviously, that prayer was not in accordance with the requirements of the statute, as the time, within which the deposit was proposed to be made, was much beyond the period, sanctioned by the Statute for that purpose. In the circumstances, the learned trial Judge had no option but to refuse the said relief and decree the plaintiffs, which he did on the 30th March, 1963.

10. Against this decree, the present appeal was filed on 23rd May, 1963. From the records before us, it is clear that, since the date of default, namely, August. 1957, until the present time, the defendant has been proved to be a recalcitrant tenant, who has never agreed to pay the landlords' dues or make any payment of rent except under compulsion through legal proceedings, and it is only under orders of Court that he has made deposits from time to time on account of arrears of rent. Indeed, after the cheque had been dishonoured sometime in or about December. 1957, no attempt was made by the defendant to make the payment, covered by the said dishonoured cheque. He has been, in our opinion, since that time, a habitual defaulter. He has also harassed the landlords by false pleas, both in the instant suit, where he raised the question of suspension of rent, which was not eventually pressed or pursued and, also, in the proceedings under Order 9, Rule 13, read with Section 151 of the Code of Civil Procedure. He also allowed the arrears to accumulate to an enormous figure at the rental rate by with holding payment for a considerable time, and, as we have already said, he never made any payment since August. 1957, except under the Court's intervention or when compelled under the Court's directions. There, also, it appears, he seldom complied with the order of the trial court, and made the payments only in the last resort when the matter was decided by this Court with some penal provisions against him.

11. In the circumstances, it appears to us that this is a case, very much similar to the case before the Supreme Court in Namdeo Lokman Lodhi v. Narmadabai. : [1953]4SCR1009 where their Lordships, under almost similar circumstances, refused the defendant's prayer for relief under the, above statutory provision. In this view, we hold that the defendant is not entitled to the discretionary relief under the above statutory provision, and, as no other point was urged in support of this appeal, the instant appeal must fail and it will be dismissed. The appellant also must pay to the plaintiffs respondents costs of this hearing, hearing fee being assessed at 10 gold mohors.

12. There is, in this appeal, a cross-objection by the plaintiffs respondents, but, obviously, the said cross-objection is directed against the findings of the learned trial Judge, and it is clearly not maintainable in law. Moreover, having regard to our above decision of the appeal, which has ended in the dismissal of the game and the decree of the plaintiff-respondent's suit for ejectment the Cross-objection has lost all substance on the merits too. We would, accordingly, dismiss the cross-objection also but there will be no order for costs in the cross-objection.

Chatterjee, J.

13. I agree.


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