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Dhurrumtolla Properties Ltd. Vs. Dhunbai Peroshaw Sorabjee - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtKolkata
Decided On
Reported inAIR1931Cal457
AppellantDhurrumtolla Properties Ltd.
RespondentDhunbai Peroshaw Sorabjee
Cases ReferredHoward v. Fanshawe
Excerpt:
- .....costs of the suit within 15 days of the taxation of the same. the plaintiff however contends that relief from forfeiture could be given if the rent, which had accrued due up to the date of hearing of application, i.e., 16th september 1929, be deposited with interest thereon and the full costs of the suit. under section 114, the court is given a discretionary power which it may or may not exercise in favour of the tenant.3. the question turns on the meaning of the words 'rent in arrear' in section 114. according to the defendant, the words mean the rent claimed in the suit and not rent which had accrued due since the determination of the tenancy by the notice to quit, i.e., 26th june 1929, up to the date when this application was heard. according to the defendant's submission, the rent.....
Judgment:

Mitter, J.

1. This is an application on the part of the plaintiff company for final decree and judgment under Ch. 13-A of the rules of this Court declaring that the lease dated 16th April 1928, in the plaint in this suit particularly mentioned, stands determined on and from 26th June 1929, and directing that the defendant do forthwith make over to the plaintiff company vacant possession of premises No. 32, Dharmatala Street, together with all furniture and fittings, etc., demised by the said lease and directing the defendant to pay to the plaintiff company the sum of Rs. 4,583-5-4, being the arrears of rent in respect of the said premises for the month of May 1929, and for 25 days of June 1929, at the rate of Rs. 2,500 per month, and do also pay to the plaintiff company mesne profits at the like rate from 26th June 1929, until delivery of vacant possession of the said premises together with furniture, fittings, etc., and do also pay to the plaintiff company its costs of this suit and also the costs of and incidental to this application to be taxed by the Taxing Officer of this Court.

2. The suit in which this application is made was filed on 20th August 1929, and the defendant entered appearance in the suit on 31st August 1929, through Messrs. Dutt and Sen, attorneys of this Court. She has not yet filed her written statement. In this application however the defendant admits that a forfeiture under the lease for nonpayment of the rent had occurred. She seeks relief however from the forfeiture under Section 114, T. P. Act, and she agreed to deposit in Court the amount claimed as rent with interest on the same and the costs of the suit within 15 days of the taxation of the same. The plaintiff however contends that relief from forfeiture could be given if the rent, which had accrued due up to the date of hearing of application, i.e., 16th September 1929, be deposited with interest thereon and the full costs of the suit. Under Section 114, the Court is given a discretionary power which it may or may not exercise in favour of the tenant.

3. The question turns on the meaning of the words 'rent in arrear' in Section 114. According to the defendant, the words mean the rent claimed in the suit and not rent which had accrued due since the determination of the tenancy by the notice to quit, i.e., 26th June 1929, up to the date when this application was heard. According to the defendant's submission, the rent in arrear is equivalent to the rent claimed by the suit. I am unable to agree with this contention. The true ground of the relief against penalties is from the original intent of the case where the penalty is designed only to secure money, and the Court gives him all that he expected and desired. This was pointed out in the leading case of Peachy v. The Duke of Somerset [1724] 1 Str. 447. In notes to that leading case, the learned editor points out that the result of the examination of the authorities show that from a very early period, equity would, at any indefinite time after the tenant had incurred forfeiture and had been ejected for nonpayment of rent at a particular time under the stipulation in his lease, relieve him upon his paying to the lessor the rent accrued duo, interests and costs : upon this principle that, as the right of entry was intended merely as security for the rent, the lessor thereby received full compensation and was put in the same situation as if the rent had been paid to him when it was originally due. In a case where the plaintiff wanted to be relieved from forfeiture after a decree for ejectment against him, on the ground of forfeiture for nonpayment of rent had been made, the relief was granted on payment of rent up to the date when the relief from forfeiture was allowed: see Howard v. Fanshawe [1895] 2 Ch. 581.

4. In that case the lessee, on 6th July 1894, brought an action claiming possession of properties comprised in the leases and asked for relief from any forfeiture of the said leases for nonpayment of the rent thereby reserved and the Court relieved the lessee from forfeiture on payment of the rents up to and including 24th June 1895, two days prior to the delivery of judgment. Section 114 is based on the principles of the Chancery Courts, the only difference being that, under the English law, a tenant is allowed the same right to relieve after a judgment for recovery of land on the ground of forfeiture for nonpayment of rent as if the judgment had been given after trial: see Order 14, Rule 10, Supreme Court Rules, as amended after January 1902. Under the Indian law relief from forfeiture cannot be claimed after the order for ejectment had been made. I think therefore in order to be relieved of the forfeiture, the defendant must pay : (i) all the rent in arrear up to the end. of August 1929, together with interest thereon from due date up to the date of payment at the rate of 6 per cent. per annum; (ii) pay the costs of the action including costs of this application within 15 days of the taxation of the said costs by the Taxing Officer and, on such payment being made, the defendant will have relief against forfeiture of the lease dated 16th April 1928. On failure to comply with these conditions, the plaintiff will be entitled to recover possession of premises 32, Dharmatala Street, with furniture and fittings, etc., and the rent claimed together with the mesne profits and the costs of the action.


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