Zenith Investments Pvt. Ltd. vs Panna Debi

Sankar Prasad Mitra, J.—In this rule we are concerned with order No. 17 of October 27, 1971, in T.S. No. 36 of 1971 of the First Subordinate Judge, 24-Parganas. By this order the Subordinate Judge has allowed a tenant''s application u/s 114 of the Transfer of Property Act for granting relief against forfeiture. It appears that the owner of the premises in suit is a private limited company. The Directors are two brothers and their mother is the tenant of the premises. There were two other ejectment suits--one instituted on April 15, 1961, and the other on April 29, 1964. In both the suits there were applications u/s 114 and these applications were allowed. This is the third ejectment suit and the third application u/s 114.

Mrs. Manjula Bose, learned Counsel for the Petitioner, placed before us the judgment of the Subordinate Judge and contended that he had erroneously exercised his discretion u/s 114. Mrs. Bose''s point is that the Subordinate Judge has taken into consideration various irrelevant matters. He had only to see whether at all material times the tenant was unable to pay. Various income tax records of the tenant were produced before us to show that she had sufficient money in her hands to make payment of rents, but she did not choose to pay. On these documents alone, says Mrs. Bose, the Subordinate Judge should have disallowed the application u/s 114.

Reference was made on behalf of the Petitioner to numerous decisions in support of the proposition that in an application u/s 115 of the CPC it is open to us to interfere with the discretion exercised by the Subordinate Judge. The decisions which Mrs. Bose cited are Thackers Press and Directories Ltd. and Another Vs. Gopinath Auddy, , Varanasi Ramabrahmam Vs. Kota Rami Reddi and Others, , The Printers (Mysore) Private Ltd. Vs. Pothan Joseph, , Karam Singh Sobti and Another Vs. Shri Pratap Chand and Another, , Har Prasad Agarwala Vs. Shankar Lal and Others, , Joginder Singh Harnam Singh Vs. Hardial Singh and Others, , Mukan Kunwar Vs. Ajeetchand, , Santokh Singh Vs. Bhai Siri Ram and Others, , Swaminatha Odayar and Others Vs. Raja Muhammad Rowther, , Jogesh Chandra Roy Vs. State of West Bengal and Others, , Prabir Ram Borooah v. Albert David Ltd., Calcutta AIR 1957 Ass. 120, Kamal Prosad Biswas v. Chandra Shekhar Prosad 70 C.W.N. 807, Shankar Ramchandra Abhyankar Vs. Krishnaji Dattatreya Bapat, and Tolaram Relumal and Another Vs. The State of Bombay, .

It is unnecessary for us to discuss in this judgment all the cases referred to above. In Namdeo Lokman Lodhi Vs. Narmadabai and Others, Mahajan J. has laid down the principles governing the exercise of the Court''s jurisdiction in granting relief against forfeiture u/s 114 of the Transfer of Property Act. In para. 29 the learned Judge says,

In our opinion, in exercising the discretion, each case must be judged by itself, the delay, the conduct of the parties and the difficulties to which the landlord has been put should be weighed against the tenant. This was the view taken by the Madras High Court in Appayya Shetty Vs. B.P.M. Mahammad Beari and Others, , and the matter was discussed at some length. We agree with the ratio of that decision. It is a maxim of equity that a person who comes in equity must do equity and must come with clean hands, and if the conduct of the tenant is such that it disentitles him to relief in equity, then the Court''s hands are not tied to exercise it in his favour....

The learned Subordinate Judge, in the instant case, has relied on the above observation of Mahajan J. and has tried to appreciate the facts of this case in the light of those observations. In the concluding portion of his judgment he observes:

With regard to delay I have already noticed that the Defendant tendered rent on 18-5-71, i.e. long before the institution of the suit. The conduct of the Defendant No, 1 is not blameworthy. She was engrossed with the problem following from illness of her husband and his consequent death and naturally she was in a difficult situation. Furthermore, the landlord only felt difficulty in not getting the rent. But the Defendant admits even at the date of the application that she is ready to pay the arrear rent, interest and cost of the suit. So, considering all the necessary ingredients, the entire conduct relevant for the purpose and considering that Defendant No. 1 faced with such a problem over which she had no control, and she is in difficulty since November 1966 to May 1971. I am entitled to give her relief u/s 114, Transfer Property Act.

Prima facie it does not appear that the discretion u/s 114 of the Transfer of Property Act has been improperly exercised in the instant case. Assuming that on the facts before him the Subordinate Judge had wrongly exercised his discretion in this application u/s 115 of the Code of Civil Procedure, we could not have interfered with it. It would be enough to cite in this Connection a decision of the Judicial Committee and the latest pronouncement of the Supreme Court on the subject. In N.S. Venkatagiri Ayyangar and Anr. v. Hindu Religious Endowments Board, Madras 76 I.A. 67 (73) the Privy Council examined the scope of Section 115 and said:

Section 115 applies only to cases in which no appeal lies and where the Legislature has provided no right of appeal, the manifest intention is that the order of the trial Court, right or wrong, shall be final. The section empowers the High Court to satisfy itself on three matters, (a) that the order of the Subordinate Court is within its jurisdiction, (b) that the case is one in which the Court ought to exercise jurisdiction, and (c) that in exercising jurisdiction the Court has not acted illegally, that is, in breach of some provision of law or with material irregularity, that is, by committing some error of procedure in the course of the trial which is material in that it may have affected the decision. If the High Court is satisfied on those three matters, it has no power to interfere because it differs, however profoundly, from the conclusions of the Subordinate Court on questions of fact of law.

The Supreme Court in its latest pronouncement in the case of D.L.F., Housing and Construction Company (P.) Ltd., New Delhi Vs. Sarup Singh and Others, has adhered to the principles which the Privy Council had laid down and has observed that the High Courts do not always appreciate the limits of their jurisdiction u/s 115. The Supreme Court says that the position is firmly established that, while exercising the jurisdiction u/s 115, it. is not competent to the High Court to correct errors of fact however gross or even errors of law unless the said errors have relation to the jurisdiction of the Court to try the dispute itself. The words ''illegally'' and ''with material irregularity'' as used in Clause (c) do not cover either errors of fact or of law; they do not refer, according to the Supreme Court, to the decision arrived at but merely to the manner in which it is reached. The errors contemplated by this clause may, observe their Lordships of the Supreme Court, relate either to the breach of some provision of law or to the material defects of procedure affecting the ultimate decision and not to errors either of fact or of law after the prescribed formalities have been complied with. The Supreme Court observes further that, merely because the High Court would have felt inclined, had it dealt with the matter initially, to come to a different conclusion on the question raised could hardly justify interference on revision u/s 115 of the Code when there was no illegality or material irregularity in the manner of dealing with the question. Our Court also in Keshab Chandra Datta Vs. Ballygunge Estate Pvt. Ltd., has reiterated these principles.

In these premises, particularly in view of the latest decision of the Supreme Court cited above, we are of opinion, on the facts of this case, that we cannot interfere with the impugned order.

It was urged before us that u/s 114 of the Transfer of Property Act the Court could pass an order relieving the lessee against the forfeiture ''in lieu of making a decree for ejectment''. In the instant case, the tenant made an interlocutory application u/s 114 of the Transfer of Property Act and the Subordinate Judge has ordered

that the application u/s 114, Transfer of Property Act, by the Defendant No. 1, is allowed on contest. The Defendant is directed to deposit the arrear rent together with interest at the rate of 6 1/4 percent per annum and the cost of the suit to the credit of the Plaintiff within 15 days from this date. In the case of such deposit no decree for ejectment would be passed against the Defendant No. 1.

On behalf of the Petitioner Mrs. Bose argued that the form of the order u/s 114, in the instant case, was not in conformity with the provisions of that section and, as such, it should be set aside. We find from the records that the application u/s 114 was heard by consent of parties along with another interlocutory application for injunction. It may be that the Subordinate Judge has still to make a formal order dismissing the suit and the decree should be drawn up accordingly. But, we do not think it would be proper for us to set aside the order under challenge on the ground of what is stated in the last sentence of his order quoted above.

In the result, this rule is discharged. There will be no order as to costs.

Janah, J.

I agree.