Judgement

SHAH, J.: Under a deed dated October 28, 1949, Virendra Goyal, the first respondent herein, obtained permanent tenancy rights in 28 plots of land of the ownership of Lala Praduman Kumar. The tenant agreed to pay Rs. 250 per annum as advance rent on the first day of January of each year, and in default of payment of rent for two consecutive years the tenancy rights were to stand forfeited. Goyal transferred his tenancy rights to Lala Hukam Chand. Pursuant to the lease several tenements were raised on the land demised.

2. The tenant failed to pay the rent accrued due for two years. The appellant then served a notice on January 4, 1960, terminating the tenancy and instituted an action in the Court of the City Munsiff, Saharanpur, against Virendra Goyal and Lala Hukam Chand for a decree in ejectment and for and order for payment of Rs. 545/11/- as rent and compensation.

3. Several contentions were raised in their written statement by the defendants one of which alone is material. The tenants prayed that they should be given relief against forfeiture of their tenancy rights under Section 114 of the Transfer of Property Act. In the Trial Court the tenants deposited an amount of Rs. 1,09934. The Trial Judge held that the conditions relating to deposit in Court of rent in arrear, interest thereon, and costs of the suit were not complied with and decreed the plaintiff s claim. In appeal to the District Court the tenant offered to pay the balance of the amount of the rent due together with costs of the suit and appeal and interest at the rate of 6 per cent per annum or such other rate as the Court may direct and deposit in Court Rs. 2,082-50 in the aggregate. The learned District Judge was of the view that the amount paid by the tenants was in excess of the amount due by them and observed:

". . . . . . the appellants have deposited, much more amount than is due to the respondent as arrears of rent, the costs of the suit and of the appeal and the interest. There is no reason why benefit of section 114 of the Transfer of Property Act be not given to the appellants when they are ready and willing to pay much more amount than is actually due to the respondent. The fact is that there are valuable constructions over the plots and defendants dispossession would put them to a great loss. It is for this reason that they are prepared to pay the amount that may be demanded from them. I, therefore, find that the appellants are entitled to the benefit of Section l14 of the Transfer of Property Act and are relieved against the forfeiture."

4. The second appeal against this decision was summarily dismissed by the High Court of Allahabad.

5. In appeal to this Court counsel for the appellant contends:

(1) that jurisdiction under Section l14 of the Transfer of Property Act to relieve against forfeiture for non-payment of rent may only be exercised by the Court of First Instance and not by the Court of Appeal;

(2) that the Trial Court gave an opportunity to the tenants to pay the amount of rent due together with interest and costs, but the tenants failed to avail themselves of the opportunity. In the circumstances the appellate Court had no jurisdiction to grant another opportunity to the tenants to make the requisite payment and grant relief against forfeiture of the tenancy.

(3) that in any event discretion was, in the circumstances, not properly exercised by the District Court.

6. In our view, there is no substance in any of the contentions.

7. Section l14 of the Transfer of Property Act provides:-

"Where a lease of immoveable property has determined by forfeiture for non-payment of rent, and the lessor sues to eject the lessee, if at the hearing of the suit, the lessee pays or tenders to the lessor the rent in arrear, together with interest thereon and his full costs of the suit, or gives such security as the Court thinks sufficient for making such payment with in fifteen days, the Court may, in lieu of making a decree for ejectment, pass an order re