A. M. BHATTACHARJEE, S. K. SEN

( 1 ) THE suit-tenancy, created in 1962 by a registered Deed of Lease for a period of more than 20 Years, was admittedly not governed by the provisions of the West Bengal Premises Tenancy Act, 1856 in view of Section 3 there of and was governed by the provisions of Chapter V of he Transfer of Property Act, a lease of immovable property stands determined by forfeiture for non-payment of rent if the lease provides for re-entry on the part of he lesser for such non-payment and the lesser gives notice in writing to the lessee of his intention to determine the lease. But Section 114 of the Transfer of Property Act, however, provides that notwithstanding such forfeiture and resultant determination of lease, if the lessee, on being sued for adjustment, "pays or tenders to the lesser" "at the hearing of the suit" the rent in arrear, together with interest thereon and his full costs of the suit. . . . . . The court may, in lieu of making a decree for adjustment, 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. "

( 2 ) THE expression "at the hearing of the suit" in Section" in Section 114 is likely give rise to the impression that the provisions thereof give rise to the impression that the provisions thereof may be invoked by the lessee only in the trial court before the suit is heard and disposed of and not for the first time in the court of appeal. In fact the decision of a learned single-Judge of the Allahabad High Court in Northern India Coal co. v. Bitti Kuer (ILR 1950 Allahabad 532) is to the same effect where it was held that the benefits of the provisions of Section 114 of the Transfer of Property Act could have been availed of only at a stage prior to the decree of the trial court. But a "suit" includes Section 2 (1) of the Limitation Act, 1963 does and, therefore, in that view, "the hearing of he suits" continues during he hearing of the appeal thereform.

( 3 ) THE expression "law abhors a forfeiture" has almost become a legal maxim. There are high authorities, both judicial and textual, for the view that law abhors and leans strongly against forfeiture. That is why this Court as clearly as in 1864 in Alam Chunder. v. William Moran (1864, Weekly Reporter - Gap No.- Act X Ruling - P 31 at 320 ruled that Court would not enforce forfeiture where there was no injury which could not be repaired by making compensation. If law abhors forfeiture, it would favor relief against forfeiture wherever possible. In that vies of the matter, when the expression "at the hearing of the suit" in Section 114 of the Transfer of Property Act is capable of being construed to cover the appellate stage of the suit also, such construction must be accepted as that would clothe the provisions of Section 114 of the Transfer of Property Act with wider amplitude and would enable courts to relieve lessees form the operation of forfeiture with greater plentitude.

( 4 ) THIS was the view adopted by a Division Bench of the Mardras High Court as early as in 1913 in vidyapurna v. Rangappayya (21 India cases 405) which has been followed by the same High Court in the much later decision in Janab Vallathi v. K. Kederval (AIR 1958 Mad 232 ). We would have respectfully agreed with this view, but we are now bound to accept this view whether of not we concur therein as the same has been endorsed by the Supreme Court in Praduman Kumar v. Viendra Goyal (AIR 1969 Supreme Court 1349) where the Supreme Court has observed that though "in terms Section 114 makes payment of rent at the hearing of the suit in adjustment a condition of the exercise of the court's jurisdiction", but "an appeal being a re-hearing of the suit, in appropriate cases it is open to the Appellate Court at the hearing of the appeal to relieve the tenant in default against forfeiture" and "passing of decree in adjustment against a tenant by the court of the First Instanc

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