1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR ::ORDER: Trilok Chand Kawad Vs. Javari Lal Marlecha & Anr. D.B. CIVIL SPECIAL APPEAL(W) No.493/2010. ... Date of Order :::: 4th August 2010. PRESENT HON'BLE THE CHIEF JUSTICE MR.JAGDISH BHALLA HON'BLE MR.JUSTICE DINESH MAHESHWARI Mr. Manoj Bhandari, for the appellant. <<>> BY THE COURT: This intra-court appeal is directed against the order dated 28.10.2009 whereby the learned Single Judge of this Court has dismissed the writ petition (CWP No.9754/2009) filed by the petitioner-appellant against the judgment and order dated 22.08.2009 whereby the Appellate Rent Tribunal, Pali affirmed the judgment and order dated 12.08.2008 passed by the Rent Tribunal, Pali in Original Application No.5/2007. The said application was filed by the respondent- landlord seeking orders for eviction and recovery of arrears of rent against the petitioner-appellant with the submissions, inter alia, that the relevant provisions of the Rajasthan Rent Control Act, 2001 putting restriction on eviction were not applicable for the agreed rent being Rs.2,000/- per month; that the petitioner-appellant was in substantial arrears of rent; and that 2 tenancy had already been terminated by serving the requisite notice under the Transfer of Property Act, 1882 ('the Act'). The petitioner-appellant put to contention the facts relating to the rate of rent and the amount allegedly due. The Tribunal, after taking evidence and hearing the parties, recorded findings on the relevant issues against the petitioner and held the respondents-landlord entitled to recover vacant possession of the suit premises, the arrears of rent at Rs.72,000/-, and further mesne profits at Rs.2000/- per month. The Appellate Rent Tribunal endorsed the finding of the Rent Tribunal and affirmed the decision against the petitioner- appellant. The petitioner-appellant attempted to question the orders aforesaid in CWP No.9754/2009. The contention in relation to the findings on the rate of rent was rejected by the learned Single Judge after noticing that the findings, arrived at concurrently by the subordinate Tribunals on the basis of evidence on record, were not suffering from any perversity so as to warrant interference in supervisory jurisdiction under Article 227 of the Constitution of India. It was suggested before the learned Single Judge that the petitioner was ready to make payment of the arrears of rent and, therefore, in lieu of decree for ejectment, an order relieving the petitioner from forfeiture may be passed per Section 114 of the Act. The learned Single Judge found that no such relief was claimed by the petitioner before the subordinate Tribunals and at the 3 stage of the writ proceedings, the prayer so made by the petitioner could not be accepted. The learned Single Judge, thus, proceeded to dismiss the writ petition while observing,- “4. A bare perusal of orders impugned reveals that the Rent Tribunal and the Appellate Tribunal have concurrently found that rent of the premises was agreed upon at Rs.2000/-. The findings arrived at by the Rent Tribunal, affirmed by the Appellate Rent Tribunal is based on evidence on record and cannot be said to be perverse so as to warrant interference by this court in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India. 5. Admittedly, no relief was claimed by the petitioner against the forfeiture before the Rent Tribunal and thereafter even before the Appellate Rent Tribunal, therefore, at this stage, the prayer made by the petitioner for relief against forfeiture for non payment of rent showing his readiness to pay the rent in arrear, interest thereon and full cost of the suit in terms of the provisions of Section 114 of the Act cannot be accepted by this court. 6. In this view of the matter, the writ petition is devoid of any merit and deserves to be dismissed.” The learned counsel for the petitioner-appellant has put forward in this appeal the similar nature contentions, as were urged before the learned Single Judge. The learned counsel particularly pressed for consideration the submission that per Section 114 of the Act, the relief against forfeiture could be granted at any stage and ought to have been considered by the learned Single Judge. The learned counsel has referred to and relied upon a decision of the Hon'ble Supreme Court in Rakesh Wadhawan & Ors. Vs. Jagdamba Industrial Corporation & Ors.: (2002) 5 SCC 440. The submissions, in our opinion, remain totally bereft of substance. 4 So far the question regarding rate of rent is concerned, it is at once clear that the Rent Tribunal and thereafter the Appellate Rent Tribunal concurrently found this rate at Rs.2,000/- per month. Such a finding, being essentially a finding of fact and rendered after appreciation of evidence, was neither open to challenge before the writ Court nor there was any reason for the writ Court to consider interference therein. The claim of relief against forfeiture per Section 114 of the Act has rightly been declined by the learned Single Judge for no such relief having been claimed before the Rent Tribunal or the Appellate Rent Tribunal. The rule as contained in Section 114 of the Act is essentially that of discretion, to be exercised on the principles of equity, justice and good conscience. When the plea was not even raised, whether before the Rent Tribunal or before the Appellate Rent Tribunal, various factors relevant for exercise of such discretion were not available before the said Tribunals and hence, there was no occasion for the writ Court to have considered taking up such exercise of discretion in the jurisdiction under Article 227 of the Constitution of India. In the decision in Rakesh Wadhawan's case (supra) as relied upon by the learned counsel, the Hon'ble Supreme Court said,- “20............. The rule of equity enshrined in Section 114 of the Transfer of Property Act is : where a lease of immovable property has determined by forfeiture for 5 non-payment of rent and the lessor files a suit for ejectment of the lessee, the court exercises a discretionary jurisdiction of passing an order relieving the lessee against the consequences of forfeiture if at the hearing of the suit the lessee pays or tenders to the lessor the rent in arrears with interest and costs or furnishes such security as the court thinks sufficient. Having appointed a time for payment, the court still retains jurisdiction to extend the time (Chandless- Chandless v. Nicholson). Even the time appointed by a consent decree can be extended (Amiya De v. Dhirendra Nath Mandal). The discretion conferred by Section 114 of the TP Act is of wide amplitude guided by the principles of justice, equity and good conscience and the court would examine the conduct of the parties, the comparative hardship and lean in favour of one whose hands are clean (Namdeo Lokman Lodhi v. Narmadabai). The discretion to grant relief against forfeiture is available not only to the trial court but also to the appellate court (R.S. Lala Praduman Kumar v. Virendra Goyal).” The case of R.S. Lala Praduman Kumar Vs. Virendra Goyal (Dead) by LRs & Ors.: 1969 (1) SCC 714 as referred by the Hon'ble Supreme Court in the aforesaid decision to point out that such discretion could be exercised by the Appellate Court too, shall also have no application because in the present case, no such relief was claimed by the petitioner- appellant even before the Appellate Tribunal. In the said case of Lala Praduman Kumar, such a discretion had been exercised by the Appellate Court and then, the High Court summarily dismissed the appeal. In further appeal, the Hon'ble Supreme Court considered various aspects of equity including the fact that the tenant had put up valuable construction on the land in question and deposited an amount much larger than the amount due to the landlord. In the given fact situation, the Hon'ble Supreme Court found no 6 reason to interfere in appeal with special leave, in such exercise of discretion by the District Court as affirmed by the High Court. In the present case, as noticed above, the petitioner- appellant did not invoke this ground whether before the Rent Tribunal or before the Appellate Rent Tribunal. Then, the significant aspect of the matter remains that the eviction was sought with reference to the fact that tenancy had been terminated by serving a valid notice therefor. The learned subordinate Tribunals have concurrently found the tenancy having validly been terminated and the landlord entitled to the order for ejectment. We are unable to see any reason wherefor such order for ejectment could have been considered for interference by the writ Court on the suggestions as made by the appellant. The writ petition has rightly been dismissed and there is no case for interference in appeal. The appeal fails and is, therefore, dismissed summarily. (DINESH MAHESHWARI ),J. (JAGDISH BHALLA),CJ. /Mohan/