Case: Namdeo Lokman Lodhi Vs. Narmadabai And Others

the Court normally would grant relief against forfeiture for non-payment of rent under Section 114, T, P. Act, and that if the sum required under the section was paid or tendered to the lessor at the hearing of the suit the Court has no discretion in the matter and must grant relief to the tenant. We do not think that the learned Judges intended to lay down any hard and fast rule. Indeed the learned Judge proceeded to observe as follows:"In exercising the discretion with which it is invested under Section 114 a Court in India is not bound by the practice of a Court of Chancery in England, and I am not disposed to limit the discretion that it possesses. Those who seek equity must do equity, and I do not think merely because a tenant complies with the conditions laid down in S. l14 that he becomes entitled as of right to relief."29. 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 v. Mahammad Beari, AIR 1910 Mad. 680 (2) (U), 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 Courts hands are not tied to exercise it in his favour. Reference in this connection may also be made to AIR 1914 Mad. 706 (H) and Ramabrahmam v. Rami Reddi. AIR 1928 Mad. 250 (V).30. The argument of Mr. Daphtary that there was no real discretion in the Court and relief could not be refused except in cases where third party interests intervene is completely negatived by the decision of the House of Lords in Hyman v. Rose, (1912), A.C. 623 (W). Relief was claimed in that case under the provisions of Section 14 (2) of the Convincing Act, 1881 against forfeiture for breaches of covenant in the lease. The appellants offered as the terms on which relief should be granted to deposit a sum sufficient to ensure the restoration of the premises to their former condition at the end of the term and make full restitution. It was argued that the matter was one of discretion and the Court should lean to relieve a tenant against forfeiture and it full recompense can be made to the landlord the relief should be granted. Lord Lore burn in delivering the opinion of the House observed as follows:"I desire in the first instance to point out that the discretion given by the section is very is wide. The Court is to consider all the circumstances and the conduct of the parties. Now it seems to me that when the Act is so express to provided a wide discretion meaning no doubt, to prevent one man from forfeiting what in fair dealing belongs to someone else, by taking advantage of a breach from which he is not commensurately and irreparably damaged, it is not a advisable to lay down any rigid rules for guiding that discretion. I do not doubt that the rules enunciated by the Master of the Rolls in the present case are useful maxims in general and that in general they reflect the point of view from which judges would regard an application for relief. But I think it ought to be distinctly understood that there may cases in which any or all of them may be disregarded. If it were otherwise the free discretion given by the statute would be fettered by limitations which have nowhere been enacted. It is one thing to decided what is the true meaning of the language contained in an Act of Parliament. It is quite different thing a place conditions upon a free discretion entrusted by statute to the Court where the conditions are not based upon statutory enactment at all. It is not safe, I think, to say that the Court must and will always insist upon certain things when the Act does not require them and the facts of some unforeseen case may make the Court with it had kept a free hand."31. With great respect we think that the observations cited above contain sound principle of law. We are, therefore, unable to accede to the contention of Mr. Dauhtary that though Sec. 114, T.P. Act, confers a discretion on the Court, that discretion, except in cases where third party interests intervene, must always be exercised in favour of the tenant irrespective of the conduct of the tenant. It is clear that in this case the tenant is a recalcitrant tenant and is a habitual defaulter. For the best part of 25 years he has never paid rent without being sued in Court. Rent has been in arrears at times for six years, at other times for three years and at other times for four years and so on, and every time the landlord had to file a suit in ejectment which was always resisted on false defences. No rule of equity, justice or good conscience can be invoked in the case of a tenant of this description. He cannot always be allowed to take advantage of his own wrong and to plead relief against forfeiture on every occasion, particularly when he was warned by the Court of appeal on a previous occasion. He had already had relief three times on equitable grounds and it is time that the Court withheld its bands and ordered his ejectment. In this situation the High Court was fully justified in finding that in second appeal it would not interfere with the discretion of the Courts below in refusing to grant relief against forfeiture.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]14. The law with regard to the determination of a lease by forfeiture is contained in S. 111 (g), T. P. Act. Under that provision a lease is determined by forfeiture in case the lessee breaks an express condition which provides that on breach thereof the lessor may re-enter, or in case the lessee renounces his character as such by setting up a title in a third person or by claiming title in himself, or the lessee is adjudicated an insolvent and the lease provides that the lessor may reenter on the happening of such event and a certain further act is done by the lessor as thereinafter mentioned.It is axiomatic that the Courts must apply the principles of justice, equity and good conscience to transactions which come up before them for determination even though the statutory provisions of the. Transfer of Property Act are not made applicable to these transactions. It follows, therefore, that the provisions of the Act which are but a statutory recognition of the rules of justice, equity and good conscience also govern those transfers. If therefore, we are satisfied that the particular principle to which the legislature has now given effect by the amendment to s. 111 (g) did in fact represent a principle of justice equity and good conscience, undoubtedly the case will have to be decided in accordance with the rule laid down in section although in express terms it has not been made applicable to leases executed prior to 1929 or even prior to the Transfer of Property Act coming intoHigh Court held, and we think rightly, that this provision in sub-s. (g) of S. 111 in regard to notice was not based upon any principle of justice, equity and good conscience. In the first instance it may be observed that it is erroneous to suppose that every provision in the Transfer of Property Act and every amendment effected is necessarily based on principles of justice, equity and good conscience. It has to be seen in every case whether the particular provision of the Act relied upon restates a known rule of equity or whether it is merely a new rule laid down by the legislature without reference to any rule of equity and what is the true nature and character of the rule. Now, so far as S. 111(g) of the Act is concerned, the insistence therein that the notice should be given in writing is intrinsic evidence of the foot that the formality is merely statutory and it cannot trace its origin to any rule of equity. Equity does not concern itself with mere forms or modes of procedure. If the purpose of the rule as to notice is to indicate the intention of the lessor to determine the lease and to avail himself of the tenants breach of covenant it could as effectively be achieved by an oral intimation as by a written one without in any way disturbing the mind of a Chancery Judge. The requirement as to written notice provided in the section, therefore, cannot be said to be based on any general rule of equity. That it is not so is apparent from the circumstance that the requirement of a notice in writing to complete a forfeiture has been dispensed with by the legislature in respect to leases executed before 1-4-1930. Those leases are still governed by the unamended sub-s. (g) of Sec. 111. All that was required by that sub-section was that the lessor was to show his intention to determine the lease by some act indicating that intention. The principles of justice, equity and good conscience are not such a variable commodity, that they change and stand altered on a particular date on the mandate of the legislature and that to leases made between 1882 and 1930 the principle of equity applicable is the one contained in sub-s. (g) as it stood before 1929, and to leases executed after 1-4-1930 the principle of equity is the one stated in the sub-section as it now stands. Question may also be posed, whether according to English law a notice is a necessary requisite to complete aour opinion, the provision as to notice in writing as a preliminary to a suit for ejectment based on forfeiture of a lease is not based on any principle of justice, equity or good conscience and cannot govern leases made prior to the coming into force of the Transfer of Property Act, 1882, or to leases executed Prior to 1-4-1930. The rights and obligations under those leases have to be determined according to the rules of law prevailing at the time and the only rule applicable seems to be that a tenant cannot by his unilateral act and by his own wrong determine the lease unless the lessor gives an indication by some unequivocal expression of intention on his part of taking advantage of the breach.On no principle of equity is a tenant entitled to a notice in writing telling him that the lease has been determined. The High Court was, therefore, right in the view that it took of the matter and there are no valid reasons for taking a contraryrelation of lessor and lessee is one of contract and in Bacons Abridgement a lease is defined as a contract between the lessor and the lessee for the possession and profits of land on the one side and recompense by rent or other consideration on the other. The statute has given a more comprehensive definition of the term. Section 107 makes registration of a lease compulsory. This section again does not concern itself with any principle of justice or equity. Section 108(j) enacts that the lessee may transfer absolutely by way of mortgage or sub-lease the whole or any part of his interest in the property and any transferee of such interest or part may again transfer it. The law in India and England on this subject is not the same and it cannot be said that this sub-section enacts or enunciates any general principle of equity.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 theis 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 Courts hands are not tied to exercise it in his favour.With great respect we think that the observations cited above contain sound principle of law. We are, therefore, unable to accede to the contention of Mr. Dauhtary that though Sec. 114, T.P. Act, confers a discretion on the Court, that discretion, except in cases where third party interests intervene, must always be exercised in favour of the tenant irrespective of the conduct of the tenant. It is clear that in this case the tenant is a recalcitrant tenant and is a habitual defaulter. For the best part of 25 years he has never paid rent without being sued in Court. Rent has been in arrears at times for six years, at other times for three years and at other times for four years and so on, and every time the landlord had to file a suit in ejectment which was always resisted on false defences. No rule of equity, justice or good conscience can be invoked in the case of a tenant of this description. He cannot always be allowed to take advantage of his own wrong and to plead relief against forfeiture on every occasion, particularly when he was warned by the Court of appeal on a previous occasion. He had already had relief three times on equitable grounds and it is time that the Court withheld its bands and ordered his ejectment. In this situation the High Court was fully justified in finding that in second appeal it would not interfere with the discretion of the Courts below in refusing to grant relief against forfeiture.