Bhiku Hari More (Deceased By ... vs Vishvanath Shridhar Mogare ...
2002 Latest Caselaw 295 Bom

JUDGMENT

J.G. Chitre, J.

1. The appellants are assailing the judgment and decree passed by Additional District Judge, Thane in Civil Appeal No. 146/1987 by which the learned Judge confirmed the judgment and decree passed by Civil Judge, J.D., Palghar in the matter of R.C.S. No. 55/1978.

2. The appeal has been admitted on the following substantial question of law.

(1) Whether the Courts below should have granted the facility of paying the arrears of rent during the trial to the appellants in view of provisions of Section 114 of Transfer of Property Act?

3. Shri Ghaisas, Counsel appearing for the appellants, submitted that at the time of trial when the appellant was ready and willing to pay the arrears of rent, and said readiness and willingness was pointed out in written statement, the two Courts below should have exercised the discretion in favour of the appellant. Shri Shah submitted that the words which are used in Section 114 of Transfer of Property Act shows that discretion lies with the Court and that is to be used in fit cases only. He pointed out that there have been concurrent findings of the two Courts below and therefore appeal deserves to be dismissed.

4. Shri Ghaisas placed reliance on the judgment of the Supreme Court in the matter of R.S. Lala Praduman Kumar v. Virendra Goyal (dead) by his legal Representatives , wherein Supreme Court held that, "The covenant of forfeiture of tenancy for non-payment of rent is regarded by the Courts as merely a clause for securing payment of rent, and unless the tenant has by his conduct disentitled himself to equitable relief the Courts grant relief against forfeiture of tenancy on the tenant paying the rent due, interest thereon and costs of the suit."

In the said judgment the Supreme Court has further observed that :

"In terms of Section 114 makes payment of rent at the hearing of the suit in ejectment a condition of the exercise of the Court's jurisdiction but an appeal being a rehearing 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. Passing of a decree in ejectment against the tenant by the Court of First instance does not take away the jurisdiction of the appellate Court to grant equitable relief. Failure of the tenants to avail themselves of the opportunity does not operate as a bar to the jurisdiction of the appellate Court. The Appellate Court, may, having regard to the conduct of the tenant decline to exercise its discretion to grant him relief against forfeiture. The question is not one of jurisdiction but of discretion."

5. In Chettiar's case , the Supreme Court has given the guidelines as to when the High Court should interfere in the judgments and decrees passed by the subordinate Courts. If the judgment is inconsistent with the evidence on record, inconsistent with the provisions of law, or has been in utter disregard of the pleading and evidence on record, the High Court may interfere in such judgment and decree. If the judgment and decree is perverse, the Court may also interfere in it. But when the findings recorded by the two Courts below are consistent with the evidence on record as also with the provisions of law. High Court should not interfere in such judgment and decree.

6. In the present case, the two Courts below have recorded concurrent findings against the appellant, the Judgments are well reasoned and do not smell of perverseness at all. To grant such facility of paying the arrears of rent is a matter of discretion. When subordinate Court has exercised such discretion on good and reasonable ground, there is no need of setting it aside by interference. After all discretion has to be used in appropriate cases. If that has been stated by the Supreme Court in R. S. Lala's case (supra), in the present matter though, appellant has averred that way in the written statement, appellant did not deposit the arrears of said rent in the Court suo motu nor prayed for permission to deposit such arrears of rent in the Court. The words spoken or written should be followed by consequential conduct, otherwise that may sound noise created by beating hollow drums. This Court does not find that two Courts below have not exercised the jurisdiction which vested in them. This Court does not find that the judgments and decrees passed by them are either perverse or illegal. Thus, appeal fails and stands dismissed with costs. Consequently civil application also stands dismissed.