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Letters Patent Appeal No. 54 of 1960, decided on 21st September 1961.
‑Forfeiture of tenancy on failure to pay rent‑Tenant has locus poenitentiae or "second chance" to pay up rent, subject to payment of interest‑Transfer of Property Act (IV of 1882), S. 114: [Krishnabai v. Harigovind and another I L R 31 Bom. 15 and Nagappa v. Venkat Rao I L R 24 Mad. 265 ref.].
Munawar Abbas for Appellant.
Iqbal H. Kazi for Respondents.
Date of hearing : 21st September 1961.
The material facts in this case are that the present applicant was a tenant of the present respondents and the present respondents obtained a decree in ejectment against the present applicant. The applicant filed an appeal against that decision and applied for stay of execution and the Appellate Court then passed the following order:‑
"By consent the appellant to pay the decretal amount within the time allowed by the original Court and he should continue to deposit in Court the monthly rent from month to month as the same accrues. On this condition the execution of the decree for a ejectment is stayed."
This, it may be observed, was a consent order and as quoted by Jenkins, C. J., in Krishnabai v. Harigovind and another (I L R 31 Bom. 15), from Wentworth v. Bullen ((1829) 9 B & C 850), "the contract of the parties is not the less a contract, and subject to the incidents of a contract, because there is superadded the command of a Judge."
The applicant for some time paid rent but he fell behind from January 1961 and he has now filed an application asking this Court to accept the same. The respondents object on the ground that the conditions of the consent order have been broken and they are entitled to execute the decree for possession without further ado.
Mr. Munawar Abbas has relied upon various cases which fully establish the doctrine that a consent order is a contract and that the Court in dealing with a contract will apply equitable principles if they are applicable, and he contends accordingly that A In this case there is a forfeiture of a tenancy which can be relieved against. He points out that section 114 of the Transfer of Property Act merely reproduces what was already the principles of equity before its enactment namely, that where a forfeiture has occurred owing to non‑payment of rent, the tenant has what we may call a locus poenitentiae or second chance subject to the payment of interest.
On the other hand, Mr. Kazi has strenuously argued that this case has no analogy to the case of landlord and tenant. He argues that this was merely a consent order to stay execution and not to create any relationship of landlord and tenant. The answer to that is that unfortunately for his case the Court itself has in recording their consent used the words "monthly rent" and so far as we can see the use of this expression can be only attributable to relation of landlord and tenant. That relation may be fleeting in the sense that if the original decree is upheld that relationship will vanish. On the other hand it may still remain if the original decree is reversed. We think therefore that the ordinary equitable principle in case of forfeiture should be applied as it was in Nagappa v. Venkat Rao (I L R 24 Mad. 265) and again in the Full Bench case above‑quoted namely Krishnabai v. Harigovind and another.
We therefore allow the applicant to deposit the amount on condition that he do pay interest calculated at the rate of 6% per annum on or before the 28th of September 1961. The costs of today's proceedings should be borne by the applicant as it is his own conduct that has made the application necessary.
A, H.
Order accordingly.
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