1969 (3) TMI 106

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....or two consecutive years the tenancy rights were to stand forfeited. Goyal transferred his tenancy rights to Lala Hukam Chand. Pursuant to the lease several tenements were raised on the land demised. 2. The tenant failed to pay the rent accrued due for two years. The appellant then served a notice on January 4, 1960, terminating the tenancy and instituted an action in the Court of the City Munsiff, Saharanpur, against Virendra Goyal and Lala Hukam Chand for a decree in ejectment and for an order for payment of Rs. 545/11/- as rent and compensation. 3. Several contentions were raised in their written statement by the defendants one of which alone is material. The tenants prayed that they should be given relief against forfeiture of their t....

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....inst this decision was summarily dismissed by the High Court of Allahabad. 4. In appeal to this Court counsel for the appellant contends: (1) that jurisdiction Under Section 114 of the Transfer of Property Act to relieve against forfeiture for non-payment of rent may only be exercised by the Court of First Instance and not by the Court of Appeal; (2) that the Trial Court gave an opportunity to the tenants to pay the amount of rent due together with interest and costs, but the tenants failed to avail themselves of the opportunity. In the circumstances the appellate Court had no jurisdiction to grant another opportunity to the tenants to make the requisite payment and grant relief against forfeiture of the tenancy; (3)that in any event....

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....xercise of the Courts' 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. This is the view taken by the High Courts in India : see . Chilukuri Tripura Sundaramma v. Chilkuri Venketes-Warlu alias Ramchandram and Ors. A.I.R. 1949 Mad. 841 Janab Vellathi and Ors. v. Smt. K. Kadervel Thayammal A.I.R. 1958 Mad. 232 Shrikishanlal and Ors. v. Ramnath Jankiprasad Ahir and Ors. I.L.R. 1944 Nag. 877 Budhi Ballabh and Ors. v. Jai Kishen Kan....