JUDGMENT Beg, J.
1. This is a defendant's Special Appeal. It arises out of a suit for arrears of rent and damages and for possession of the land in suit after the removal of the constructions raised thereon by the defendants. The respondent is the landlord of the premises in question. The instrument of lease which is alleged to be the basis of the tenancy of the defendant-appellants was executed on the 20th of July 1943 for a period of 30 years on an annual rent of Rs. 100/-. One of the terms of the lease was that the lessee would be liable to pay rent every third month, and that, in the event of the lessee failing to comply with this term, he would be liable to ejectment even before the expiry of the period for which the lease was granted, and the lessor would then have the right to get possession of the premises by removal of constructions erected thereon. The rent fell into arrears after the 20th of July 1950 and a sum of Rs. 333/14/-becunii! due for the period 20th of July 1950 to 19th November, 1953. The landlord, accordingly, sent a notice on the 22nd of November, 1953, determining the lease with effect from 20th December, 1953 and demanding the arrears due. The arrears of rent having not been paid the present suit was brought by the plaintiff-respondent for the possession of land after removal of constructions standing thereon, the recovery of the arrears of rent as well as damages from the 20th December, 1953, the date of the determination of the lease, upto the date of the institution of the suit and for ejectment.
2. The suit was contested by the defendants On several grounds. It was alleged that the original contract had been altered by the parties with the result that there was novation of the contract. It was further alleged that under the new contract it was agreed that defendant No. 1 would no longer be the tenant of the plaintiff and the defendant No. 2 would be substituted as the tenant in place of defendant No. 1. Defendant No. 1 was, therefore, no longer liable for rent. Further no valid notice to quit was given to defendant No. 2. The tenancy had not, therefore, been determined and no question of paying damages arose.
Pleas relating to under-valuation of the suit and insufficiency of court-fee were also taken. The trial court recorded findings in favour of the plaintiff and decreed the suit.
3. The defendant-appellants' first appeal having been dismissed, they filed a second appeal in this Court. The second appeal was dismissed by a single. Judge of this Court who, having granted leave to the appellants, this Special Appeal was filed by them.
4. Before us the learned counsel for the appellants has advanced two contentions. The first contention is that the notice of ejectment issued by the respondent was not a valid one; and the second contention is that, in any case, the defendants were entitled to the protection of Section 114 of the Transfer of Property Act.
5. The first plea can be disposed of summarily. This plea was given up by the defendants in the trial court. It was not agitated by them either at the stage of first appeal or even at the stage of second appeal. Further, there is no ground mentioning this plea in the memorandum of Special Appeal filed by them. Under the circumstances, we decline to entertain this plea.
6. So far as the second plea is concerned, learned counsel for the appellants has relied on the provisions of Section 114 of the Transfer of Property Act (IV of 1882). Section 114 provides as follows:
"Where a lease of immovable property has determined by forfeiture for non-payment of rent, and the lessor sues to eject the lessee, if, at the hearing of the suit, the lessee pays or tenders to the lessor the rent in arrear, together with interest thereon and his full costs of the suit, or gives such security as the Court thinks sufficient for making such payment within fifteen days, the Court may, in lieu of making a decree for ejectment, pass an order relieving the lessee against the forfeiture; and thereupon the lessee shall hold the property leased as if the forfeiture had not occurred."
The present suit was filed by the respondent on the 21st of January 1954. After a number of hearings had been gone through, it was fixed for filial hearing on the 21st February 1955. It was on that day that the defendants for the first time gave up all the pleas and claimed benefit of Section 114 of the Transfer of Property Act. Even then they did not deposit the full amount of arrears of rent together with costs and interests though they had obtained tenders twice for depositing such amount. The courts below were of opinion that in order to entitle the defendants to invoke Section 114 of the Transfer of Property Act in their favour, they should have deposited the entire amount of arrears of rent which was due from them upto the 21st of February 1955.
The contention advanced before us on behalf of the defendant-appellants is that the notice dated 22nd of November 1953 given by the landlord having determined their tenancy with effect from 20th December, 1953, they became trespassers thereafter. The amount due from them after the 20th December 1953, cannot, therefore, be termed as arrears of rent. What Section 114 of the Transfer of Property Act requires is that the tenant should deposit "the rent in arrears, together with interest thereon, and his full costs of the suit". The contention of the appellants' counsel is that the tenancy having been dissolved by notice, the tenant thereafter became liable only for damages for use and occupation of the premises and not for rent. Under the circumstances, the deposit of the amount made on behalf of the tenant should be deemed to he a sufficient compliance with the provisions of Section 114 of the Transfer of Property Act.
7. We are not inclined to accept this interpretation of the term "rent" in Section 114 of the Transfer of Property Act. It appears to us that while using the term "rent" in this section the idea of the Legislature was to disregard all defaults and breaches on the part of the tenant and to beat him as a full-fledged tenant for the purposes of the suit. This section is designed to provide a relief against forfeiture. It, therefore, uses terms and phrases on the assumption that no forfeiture has taken place and the tenancy between the parties has continued to subsist. Thus for example the tenant is described in the section as a lessee although, as a result of the notice given by the landlord, the tenancy has been dissolved and the tenant has, therefore, ceased to be a lessee. If, therefore, this section is interpreted in the mariner suggested on behalf of the appellants and the notice of ejectment given by the landlord is deemed to be effective for the purposes of Section 114 of the Transfer of Property Act, the word "lessee" used therein will not cover a person whose tenancy has been determined. On this interpretation, therefore, the defendants would be out of Court and would not be able to avail themselves of this section which is relied on by them. The defendants cannot have it both ways.
8. The relief against forfeiture provided in this section is obviously based on equitable principles. The purpose of this section appears to be to extend a special indulgence in favour of a tenant who is prepared to purge himself of his conduct as a persistent defaulter by making an honest offer to clear off his entire liability. His unconditional readiness to wipe off his legal dues is, therefore, made a condition precedent to his prayer that the Court might invoke this section in his favour. A more reasonable construction of this section would, therefore, be to interpret the word "rent" in such a manner as to include in it the entire amount which the tenant would be liable to pay to the landlord by way of rent upto the date of tender. In other words, his liability for rental dues will be determined on the supposition that he had continued to remain as tenant and the forfeiture of his rights following the purported determination of his tenancy had not taken place. This interpretation would also be borne out by the fact that under this section the Legislature required the tenant not only to pay up the arrears of rent but also interest as well as full costs of the suit. It would, therefore, appear that this section seeks to make the tenant liable even for the payment of amounts liability in respect ot which is incurred by him as a result of the suit or during its pendency.
The view taken by us would also find support from Dhurrumtoila Properties, Ltd. v. Dhunbai Peroshaw, AIR 1931 Cal 457. According to the view taken in some Madras cases even the amount which is barred by the law of limitation should be included in the amount deposited by the tenant, vide Vasudeva Udpa v. Krishna Upda, AIR 1921 Mad 418, Vamana Pai v. Venkatu Naika, AIR 1936 Mad 116 and Janab Vellathi v. K. Kadervel Thayammal, AIR 1958 Mad 232.
9. We would, therefore, hold that the tender made by the tenant being insufficient, he cannot avail himself of the benefit of Section 114 of the Transfer of Property Act,
10. The matter can, however, be approached from another angle also. The lower courts have rejected the prayer made on behalf of the appellants as they were not inclined to exercise the discretion vested in them under Section 114 of the Transfer of Property Act in their favour. They were of the opinion that the tenants had in the present case forfeited any claim to any equitable consideration at the hands of the court as a result of their conduct. The relief itself being an equitable one, the party who comes to court seeking such relief must come with clean hands. In the present case the suit was filed on the 21st of January 1954. Both the appellants contested the suit on a large number of grounds. They did not claim the benefit of Section 114 of the Transfer of Property Act on the first hearing of the suit. On the 7th of July, 1954 both the defendants applied for time to file their written statements, Issues were framed on the 11th of August 1954 and 13th of August 1954 was fixed for the hearing of issue No. 3 which related to the valuation of the suit and to the sufficiency of court-fee. After this issue was decided, 9th of December 1954 was fixed for final hearing. On that date the suit was adjourned to 21st of February, 1955 for final hearing upon the ground of illness of appellant No. 2.
It was on the 21st of February 1955 that for the first time all the pleas taken by the appellants were given up and they claimed benefit of Section 114 of the Transfer of Property Act. Even then they did not deposit the full amount of arrears of rent together with costs and interest, though they obtained tenders twice for depositing such amount. The appellants, therefore, took all kinds of unnecessary, vexatious and frivolous pleas thereby delaying the disposal of the suit and causing harassment to the respondent. It may also be noted in this connection that in the present case regular payment of rent was one of the terms of the lease. The lessee, therefore, held the land which belonged to the plaintiff on the express condition that rent in respect of the same would be paid regularly, and, in the event of default, he was liable to incur the penalty of having to vacate the premises. In the present case, therefore, the parties themselves had attached special importance to the term relating to regular payment of rent and had also prescribed a penalty for its breach.
Under the circumstances, in the present case, the court while decreeing the suit for ejectment is merely enforcing a term which was a consideration of the contract" between the parties and which was agreed to by the tenant himself. The defendants have been found to be clearly in persistent default for over three years. Their conduct throughout cannot be said to be either above board or honest. The trial court, therefore, thought that it was not a fit case for the exercise of the discretionary power of the court in favour of the appellants. The findings of the trial court in this regard were upheld concurrently by two courts. Their conclusions cannot be characterised as either perverse or unreasonable. At any rate, the Court will be loathe to interfere with the exercise of a discretionary power at this late stage. For this reason also we are of opinion that the plea of the appellants based on Section 114 of the Transfer of Property Act must be repelled.
11. We, accordingly, see no substance in this appeal and dismiss it with costs.