Jamsedji Sorabji v. Lakshmiram Rajaram

Jamsedji Sorabji v. Lakshmiram Rajaram

(High Court Of Judicature At Bombay)

| 19-06-1888

H.M. Birdwood, J.

1. The plaintiff sued to eject the defendant, his tenant, on the ground that he had failed to pay rent for three years. Under the lease, such failure operated as a forfeiture. The defendant pleaded that he had paid rent, either to the plaintiff's co-sharer, to the plaintiff and the co-sharer jointly. The Courts below rightly disregarded this plea, as it was not open to the defendant to set it up after taking a lease from the plaintiff alone--Sayad Fatulla v. Bola Printed Judgements for 1884 p. 33; Jethu Jadhavji v. Ganpatrav Printed Judgments for 1884 p. 286. The Subordinate Judge relieved against the forfeiture for non-payment of rent by allowing the defendant to pay the five years' rent due at the date of the decree, with interests and costs, within three months. The District Judge, however, awarded possession of the land to the plaintiff, because the defendant's plea in his written statement amounted to a denial of the plaintiff's exclusive title--Jethu Jadhavji v. Ganpatrav Printed Judgments for 1884 p. 286; and he ordered the defendant to pay costs throughout. We think that this decree is wrong, because the plaintiff's alleged cause of action was not any disclaimer of his title by the defendant, but merely the non-payment of rent; and forfeiture for such a breach of the covenants in a lease can be relieved against by a Court of Equity--Timmarso Puranik v. Badly a Kuppagouda 2 Bom. H.C. R. 66 ; (Woodfall's Landlord and Tenant, 13th ed., page 326). The question whether there had been such a disclaimer and denial of the plaintiff's title as would entitle him to a decree for possession, was not dealt with at all by the Subordinate Judge. Indeed, such a cause of action could not well have been considered, as it was not alleged in the plaint--Prannath Shaha v. Madhu Khulu I.L.R. 13 Cal . 96 [LQ/CalHC/1886/66] --and any question regarding it ought not, we think, to have been raised in the appeal. We, therefore, amend the District Judge's decree by restoring that of the Subordinate Judge. The period of three months therein provided, is to date from to-day. Each party to bear his own costs in the District Court and here.

Advocate List
Bench
  • HON'BLE JUSTICE H.M. BIRDWOOD
  • HON'BLE JUSTICE H.J. PARSONS
Eq Citations
  • ILR 1889 13 BOM 323
  • LQ/BomHC/1888/62
Head Note

Rent and Eviction — Forfeiture for nonpayment of rent — Relief against — Defendant tenant pleading that he had paid rent either to plaintiff’s cosharer or to plaintiff and cosharer jointly — Subordinate Judge rightly disregarding this plea as it was not open to defendant to set it up after taking a lease from plaintiff alone — Subordinate Judge relieved against forfeiture for nonpayment of rent by allowing defendant to pay rent due at date of decree with interests and costs within three months — District Judge however awarded possession of land to plaintiff because defendant’s plea in his written statement amounted to a denial of plaintiff’s exclusive title — Decree of Subordinate Judge restored — Period of three months therein provided is to date from today — Each party to bear his own costs in District Court and here — Torts — Forfeiture — Relief against