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Judgment
The District Judge has found that default was committed by the defendant in the payment of rent due in 1907 and 1908. The principle of the decision of this Court, in Narayana Naicker v. Vasudeva Bhattar 28 M.K 389 : 15 M.L.J. 208 that where the lease allows a period of grace for payment of rent, the forfeiture incurred by non-payment within the period of grace will not be relieved against, is not disputed. On the - findings, therefore, the second appeal cannot succeed.
It is argued that, prior to the institution of the suit, the plaintiff did nothing to show that he intended to avail himself of the forfeiture. Assuming that it was necessary for the plaintiff to do so and that his institution of the suit would not be sufficient for the purpose, this question was not raised in either of the lower Courts or in the memorandum of second appeal here. It is quite possible that, if it had been raised at the proper time, the plaintiff might have had an answer to it. We are not, therefore, prepared to allow the point to be raised at this stage. No waiver of the forfeiture incurred by non-payment of the amount due in 1907 was set up till now.
We dismiss the second appeal with costs.