High Court · 2012

The predecessor-in-interest of the present respondent, namely, Shri Nara 2. yan Chandra Deka instituted the said suit in the Court of the learned Munsiff No .2 under the provisions of Assam Urban Areas Rent Control Act, 1972 (in short th e Act) for ejectment of the predecessor-in-interest of the present petitioners, namely, Shri Deepchand Agarwal, on the ground of defaulter, bonafide requirement and subletting, contending inter alia that though as per the deed of lease exec uted on 17.09.1985 (Ext.-2) between the parties, the tenant is required to pay t he monthly rent of Rs.800/- according to the English calendar month payable with in first week of succeeding month, rents for the months of October to December, 1985 have not been paid and hence the original defendant became the defaulter wi thin the meaning of the Act. It has also been alleged that the defendant has sub let the suit premises without the consent of the plaintiff, thereby violating th e terms of tenancy created by Ext.-2 registered deed of lease. The plaintiff als o claimed that the suit premises is required for his own use and occupation.

3. The defendant resisted the claim of the plaintiff by filing written stat ement contending inter alia that since there was double payment of rents for the months from April to July, 1985, the defendant cannot be termed as defaulter fo r non-payment of rent for the months of October to December, 1985 as the said do uble payment is to be adjusted against the rent payable in those months. It has also been pleaded that the defendant in fact has deposited the rent payable for the months from October to December, 1985 in Court, as required under sub-sectio n (4) of Section 5 of the Act by instituting Misc. N.J. Case No.351/1986 and as such he is not a defaulter. The contention of the plaintiffs that the monthly re nt is payable within first week of the succeeding month has also been disputed b y the defendant contending that because of practice of collection of rent by the plaintiffs, sometimes monthly and sometimes quarterly, the condition stipulated in the agreement for payment of monthly rent within first week of next succeedi ng month, has been waived by conduct of the plaintiffs. The allegation of sublet ting as well as the bonafide requirement of the suit premises have also been den ied by the defendant in the written statement filed.

4. The Trial Court vide judgment and decree dated 23.05.1995 initially decr eed the suit of the plaintiffs by holding that the defendant is a defaulter and also that he has sublet the house in violation of the tenancy agreement and as s uch evictable from the tenanted premises. The said judgment and decree was put t o challenge by the defendant in Title Appeal No.26/1995. The appellate Court vid e judgment dated 23.03.2000 allowed the appeal by remanding the suit to the Tria l Court for giving decision on the additional issues framed and by setting aside the judgment and decree passed by the Trial Court. The said judgment of the app ellate court was put to challenge by the successor-in-interest of the original p laintiff, since the original plaintiff in the meantime has expired, in this Cour t in SAO No.1/2000 which was disposed of vide order dated 06.12.2001 by holding that the appellate court having remanded the matter for deciding the suit by fra ming the additional issues ought not to have set aside the judgment and decree p assed by the Trial Court and consequently that portion of the judgment passed by the Appellate Court was set aside, however, making it clear that the order of r emand has not been disturbed. The said order was passed keeping in view the prov isions contained under Order 41 Rule 25 of the CPC.

5. The Trial Court thereafter decided the Title Suit No.40/1988 again vide judgment and decree dated 01.12.2005 by answering the additional issues in favou r of the plaintiff. An appeal being Title Appeal No.42/2006 was thereafter prefe rred by the successor-in-interest of the original defendant, since the defendant in the meantime has expired, which has been dismissed vide judgment and decree dated 29.11.2010, and hence the present revision petition.

6. . Khataniar, learned counsel appearing for the respondent. I have heard Mr. Z. Mukit, learned counsel for the petitioners and Mr. P It has been submitted by Mr. Mukit, the learned counsel for the petition 7. ers, that since the defendant could prove the double payment of rent from the mo nths of April to July, 1985 by exhibiting the documents receiving the rent for t hose months by the landlord, the learned Courts below ought not to have held the defendant as defaulter for non-payment of rent for the months of October to Dec ember, 1985 as the rent paid twice for the aforesaid months are to be adjusted f or the rent payable for the months from October to December, 1985. It has also b een submitted that for abandoned caution the defendant has deposited the rent pa yable for the months of October to December, 1985 in Court as required under sub -section (4) of Section 5 of the Act by filing Misc. N.J. Case No.351/1986 and a s by conduct of the plaintiff by collecting the rent even for 3(three) months to gether waived the condition for payment of the rent in the first week of every s ucceeding month the defendant cannot be termed as defaulter within the meaning o f the Act. The learned counsel, therefore, submits that the impugned judgment an d decree passed by the learned Courts below holding the defendant as defaulter i s liable to be set aside. Mr. Khataniar, learned counsel appearing for the respondents, on the oth 8. er hand, has submitted that it is evident from the registered lease deed dated 1 7.09.1985 (Ext.-2) that the tenant was required to pay the monthly rent of Rs.80 0/- according to the English calendar month payable within first week of every s ucceeding month. It has also been submitted that the defendant though required t o pay the monthly rent for the months of October to December, 1985 within first week of succeeding month, he did not pay the said amount to the plaintiff though there is clear stipulation in that regard in Ext.-2 lease deed. Referring to th e challan showing deposit of the rent for the months of October to December, 198 5 by the defendant in Court in Misc. N.J. Case No.351/1986, it has been submitte d by Mr. Khataniar that it is evident that the defendant is defaulter for non-pa yment of rent for the months of October and November, 1985 as the rent for those months together with the rent payable for the month of December, 1985 was depos ited in Court only on 18.01.1986, which is also not valid as the deposit was mad e without first tendering the rent to the plaintiff. The learned counsel further submits that since a new tenancy has been created by the agreement dated 17.09. 1985, the earlier conduct, if any, of the plaintiff of receiving rent for 2/3 mo nths together cannot be taken into consideration, the parties having agreed for payment of rent monthly within first week of succeeding month by entering into a written agreement on 17.09.1985. As noticed above, the appellate Court vide judgment dated 23.03.2000 pas 9. sed in Title Appeal No.26/1995 remanded the matter to the Trial Court by framing two additional issues for determination. The appellate court though exercised t he power conferred by Order 41 Rule 25, however, has set aside the judgment and decree passed by the Trial Court. The plaintiff, therefore, filed SAO No.1/2000 before this Court, which as noticed above, has been disposed of vide order dated 06.12.2001 setting aside the order passed by the appellate court whereby and wh ereunder the judgment and decree passed by the Trial Court was set aside, in vie w of the provisions contained in Order 41 Rule 25 of the CPC.

10. After such an order passed the learned Munsiff after deciding the additi onal issues framed ought to have returned the evidence to the appellate court to gether with its finding thereon and reasons therefor as the appellate court was, thereafter, to decide the appeal taking into account the finding recorded by th e Trial Court, in view of the provisions of Order 41 Rule 25 CPC. The said cours e of action however has not adopted. The Trial Court proceeded to decide the sui t afresh by deciding the additional issues and without disturbing the findings r ecorded in other issues including the issue relating to defaulter. The said decr ee has been put to challenge by the defendants in the appeal, which has also bee n dismissed by the appellate court on 29.11.2000, which gives rise to the presen t revision petition. Be that as it may, as notice above, both the Courts below h ave recorded the finding of defaulter against the defendant.

11. It is evident from Ext.-2 lease deed dated 17.09.1985 that a fresh tenan cy has been created between the parties in respect of the suit premises, w.e.f. 01.10.1985 for a period of 12 months with the stipulation that the monthly rent would be Rs.800/- according to English calendar month and rent for each month sh all have to be paid in cash to the landlord within first 7(seven) days of the ne xt following month.

12. The contention of the defendant that there was double payment of rent in respect of the months from April to July, 1985, which is required to be adjuste d against the rent payable for the months of October to December, 1985, cannot b e accepted for two reasons, firstly, there is no stipulation in that regard in t he fresh tenancy agreement dated 17.09.1985 and secondly, in the application fil ed in Misc. N.J. Case No.351/1986, copy of which is made available to this Court by the learned counsel for the revision petitioners on being asked, there is ev en not a whisper about making such double payment. Section 5 of the Act provides for protection of the tenant from eviction 13. , subject to fulfillment of certain obligations by the tenant including the paym ent of rent in time to the landlord. The bar created by sub-section (1) of Secti on 5 of the Act for passing a decree for recovery of possession of any tenanted premises is, however, not applicable when the tenant fails to pay the rent lawfu lly due from him in respect of the house within a fortnight of its falling due.

14. Sub-section (4) of Section 5 of the Act gives a protection of the tenant from being characterize as defaulter by allowing him to make the deposit of ren t in Court within a fortnight of its becoming due, in case the landlord refuses to accept the lawful rent offered by the tenant. Such deposit has to be made tog ether with the process fees for service of notice upon the landlord. By entering into a lease agreement on 17.09.1985 (Ext.-2) the defendant 15. undertook to pay the rent for the month of October, 1985 onwards within 7(seven) days of the next following month. The defendant has deposited the rent of the m onths of October to December, 1985 together in Court on 18.01.1986 by filing Mis c. N.J. Case No.351/1986. While the defendant may not be the defaulter in respec t of the rent payable for the month of December, 1985 he outright is a defaulter within the meaning of the Act in respect of the rent payable for the months of October and November, 1985. The contention of the petitioners that by conduct th e terms of tenancy created vide lease deed dated 17.09.1985 relating to the obli gation to pay the rent by the defendant within first week of every succeeding mo nth has been given a go bye by the plaintiff by accepting the rent sometimes for three months together, also cannot be accepted as by the lease deed dated 17.09 .1985 a new lease has been created w.e.f. 01.10.1985. Moreover, there is nothing on record to suggest that the defendant before depositing the rent in court in Misc. N.J. Case No.351/1986 tendered the said rent to the landlord and on his re fusal to receive the same such deposit was made, which is a condition precedent to constitute the valid deposit within the meaning of sub-section (4) of Section 5 of the Act.

16. It is not in dispute that the petitioners have, in the meantime, been ev icted from the suit premises and the respondents have taken over the possession in execution of the decree passed and though an application under Section 144 wa s filed for restitution of the possession, the same has also been dismissed.

17. In view of the aforesaid discussion, I do not find any merit in the pres ent revision petition so as to interfere with the judgments and decrees passed b y the learned Courts below.

18. Hence the revision petition stands dismissed. No costs.