High Court
Case Details
CRP 257/2009 BEFORE HON’BLE MR. JUSTICE A.C. UPADHYAY
Legal Reasoning
Heard learned counsel for the petitioner as well as the learned counsel representing the respondent. By filing this revision petition, the petitioner/defendant has challenge d the judgment and order dated 15.6.2009 passed by the learned Civil Judge, Dhub ri, in Title Appeal No. 9/05 affirming the judgment and decree dated 29.3.05, pa ssed by the learned Civil Judge (Jr.Divn.) No.1, Dhubri in Title Suit No. 162/99 . Facts leading to filing this revision petition, may be stated in brief, as follows: The respondent as plaintiff instituted a suit, being Title Suit No. 162/ 99, before the learned Civil Judge, No.1, Dhubri, against the petitioner/defenda nt, praying for a decree of recovery of possession by ejecting the defendant /pe titioner under the Assam Urban Areas Rent Control Act. The plaintiff’s case is that the defendant/petitioner came to occupy the suit house as a monthly tenant, which was fixed @ Rs.150/- per month, to be paid in the last week of the Englis h Calendar month. The defendant/petitioner was occupying the suit premise since 1980. The plaintiff/respondent claimed the suit house from the petitioner/defend ant as it was urgently required, for carrying out some repairing works and also for his own bonafide use and occupation. But the defendant, despite the demand made on behalf of the plaintiff, intentionally avoided to quit the suit house on one and other pretexts. During the time of immense flood of 1998, a pacca floor, walls etc. of t he suit house got severely damaged and as such, it became unfit for use. The de fendant converted one of the main rooms of the suit house as kitchen and thus ca used intensive damage of the suit house. The plaintiff/respondent stated that suit house was urgently required fo r repairing and protection of the property. Moreover, plaintiff also claimed bo nfide requirement of the suit house for providing higher educational facilities for his children. The plaintiff further claimed that the defendant was a defaul ter in payment of rent since April, 1999. Finally, plaintiff served a notice on the defendant asking him to vacate the suit house. But the defendant, neither responded to such notice nor vacate d the suit house. Therefore, the plaintiff/ respondent filed the suit pray ing for ejectment of the defendant/petitioner from the suit house and also for a rrear rent and mesne profit. The defendant/petitioner entered appearance in the case and filed written statement to contest the plaintiff’s suit. The defendant stated in his written statement that there was no fixed mode of payment of mont hly rent. Although it was fixed @ Rs.150/- per month, the plaintiff used to col lect the rent of the suit house, for 5-6 months at a time from the defendant/pet itioner and there was no written agreement in respect of the tenancy. It was al so stated in the written statement that the suit house was neither damaged nor i n a dilapidated condition due to flood of 1998 and the suit house was in a good condition. The defendant denied the bonafide requirement of the suit house plead ed by the plaintiff and also stated that defendant was not a defaulter in paymen t of monthly rent and he had been regularly depositing the rent in the Court, si nce April, 1999. On the basis of the pleadings of the parties, following issues were fram Whether the suit is maintainable in its present form and manner? Whether there is any cause of action for this instant suit? Whether the suit house is bonafide required by the plaintiff? Whether the defendant is a defaulter? Whether the defendant has damaged and changed the structure of the suit ed by the trial Court in the suit: i) ii) iii) iv) v) house? vi) vii) Whether the plaintiff is entitled to the reliefs prayed for? To what relief, if any the parties are entitled? Learned counsel for the petitioner/defendant submitted that the appellate Court reversed the finding of the trial Court on the issues merely on interpreting the provision of Section 5(4) of the Assam Urban Areas Rent Control Act and has ove rlooked the material evidence recorded in the suit. Learned counsel also submit ted that the amount of rent in question was deposited by the defendant/petitione r regularly in the Court of law since April, 1999, in terms of the provisions of the Assam Urban Areas Rent Control Act. Learned counsel further pointed out th at the plaintiff/respondent admitted in his evidence to have such knowledge of d eposit of the monthly rent in the Court by the defendant. Therefore, according t o the learned counsel, the petitioner cannot be deemed to be a defaulter in the eye of law since the respondent/plaintiff admitted the payment of rent in the Co urt. Learned counsel for the defendant/petitioner also pointed out that bonafide requirement of the plaintiff was assessed by the learned trial Court as well as the appellate Court without looking into the evidence on record. On the other hand, Mr. G. Khandelia, learned counsel for the respondent/defendan t submitted that the appellate Court upon careful analysis of the entire gamut o f facts, has decided the case in favour of the plaintiff and therefore, there is no scope to interfere the findings of the appellate Court. On perusal of the materials on record and the judgment and orders of the Courts below, it appears that the defendant though stated to have deposited the monthly and arrear rent in the Court, in terms of provisions of Assam Urban Areas Rent Control Act, but such factum of deposit of rent was not proved as per the proced ure envisaged. Therefore, mere knowledge of the plaintiff/respondent regarding such deposit of rent in the Court would not exonerate the petitioner /defendant from being a defaulter in payment of rent in the eye of law. Unless the defendan t proved the factum of payment of rent by adducing evidence, he would be treated as defaulter. The defendant in a rent suit is required to prove effectively tha t monthly rent in question of the suit house was paid by him either in the Court in terms of the provisions of law provided for the purpose or personally to the landlord. Without proof of such payment, the defendant/petitioner cannot claim any advantage in this regard to remove the scar of being a defaulter in payment of rent. The respondent/defendant has deposed that the suit house was required for the pu rpose of study of his sons, who were students at the relevant time. As observed by the learned Courts below, there is a fundamental duty upon every parents to make all possible essential arrangements to enable their children to pursue high er education. The requirement of one’s own house to facilitate higher or better education of his children, is incontrovertibly a good ground of bonafide require ment. The admitted position is that although there was no fixed mode of payment of ren t but the fact of depositing rent in Court by the defendant-tenant was made with out tendering the same to the landlord. The evidence on record has been clear th at the tenant never tendered rent to the landlord before depositing the rent in Court, which is a condition precedent before depositing rent in Court. The fact of refusal comes, where there is offer/tender of rent by the tenant, otherwise t he plea of refusal doesn’t arise. The sheer fact that the landlord did not visi t to collect rent, does not dispense with the tenant’s duty to offer rent. In view of above discussions, I do not find any substantial ground(s) whatsoever to interfere with the findings arrived at by the learned Courts below.
Decision
In the result, the revision petition filed on behalf of the petitioner stands di smissed. Send back the LCR forthwith.