High Court · 2009

2) d Mr SP Roy, learned counsel for the respondent. I have heard Mr S Kataki, learned counsel for the petitioner. Also, hear 3) The respondent had instituted a suit in the Court of learned Civil Judge , Kamrup in Guwahati, for ejectment of the present petitioner, on the ground of defaulter and bona fide requirement, contending inter alia that though in terms of the tenancy the petitioner was required to pay the monthly rent of Rs.7,500/- according to English almanac within the first week of every succeeding month, t he rent has not been paid since 1st March 2003 and as such, the petitioner is a defaulter. It is also the contention of the respondent, in the suit, that the su it-house is required for his bona fide use and occupation. In due course of time , the said suit was transferred to the file of learned Civil Judge No.3, where i t was numbered as Title Suit No.62/2006. 4) The learned trial Court, on basis of the evidences adduced by the partie s, both oral and documentary, by the judgment dated 22nd December 2009, has decr eed the suit of the present respondent/plaintiff by holding that the present pet itioner is a defaulter, he having not paid the rent due to plaintiff with effect from 1st March 2003. The learned trial Court has also held that since present p etitioner has deposited only Rs.2,300/- in Court, towards the monthly rent payab le against the agreed rent of Rs.7,500/-, such deposit is not valid under the pr ovisions of 1972 Act. The issue relating to the bona fide requirement was also d ecided in faovur of the respondent/plaintiff. Being aggrieved, the present petit ioner preferred Title Appeal No.5/2010 before learned first appellate Court, whi ch was eventually transferred to the file of learned Additional District Judge, FTC, No.2, Kamrup in Guwahati, who, by the judgment and decree dated 27th Januar y 2011, dismissed the appeal preferred by the petitioner by affirming the judgme nt and decree dated 22nd December 2009 passed by learned trial Court, however, r eversing the finding of learned trial Court relating to bona fide requirement an d maintaining the decree for ejectement, on the ground of defaulter. Hence the p resent revision petition. 5) Learned counsel for the petitioner, challenging the impugned judgment an d decree dated 27th January 2011 passed by the learned first appellate Court in Title Appeal No.5/2010, has submitted that since petitioner has deposited the re nt in Court within the time allowed and in terms of the provisions contained in sub-section (4) of Section 5 of the 1972 Act, the learned Court ought to have de cided the issue relating to defaulter in favour of present petitioner and conseq uently ought to have set aside the judgment and decree passed by the learned tri al Court. Learned counsel for respondent, on the other hand, has submitted that bo 6) th the learned Courts below have recorded a finding-of-fact that the present pet itioner is a defaulter as he has not paid the rent payable to the landlord with effect from 1st March 2003 to date. It has also been submitted that the amount d eposited in Court was just Rs.2,300/-, though, agreed rent was Rs.7,500/- per mo nth and as such, any such deposit in the Court cannot be said to be a valid depo sit within the meaning of sub-section (4) of Section 5 of the 1972 Act. 7) It appears from judgments passed by both the learned Courts below that a finding-of-fact has been recorded to the effect that petitioner is a tenant und er the respondent in respect of the suit premises for which the petitioner agree d to pay an amount of Rs.7500/- as rent per month, due and payable, within first week of every succeeding month according to English almanac. It is the case of petitioner/defendant that he has failed to pay the rent, lawfully due & payable to the respondent/plaintiff, with effect from 1st March 2003. Under provisions o f 1972 Act, burden lies on the petitioner/defendant, who is to prove that he pai d rent due and payable by him to the landlord, or deposited in Court, as require d under sub-section (4) of Section 5 of 1972 Act, within the time allowed, in ca se the landlord refuses to accept it on being tendered. 8) It appears from judgments passed by both the learned Courts below that t he petitioner/defendant deposited a sum of Rs.2,300/- with the Court towards the rent payable with effect from 1st March 2003, though agreed monthly rent was Rs .7500/-. So as to get himself protected from eviction, under the provisions of t he 1972 Act, the defendant-tenant has to deposit the entire rent payable per mon th in Court, in the event of refusal by the landlord to accept on tendered. Admi ttedly, the defendant deposited only a part of the rent, due per month, and henc e such deposit cannot be termed as a valid deposit, within the meaning of sub-se ction (4) of section 5 of 1972 Act. 9) The learned Courts below, therefore, have rightly recorded the finding t hat petitioner/defendant is a defaulter; and hence the judgments and decrees pas sed require no interference in exercise of jurisdiction u/s 115 of the Code of C ivil Procedure. 10) Learned counsel for the petitioner, at this stage, has submitted that si nce the petitioner is doing his business at the suit premises since a long perio d of time, he may be allowed at least two years’ time to vacate the suit premise s. It has also been submitted that during the period of two years he will contin ue to pay Rs.7500/- per month, apart from clearing the arrear rent from 1st Marc h 2003 up-to 31st March 2011, in twelve equal monthly installments. 11) Learned counsel for respondent, on the other hand, has submitted that in fact petitioner has found out a different accommodation to shift his business, however, the respondent has no objection if one year’s time is granted to petiti oner to vacate the suit premises, subject to payment of Rs.7500/- per month for said period apart from clearing the arrear monthly rent payable from 1st March 2 003 to 31st March 2011. It has also been submitted that the respondent may be di rected to execute an undertaking to that effect and submit the same before the l earned trial Court. 12) Having regard to aforesaid submission, the petitioner is allowed to poss ess the suit premises for a period of one year, with effect from 1st April 2011 to 31st March 2012, with the conditions that (i) petitioner shall pay by account - payee cheque to the respondent a sum of Rs.7500/- p.m. according to English al manac in the first week of every month commencing from April 2011, which would, however, not create any new tenancy; (ii) petitioner shall pay arrear rent payab le to respondent in respect of suit premises from 1st March 2003 to 31st March 2 011, amounting to Rs.5,04,400/- (Rupees five lakh four thousand and four hundred ) only, in twelve equal monthly installments, i.e. Rs.42,033/-(Rupees fourty two thousand & thirty three) only per month, by account-payee cheque, in the name o f respondent, within first week of every month, commencing from April 2011; (iii ) petitioner shall pay electricity charges to be consumed during 1.4.2011 to 31. 3.2012; (iv) the petitioner shall also pay Rs.13,238.36 (Rupees thirteen thousa nd two hundred thirty eight & paise thirty six) only, as decreed by the learned Court below, to the respondent by account-payee cheque, within first week of Apr il 2011; and (v) petitioner shall execute an undertaking to that effect incorpor ating such conditions and also to deliver the vacant possession of suit premise s to the respondent on or before 1st April 2012. Such undertaking shall be filed within seven days from today in the Court of the learned Civil Judge No.3, Kamr up in Guwahati. 13) It is needless to say that in the event of failure to give the undertaki ng and/or in violation of any of the conditions as aforesaid, it is open to the respondent to put the decree into execution forthwith. 14) The revision petition is accordingly disposed of. No costs.