High Court
Case Details
CRP 32/2005 ‘BEFORE HON’BLE MR. JUSTICE N.CHAUDHURY By this revision petition filed under Section 115 of the Code of Civil Procedure (for short, ’CPC’), the petitioner, who is a tenant in respect of a shop and a godown, has challenged the Judgment and Decree dated 09.03.2005 passed by learned Civil Judge (Senior Division) No.2, Kamrup at Guwahati, in Tit le Appeal No. 13 of 2004 and thereby dismissing the appeal and affirming the dec ree of eviction passed by the learned Civil Judge (Junior Division) No. 2, Kamru p at Guwahati in Title Suit No. 24 of 1999. 2) Opposite parties as plaintiffs instituted a suit being Title Sui t No. 24 of 1999 in the Court of learned Civil Judge (Junior Division) No. 1, Ka mrup at Guwahati for ejectment of the present petitioner as sole defendant stati ng therein that petitioner became a tenant under the plaintiffs in respect to a shop and an inside room used as a godown on monthly rental basis of Rs. 351/- an d Rs 320/- respectively, since 1971. It was pleaded that as per an agreement bet ween the parties, the rent was to be paid by the defendant for each of the rooms in advance within the first week of each current month of tenancy. According to the plaintiffs, the defendent did not make payment of rent for the months of Ja nuary 1998 to November 1998 and thus became defaulter. The plaintiffs further pl eaded that the house was required bonafide by them for reconstruction but while other tenants agreed to the request of the plaintiffs, the present defendant did not cooperate. On such pleadings, the plaintiff prayed for a decree for declara tion that the tenant was defaulter and that the house was required bonafide by t he plaintiffs. 3)
Legal Reasoning
Appearing in the case, the defendant submitted written statement and denied the case of the plaintiffs in regard to mode of payment of rent as w ell as due date. In paragraph-6 of the written statement, the defendant specific ally pleaded as follows - (cid:28)Although tenancy was monthly tenancy but rent was rec eived by Late Chinmoy Choudhury on yearly basis by issuing a receipt to the defe ndant (cid:29). Even in paragraph-8 of the written statement the plaintiff state d as follows - (cid:28) As stated earlier the plaintiffs used to receive the rent for t he whole year at a time and the defendant accordingly for the year 1998 offered the rent to the present plaintiffs but the plaintiffs refused to receive the sam e in order to make the defendant defaulter. After that the defendant sent a cheq ue by Registered Post but the same was also returned back with a note ’Refused’ on 24.10.1998. Having no alternative the defendant decided to deposit the rent i n the Court (cid:29) and since then the defendant had been depositing the rent in the C ourt for the whole year. The defendant also denied pleading in regard to bonafid e requirement of the plaintiff and prayed for dismissal of the suit. 4) Court framed the following issues:- On the basis of the pleadings of the parties, the learned Trial (cid:28)i) Whether there is a cause of action for the suit? ii) Whether the suit is maintainable in its present form? iii) Whether the plaintiff as landlord has been receiving house rents fr om the defendant tenant on yearly basis in respect of the suit premises? iv) Whether the defendant had defaulted to make payment of the house ren t? v) Whether the plaintiffs bonafide require the suit premises for constru ction of an RCC multistoried building? and vi) To what relief, if any, the parties are entitled. (cid:29) 5) Plaintiffs examined two witnesses as PW.1 and PW.2 and exhibited one pair of documents being counterfoil of rent receipts for the year 1997. The defendant on the other hand examined one witness and exhibited Exhibit-A series being the rent receipts from 1980 to 1997 and Exhibit-B series being the challa ns for deposit of rent in the year 1998 and thereafter. 6) In course of evidence PW.1, Smt. Shelley Choudhury stated that d efendant used to pay rent every month but for the benefit of the defendant recei pt was issued once in a year. It was further stated that since relationship with the tenant was good that is why advance receipt was given. The said witness den ied to have been offered rent by the defendant yearly but she admitted that she accepted rent till 1997 once in a year and receipt was issued for the tenancy fo rm January to December every year.
Legal Reasoning
7) PW.2, Sri Shantanu Choudhury also spoke in the same breathe admi tting that receipt was given at a time for a year. He admitted that he had not s ubmitted the building permission in Court to show the steps taken by him for the purpose of reconstruction of the suit premises. 8) The defendant examined himself as DW.1 and therein he stated on oath that the practice of paying rent was once in a year and accordingly, one re ceipt was also given to that effect. He denied that he paid rent on monthly basi s to the plaintiffs. In cross examination, he stated that the plaintiff used to collect rent at a time for their own convenience and it is not correct that he p aid rent on every month. He denied that receipt was given once in a year only fo r convenience of the defendant. 9) On the basis of the aforesaid materials on record, the Trail Cou rt came to a finding that the case of monthly tenancy and such payment of rent b y the defendant every month were not correct. Although the defendant was a mont hly tenant, yet the tenant used to pay rent once in a year on at a time. Thus, t he case of the plaintiffs that rent was paid monthly and the receipt was paid on the due date of the month as pleaded in the plaint was not accepted by the lear ned Trial Court. The due date as pleaded by the defendant in his written statem ent and deposed in his evidence found favour of the learned trial Court. The Tri al Court did not accept the plea of bonafide requirement but held the tenant as defaulter on the ground that Misc.(NJ) case No. 3477/1998 and Misc. (NJ) case No . 3478/1998, records of which appears to have been called by the learned Trial C ourt, showed that challans were not produced by the defendant after depositing t he rent and that notices were not issued to the landlord. However, it is the fi nding of the learned Trial Court that the defendant submitted written up notices and paid process fees and thereafter no order was passed in the aforesaid NJ Ca ses. Finding the tenant as the defaulter for the months of January, 1998 to Nov ember, 1998, the learned Trail Court decreed the suit for eviction by the Judgme nt and Decree dated 27.01.2004. 10) The defendant preferred an appeal being Title Appeal No. 13/2004 in the Court of learned Civil Judge (Senior Division), Kamrup at Guwahati and o n being transferred of the same to the Court of learned Civil Judge (Junior Divi sion) No. 2, Kamrup, the learned Appellate Court dismissed the appeal upholding the finding of the trial Court in regard to default. It is to be noted herein t hat the petitioner/defendant had not filed any cross objection in regard to find ing of the Trial Court that there was no banafide requirement of the landlord an d as such question of bonafide requirement did not arise before the appellant Co urt. The aforesaid judgment of the Appellate Court dismissing the appeal having been delivered on 09.03.2005, the defendant approached this Court through the pr esent revision petition challenging the findings in regard to jurisdictional fac t of default. 11) I have heard Mr. S S. Sarmah, learned Senior Counsel assisted by Mrs. F. Khan, learned counsel for the petitioner/ defendant and Mr. S. Bhattach aryya along with Mr. B. Acharyya, learned counsel appearing for the opposite par ties/ landlord. 12) Mr. S. S. Sarma, learned Senior Counsel submits that the impugne d judgments of the learned Trial Court as well the Appellate Court do not contai n any finding in regard to due date, which is the condition precedent for holdin g a tenant as defaulter. The Learned Senior Counsel further relied on the Exhibi t-B series to show that rent was deposited by the tenant vide challans in the sa id Exhibits in November, 1998. It has been brought to the notice of the Court t hat the Challans contained in Misc (NJ) Case Nos. 3477/1998 and 3478/1998 were f ixed for deposit of challan, meaning thereby the said challans were submitted a fter registration of the aforesaid NJ Cases, understandably on the order of the Court. It is the case of the petitioner that since the plea as per the finding s of the learned trial Court below for the mode of payment of rent is on yearly basis and since Exhibit-A series as well as Exhibit-B series would show that the rent for current year was paid during the year itself and since rent for the ye ar, 1998 have been deposited in Nov, 98, the defendant is not a defaulter. On t hese submissions, the learned senior counsel would argue that the revision petit ion is liable to be allowed since the findings of the Courts below in regard to default is not only vitiated by jurisdictional error but also such finding is pe rverse. 13) Placing reliance on a decision of this Court in the case of Ram Khan Agarwalla reported in 1989 GHC 90, the learned senior counsel argued that t he findings in regard to default as well as bonafide requirement are really find ings to jurisdictional facts and as such this Court is entitled to interfere wit h the said findings of default and bonafide requirement in exercise of power und er Section 115 of the CPC. Learned senior counsel placing reliance on the case of Tushar Kanti Dey reported in 2000 (2) GLT 51 has drawn my attention to paragr aph-7 of the said judgment and argued that as per law settled by this Court, it was incumbent upon the learned trial Court to record findings on the due date be fore holding the tenant as defaulter and this not having been done, the impugned judgments are liable to be interfered with. These being not only jurisdiction al error to arrive at such a finding of default, the impugned judgments and decr ee of the Courts below are also perverse and so the same are liable to be set as ide. Even if in a given case there are concurrent finding of the Courts below, yet if such findings are perverse and/or attended with jurisdictional error, the same can be interfered with under Section 115 of CPC, the learned senior counse l contended. 14) Per contra, Mr. S. Bhattacharyya, learned counsel for the opposi te party/defendant would submit that the tenancy being a monthly basis, the tena nt used to deposit the rent monthly till 1997 but in the year 1998 he did not de posit rent for the months from Jan to Nov, 98 for which landlord/plaintiffs were compelled to institute the suit for eviction. Learned counsel further submitte d that admittedly the petitioner/defendant did not submit challans after deposit of rent in the Court and accordingly the said deposit was not a valid deposit u /s 5(4) of the Assam Urban Areas Rent Control Act, 1972. It is further submitte d that the findings in the record as to default in payment of rent in the year, 1998 being a concurrent finding of fact, this Court is not entitled to interfere with the same and that, too, in exercise of power under Section 115 of CPC. 15) I have gone through the records of the case. It appears from th e Exhibit-1 series adduced by the plaintiffs themselves that the rent for the ye ar 1997 from Jan to Dec, 1997 @ Rs.320/- per month was paid by the defendant on 30.4.97 that is during the year itself. Ext.1(2) is yet another rent receipt fo r Godown for the aforesaid period of Jan to Dec, 1997. Thus, the exhibits broug ht on record by the landlord themselves show that rents were not only being paid for the year at a time but also during the pendency of the same year. Exhibit -A series adduced by the defendant are rent receipts for the period from Jan, 19 80 to Dec, 1997. All these exhibits go to show that rents were always paid by t he tenant sometimes in the month of October, sometimes in the month of July, so metimes in the month of February, sometimes in the month of February and sometim es in the month of April, in the same year and the said receipts contain the dat e of receipt as well. On the basis of the aforesaid exhibits i.e. Exhibit-A seri es and Exhibit-B series, it appears that the finding of the trial Courts below t hat rent used to be paid for the year at a time during the pendency of the year is based on materials on record and as such it is to be held that the mode of pa yment of rent was once in a year at a time during the same year. 16) Now it is to be seen whether the petitioner/tenant can be said t o be a defaulter in payment of rent for the months of Jan,98 to Nov, 98, which t akes me to the Exhibit.-B series. As stated above in the written statement, the defendant paid rent to the landlord in time by depositing it in the Court and o n being refused, for which he sent the cheque by registered post but the same wa s also returned with the endorsement ’Refused’. It appears that the Exhibit-3 s eries relates to challans by which the tenant deposited the rents. Exhibit.-B ( 1) and B(2) are challans in respect of payment of rents for the year 1998. The said challans contains mention of Misc.(NJ) Case No. 3477/98 and Misc. (NJ) Case No.3478/98. The said challans show that the rents were deposited actually on 2 8.10.98. Since, the rents were deposited on October, 98, the same cannot be sai d to be deposited beyond due date inasmuch as even from Ext-A series it appears that rents for the year 1980 to 1981 was deposited on 24.10.1981, the rents for year 1982 was deposited on 26.7.1982, the rents for the year 1993 was deposited on 22.8.1993 and rents for the year 1995 was deposited on 27.1.1995 and so on. Deposit of rents on 28.10.1998 is well within the due date and as such this depo sit cannot be said to be made beyond the statutory period of Section 5(4) of the Assam Urban Areas Rent Control Act. Now the question comes as to whether because of failure to submi 17) t the aforesaid challans in NJ Cases, the deposits can be said to be valid in th e eye of law. It appears that this Court deal with such question on various occ asions as to whether deposit of rent without process fee is valid in the eye of law. This Court in the cases of Sudhir Chandra Deb v. Parasuram Prasad Verma and others reported in (1992) 2 GLR 250 and in the case of Biswajit Saha v. Shah M d. Farid and another reported in 2009(3) GL 241 held that as per Section 5(4) of Assam Urban Areas Rent Control Act, deposit of rent in Court has to be accompan ied by process fee. Here in the present case, as per finding of the trial Court , the petitioner had deposited the process fees along with written up notices. I t further appears from the findings of the trial Court that in the aforesaid Mis c.(NJ) cases, no date was fixed for submission of challans by the defendant afte r making the deposit of rent. 18) It is not a statutory requirement either u/s 5(4) of the Assam U rban Areas Rent Control Act and/or in the Civil Rules and Order in force in the relevant time that there is any requirement to deposit the challan to the Court without even being asked for it. What is required is deposit of rent in the Co urt along with process fee after refusal of the landlord to receive the same. Th e statute has not required for deposit of challan and in the given case if the p etitioner had made deposit of challan along with process fees and/or otherwise b efore the Court for compliance of Section 5(4) of the Act, such deposit is also a valid deposit. 19) posit of rent in the Court along with process fees is a valid deposit. In view of the law down by this Court on earlier occasions, a de 20) In the present case the petitioner has only failed to take steps for notice after deposit of challans but by submitting written up notice and pr ocess fees, as it revealed from the finding of the trial Court, and that being t he case, the submission of the learned counsel for the opposite parties that the petitioner did not submit challans cannot be countenanced. 21) Having found that the findings arrived at by the Courts below ar e perverse and as such the present revision petition is allowed. The impugned j udgments of the Trail Court as well as of the Appellant Court are hereby set asi de. 22)