High Court
Case Details
CRP 22/2009 BEFORE THE HON’BLE MR. JUSTICE B.P. KATAKEY Heard Mr. N. Dhar, learned counsel for the petitioner/defendant No.1 and Mr. S.P. Choudhury, the learned counsel appearing for the respondents/ plaintif fs.
Legal Reasoning
This revision petition is directed against the judgment and decree dated 16.08.2003 passed by the learned Civil Judge (Sr. Division), Karimganj, in Titl e Appeal No.89/2002, dismissing the appeal preferred by the present petitioner/d efendant No.1 by affirming the judgment and decree dated 20.06.2002 passed by th e learned Civil Judge (Jr. Division) No.1, Karimganj, in Title Suit No.96/1995, whereby and whereunder the suit of the plaintiffs/respondents has been decreed. The present respondents as plaintiffs instituted the aforesaid suit unde r the provisions of the Assam Urban Areas Rent Control Act, 1972 (in short the A ct), for eviction of the present petitioner/defendant No.1 and others, on the gr ound of defaulter, contending inter alia that though as per the tenancy agreemen t, monthly rent of Rs.10/- is required to be paid according to Bengali calendar month within the last day of each month, the defendants defaulted in payment of rent since Chaitra 1387 BS to Jaistha 1401 BS and hence liable to be evicted. Th e decree for eviction has also been prayed for on the ground of bonafide require ment, contending inter alia that the suit house is required for repairing and fo r own use and occupation of the plaintiffs. The suit has been contested by the defendant No.1 by filing written stat ement, contending inter alia that he is not a defaulter in respect of payment of monthly rent as alleged by the plaintiffs in the plaint and the suit house is a lso not required for bonafide use of the plaintiffs. According to the defendants , the rent for the month of Sravan 1387 BS though has been paid, the predecessor -in-interest of the plaintiffs did not issue any receipt and thereafter he has s ent the rent to the plaintiffs monthly for the month of Vadra and Aswin, 1387, w hich having refused to be accepted, the same was deposited in Court. The Trial Court based on the pleadings of the parties, framed the follow ing issues for determination:- (1) (2) (3) Additional Issue: (1) Is there any cause of action for the suit? Whether the defendant is defaulter? Whether the plaintiffs are entitled to the relief claimed for? Whether the defendant is liable to be evicted? The Trial Court based on the evidence adduced by the parties decreed the suit of the plaintiffs by holding that the defendants are defaulter in payment of rent from the month of Chaitra 1387 and hence they are evictable under the pr ovisions of the aforesaid Act. Being aggrieved, the defendant No.1 preferred Title Appeal No.89/2002, w hich has also been dismissed by upholding the judgment and decree passed by the Trial Court. Both the Courts below have found that the defendant No.1 is a defau lter, as DW-1 during cross-examination has admitted that he has not paid the ren t to the plaintiffs. It has been contended by the learned counsel appearing for the revision petitioner that since there is no admission by the defendant No.1 either in the written statement filed or in his evidence, the Courts below were wrong in decre eing the suit of the plaintiffs, on the ground that the defendant No.1, who has been examined as DW-1 during his cross-examination has admitted that he has not paid the rent payable to the plaintiffs. The learned counsel, therefore, submits that the judgments and decrees passed by the Courts below need to be set aside. In the alternative, the learned counsel also submits that in the event this Cou rt finds that the judgments and decrees passed by the Courts below need no inter ference under Section 115 of the Civil Procedure Code, since the defendant No.1 is doing business in the suit premises for a long period of time, he may be allo wed 1(one) year time to vacate the suit premises. The learned counsel appearing for the respondents, on the other hand, su pporting the judgments and decrees passed by the Courts below has submitted that it is evident from the deposition of DW-1 (defendant No.1) that he has admitted non-payment of rent to the plaintiffs. In any case, according to the learned co unsel, since the burden lies on the defendants/tenants to prove that they are no t defaulter, the defendants having failed to prove the same, the Courts below ha ve rightly passed the judgments and decrees, which require no interference in ex ercise of the jurisdiction under Section 115 of the Civil Procedure Code. I have considered the submissions advanced by the learned counsel for th e parties and also perused the records including the judgments and decrees passe d by both the Courts below as well as the evidence adduced by the parties. The issue relating to the defaulter has been decided by both the Courts below in favour of the plaintiffs and against the defendants. It appears from th e judgments passed that the said issue has been decided based on the admission m ade by the defendant No.1, who has been examined as DW-1, relating to non-paymen t of the rent to the plaintiffs. Though perusal of deposition of DW-1 does not r eveal such admission, the suit having been filed for eviction of the defendants/ tenants on the ground of defaulter, the burden lies on the defendants/tenants t o prove that they are not defaulters. Sub-section (4) of Section 5 of the Act gives protection from passing a decree for eviction of a tenant provided the rent lawfully due is paid by the te nant to the landlord within the time stipulated for that purpose and in case the rent if refused to be accepted when tendered, by depositing the same in Court w ithin a fortnight of its falling due together with the process fee. In the instant case, the pleaded case of the plaintiffs is that the defe ndants are defaulters as they have not paid the monthly rent payable from the mo nth of Chaitra 1387 BS to Jaistha 1401 BS. Though the burden lies on the defenda nts/tenants to prove that they are not defaulters, the defendants/tenants could not prove that they have either paid the rent to the plaintiffs/ landlords or de posited in Court as required under sub-section (4) of Section 5 of the Act. DW-1 in his evidence has stated that the rent from the month of Chaitra 1387 BS to S ravan 1388 BS i.e. for 5(five) months together was deposited in Court vide treas ury challan, on being refused by the plaintiffs. The treasury challan has been p roved and marked as Ext.-C. The relevant rent deposit case, however, has not bee n called for and proved. Similarly, DW-1 has also claimed that the rent from the month of Vadra to Poush 1388 BS i.e. for 5(five) months have been deposited in Court together by filing R.D. case, which, however, could not be proved by him, as neither the treasury challan nor the R.D. case has been called for and proved . The defendant No.1 also could not proved the deposit of rent in Court for the succeeding months. In any case, since the rent is payable monthly on the last da y of each month, the deposit has to be made within a fortnight of its falling du e i.e. within 15 days of the next month, which has not been done. Hence the defe ndants/ tenants are defaulters within the meaning of the aforesaid Act and, ther efore, not entitled to any protection from eviction.
Decision
In view of the above, the judgments and decrees passed by the Courts bel ow need no interference in exercise of the jurisdiction under Section 115 of the Civil Procedure Code. Since the defendant No.1 is doing business in the suit premises, 9(nine) months time from today is granted to them to vacate the suit premises, subject to the condition that on or before 17.06.2014 the defendants shall handover the vacant possession of the suit property to the plaintiffs. The defendants shall a lso not induct any person to the suit premises or handover the possession of the suit property to anyone other than the plaintiffs. They also shall not change t he nature and character of the suit premises. For this period, an amount of Rs.1 00/- per month, within 1st week of every month commencing from 1st week of Octob er, 2013, shall be paid to the plaintiffs, which, however, shall not create any fresh tenancy. The defendants shall file an undertaking before the Trial Court i n this respect within a month from today. It is, however, made clear that in the event the defendants have failed to file such undertaking or there is breach of any of the conditions, it is open to the plaintiffs to put the decree into exec ution, event before 17.06.2014. The revision petition is accordingly dismissed. No costs. Registry is directed to send down the records.