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Gauhati High Court · body

1988 DIGILAW 79 (GAU)

Jogesh Chandra Dey v. Monoram Saikia & Another

1988-05-24

B.L.HANSARIA

body1988
The petitioner is a tenant against whom a suit for eviction from one room out of a four-roomed house was described in Schedule A of the plaint was filed. The eviction was sought on the usual two grounds of the defendant-tenant being a defaulter and the premises being needed bonafide. The suit was initially decreed by the learned trial court but on appeal the case was remanded to the learned court below to decide certain points. The learned Munsiff gave the findings on these points and the matter came back to the learned Assistant District Judge who by the impugned order has upheld the decree for eviction. Feeling aggrieved, this Court has been approached in revision. 2. In so far as the ground of eviction relating to bonafide requirement is concerned, the learned Assistant District Judge who decided the matter on the second occasion has stated that the bonafide requirement was not proved to his satisfaction. This being a finding of fact has not been assailed before me, and rightly, by Shri Sarma appearing for the respondents. 3. In so far as default is concerned, though none of the learned courts below applied its mind to the deposit of rent in court, nontheless they have arrived at the finding that the rent had never been tendered to the plaintiff-landlord and as such it cannot be said that the rent was refused by the landlord. As the two courts below have not applied their minds to the deposits made in the court I have gone through the same. Exts. ka(11) to ka (15) do show that the deposits were within time inasmuch as the rent for the month of Kartick 1384 BS corresponding to English month 18.10.77 to 16.11.77 was paid on 29.11.77. It may be stated that according to the plaintiff the default was from the month of Kartick to Falgun, 1384 BS. The deposit for the month of Agrahan was made on 2.1.78 and as that month had ended on 16.12.77 this deposit can be regarded as within time as the Court reopened on the New Year on 2.1.78. Similarly for the month of Posha the deposit was made on 28.1.78, whereas the last day as per the English month was 14.1.78. For the month of Magha the deposit was made on 23.2.78, whereas the last day as per the English calender was 12.2.78. Similarly for the month of Posha the deposit was made on 28.1.78, whereas the last day as per the English month was 14.1.78. For the month of Magha the deposit was made on 23.2.78, whereas the last day as per the English calender was 12.2.78. The deposit for Falgum was also within time as it was made on 23.3.78 whereas that month had ended on 14.3.78. It would thus be seen that the deposits were within a fortnight of their becoming due even if it is conceded that the agreement was to pay the monthly rent at the close of the month. 4. Shri Sarma appearing for the respondent however submits that as there is no evidence to show that the rent on being offered to the plaintiff-landlord had been refused, which ingredient is also necessary to satisfy the requirement of section 5(4) of the Assam Urban Areas Rent Control Act, 1972, hereinafter the Act, which states that where the landlord refuses to accept the lawful rent offered by his tenant, the tenant may within a fortnight of its becoming due deposit the same in the Court. As to the fact whether the landlord bad refused to accept rent, Shri Sarma has drawn my attention first to the finding of the learned Munsiff in the first judgment wherein it has been stated under Issue No. 5 that in croses-examination defendant Jogesh Chandra Dey himself admitted that he had not tendered any rent to the plantiff-after the purchase of the suit room. The finding of the learned Assistant District Judge No. 1 who dealt with the matter in the first instance is that the defendant himself admitted that he had not offered any rent to the plaintiff. Finally the learned Assistant District Judge No. 1 who dealt with the matter en the second occasion has also stated that the defendant nowhere stated that he had tendered rent to the plaintiff who refused to accept it. It has therefore to be accepted that there was no evidence to show that the plaintiff had refused to accept the rent. This being the position, it is contended by Shri Sarma that toe deposit of rent even if the same was within a fortnight of its becoming due could not help the defendant. It has therefore to be accepted that there was no evidence to show that the plaintiff had refused to accept the rent. This being the position, it is contended by Shri Sarma that toe deposit of rent even if the same was within a fortnight of its becoming due could not help the defendant. In this connection my attention has been invited to Maiku vs. Vilayat Hussain, AIR 1986 SC 1645 in para 13 of which it has been stated that : "(i)t may look hard that the tenant who bad deposited the rent in court under Section 7C. has to be evicted as the ingredients of Section 7C had not been established but there is no help. In the instant case the only evidence is the deposition of the tenant which the trial court did not rely upon and even the first appellate court did not categorically say that it believes the deposition of the defendant. The law in our opinion is clear that the tenant must establish before the Court in which the suit for eviction has been filed, the factum of refusal by the landlord when the payment was sought to be made to him. The mere fact that an application under Section 7C for permission to deposit the arrears of rent bad been allowed by the Munsiff would not absolve the tenant from establishing before the court, where the suit for eviction was filed, that the landlord had refused to accept the rent lawfully tendered." 5. Shri Sarma has drawn my attention to a recent decision of the Supreme Court in Ram Sewak vs. Munna Lal, AIR 1988 SC 452 in which it was held that the order of eviction of tenant based on the concurrent findings of the lower courts that there was no vaild tender of rent by the tenant or refusal thereof by the landlord, would not be interfered with. This case also dealt with section 7C of UP (Temporory Control of Rent and Eviction Act, 1847, as bad the case of Maiku (supra). This shows that refusal of the landlord is one of the necessary ingredients of a valid deposit under Section 7C of the concerned Act. This case also dealt with section 7C of UP (Temporory Control of Rent and Eviction Act, 1847, as bad the case of Maiku (supra). This shows that refusal of the landlord is one of the necessary ingredients of a valid deposit under Section 7C of the concerned Act. The language of Section 7C is in pari materia with section 5(4) of the Act at hand inasmuch as Section 7C states : "Where a landlord refuses to accept any lawful rent paid to him by a tenant in respect of any accommodation the tenant may in the prescribed manner deposit such rent and continue to deposit any subsequent rent which becomes due.........- " 6. It thus appears that the deposit in the case at hand cannot be held to be in conformity with the requirement of section 5(4) of the Act. Shri Goswami appearing for the petitioner has urged in this connection that as the plaintiff was not accepted as landlord by the defendant the rent was not tendered to him. That may be so, but the fact remains that the defendant did not tender any rent to the plaintiff and so the question of his refusal does not arise. The requirement of section 5(4) of the Act relating to refusal of rent by the plaintiff-landlord is therefore not satisfied in the present case. 7. In the aforesaid view of the matter, the impugned judgment cannot be interfered with by this Court. The revision is therefore dismissed. It may however be made clear that this decision relates only to one room out of the fourroomed house as described in Schedule A of the plaint.