Chittaranjan Ghosh v. Abdur Rahman — 1996 DIGILAW 43 (GAU)

This appeal has been preferred by the defendant as appellant against the judgment and decree passed by the Additional District Judge, Dhubri in Titile SuitNo.9of 1991 on 23.3.95. 2. The opposite party as plaintiff filed the suit for ejectment of the defendant and for damages for unauthorised use and occupation of the suit premises and for permanent injunction. 3. The plaintiffs case in brief is that he has three Assam type houses at Dhubri Municipality Holding No.83 (New 141) at Ward No. 11 of Dhubri Town as described in the Schedule of the plaint. Out of the 3 houses one is 'L' patern house having 3 rooms and the defendant is in occupation of two rooms of the said house which are suit houses in question. That all the three houses were constructed for residential purpose. There two rooms in question was rented out to the defendant at the monthly rent of Rs.200/- payable within seven days of the next English calender month and with a further condition that the defendant would vacate the suit premises positively by May, 1990; that the defendant failed to act as agreed upon and neither vacated the suit premises nor paid any rent after May, 1990; and that consequently the defendant became defaulter. Further contention in the plaint is that the suit premises is required to the plaintiff for his own occupation as he has no other house at Dhubri, his birth place as wishes to spent rest of his life after retirement with his only son who is a Lecturer in the local BM College now staying in a rented house. That the house in question is in dilapidated condition and required in place of service latrine. He also claimed that being a retired Government Officer he is entitled to the benefit provides under section 5AA (amended) of the Assam Urban Areas Rent Control Act (herein after called 'the Act'). 4. The appellant/defendant all along denied the allegation of default and plea of bonafide requirement of the plaintiff. 5. The main issues for consideration before this Court are issue No.5 and 6 relate to the question of default and bonafide requirement. 6. At the outset Mr. Mishra, learned counsel for the appellant submitted that, this was a fit case for remand as the appellant was refused by the trial Court to examine his witness including himself as defendant. 5. The main issues for consideration before this Court are issue No.5 and 6 relate to the question of default and bonafide requirement. 6. At the outset Mr. Mishra, learned counsel for the appellant submitted that, this was a fit case for remand as the appellant was refused by the trial Court to examine his witness including himself as defendant. That the Additional District Judge failed to consider the circumstances leading to non-appearance of the appellant. 7. Proceeding with the issue No.5, I found that there is no dispute regarding the relationship of landlord and tenant between the parties. It is also an admitted fact that the tenancy was a monthly tenancy at the rate of Rs.200/-PM payable within 7 days of the next succeeding month according to English Calender. In the plaint as well as in his deposition as PW 1, the plaintiff claimed that the defendant defaulted to pay and turned defaulter from 1st June of 1990. The defence stand is that the opposite party respondent received the rent from the defendant regularly and while the plaintiff refused, the defendant (appellant) deposited the rent in the Court. Further averment of the defendant is that as per terms of agreement plaintiff used to receive rent for 3/4 months and therefore the appellant is not a monthly tenant. 8. The appellant as defendant has filed written statement and in para 12 of the same, claimed that while the plaintiff refused to accept the rent he deposited the same in the Court. I have examined the contents of the written statement and the deposition of the PWs and also the plaint. 9. Payment of rent is a condition of tenancy and for the breach of the condition the tenant may be evicted, if he breach the condition. Now from the conduct of the parties the Court required to examine whether due to occasional indulgence of the landlord rent is paid sometimes beyond a month for 3/4 months together and whether in such a case plea of monthly tenancy can be set aside. In this case as it transpires, there is no written lease of agreement between the parties and admittedly the lease was verbal. 10. In this case as it transpires, there is no written lease of agreement between the parties and admittedly the lease was verbal. 10. Section 5 (4) of the Assam Urban Areas Rent Control Act (the Act) provides as follows: "(4) Where the landlord refuses to accept the lawful rent offered by his tenant, the tenant may, within a fortnight of its becoming due, deposit in Court the amount of such rent together with process fees for service of notice upon the landlord, and receiving such deposit, the Court shall cause a notice of the receipt of such deposit to be served on the landlord, and the amount of the deposit may thereafter be withdraw by the landlord on application made by him to the Court in that behalf. A tenant who has made such deposit shall be treated as a defaulter under clause (e) of the proviso to sub-section (1) of this section." 11. From the reading of the above section and the stand taken by the defendant in the Court below and in this appellate Court, burden to prove the deposit of rent in the Court lies on the defendant. Mere claim of deposit in Court is not enough. In para 12 of the written statement, the appellant claim deposit of rent in the Court but in support he did not mention any misc (non-judicial) case number in its support. Even if appellants denial of monthly tenantship assumed to be accepted, there is notan iota of evidence to inspire Court's confidence that even after the expiry of 3 months also the rent was deposited in the Court. In his deposition the plaintiff categorically stated that he did not receive any notice from the Court informing him of the deposit of rent and to withdraw the same. Even if the rent is deposited, without process fee along with notices and copy, the requirement of section 5 (4) cannot be said to be fulfilled. The compliance of statutory provisions under section 5 (4) of the Act is mandatory, failing which the tenant becomes defaulter. 12. The counsel for the opposite party Mr. Even if the rent is deposited, without process fee along with notices and copy, the requirement of section 5 (4) cannot be said to be fulfilled. The compliance of statutory provisions under section 5 (4) of the Act is mandatory, failing which the tenant becomes defaulter. 12. The counsel for the opposite party Mr. CKS Baruah has produced certified copy of certificate from the Court of the Munsiff, Dhubri wherein it is stated that "from the official record Shri Chitta Ranjan Ghosh, appellant, has filed only one misc (non-judicial) case being No.283 of 1991 from June, 1990 upto July, 1'991 in which no challan is available for depositing rent against Abdur Rahman". It is a certified document from the Court of the Munsiff, Dhubri, therefore, this Court has taken judicial notice of it. 13. In deciding this aspect of this Court in (1987) 2 GLR (NOC) 8 held : "So the process fees, as required under sub-section (4) having not paid, the deposit of rent is not as per the said sub-section and it cannot be said to be a deposit in accordance with law and as such, the tenant cannot get any protection." 14. This view was reiterated in the case reported in (1992) 1 GLR 250 and in 1991 (1) GLJ 249 (Sudhir Chandra Deb vs. Parasuram Prasad Verma) by holding that: "Therefore, if the rent is not deposited in terms of section 5 .(4) of the Act it cannot be said that the tenant has paid the rent i.e. the tenant is a defaulter." In that view of the matter, the appellant was defaulter and as such the statutory ground for eviction existed in so far as premises described in Schedule A is concerned. 15. The note under Rule 42 of the Civil Rules and Orders framed by the Gauhati High Court is as follows : "It should be particularly noted that the additions made by the High Court to Schedule I of Civil Procedure Code required that every plaint shall be accompained by the necessary number of copies draft forms of summons and fee for service thereof (Order 7 Rule 9(1-A) and a statement of the parties address for service (see Rule 15 and Order 6 Rule 14A)." 16. So it appears that it is the obligation of the appellant to furnish the draft forms and summons or notices to be issued to the other party. So it appears that it is the obligation of the appellant to furnish the draft forms and summons or notices to be issued to the other party. The consequence of such failure to furnish the draft forms of summons or notices, will be that the Court will not be in a position to issue the notices to the landlord. Section 5 (4) provides that the Court shall cause a notice of receipt of deposit of rent to be served on the landlord, and the landlord shall have the right to withdraw the amount so deposited. If this statutory procedure is not followed the Court cannot issue notice to the landlord resulting serious prejudice to the landlord. 17. The settled position of law is that the proceeding under section 5 (4) of the Act is a proceeding hi the civil Court, and therefore the procedure laid down in the Civil Rules and Orders is to be followed. 18. As discussed above, the written statement of the appellant has not disclosed any such compliance of the mandatory provisions of section 5 (4) of the Act and opposite party/plaintiff categorically denied receipt of such notice. It is mandatory on the part of the Court to issue notice to the landlord informing him about such deposit of rent. From the facts and circumstances as transpiring from the materials on record the appellant did not deposit the rent in the Court under the provision of law. 19. Further default of payment of rent by the appellant has also been established vide Ext 4. The recitals in this documents are clear and it clearly expresses the intention of the defendant/appellant to vacate the tenanted house by 3.7.91, that he did not pay rent from June, 1990 till the date of execution of the Ext 4 dated 3.6.91. Attempt has been made to show that the appellant had filed a criminal case on the. allegation that he was forced by the landlord to put his signature in the agreement paper. But the evidence on record shows that the appellant himself brought the stamp paper and the scribe, wrote the contents which was read over to him and he put his signature in presence of witnesses from both sides. The Ext 4 cannot be brushed aside as the materials on record speak otherwise. 20. But the evidence on record shows that the appellant himself brought the stamp paper and the scribe, wrote the contents which was read over to him and he put his signature in presence of witnesses from both sides. The Ext 4 cannot be brushed aside as the materials on record speak otherwise. 20. In view of the reason discussed above, I find no materials to interefere with the findings and decision of the Court below and accordingly the issue No.5 is affirmed. 21. The plea of bonafide requirement of the landlord i.e. Issue No.6, has been resisted by the counsel for the appellant. Mr. Mishra learned counsel for the appellant pointing to the findings of the Court below wherein, as he asserted, the reason for bonafide requirement could not be established. 22. The landlord who is a retired Government officer claimed eviction of the tenant as he required the tenanted house for his own occupation to reside therein with his only son and wife; that he has no other house in Dhubri and the suit houses were occupied by him prior to joining his Government post at Gauhati and requires the same after his-retirement for his parmanent residence. The resistence by the appellant is that, the plaintiff has his own house at Gauhati wherein he stays with his wife and that he has another house at Dhubri town. The evidence of PW 1, 2 and 3, are that another house mentioned by the defendant-appellant was gifted to his wife by her father and is in occupation of the tenants. In his evidence, the plaintiff (PW 1) categorically stated that being a original resident of Dhubri he wishes to reside there with his family, particularly with his only son who is a Lecturer of BN College, Dhubri who has been staying in a rented house near the college. The opposite party's further requirement of the house is for repairing the same as the house is in a dilapidated condition. 23. From the above facts as emerges from the materials on record, it cannot be said that the landlord opposite party has failed to establish his plea for bonafide requirement. 24. The opposite party's further requirement of the house is for repairing the same as the house is in a dilapidated condition. 23. From the above facts as emerges from the materials on record, it cannot be said that the landlord opposite party has failed to establish his plea for bonafide requirement. 24. In the case of Bairab Chandra Nandan vs. Ramadhir Chandra ( AIR 1988 SC 396 ) the Apex Court held that the fact the landlord had another house at a distance of more than three miles and the house is under occupation of the tenant will not stand in the way of the landlord getting a decree for eviction on the ground of his requirement. In the instant case, the only son of the landlord, who is a Lecturer of the local college has to stay in a rented house with his family, in spite of having a house in the town (relied on Amitlal Gupta's case AIR 1990 SC 1155 ). 25. The petitioner who is a retired Government servant, retired in the month of February, 1990. It is also his evidence that he-insisted the appellant to. vacate the house at the time of his retirement. He produced a certificate from the appropriate authority/employer in support of his retirement as a Government employee. In that view also the landlord/opposite party has a bonafide claim for eviction of the tenant as the house is required for his own use. 26. In a catena of decisions the Apex Court as well as the High Court, laid down the law that plea bonafide requirement always based on finding of facts cannot be interferred by High Court. But instant appeal being a first appeal, this Court examined the entire material on record as the last Court on facts. On the perusal of impugned judgment and decree after examining the materials on record, I am of the considered view that the Court below has appreciated the entire materials on record and carefully discussed the weight of evidence in each issue and came to his conclusion, relying on case laws. 27. The amended provision section 5AA (inserted by Assam Act XV of 1987 came into force on 14.8.87) provides safeguard to the landlord who is a Government servant. Section 5AA is quoted below: "5AA. 27. The amended provision section 5AA (inserted by Assam Act XV of 1987 came into force on 14.8.87) provides safeguard to the landlord who is a Government servant. Section 5AA is quoted below: "5AA. Special provision for recovery of possession of any house to a retired Government servant of a member of the family of a deceased Government servant notwithstanding anything contained in this Act- (a) a landlord being a person, who was appointed to public service or post in connection with the affairs of the State and is duly retired (which term shall include premature retirement) shall be entitled to recovery possession of any house belonging to him on the ground that the house is bonafide required by him for use and occupation by himself or any member of his family, and the Court shall pass a decree for eviction on such ground if the landlord at the hearing of the suit, produces a certificate signed by the appointing authority to the effect that; (i) a landlord being a person, who was appointed to public service or post in connection with the affairs of the State and is now a retired Government servant..." 28. In view of my above discussion I affirm the findings and decision of the Court below in the Issue No.6. 29. In deciding the issue No. 7 the learned Court below awarded damages at the rate of Rs.600/- per month amounting to Rs.8,000/- for the period from the 1st June, 1990 to 10th July, 1991. The conclusion that being a defaulter after the period expired i.e. from the month of June, 1990 he ceased to be a tenant and therefore liable to pay compensation. But this conclusion of the Court below is not sustainable under the law, as in spite of his default the tenant is a statutory tenant as the appellant as tenant has been continuing possession after the termination of the tenancy. This position of Maw fairly conceded by Mr. Sarma Baruah, learned counsel for the respondent. But the landlord is entitled to other monetary award i.e. electricity bills and outstanding rents etc. 30. As all the issues are inter-related to the main issue Nos.5 and 61 subscribe and affirm the findings of the trial Court. 31. In view of the above reasons, the judgment and decree passed by the trial Court is affirmed. 32. But the landlord is entitled to other monetary award i.e. electricity bills and outstanding rents etc. 30. As all the issues are inter-related to the main issue Nos.5 and 61 subscribe and affirm the findings of the trial Court. 31. In view of the above reasons, the judgment and decree passed by the trial Court is affirmed. 32. The appellant is directed to pay as costs Rs.2,000/-(Rupees two thousand) to the opposite party landlord. 33. In the result the appeal is dismissed.