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Gauhati High Court · body

2000 DIGILAW 54 (GAU)

Rupchand Daftry v. Ashim Ranjan Modak

2000-02-08

J.N.SARMA

body2000
This revision application has been filed by the tenant. A suit was filed being Title Suit No. 8 of 1985 before the learned Assistant District Judge, Karimganj. The suit was filed under the Assam Urban Areas Rent Control Act, 1972. The grounds for ejectment were as follows: (i) Default in the payment of rent for the month of Phalgun and Chaitra. (ii) Bonafide requirement of the plaintiff. (iii) Subletting by the defendant to other persons. . 2. The learned trial Court on consideration of the materials on record dismissed the suit holding that there w as no default in the payment of rent and the plaintiff also failed to establish the plea of bonafide requirement as well as the plea of subletting. 3. There was an appeal being Title Appeal No.3 of 1988 and the learned District Judge at Karimganj on consideration of the materials on record came to the following finding: (i) That according to the Ext I, the rent was payable within 1st day of current month and as such the deposit of rent made in the Court vide Exts II and IIA are beyond the period prescribed by the section 5 (4) of the Assam Urban Areas Rent Control Act, 1972. (ii) That before the deposit of rent in the Court for the month of Falgoon and Chaitra, the rent was never offered by the defendant-tenant to the plaintiff. It was the plea of the defendant that the rent was offered by one of his employees Sri R. Ch. Das but Sri R. Ch. Das was not examined to substantiate the claim of the offer of rent. So, the learned District Judge held that as there was no offer before the deposit of rent that deposit of rent under section 5(4) of the Act is not valid and tenant is defaulter as per the Act. (iii) Regarding bonafide requirement it was found by the learned District Judge that the plaintiff failed to establish the same. (iv) Regarding subletting it was found by the learned Judge as follows: “I have already discussed above that defendant Nos 2 to 4 are not the partners of the firm Messrs Santi Store and they are running their own business namely Santi Readymade Store and Ladies Corner in 2 rooms of the suit premises and they are also paying rent separately to the defendant No. 1. So, it is clear that defendant Nos 2 to 4 are sub-tenants under defendant No. 1 in respect of 2 rooms of the suit premises.” 4. Regarding defendant Nos 5 and 6 the learned Judge found that they have occupied verandah portion of the premises to run their tailoring business but it was not established that the rent was paid by these defendants to the defendant No.1. Be that as it may, as it found that there was subletting by defendant No. 1 to the defendant Nos 2 to 4 the learned Judge decided this plea in favour of the plaintiff/appellant. Having arrived at the finding that the defendant No.l was defaulter in the payment of rent and there was subletting the appeal was allowed a and the suit was decreed. Hence, this revision application. 5. I have heard Sri RP Sarma, learned Advocate for the petitioner and Mr. N. Chakraborty, learned Advocate for the respondents/opposite parties. Sri Chakraborty rightly urges that under section 5 (4) of the Assam Urban Areas Rent Control Act, 1972 the rent becomes due after the end of the month and as such the Ext 1 the contract made to make payment of rent on the 1st day of current month cannot be deemed to be a valid contract. It is not necessary to decide that aspect of the matter inasmuch as the question of default in this particular case can be determined/decided on the basis of the other findings arrived at by the learned District Judge. It is the finding of fact arrived at by the learned District Judge that there was no tender of rent before the deposit was made in the Court. 6. The law hi this point has been settled by the decision of the Apex Court reported in 1995 (Supp) (3) SCC 44 (Rameswarlal Choudhury vs. Ram Niranjan Mow). The Supreme Court has decided regarding the validity of the deposit under this Act. The Supreme Court in this case pointed out that the appellant/ tenant did not tender the rent to the landlord. Without resorting to such tender he , has deposited the rent into the court. That is not in compliance with section 5 (4) of the Assam Urban Areas Rent Control Act, 1972. The High Court is correct in its conclusion. The Supreme Court in this case pointed out that the appellant/ tenant did not tender the rent to the landlord. Without resorting to such tender he , has deposited the rent into the court. That is not in compliance with section 5 (4) of the Assam Urban Areas Rent Control Act, 1972. The High Court is correct in its conclusion. There are other decisions of the Apex Court on this point and another recent decision is (1996) 1 SCC 243 (Kuldeep Singh vs. Ganpatlal & another). That is a case under the Rajasthan Premises (Control of Rent and Eviction) Act and there also certain conditions were imposed to be complied with before the deposit of rent in Court. The Supreme Court pointed out that the deposit in Court should be made only after resorting to certain prescribed norms provided by the statute and without resorting to them if die deposit is made straightway in the Court that is not the deposit in the eye of law and such a deposit cannot give protection to the tenant The law is that the protection is given to a tenant only if the tenant complies certain requirements and if the tenant does not comply with those requirements he cannot claim protection. The protection is subject to certain condition/obligation and those condition/obligation must be adhered to by the tenant so that he can claim the benefit of protection. Regarding the finding of subletting basically it is a finding of fact and in arriving that finding of facts the learned trial Court as well as the learned appellate Court has to satisfy itself with regard to the ingredients of subletting. The burden to establish this subletting is on the landlord. The ingredients of subletting are two in nature. 7. Transfer of exclusive possession are as to whether that transfer is for consideration. In this particular case with regard to the subletting to the defendant Nos 2 to 4 it was found by the learned District Judge that there was transfer of exclusive possession of a part of the premises and they also paid the rent to the defendant. Regarding defendant Nos 5 and 6 it was found by the District Judge that there was transfer of exclusive possession but there is no evidence regarding payment of rent meaning thereby that the transfer of possession was not for consideration. Regarding defendant Nos 5 and 6 it was found by the District Judge that there was transfer of exclusive possession but there is no evidence regarding payment of rent meaning thereby that the transfer of possession was not for consideration. But with regard to the defendant Nos 2 to 4 it was categorically found by the learned District Judge as quoted above. 8. That being the position, three is no merit in this revision application and the same shall stand rejected. Stay order passed earlier shall stand vacated. However, I make it clear that for a period of six months this decree for eviction shall not be executed if the defendant tenant undertake to vacate the premises without execution and if he does not part with the possession during this period, save and except to the landlord. During this period of six months the tenant shall go on paying the agreed rent to the landlord but if the tenant fails to vacate the premises within the period as indicated above the decree may be put into execution. It is needless to say that the payment of rent by the tenant to the land shall not create any fresh tenancy.