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2004 DIGILAW 445 (GAU)

Birendranath Sarma v. Arunamayee Bishaya

2004-07-22

RANJAN GOGOI

body2004
JUDGMENT Ranjan Gogoi, J. 1. Heard Mr. C.K. Sarma Baruah, learned senior Counsel for the revision Petitioner and Mr. H.N. Sarma, learned senior Counsel for opposite party. 2. This revision application is by the Defendant-tenant against whom a decree of eviction passed by the learned trial Court under the provisions of the Assam Urban Areas Rent Control Act, 1972 has been affirmed in appeal. The eviction of the Defendant-tenant has been ordered by the learned Courts below on the finding that the Defendant-tenant is a defaulter in the matter of payment of the monthly rent in respect of the suit premises. It must be noticed at this stage that while the learned trial Court had come to the finding that the rent was payable within 7 days of the succeeding month of the tenancy and that the deposits made by the Defendant in Court were not in accordance with the provisions of the Act, the learned lower appellate Court disagreed with the aforesaid findings recorded by the learned trial Court but has upheld the eventual conclusions on its own reasons. The learned appellate Court, on the materials adduced, reached the conclusion that though the deposits made in Court were in accordance with the provisions of the Act and the 7th day of the succeeding month was not the due date for payment of the rent, yet, the Defendant had failed to prove payment of rent in Court for the months of January, 1990, February and March, 1996 and February, 1997 by exhibiting the relevant challans and therefore, must be held to be a defaulter and liable to eviction. 3. The arguments advanced by Mr. Sarma Baruah, learned Counsel for the Petitioner are to the effect that the period of four months, as noted above, in respect of which default has been recorded by the learned Court below being subsequent to the date of the filing of the suit and the default, in any, on the part of the Defendant to deposit the monthly rent for the months in question ought to have been brought before the Court in a "prudent" and appropriate manner so as to enable the Defendant to rebut the allegations and adduce satisfactory proof of payment of rent for the months in question. According to the learned Counsel, what happened in the present case is that the learned Court below after recording the findings substantially in favour of the Defendant, as noted above, proceeded to hear the oral arguments raised with regard to the aforesaid issue. Thereafter, the learned Court below itself verified the exhibited treasury challans to come to the impugned finding. The procedure adopted, according to the learned Counsel, was not fair and what should have been done is that the Defendant should have been given a full and adequate opportunity to controvert the allegations made in the course of the oral arguments. The finding of default recorded by the learned appellate Court is sought to be assailed on the aforesaid basis. 4. Controverting the submissions advanced on behalf of the revision Petitioner, Mr. H.N. Sarma, learned senior Counsel for the opposite party by relying on a Division Bench judgment of this Court in L.P. No. 11/76 (R.C. Basak v. D.N. Pandit) as well as the judgment of this Court in the case of Abdul Matin Choudhury and Ors. v. Nilyananda Dutta Banik, reported in 1997 (2) GLT 590, has contended that the liability of the tenant to pay the monthly rent continues during the pendency of the proceedings under the Act, at all stages. Relying on the contents of Para 8 of the judgment in Abdul Matin Choudhury (supra), Mr. Sarma has contended that if any default on the part of the tenant to pay the monthly rent, while the proceedings under the Act are pending in the Courts, is brought to the notice of the Court, it is the burden of the Defendant to establish that no default has taken place, as alleged. learned Counsel for the opposite party has also submitted that there is no averment in the revision petition whatsoever contending that the rent for the 4 months in question was paid by the Defendant while the suit was pending before the learned trial Court. It is submitted that the arguments advanced on behalf of the Defendant on this score before the learned appellate Court proceeded on the basis that the rent for the 4 months was not paid and that such non-payment will not make the Defendant a defaulter. 5. The arguments advanced on behalf of the rival parties have been duly considered. It is submitted that the arguments advanced on behalf of the Defendant on this score before the learned appellate Court proceeded on the basis that the rent for the 4 months was not paid and that such non-payment will not make the Defendant a defaulter. 5. The arguments advanced on behalf of the rival parties have been duly considered. The question of default on the part of the Defendant to pay the rent for the months of January, 1990, February and March, 1996 and February, 1997, during which time the suit was pending before the learned trial Court, was raised before the learned appellate Court in the course of the arguments advanced on behalf of the Plaintiff (Respondent in the appeal). In response, the Defendant in the suit did not seek any opportunity from the learned Court below to enable him to disprove the contention advanced. Rather, what was contended before the learned Court below is that the default for the months in question being for periods after institution of the suit, the nonpayment of rent after filing of the suit would not make the Defendant a defaulter. Confronted with the above position, the learned appellate Court looked into the challans exhibited by the Defendant and on that basis, recorded the finding that there were no challans evidencing the deposit of rent in Court by the Defendant for the 4 months in question. Thereafter, relying on the law laid down by this Court in the case of Abdul Matin Choudhury (supra), the learned lower appellate Court thought it proper to hold the Defendant to be a defaulter. 6. The manner in which the learned appellate Court proceeded, in view of the stand taken by the Defendant before the Court, can hardly be faulted with. Admittedly, on the materials available on record, the Defendant had not deposited the rent for the months in question in Court. The obligation to do so to escape from being labelled as a defaulter can hardly be doubted. The Defendant, as a tenant, was obliged in law to continue with the deposits in Court even during the pendency of the proceedings under the Act. The same not having been done, no infirmity, in the considered view of this Court, is discernible in the findings recorded. The Defendant, as a tenant, was obliged in law to continue with the deposits in Court even during the pendency of the proceedings under the Act. The same not having been done, no infirmity, in the considered view of this Court, is discernible in the findings recorded. The arguments advanced on behalf of the Petitioner that as observed in Para 8 of the judgment in the case of Abdul Matin Choudhury (supra), the facts relating to default on the part of the Defendant to pay the monthly rent during the pendency of the proceedings under the Act must be brought to the notice of the Court in a prudent manner, can hardly be doubted. But what would be a "prudent manner" would depend on the facts of each case and it will be wholly unnecessary to attempt to lay down exhaustively the parameters of the manner in which the said facts ought to be placed before the Court. In the instant case, the facts were brought to the notice of the Court in the course of the oral arguments. The Defendant in the suit could have, but did not, seek any opportunity to disprove the default alleged. Rather, what was contended is that non-payment of rent for the periods subsequent to the date of filing of the suit would not make the Defendant a defaulter. The argument advanced being contrary to the law laid down by this Court, to accept the arguments now advanced that the manner in which the facts were brought to the notice of the Court was not a prudent manner and that the Defendant should have been given an opportunity to prove the payment of rent for the months in question would be allowing the Defendant to take a stand contrary to the one advanced before the learned Court below. 7. For all the aforesaid reasons, I am of the view that the present revision application is without any merit. It is accordingly dismissed and the judgment and decree dated 23.04.2001 passed by the learned Civil Judge (Senior Division) No. 3, Kamrup, Guwahati in Title Appeal No. 34/1999 shall stand affirmed. However, having regard the facts and circumstances, the parties are left to bear their own costs. Application dismissed