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2005 DIGILAW 300 (GAU)

Girin Pathak v. Ghanashyamdas

2005-04-07

ANIMA HAZARIKA

body2005
JUDGMENT A. Hazarika, J. 1. The Present revision petition involves a Landlord tenant dispute wherein the Landlord sought for eviction of the tenant on the ground of default under Section 5(4) of the Assam Urban Areas Rent Control Act, 1972 (hereinafter 'the 1972 Act'). 2. The Plaintiff/Respondent is the owner of the suit premises measuring 24ft x 8ft of the R.C.C. building having GMC holding No. 1442 situated on a plot of land measuring 1 katha 8 lechas covered by Dag No. 539 of K.P. Patta No. (old) 13 (New) 58 village-Hatigaon, Basistha Road, Mouza-Beltola, bounded- North- Pipeline South- Nripen Hazarika East- P.W.D. Road West- Nripen Hazarika The Land lord leased out the premises in question to the Petitioner in this revision petition by an oral agreement on a monthly rent of Rs. 350/- (Rupees three hundred fifty) only from the month of September, 1989. In the said oral agreement the Defendant/Petitioner assured the landlord that he would open a grocery shop in the tenanted premises. The rent on the leased out premises was subsequently raised to Rs. 450/- (Rupees four hundred fifty) only since January, 1993 and thereafter enhanced to Rs. 500/- (Rupees five hundred) only since January, 1994 till date and the rent to be paid within the 1st week of each following month. The said oral agreement for opening a grocery shop though agreed upon, the Defendant-Petitioner opened a restaurant in the name and style as 'Manju Restaurant' to which the owner had objected to but the Defendant/Petitioner subsequently, had constructed a temporary C.I. Sheet shed in front of the stair case by blocking the entrance of the back side of the rented room and the said shed was used as a cook shed of the said restaurant. The main ground for eviction was that the Defendant/Petitioner was very irregular in payment of house rent and a total sum of Rs. 1875/- was still outstanding for the period from January, 1993 to November 1995 and Rs. 3000/- (Rupees three thousand only) being the house rent for the subsequent period of December, 1995 to May, 1996 and the Plaintiff thus sought for a decree for eviction being a defaulter along with arrear rents by way of filing title Suit No. 376 of 1996 before the learned Civil Judge (Jr. Div.) No. 1 at Guwahati. 3. 3000/- (Rupees three thousand only) being the house rent for the subsequent period of December, 1995 to May, 1996 and the Plaintiff thus sought for a decree for eviction being a defaulter along with arrear rents by way of filing title Suit No. 376 of 1996 before the learned Civil Judge (Jr. Div.) No. 1 at Guwahati. 3. Upon receipt of the summon the Defendant/Petitioner contested the suit by filing the written statement denying the averments made in the plaint contending inter alia therein that he is not a defaulter and has been paying the house rent to the landlord regularly and as such he has not violated any terms of the agreement as alleged. His specific case is that the landlord has now started a restaurant business in the said premises which will hamper his business if the Petitioner's business of restaurant is allowed to continue and hence prayed for dismissal of the suit. 4. Upon pleadings the learned Trial Court has framed the following issues viz, 1) Whether the suit is maintainable in its present from? 2) Is the suit barred by principle of limitation? 3) Whether the Defendant has violated any terms and conditions of the tenancy? 4) Whether the suit house is bonafidely required by the Plaintiff? 5) Whether the Defendant is a defaulter in payment of monthly rent? 6) Whether the Plaintiff is entitled to get a decree for ejectment of the Defendants? 7) To what relief or reliefs the parties are entitled? 5. During the trial both the parties have examined witnesses and adduced both oral and documentary evidence. The learned Trial Court after going through the materials on record and after hearing the parties decided issues No. 1 and 2 in favour of the Plaintiff. The learned Trial Court has answered issues No. 3 and 4 in negative and in favour of the Defendant/Petitioner. While deciding the issue No. 5, the learned trial Court has come to a clear finding after going through the Ext. Ga(1), Ga(2) and Ga(3) the challans of N.J. cases by which he deposited the rent and Ext. 4 by which the Defendant deposited the rent for the month of February and March, 1997 vide Misc. While deciding the issue No. 5, the learned trial Court has come to a clear finding after going through the Ext. Ga(1), Ga(2) and Ga(3) the challans of N.J. cases by which he deposited the rent and Ext. 4 by which the Defendant deposited the rent for the month of February and March, 1997 vide Misc. (N.J.) Case No. 1765/97 on 6.5.97; that no process fee was paid and notice was also not submitted and as a result, the N.J. Case was dismissed holding that the Petitioner is a defaulter. The learned trial Court thus decided issue No. 5 in the affirmative and in favour of the Plaintiff. Deciding issue No. 6 and 7 in favour of the Plaintiff, the learned trial Court held that the Plaintiff is entitled to get a decree for arrear rent and eviction of the Defendant from the suit premises. Therefore, the learned trial Court decreed the suit on the ground of default in making/depositing the rent as required under the relevant law. 6. Being aggrieved with the judgment and decree dated 18.1.2002 passed by the trial Court in Title Suit No. 376 of 1996, the Defendant-Petitioner preferred an appeal being Title Appeal No. 20 of 2002 before the learned Civil Judge (Sr. Div) No. 2 Guwahati. The appellate Court re-appreciated the entire evidence on record, more particularly the case record of N.J. cases which would reveal that by order dated 26.8.97 the Court has asked the Defendant-Petitioner to submit the notice through which he has deposited the rent. But the Petitioner/Defendant failed to submit the notice along with the process fee in the Court and he has failed to prove the offering of rent to the Plaintiff as required under the law and hence dismissed the appeal vide judgment and decree dated 30.9.2002 and affirmed the judgment dated 18.1.2002 and decree dated 5.2.2002 passed by the learned Trial Court. The instant revision is thus against the judgment and decree passed by the learned Civil Judge (Sr. Div) No. 2, Guwahati affirming the judgment and decree passed by the learned trial Court. 7. Heard Mr. B. Kalita, the learned Counsel appearing on behalf of the Defendant/Petitioner. None appeared for the Plaintiff/Respondent. Perused the evidence on record and the documents exhibited before the Trial Court. 8. Mr. Div) No. 2, Guwahati affirming the judgment and decree passed by the learned trial Court. 7. Heard Mr. B. Kalita, the learned Counsel appearing on behalf of the Defendant/Petitioner. None appeared for the Plaintiff/Respondent. Perused the evidence on record and the documents exhibited before the Trial Court. 8. Mr. B. Kalita, learned Counsel appearing on behalf of the Petitioner/Defendant advanced his argument mainly on the following grounds; (i) Both the Courts below has committed an illegality and material irregularity in exercise of its jurisdiction in holding that the Petitioner is a defaulter and as such the finding arrived at by both the Courts below are perverse. (ii) The question of locus standi of the Plaintiff has been raised in regard to the filing of the suit since it has been specifically averred in the written statement that the Defendant had constructed the room and one verandah in front of the room, a portion of which falls under pipe line (Oil India), authority and non framing of issue as envisaged under Order 14, Rule 1 of the Code of Civil Procedure on this material point required remand of the case to the learned Court below for framing an additional issue after giving opportunities to the parties to led evidence on this point. 9. While advancing his argument on this point, Mr. Kalita has referred a case reported in AIR 1974 A.P. 1 (Aziz Ahmed Khan v. I.A. Patel). I have considered his argument and carefully gone through the decision cited (Supra). The decision cited by Mr. Kalita relates to A.P. (Telangana Area) Money Lenders Act. (M.L. Act in short). In the suit a question was raised as to the maintainability of the suit in view of Section 9 of the M.L. Act. Section 9 of the said Act prohibits the money lender to carry his business without obtaining license under the Act. The said plea raised was not considered by the Court below and no issues were framed on this material point which goes to the root of the jurisdiction. The Full bench of the Court considered the provisions of the M.L. Act, more particularly, Section 9 of the said Act and held that the learned Court below has committed illegality in not framing an issue as to the maintainability of the suit The Full Bench thus rightly allowed the appeal. The Full bench of the Court considered the provisions of the M.L. Act, more particularly, Section 9 of the said Act and held that the learned Court below has committed illegality in not framing an issue as to the maintainability of the suit The Full Bench thus rightly allowed the appeal. In the instant case, the question of locus standi and non-framing of issue on the point as argued by the learned Counsel of the Petitioner is not material. The suit was filed for eviction under the Assam Urban Areas Rent Control Act, 1972. The relation between landlord and tenant is not under dispute. More so, when the Petitioner has admitted that he took the suit premises on rent from the opposite party. Therefore, the decision cited do not help the Petitioner in the facts and circumstances of the case. 10. Now coming to the point of defaulter, it would be appropriate to quote Section 5(4) of the Assam Urban Areas Rent Control Act, 1972 (Act 1972 in short), in order to determine as to whether the Petitioner/Defendant has made out a case for interference against the judgment and decree in exercise of Power under Section 115 of the Code of Civil Procedure; Section 5(4) Whether 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 on 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 withdrawn by the landlord on application made by him to the Court in that behalf. A tenant who has made such deposit shall not be treated as a defaulter under Clause (e) of the proviso to Sub-section (1) of this section. 11. A bare reading of the provisions of the Rent Control Act, 1972, it would reveal that it has been enacted by the legislature which is statutory one and mandatory in nature and any infraction of any provisions of the Act would disentitle the protection available under the Act. In regard to default no tendering rent to the landlord, the Defendant was examined as D.W. 1. In regard to default no tendering rent to the landlord, the Defendant was examined as D.W. 1. In his examination-in-Chief, D.W. 1 has admitted that the rent of the suit premises was paid to the Plaintiff till March, 1996. Thereafter the landlord had refused to accept the rent and having found no other alternative, he deposited the rent in the Court vide Ex. Ga(1), Ga(2) and Ga(3). In his cross examination he admitted that he had deposited the rent for the month of December, 1996 and January, 1997 together and thereafter he did not deposit the rent since May, 2001. Ext. 4 would show that he has deposited the rent for the month of February and March, 1997 vide Misc. (NJ) Case No. 1765/97. The material on record would further reveal that on refusal to accept the rent by the landlord the tenant is to deposit the rent within a fortnight of its becoming due. In the instant case it is obligatory on the part of the tenant at the time of depositing the house rent that he must submit the process fee along with the notice, though payment was made beyond the period of fortnight but the Defendant at the same time failed to deposit the process fee and no notice was submitted for which the NJ case was dismissed and thus in absence of the mandatory provisions being fulfilled the Defendant/Petitioner is not entitled to get the protection under Section 5(4) of the Act, 1972 and on that count it was held that the Defendant/Petitioner is a defaulter. 12. There are many decisions of this High Court in regard to default vis-a-viz protection under Section 5(4) of the Act, 1972. The following decisions are relevant to justify the protection under Section 5(4) of the Act, 1972; (1) (1996) 2GLT 102 : Chittaranjan Ghosh v. Abdul Rahman. (2) (1997) 2 GLR 468 : (1997) 2 GLT 590 : Abdul Matin Choudhury and Ors. v. Nityananda Dutta Banik. (3) (2001) 2 GLT 471: Radia Talkies Equipment Co. v. Debadas Ghosh. (4) AIR 1969 A & N 66 : Kali Kumar Sen v. Makhan Lal Biswas and Anr. (2) (1997) 2 GLR 468 : (1997) 2 GLT 590 : Abdul Matin Choudhury and Ors. v. Nityananda Dutta Banik. (3) (2001) 2 GLT 471: Radia Talkies Equipment Co. v. Debadas Ghosh. (4) AIR 1969 A & N 66 : Kali Kumar Sen v. Makhan Lal Biswas and Anr. The first case reported in (1996) 2 GLT 102 relates to deposit of rent in Court, wherein it was held that if rent is deposited without process fee alongwith the notices, the requirement of Section 5(4) of the Rent Control Act, 1972 cannot be said to be fulfilled. It was held that compliance of statutory provision under Section 5(4) is mandatory, failing which the tenant becomes a defaulter. While dealing with the case report in (1997) 2 GLT 590, it was held in the said case that rent must be deposited in Court together with process fees for service of notice on landlord and also with written notices. Following cases, viz. (1997) 1 GLR 5: (1982) 2 GLR (NOC) 8: (1991) 1 GLJ 249 : (1992) 1 GLR 250 have been referred to at paragraphs 15 of the judgment. In the case reported in (2001) 2 GLT 471, it was held that while depositing rent in Court under Section 5(4) of the Act, 1972, payment of process fees for service of notice is mandatory, without payment of process fee, the deposit is not valid. In (1997) 2 GLR 468, it was held that deposit of rent (money) in the Court without process fee as required under Section 5(4) of the Act, 1972 is not a deposit in the eye of law. In Full Bench decision of this Court reported in AIR 1969 A & N 66, it has been held that the rent on refusal by the landlord, must be deposited within a fortnight of its becoming due and if the same is not paid within the stipulated period in accordance with Sub-section (1) of Section 6, the tenant is a defaulter and once a defaulter is always a defaulter. 13. 13. From the foregoing discussions made above, this Court hold that the Defendant/Petitioner though deposited the rent in Court was not in conformity with the provisions of Section 5(4) of the Rent Control Act, 1972, which is mandatory under the statute and he is a defaulter and is not entitled to get the protection under Section 5(4) of the Assam Urban Areas Rent Control Act, 1972. 14. The appellate Court has made an independent evolution of evidence and confirmed the findings of the learned trial Court. In the case in hand the Landlord has fully discharged his obligation of making out the case of his entitlement to evict the tenant Petitioner under Section 5(4) of the Assam Urban Areas Rent Control Act, 1972. The Petitioner tenant has failed in discharging the onus as to deposit of rent within fortnight of its becoming due along with other conditions specified therein. The Trial Court as well as the appellate Court rightly arrived at the finding of the fact as discussed above. No case is made out for interference by this Court in exercise of power under Section 115 of the Code of Civil Procedure. 15. The Revision is dismissed. The judgment and Decree passed by the Courts below are affirmed. The Defendant/Petitioner is allowed three months time from today to remain in possession of the suit premises and he will hand over the vacant possession to the Plaintiff/Respondent along with all arrear rents before expiry of aforesaid three months, failure of which the Plaintiff is entitled to put the decree in execution. The parties are left with as indicated above. No costs. Revision dismissed.