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2006 DIGILAW 685 (GAU)

Bansal Traders v. Nandalal Gattani

2006-07-28

BIPLAB KUMAR SHARMA

body2006
JUDGMENT B.K. Sharma, J. 1. This revision application Under Section 115 read with Section 151 of the Code of Civil Procedure is directed against the judgment and decree of the appellate Court confirming the judgment and decree passed by the Trial Court in the suit instituted by the Landlord as Plaintiff which is the opposite party herein against the Defendants, the Petitioners herein. 2. The facts material for the purpose of disposal of the revision application are as follows. 3. The Petitioner No. 1 is a Firm registered under Indian Partnership Act and the Petitioner Nos. 2 and 3 are its partners. The subject matter of Title suit being No. 39/94 instituted by the Plaintiff/opposite party is a room on the ground floor of the house originally belonging to the deceased father of the opposite party situated at Jorhat in Ward No. 7 with Municipality Holding No. 333 A. The suit room was taken on rent by the Defendant/Petitioner No. 1 way back in 1985. The original Landlord, i.e. the deceased father of the Plaintiff/O.P. lost both his first and second sons who were elder brothers of the Plaintiff/O.P. It is the Plaintiff/O.P. who has been looking after the business of his deceased father. 4. The deceased father of the Plaintiff/opposite party allowed the Defendant No. 1 to start his business in the suit room on monthly rent of Rs. 500/- p.m. The Plaintiff/O.P. as well as his deceased father during his life time used to make request for enhancement o rent. According to the statement made in the plaint, the Defendant agreed to pay enhanced rent of Rs. 1500/- p.m. with effect from April, 1993 and as a consequence thereof monthly rent of Rs. 1500/- was paid for the months of April and May, 1993 at the rate of Rs. 1500/ p.m. Such payment was made on 9.6.1993. However, the Defendants failed to pay the rent for the months of June and July, 1993 and the Plaintiff/opposite party made demands for rent. The agent/employee of the Defendant No. 1 at Jorhat instead of paying the said agreed enhanced rent sent a registered letter dated 4.9.1993 to the father of the Plaintiff. In the letter, the plea taken was that Rs. 3000/- was paid to the Landlord as rent @ Rs. 500/- p.m. upto September, 1993 and that there was no question of agreeing to pay rent at Rs. In the letter, the plea taken was that Rs. 3000/- was paid to the Landlord as rent @ Rs. 500/- p.m. upto September, 1993 and that there was no question of agreeing to pay rent at Rs. 1500/- p.m. In the said letter it was further alleged that an amount of Rs. 50,000/- was paid to the Landlord by cheque at the beginning of the tenancy on the condition that the monthly rent would not be enhanced for a period of 10 years. The father of the Plaintiff who was alive at that time sent his reply dated 10.9.1993 denying the contentions raised in the letter dated 4.9.1993. According to the Plaintiff/O.P, the Defendant had deposited a sum of Rs. 25,000/- as security to be refunded at the time vacation of the suit room by the Defendants. 5. The suit was instituted by the Plaintiff with the contention that the Defendants did not pay the monthly rent w.e.f. 1.6.1993 to 30.4.1994 and thus, they became defaulters w.e.f. 7.7.1993, the due date for payment of rent for the month of June, 1993. The prayer made in the suit was for ejectment of the Defendants and for recovery of the arrear rent and for payment of compensation. 6. The Petitioners as the Defendants appeared in the suit and contested the same by filing their joint written statement. They inter alia contended, that the claim made by the Plaintiff that the monthly rent was enhanced to Rs. 1500/- was totally false and that the amount of Rs. 3000/- was paid to the father of the Plaintiff as advance house rent clearing the rent upto September, 1993, but while giving rent receipts the amount was indicated to be the monthly rent @ Rs. 1,500/- for the month for April and May/1993. According to the Defendants/Petitioners, the amount of Rs. 3,000/- was paid as the advance payment of rent @ 500/- p.m. upto September, 1993 as per the request of the landlord. It was further contended in the written statement that when they detected from the rent receipts issued for the months of April and May, 1993 that the monthly rent had been shown as Rs. 1500/-, they immediately protested by sending the aforesaid registered letter on 4.9.1993 demanding issuance of fresh money receipts against the aforesaid amount of Rs. It was further contended in the written statement that when they detected from the rent receipts issued for the months of April and May, 1993 that the monthly rent had been shown as Rs. 1500/-, they immediately protested by sending the aforesaid registered letter on 4.9.1993 demanding issuance of fresh money receipts against the aforesaid amount of Rs. 3,000/- which according to them was the amount towards house rent for six months from April, 1993 to September, 1993. However, the Landlord did not comply with the demands so made and did not issue any fresh rent receipts. Thus, according to the Defendants/Petitioners they were not defaulters, in payment of rent. 7. In the written statement it was further contended that Late Tolaram Gattani, i.e. father of the Defendant/opposite party had received a sum of Rs. 50,000/- in two terms, one by cheque of Rs. 25,000/- and another by cash of Rs. 25,000/- at the initial stage of the tenancy to complete the room in question with the condition that he would not enhance the rent for the suit room at least for a period of 10 years and also assured either to refund the amount with due interest or to adjust the same with future amount of house rent. They denied the payment of Rs. 25,000/- as security deposits by them to be refunded at the time of vacation of the suit room. Thus, in a nutshell while it was the case of the Plaintiff that the Defendants defaulted in payment of rent @ Rs. 1500/- p.m. from June, 1993 onwards, it was the stand of the Defendants that they in fact had paid the rent @ Rs. 500/- p.m. in advance upto September, 1993 and that the rent receipts for the months of April and May, 1993 showing the rent as Rs. 1500/- p.m. was not tenable. 8. According to the Defendants/Petitioners, they had paid the rent upto September, 1993 and thereafter deposited the monthly rent @ Rs. 500/- p.m. from October, 1993 to May, 1994 by way of adjustment from the aforementioned amount of Rs. 50,000/- with due intimation to the Landlord but no rent receipts were issued to him, but instead demanded vacation of the suit premises. Situated thus, the Defendants were compelled to deposit the monthly rent in the Court of the learned Civil Judge (Sr. 50,000/- with due intimation to the Landlord but no rent receipts were issued to him, but instead demanded vacation of the suit premises. Situated thus, the Defendants were compelled to deposit the monthly rent in the Court of the learned Civil Judge (Sr. Division) No. 1, Jorhat w.e.f. June, 1994 with due intimation to the Plaintiff. Such deposits were made @ Rs. 300/- p.m. being the part payment of the house rent w.e.f. June, 1994 and according to the Defendants/Petitioners the further sum of Rs. 200/- was to be adjusted every month from the advance amount of Rs. 50,000/-. Intimating the same, a registered letter dated 28.5.94 was addressed to the Plaintiff. The Defendants/Petitioners deposited the monthly rent from June, 1994 in the aforesaid Court vide Misc. NJ Case No. 283/2004 and thereafter through different miscellaneous N.J. Cases. Thus, according to the Defendants/Petitioners they are not defaulters in payment of rent and consequently there was no ground to institute the suit for their ejectment. 9. The learned Trial Court on the basis of the pleadings of the parties framed the following issues: 1) Whether there is cause of action for the suit of the Plaintiff? 2) Whether the Defendants are defaulter in payment of monthly rent in respect of the suit premises? 3) Whether the Plaintiff is entitled to a decree for khas possession of the suit premises upon eviction of the Defendant therefrom? 4) Whether the Plaintiff is entitled to recover the arrears of rent from shown in the Schedule 'B' of the plaint? 5) To what relief/reliefs, the parties are entitled to? 10. Thereafter evidences were adduced by both the parties. On the basis of the materials on record, the learned Trial Court decreed the suit in favour of the Plaintiff/opposite party. Being aggrieved, the Defendants/Petitioners filed the appeal before the learned District Judge at Jorhat who passed the judgment which is under challenge in this application. The appeal has been dismissed by judgment and order dated 7.12.2005 upholding the judgment and decree passed by the Trial Court on 19.8.2004 in the aforesaid Title suit No. 39/94. The appeal was registered and numbered as Title appeal No. 12/04. 11. I have heard Mr. K.K. Mahanta, learned Sr. counsel assisted by his junior Mr. Choudhury, learned Advocate for the Defendants/Petitioners. I have also heard Mr. N. Choudhury, learned Counsel representing the Plaintiff/opposite party. 12. According to Mr. The appeal was registered and numbered as Title appeal No. 12/04. 11. I have heard Mr. K.K. Mahanta, learned Sr. counsel assisted by his junior Mr. Choudhury, learned Advocate for the Defendants/Petitioners. I have also heard Mr. N. Choudhury, learned Counsel representing the Plaintiff/opposite party. 12. According to Mr. Mahanta, learned Counsel for the Petitioners, the Trial Court has not discussed the evidence on record in its proper perspective and the appellate Court failed to appreciate that aspect of the matter. He submitted that there being no evidence to show enhancement of rent, the Courts below could not have held the Petitioner to be defaulter in payment of rent. Referring to Section 5 of the Assam Urban Area Rent Control Act, 1972 and the definition of "standard rent", Mr. Mahanta, submitted that there being no proper enhancement of rent, the Courts below could not have held the Petitioners to be defaulter in payment of the same. He further submitted that proper issues were not framed by the Trial Court and the Appellate Court failed to appreciate the same. According to him the learned Appellate Court ought to have allowed the Petitioners to adduce additional evidence having regard to the facts and circumstances involved in the case and as was contended by the Petitioner. He placed reliance on the decision of the Apex Court reported in AIR 1984 SC 1744 O.P. Kathpalia v. Lakhmir Singh and Ors. 13. Countering the above arguments of the learned Counsel for the Petitioner, Mr. N. Choudhury, learned Counsel representing the Plaintiff/opposite party submitted that amidst the claim and counter claim regarding enhancement of the rent, the documentary evidence by way of two rent receipts would clinch the issue. Referring to Order 41 Rule 31 Code of Criminal Procedure, he submitted that the Appellate Court has passed the impugned judgment and order strictly following the requirement of the law. Referring to the points formulated by the Appellate Court towards appreciating the evidence on record and the judgment and decree passed by the learned Trial Court, he submitted that such appreciation of evidence made by the Appellate Court and the conclusion arrived at on that basis cannot be interfered with in revisional jurisdiction. Referring to the points formulated by the Appellate Court towards appreciating the evidence on record and the judgment and decree passed by the learned Trial Court, he submitted that such appreciation of evidence made by the Appellate Court and the conclusion arrived at on that basis cannot be interfered with in revisional jurisdiction. He has also referred to the affidavit filed on 24.3.2006 to show that even after decreeing the suit in favour of the Plaintiff/opposite party, the Defendants/Petitioners have failed to deposit the rent as required under the law and that on that score also the revision application is liable to be dismissed. He has placed reliance on the following decisions: 1) 1997 (2) GLT 590 Abdul Matin Choudhury v. Nityananda Dutta Banik 2) 1991 (1) GLJ 249 Shri Sudhir Ch. Deb v. Shri Parasuram Prasad Verma 3) AIR 1953 SC 23 Keshardeo Chamria v. Radha Kissen Chamria 4) (2002) 1 SCC 535 Madanlal v. Shyamlal 5) 2006 (1) GLT 479 Sobha Biswas v. Ranjit Lodh 14. I have considered the rival submissions of the learned Counsel for the parties and the materials on record. The core issue to be decided is as to whether there was enhancement of rent to Rs. 1500/- w.e.f. April, 1993 and as to whether the Defendants/Petitioners defaulted in payment of rent. From the facts narrated above, it is sent that as against the claim of the Plaintiff/opposite party that the rent was enhanced from April, 1993 and the Defendants/Petitioners defaulted in payment of rent, it is the case of the Defendants/Petitioners that the amount of Rs. 3000/- was paid to the father of the Plaintiff/opposite party as per his request and the same was to be adjusted towards payment of monthly rent upto September, 1993 @ Rs. 500/- p.m. According to the Petitioners there was no agreement for enhancement of rent. Having regard to the plea of the Defendants/Petitioners, the question necessarily arises as to why they accepted the rent receipts showing the monthly rent @ Rs. 1500/- p.m. for the months of April and May, 1993. After accepting the rent receipt for those two months wherein the monthly rent was indicated as Rs. 1500/-, they issued the registered letter dated 4.9.1993 contending inter alia, that in the rent receipts, the Landlord, by mistake, had shown that the rent had been paid upto May, 1993 @ Rs. 1500/- p.m. for the months of April and May, 1993. After accepting the rent receipt for those two months wherein the monthly rent was indicated as Rs. 1500/-, they issued the registered letter dated 4.9.1993 contending inter alia, that in the rent receipts, the Landlord, by mistake, had shown that the rent had been paid upto May, 1993 @ Rs. 1500/-, though in fact, the rent had been paid upto September, 1993 @ Rs. 500/- 15. I have verified the records. The letter dated 4.9.1993, has been exhibited as Exhibit No. 1 in the suit proceeding. In the letter, it was contended that as per the request of the Landlord, the Defendants/Petitioners paid Rs. 1500/- on 9.6.1993 and another Rs. 1500/- on 10.6.1993 towards monthly rent of the suit premises. It was further contended that the amount was paid towards monthly rent upto September, 1993 @ Rs. 500/- p.m. If that be so, it is not understood as to why the two rent receipts issued by the Landlord clearly stating the receipt of monthly rent @ Rs. 1500/- p.m. for the months of April and May, 1993 were accepted by the Defendants/Petitioners. The said two rent receipts marked as Exhibit- 7(67) and Exhibit No. 7(68) were issued on 9.6.1993 and there was no immediate reaction against the same on the part of the Defendants/Petitioners. Had there been any mistake in the rent receipts in showing the monthly rent as Rs. 1500/- for the months of April and May, 1993, there would have been immediate reaction from the Defendants/Petitioners and they would not have accepted the same. Instead, they accepted the same and it was only in the month of September, 1993 addressed the registered letter dated 4.9.1993 to the Landlord making the aforementioned contentions. It is in this context, learned Counsel for the Plaintiff/opposite party submitted that the two rent receipts vide Exhibit-7(67) and Exhibit-7(68) cannot be disbelieved so as to accept the subsequent plea of the Defendants/Petitioners. 16. As against the plea of the Defendants/Petitioners in their Exhibit-1 letter dated 4.9.1993 that they had deposited an amount of Rs. 50,000/- by cheque with the Landlord at the beginning of the tenancy, in their written statement, it was their stand that the amount of Rs. 50,000/- was paid in two terms, one by issuance of cheque of Rs. 25,000/-and another by way of cash of Rs. 25,000/-. 50,000/- by cheque with the Landlord at the beginning of the tenancy, in their written statement, it was their stand that the amount of Rs. 50,000/- was paid in two terms, one by issuance of cheque of Rs. 25,000/-and another by way of cash of Rs. 25,000/-. Thus, there is inherent contradiction in the stand of the Defendants in respect of the alleged payment of Rs. 50,000/-. 17. The Trial Court on the basis of the evidence on record and having noticed the contradictory stand of the Defendants/Petitioners, more particularly the contradictory statements in the depositions of the DW 1 and DW 2 answered the issue No. 2 in favour of the Plaintiff/opposite party holding the Defendants/Petitioners to be defaulters in payment of monthly rent in respect of the suit premises. The DW 2 in his cross examination stated that all the business transactions are maintained by him in writing, but particular transaction was admittedly not maintained by him and it was on that count, the learned Trial Court found his statements to be doubtful. Having regard to the two rent receipts showing the payment of monthly rent at Rs. 1500/- and the fact that thereafter the Defendants/Petitioners failed to deposit the rent, the Trial Court passed the decree in favour of the Plaintiffs/opposite party. 18. The Appellate Court in its detailed and reasoned judgment once again appreciated the evidence on record. Dealing with the issues framed by the learned Trial Court, the Appellate Court formulated as many as 7 points and upon a detailed discussion of the points in reference to the evidence on record has affirmed the judgment and decree passed by the Trial Court. As to how the plea of the Defendants/Petitioners that amount of Rs. 3000/- was paid as advance rent upto September, 1993 and not as rent for the months of April and May, 1993 is not believable has been discussed above. The Appellate Court has dealt with these aspects of the matter in detail. The amount of Rs. 3000/- was paid on 9.6.1993 and rent receipts were issued showing the payment of Rs. 1500/- each for the months of April and May, 1993. It is the definite case of the Plaintiff/opposite party that the rent was enhanced to Rs. 1500/- p.m. w.e.f. April, 1993. 19. The amount of Rs. 3000/- was paid on 9.6.1993 and rent receipts were issued showing the payment of Rs. 1500/- each for the months of April and May, 1993. It is the definite case of the Plaintiff/opposite party that the rent was enhanced to Rs. 1500/- p.m. w.e.f. April, 1993. 19. It appears that no evidence was adduced by the Defendants to prove the plea that the house rent was offered to the PW 1 in May, 1994 and that the same was refused by him which compelled the DW 1 to deposit the house rent in the Court through Miscellaneous N.J. Cases. Such alleged deposit was also made taking the ground that the balance amount of rent was to be adjusted against the advance deposit of Rs. 50,000/-. The DW 1 admitted the fact that after June, 1994, he had never offered any rent to PW 1. It has rightly been held by the Appellate Court that mere allegation of offer and refusal of house rent respectively by the tenant and the landlord will not be sufficient without any reliable evidence to be forwarded by the Defendants. Accordingly, it has been held by the Appellate Court that the Defendants/Petitioners were not justified in depositing the rent @ Rs. 300/- p.m. with the plea that the balance amount of Rs. 200/- was to be adjusted against the aforesaid amount of Rs. 50,000/-. 20. The Appellate Court on the basis of the evidence on record has held that the DW 1 deposited only a sum of Rs. 25,000/- by way of cheque with the Landlord as the security deposit refundable without any interest at the time of vacating the suit premises. Thus, the purported adjustment made was admittedly not within the purview of Section 5(4) of the Assam Urban Areas Rent Control Act, 1972. 21. Mr. N. Choudhury, learned Counsel for the Plaintiff/opposite party rightly submitted that the Defendants/Petitioners are to suffer the adverse consequence of non-payment of rent as envisaged under Section 5(4) of the aforesaid Act. In this connection, he has referred to the affidavit filed in this proceeding by the Plaintiff/opposite party as well as the certified copy of the orders passed in various Misc. M.J. Cases to which a reference may be made to Misc. M.J. Case Nos. 357/94,469/94,31/95,28/95,144/95,251/95,402/95,49/97 and 182/97. All these cases have been dismissed for not taking steps. In this connection, he has referred to the affidavit filed in this proceeding by the Plaintiff/opposite party as well as the certified copy of the orders passed in various Misc. M.J. Cases to which a reference may be made to Misc. M.J. Case Nos. 357/94,469/94,31/95,28/95,144/95,251/95,402/95,49/97 and 182/97. All these cases have been dismissed for not taking steps. Thus, although the Petitioners made the deposits of monthly rent @ Rs. 500/- which in fact, should be Rs. 1500/-, but in absence of steps being taken, all the N.J. Cases have been dismissed. 22. As per the requirement of Section 5(4) of the Act where the landlord refuses to accept the lawful rent offered by his tenant, the tenant may within the fortnight of its becoming due, deposit in Court the amount of such rent together with process fee for service of notice upon the landlord, and on receiving such deposit, the Court shall cause 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 upon application made by him to the Court in that behalf. A tenant who has made such deposits shall not be treated as a defaulter. 23. In the instant case, although the Defendants/Petitioners deposited rent as per their own plea of monthly rent being Rs. 500/-, but never took any step for service of notice on the Plaintiff/opposite party enabling the Court to issue notice to the Plaintiff/opposite party and thus, there was non-compliance of the procedure laid down in Section 5(4) of the Act. Thus, there is no escape from the liability of the Defendant/Petitioners from the consequence of being defaulter in payment of rent. 24. The decision on which Mr. Mahanta, learned Counsel for the Petitioner has placed reliance, i.e. O.P. Kathpalia (supra), is of no help to the case of the Petitioner. That was a case relating to determination of standard rent. Thus, there is no escape from the liability of the Defendant/Petitioners from the consequence of being defaulter in payment of rent. 24. The decision on which Mr. Mahanta, learned Counsel for the Petitioner has placed reliance, i.e. O.P. Kathpalia (supra), is of no help to the case of the Petitioner. That was a case relating to determination of standard rent. It was held that where law enables the tenant to move a petition for determination of standard rent and further confers power on the Court to determine interim rent so as to enable the tenant to deposit the future rent, the failure of the Court to give appropriate direction in this behalf would work serious hardship to the tenant, more so, where the Landlord has already filed a suit for eviction on the ground of default in payment of rent. In the instant case, the issue is as to whether the Defendants/Petitioners are defaulters in payment of rent and the same has been answered in the affirmative by both the Courts below and the conclusion arrived at by the Courts below have found favour of this Court. 25. In the case of Abdul Matin Choudhury (supra), his Court placing reliance on earlier decision of this Court has held that a tenant is deemed to be under all liabilities for payment of rent etc. in accordance with law all along, if he wants to avail the protection granted by Rent Control Legislation. Such protection granted to a tenant cannot be a one way traffic. The liability to pay rent shall subsist all throughout the proceedings even when the matter may be pending in the highest Court. If at any point of time, the Landlord by prudent manner can bring to the notice of the Court, that even during the pendency of the proceeding the tenant has failed to discharge his liability, a right shall spring up in favour of the Landlord to get a decree for ejectment on any of the grounds as incorporated in the Assam Urban Areas Rent Control Act, 1972. This case has been pressed into service to bring home the point of argument that the Defendants/Petitioners being defaulters in payment of rent even for subsequent months and years, the Plaintiff/opposite party is entitled to the decree of ejectment and/or to get the decree already passed executed. This case has been pressed into service to bring home the point of argument that the Defendants/Petitioners being defaulters in payment of rent even for subsequent months and years, the Plaintiff/opposite party is entitled to the decree of ejectment and/or to get the decree already passed executed. Having regard to the aforementioned fate of the N.J. Cases, this case duly supports the case of the plaintiff/opposite party. 26. As per the requirement of Section 5(4) of the Act, there must be evidence that there was refusal by the Landlord to accept the rent. In a series of cases, this Court has held that Section 5(4) of the Act is a mandatory provision and the tenant seeking direction under the provision must tender or offer due rent within fortnight of its falling due. The tender must be made which is pre-condition before depositing of rent in Court. The question of depositing the rent in Court comes only when the Landlord refuses to accept the rent. In the instant case, there is nothing to show that the Landlord refused to accept the rent and that the rent was deposited in the Court in conformity with the mandatory provision of Section 5(4) of the Act. This aspect of the matter has also been discussed in the aforesaid case of Abdul Matin Choudhury as well as in the case of Shri Sudhir Ch. Deb (supra). In this connection, the learned Counsel for the Plaintiff/opposite party has also referred to the decision of the Division Bench of this Court i.e. Sobha Biswas (supra). By this judgment the decision in Abdul Matin Choudhury (supra) has been affirmed. 27. The decision of the Apex Court in the case of Keshardeo Chamria (supra) has been referred to remind this Court about the scope and limit of the revisional jurisdiction towards re-appreciating the evidence on record. In the same context, the decision in Madanlal (supra) has also been referred wherein it has been held that even if the view taken is erroneous, it cannot be said that such order passed by the Trial Court could be interfered with U/s. 115 Code of Criminal Procedure. In the same context, the decision in Madanlal (supra) has also been referred wherein it has been held that even if the view taken is erroneous, it cannot be said that such order passed by the Trial Court could be interfered with U/s. 115 Code of Criminal Procedure. In the instant case, it cannot be said that the Trial Court as well as the Appellate Court acted with material irregularity in exercise of its jurisdiction and that the judgment and decree passed by the Courts below, if allowed, would occasion a failure of justice. As has been held in the case of Keshardeo Chamria (supra), the word "material irregularity in exercise of jurisdiction" did not cover either error of facts or law. 28. All the above decisions on which the learned Counsel for the Plaintiff/opposite party has placed reliance do find support to the case of the Plaintiff/opposite party. I have also examined the entire records of the case independent of the findings recorded by both the Courts below and I do not find any infirmity in the findings arrived at by the both Courts below warranting interference with the same. The revision application is devoid of any merit and consequently it is dismissed. 29. The Registry shall send down the case records to the Court below immediately after observing necessary formalities. Application dismissed