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2015 DIGILAW 1138 (GAU)

Kuber Prasad Gupta v. Parbati Devi & Anr.

2015-09-04

INDIRA SHAH

body2015
Heard Mr. S. Murarka, learned counsel for the petitioner and also heard, Mr. K. R. Surana, learned counsel for the opposite parties. 2. By filing this petition, under Section 115 read with Section 151 of the Code of Civil Procedure, 1908; the instant petitioner has challenged the judgment and decree dated 20.12.2010 passed by the learned Civil Judge, Tinsukia, in T. A. 23/2009, affirming the Judgment & Decree passed by the learned Munsiff No. 1, Tinsukia, in Title Suit No. 35/2007. 3. The opposite parties, as plaintiffs, filed the Suit for eviction of the petitioner from the suit premises, for recovery of vacant possession of the suit premises, also for arrear rents amounting to Rs. 27,800/- and also for compensation at the rate of Rs. 100/- per day since 01.07.2005. 4. Originally, the suit premises belonged to Mina Devi (since deceased), the petitioner/defendant came into occupation of the said premises in the month of May, 1998; as a tenant under Mina Devi. 5. The plaintiff's case is that the rent was fixed at the rate of Rs. 1500/- payable within 1st day of each succeeding English Calendar month. After the death of Mina Devi, her 2(two) daughters whom the defendant also attorns became the land ladies. However, since the month of August, 2004, the petitioner had defaulted in payment of rent of the suit premises. The plaintiffs asked him to vacate the premises and to pay the rent. Though the defendant agreed to vacate the premises by paying the rent, however, he, neither vacated the premises, nor, he paid any rent, thereafter. Hence, the plaintiffs filed the suit, aforesaid, for eviction of the defendant on the ground of defaulter and also on the ground that the suit premises was bona fide required for running the business by the son of the plaintiff No. 2. 6. The defendant contested the said Suit wherein he admitted the relationship of the landlord and tenants between the plaintiffs and defendants but denied that the rent of the said premises was fixed at Rs. 1500/- per month. According to him, there was no written agreement as such between the parties and as per oral argument; rent was fixed at Rs. 600/- per month. The same was payable in lump-sum for months together as per his convenience. He further pleaded that he paid rent upto 31.03.2005, regularly, but no rent receipt was issued by the plaintiffs. According to him, there was no written agreement as such between the parties and as per oral argument; rent was fixed at Rs. 600/- per month. The same was payable in lump-sum for months together as per his convenience. He further pleaded that he paid rent upto 31.03.2005, regularly, but no rent receipt was issued by the plaintiffs. In the month of June, 2005, when he tendered rent for the months of May & June, 2005, he asked the plaintiffs to issue rent receipts but the same was refused, therefore, he deposited the rents in the Court and since then, he has been depositing the rent in Court and he is not a defaulter. He denied that the plaintiffs ever asked him to vacate the possession of the suit premises or he promised to vacate the same. 7. Both the trial Court as well as the appellate Court held that the monthly rent of suit premises is Rs. 600/- and the defendant had to pay the arrear rent and compensation at the said rate of Rs. 600/- since August 2004. The trial Court also held that the suit premises is not bona fide required by the plaintiffs. Since there was no appeal from the plaintiff side, the appellate Court declined to interfere with the findings as regards the bona fide requirement of the premises. The current findings of both the Courts bellow have been challenged on the ground that the lower Court as well as the appellate Court failed to consider the fact that the plaintiffs never issued the rent receipts. Therefore, the finding in respect of defaulter is not correct and the impugned judgment and decree is liable to be set aside and quashed. 8. The Courts below also failed to consider the fact that on refusal of the plaintiff to accept the rent, the defendant has regularly depositing the monthly rent as per Section 5(4) of the Assam Urban Areas Rent Control Act, 1972, in the Courts, so he cannot be termed as defaulter. 9. Relying on the case of Hari Shankar Sahu v. Giridharilal Sarmah, reported in 1989(2) GLJ, 201, learned counsel for the petitioner, has submitted that the burden lies on the landlord, to prove that the rent became payable and was due and secondly, the tenant failed to pay the rent as stipulated within the specified period of a fortnight. 9. Relying on the case of Hari Shankar Sahu v. Giridharilal Sarmah, reported in 1989(2) GLJ, 201, learned counsel for the petitioner, has submitted that the burden lies on the landlord, to prove that the rent became payable and was due and secondly, the tenant failed to pay the rent as stipulated within the specified period of a fortnight. The cited case was under Assam Non-Agricultural Urban Areas Tenancy Act, 1955, and it was held that the word 'due' merely means payable. The landlord should establish when under the arrangement, the rent was payable and it could be said to be due so that if not paid within a fortnight, the tenant could be said to have committed default, for otherwise, it would not be possible or at least extremely difficult to determine as to when could it be said that the rent was due but had not been paid within a fortnight thereafter. 10. Similarly, in the case of Ram Karanji More v. Keshardev Jalan, reported in (1997) 1 GLR 33, it was held by this Court that regarding question of default, the law is that burden is on the landlord to prove on facts by adducing evidence that the tenant is a defaulter. 11. In another cited case of Swapan Kumar Saha v. Biswa Nath Surekha, 2014(1) GLT 252, this Court in Paragraph No. 25, held, as under: “25. As discussed above, there being evidence of strained relationship between the plaintiff/landlord and the defendant/ tenant and also as held above, there was offer or rent by the defendant/tenant to the plaintiff/landlord payable for the month of February, 1993, which was refused to be accepted by the landlord, the offer of the rent for subsequent months, before making deposit in Court, would be an idle formality. The deposit of rent in advance, after the initial deposit in Court on being refused to accept by the landlord when tendered, would, therefore, be a valid deposit, having regard to the facts and circumstances involved in this case. The said question having not arose for consideration in Bata India Ltd. (supra), said decision is not relevant in the content of the present issue.” 12. The said question having not arose for consideration in Bata India Ltd. (supra), said decision is not relevant in the content of the present issue.” 12. Per contra, learned counsel for the opposite parties, has submitted that the revisional jurisdiction of this Court, is limited and while exercising the same, this Court may not be re-appreciate the evidence merely because it is inclined to take a different view of facts as if it is a court of facts. He is relied in the case of Chandrika Prasad v. Umesh Kumar Verma & ors., reported in 2002 (1) SCC 531 , wherein the Apex Court, in Paragraphs No. 7 and 8, held, as under: “7. In a revision petition filed under proviso to the above sub-section (8) of Section 14 of the Act, the High Court has to satisfy itself as to whether the order of eviction passed under Section 14 of the Act was in accordance with law. The scope of the revisional jurisdiction depends on the language of the statute. Though, revisional jurisdiction is only a part of the appellate jurisdiction, it cannot be equated with that of a full-fledged appeal. 8. An identical provision contained in proviso to Section 25-B of the Delhi Rent Control Act, 1958 came up for consideration of this Court in Shiv Sarup Gupta V. Dr. Mahesh Chand Gupta. The Court held that the exercise of revisional jurisdiction by the High Court under this proviso is “for the purpose of satisfying if an order made by the Controller is according to law”. The Court further held that the revisional jurisdiction exercisable under the said proviso is not so limited as is under Section 115 CPC nor so wide as that of an appellate Court and the High Court cannot enter into appreciation or re-appreciation of evidence merely because it is inclined to take a different view of the facts as if it were a court of facts. The Court further held that the High Court, however, is obliged to test order of the Rent Controller on the touchstone of “whether it is according to Law” and for that limited purpose may enter into reappraisal of evidence for the purpose of ascertaining whether the conclusion arrived at by the Rent Controller is wholly unreasonable or is one that no reasonable person acting with objectivity could have reached on the material available.” 13. In the case of Keshab Ch. Singha & ors. v. Moulovi Abdul Matin Choudhury & ors., 2006(3) GLR 635, this Court, in Paragraph No. 7, held, as under: “7. The powers of this Court under Section 115 of the Code of Civil Procedure, is primarily limited to the question of jurisdiction. Interference with the judgment of the Court below in exercise of powers under Section 115 of the Code of Civil Procedure, is permissible when the subordinate court appears to have exercised a jurisdiction not vested in it by law or to have failed to exercise a jurisdiction so vested or to have acted in exercise of its jurisdiction illegally and with material irregularities.” 14. In the case of Arunamayee Bishaya & ors. v. Rabindra Borah & ors. 2008(1) GLT 421, there was denial of the fact that the rent was payable in the first week of every successive 3 months and it was held by this Court, in Paragraph No. 25, as under: “(25) Coupled with the above, it can also not be ignored that in their additional written statement, the defendants claimed that the previous owner of the suit premises was paid monthly rent regularly and, sometime, the previous owner used to receive two month's rent, at a time as per his wish. This admission made by the defendant's show that ordinarily, the rent was to be paid monthly and it was only on some occasions that the rent was received by the landlord for two months at a time. In the face of such pleadings, it cannot be said that the due date of payment of rent was not, ordinarily, within the first week of every succeeding month according to English Calendar.” 15. The appellant/defendant, in this case, have denied that there was any due date for payment of rent. In the cited case of Arunamayee Bishaya (supra), in Paragraphs No. 11, 12 and 13, this Court, held, as under: “(11).While considering the question as to whether the defendants could be proved to be defaulter or it is pertinent to note that the fact there was a relationship of landlord and tenant between the parties to the suit has not been in dispute nor has it been in dispute that he rent payable by the defendants, as tenant, to the plaintiffs, as landlord, was RS 175/- per month. What has, however, been in dispute is the due date of payment of rent. What has also been in dispute is the question as to whether the defendants had failed to pay to the plaintiffs the rent, which has fallen due or whether the defendants had deposited, in accordance with law, the rent, in the Court, when the rent, on becoming due, had been offered to the landlord and the landlord had refused to accept the rent, the rent, so offered. While considering this aspect of the case, it needs to be noted that the while the plaintiff's case is that the rent was payable within the first week of each succeeding month according to the English calendar, the defendants, case is that the rent was paid, in lump sum, for several months together, as and when the rent was demanded by the plaintiffs. It is, thus, an admitted position that the tenancy was a monthly tenancy and governed by the English calendar. Hence, in the absence of any agreement indicating to the contrary, rent, in a case of present nature, would become due and payable at the end of each month. (See Kamala Bakshi Vs. Khirati Lal, reported in (2000) 3 SCC 681 ). Unless, therefore, in the present case, the defendants are held to have proved, by the conduct of the landlord or otherwise, that he rents were being collected by the landlord for several months together, the landlord conclusion would be that since the tenancy is a monthly tenancy, the rent would become due and payable at the end of every succeeding month according to the English calendar. (12). A careful reading of sub-section (4) of Section 5 of the said Act shows that he right of a tenant to deposit rent in the Court arises, when a lawfully due rent is offered by him to the land lord and the landlord refuses to accept the offer of payment of such a lawfully due rent. Sub-Section (4) of Section 5 of the said Act also shows that on such refusal, the rent can be deposited within a fortnight of the rent having become due and that such deposit has to be together with the process-fees for service, of notice upon the landlord. Sub-Section (4) of Section 5 of the said Act also shows that on such refusal, the rent can be deposited within a fortnight of the rent having become due and that such deposit has to be together with the process-fees for service, of notice upon the landlord. The language used in sub-section (4) of Section 5of the said Act, makes it abundantly clear that it is only on refusal to accept the lawfully due rent offered by the tenant to his landlord that he tenant acquires the right to deposit the rent in the Court. If the rent does not become due and payable to the landlord and/or if such a lawfully due rent is not offered to be paid to the landlord and such offer is not declined by the landlord, the tenant would not be entitled to deposit rent in the Court. (13).It is also worth pointing out that when a landlord pleads that he has not been offered or paid rent and that the tenant is a defaulter, the onus shifts to the tenant to prove that he either paid the rent to the landlord or that he has deposited the rent, due and payable, in the Court, in terms of the provisions of the said Act. (See Kali Kumar Sen Vs. Makhal Lal Biswas (AIR 1969 A and N 66 (FB). In the face of such a clear position of law, it was the duty of the learned Courts below to satisfy itself whether the defendants could prove that they had paid to their landlord the rent, when the same had fallen due, or that they had offered to pay the rent, when the same had fallen due, and the same had fallen due, and that it was on the refusal of the landlord to accept the rent, so offered, that the defendants had deposited the rent in the Court and that such deposits was in accordance with the scheme of the said Act.” 16. The tenancy, in this case, was a monthly tenancy. The appellant/ defendant although pleaded that the rent was payable in lump-sum for months together, but, failed to establish that the rent was payable in lump-sum. The burden lies on the tenant to prove that the rent was payable in lump-sum. Admittedly, the appellant/defendant deposited the rent in the Court for 2/3 months together. The appellant/ defendant although pleaded that the rent was payable in lump-sum for months together, but, failed to establish that the rent was payable in lump-sum. The burden lies on the tenant to prove that the rent was payable in lump-sum. Admittedly, the appellant/defendant deposited the rent in the Court for 2/3 months together. Only because the defendant had deposited the rent for 2/3 months in the Court, that cannot establish that the rent was payable, in lump-sum. In view of the aforesaid decision of this Court, the trial Court as well as the appellate Court have rightly held that the petitioner is a defaulter in payment of rent as he failed to pay the rent on due date. 17. Considering the matter, in its entirety, this Court is of the considered opinion that this matter is devoid of merit. The instant Civil Revision Petition accordingly stands dismissed, however, without any costs.