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2015 DIGILAW 1405 (GAU)

Kalyan Sarma v. Umesh Chandra Bhuyan

2015-11-12

SUMAN SHYAM

body2015
Judgment : Heard Mr. D.K. Sarmah, learned counsel for the petitioner. Also heard Mr. P.K. Kalita, learned counsel appearing for the respondent. 2. This revision petition has been filed challenging the judgment and decree dated 02-06-2011 passed by the learned Civil Judge No. 1, Kamrup, Guwahati in Title Appeal No. 18/2009 setting aside and thereby reversing the judgment and decree dated 17-01-2009 passed by the learned Munsiff No. 1, Kamrup, Guwahati in Title Suit No. 59/2005 decreeing the suit for ejectment and recovery of arrear rent filed by the present petitioner as plaintiff. The brief facts leading to the filing of this revision petition is that the respondent as defendant had entered into a tenancy under the plaintiff/ landlord with respect to the schedule premises on condition of paying monthly rent @ Rs. 500/- and accordingly, a rent agreement was also executed by an between the parties on 24-08-1992 covering the period of tenancy from 01-09-1992 to 31-03-1996. As per the terms of the agreement, the defendant was permitted to use the tenanted premises as a ‘godown’ for the purpose of his business without any permission for using the same for residential purpose. Although after the expiry of rent agreement on 31-03-1996, there was no fresh agreement of tenancy executed by and between the parties yet, on the request of the defendant, he was allowed to continue in occupation of the tenanted premises until an alternative arrangement was made. It is the specific case of the plaintiff that although the defendant had regularly paid the monthly rent within the first week of the succeeding month yet, w.e.f. March, 2004 the defendant had failed to make due payment of the monthly rent as a result of which, he has become a defaulter in the eye of law. 3. The plaintiff has further stated that he being a Govt. servant has to remain outside Guwahati in connection with his job and therefore, he could not monitor the suit premises effectively. However, on the expiry of the agreement of tenancy, he had made several requests to the defendant to vacate the suit premises as the plaintiff wanted to make construction of a building in the said plot of land along with the adjacent vacant plot of land belonging to the plaintiff. However, on the expiry of the agreement of tenancy, he had made several requests to the defendant to vacate the suit premises as the plaintiff wanted to make construction of a building in the said plot of land along with the adjacent vacant plot of land belonging to the plaintiff. However, since the said request of the plaintiff failed to evoke any response, hence, he was compelled to institute Title Suit No. 59/2005 in the court of Civil Judge (Jr. Div.) No. 1, Kamrup, Guwahati, seeking a decree for ejectment and recovery of arrear rent from the defendant. 4. The defendant appeared and contested the suit filed by the plaintiff by raising number of formal pleas questioning the maintainability of the suit on technical grounds. On merit, the stand of the defendant is that he has been paying the monthly rent regularly to the plaintiff till the month of December, 2004 although no rent receipt had ever been issued by the plaintiff. On and from the month of January, 2005 the plaintiff had refused to accept the monthly rent from the plaintiff, as a result of which, he had been compelled to deposit the same by filing NJ cases before the court. While denying the case of the plaintiff, the defendant had prayed for dismissal of the suit. 5. Based on the pleadings of the parties, the learned Trial Court had framed 4 issues for trial which are as follows: 1. Whether there is cause of action for the suit? 2. Whether the defendant is a defaulter in payment of monthly rent? 3. Whether the suit premises is bonafidely required by the plaintiff? 4. Whether the plaintiff is entitled to the relief as prayed for? 6. During the course of the trial both sides adduced oral and documentary evidence. On the basis of materials available on record and on due consideration of the arguments made by and on behalf of the parties, the learned Trial Court had decided the issue No. 2 in favour of the plaintiff by holding that onus to prove the fact that the defendant was not a defaulter was upon him. Since the defendant has failed to prove the said fact by calling the records of the NJ cases, hence, the defendant was held to be a defaulter for non-payment of the rent. 7. Since the defendant has failed to prove the said fact by calling the records of the NJ cases, hence, the defendant was held to be a defaulter for non-payment of the rent. 7. As regards the issue No. 3 the learned Trial Court had recorded finding in respect of the said issue also in favour of the plaintiff holding that there was no evidence to show that the plaintiff had any other suitable land for residential purpose and he, being a Govt. servant, was entitled to recovery of possession of the suit land. Consequently, the suit filed by the plaintiff stood decreed with all the relief prayed for. 8. Being aggrieved by the judgment and decree dated 17-01-2009 passed by the Munsiff No. 1, Kamrup, Guwahati in Title Suit No. 59/2005 decreeing the suit of the landlord/ plaintiff, the defendant/ tenant had preferred the Title Appeal No. 18/2009 before the court of the learned Civil Judge No. 1, Kamrup, Guwahati. After hearing the learned counsel for the parties and on reappraisal of the evidence available on record, the learned First Appellate Court had reversed the findings recorded by the Trial Court in respect of issue Nos. 2 and 3, as a result of which, the plaintiff’s suit ended in dismissal. 9. Being aggrieved by the judgment and decree of the First Appellate Court rendered in Title Appeal No. 18/2009, the plaintiff/ landlord as petitioner has approached this Court by filing the instant revision petition. 10. Mr. D.K. Sarmah, learned counsel for the petitioner submits that the plaintiff in this case has not only laid the foundation in the pleadings contained in the plaint but has also lead evidence to prima facie prove that the defendant has become a defaulter w.e.f. the month of March, 2004 due to nonpayment of rent. Since it is the admitted position of fact that the defendant had been depositing the rent in the court by filing NJ cases w.e.f. the month of January, 2005, the burden of proving the fact that the defendant was not a defaulter in the eye of law was squarely upon him, which burden he has failed to discharge. By referring to a number of decisions rendered by this Court, more particularly, in the case of Nirmala Devi Choudhury legal heirs of Shankarlal Jajodia & Ors. Vs. Anandilal Jain reported in 2006 (2) GLT 816 and Arunamayee Bishaya & Ors. Vs. By referring to a number of decisions rendered by this Court, more particularly, in the case of Nirmala Devi Choudhury legal heirs of Shankarlal Jajodia & Ors. Vs. Anandilal Jain reported in 2006 (2) GLT 816 and Arunamayee Bishaya & Ors. Vs. Rabindra Kumar Bora & Ors. reported in 2008 (1) GLT 421, Mr. Sarmah submits that in order to avail the protection under Section 5(4) Assam Urban Areas Rent Control Act, 1972, the tenant would have to show that the rent having fallen due, was duly offered to the landlord. It is only upon refusal by the landlord to accept the rent offered by the tenant that the same can be deposited in the court by filing written up notice and adequate process fee. In the present case not to speak of any iota of evidence, there is no pleadings made by the defendant to the effect that rent was ever tendered to the plaintiff/ landlord which he had refused to accept. 11. On the question of bonafide requirement, Mr. Sarmah submits that the petitioner being in the service of a public sector bank is required to travel to various stations in connection with his job as and when he is transferred and as such, he is unable to monitor the suit premises on a regular basis. However, the petitioner is in requirement of the land under occupation of the defendant for the purpose of making construction of a building for his own use, and the necessary application seeking construction permission made by the petitioner before the concerned authority has also been produced in evidence by him. In such view of the matter the learned lower Appellate Court has committed manifest illegality in reversing the findings recorded by the Trial Court in respect of issue Nos. 2 and 3 by rejecting the plea of defaulter and bonafide requirement as setup by the plaintiff seeking a decree of ejectment. 12. Mr. P.K. Kalita, learned counsel for the defendant/ tenant, on the other hand submits that since the plaintiff has approached the court by filing the suit it is the duty of the plaintiff to prove and establish that the defendant is a defaulter. 12. Mr. P.K. Kalita, learned counsel for the defendant/ tenant, on the other hand submits that since the plaintiff has approached the court by filing the suit it is the duty of the plaintiff to prove and establish that the defendant is a defaulter. He submits that since the plaintiff has failed to plead or lead evidence to establish the due date for payment of rent, hence, there is no question of declaring the defendant as a defaulter and the plaintiff’s suit has been rightly dismissed by the lower Appellate Court by rejecting the plea of defaulter. He, further submits that Trial Court had committed manifest illegality in deciding the issue No. 2 in favour of the plaintiff merely on the grounds that the defendant has failed to call for the records of the NJ cases to prove his case notwithstanding the fact that there was no such requirement to do so under the law. Since the defendant had denied the case of the plaintiff and has taken a plea that on being refused, the defendant has been depositing the rent in the court since the month of January, 2005 and the rent depositing challans having been adduced in evidence, the finding of the Trial Court in respect of issue No. 2 is clearly erroneous and has been rightly interfered with by the learned First Appellate Court. 13. Mr. Kalita, further submits that the plaintiff has failed to make out a case showing his bonafide requirement in respect of the suit premises. The learned lower Appellate Court has rightly reversed the finding of the Trial Court in the said issue by holding that the suit premises was not required bonafide by the plaintiff. 14. I have considered the submission made by and on behalf of the parties and have also perused the materials available on record. The relationship of landlord and tenant between the plaintiff and the defendant is admitted. There is also no dispute regarding the fact that the defendant has continued to occupy the tenanted premises even beyond the period stipulated in the rent agreement dated 24-08-1992. Therefore, the material issues arising for decision in the facts and circumstances of the present case are the issue Nos. 2 and 3. 15. There is also no dispute regarding the fact that the defendant has continued to occupy the tenanted premises even beyond the period stipulated in the rent agreement dated 24-08-1992. Therefore, the material issues arising for decision in the facts and circumstances of the present case are the issue Nos. 2 and 3. 15. From a careful examination of the materials on record it is evident that the plaintiff has specifically pleaded in paragraph 6 of the plaint that the defendant had failed to pay rent for last one year starting from the month of March, 2004. Although the defendant has denied the said statement yet, in paragraph 17 of the written statement, the defendant had claimed to have deposited the monthly rent in the court w.e.f. the month of January, 2005. The averments made in paragraph 17 of the written statement is quoted below for ready reference: “17. That as regards the statements made in para 5 it is denied by the answering defendant, as these are absolutely false and incorrect statement of the plaintiff. The answering defendant had paid monthly rents regularly to the plaintiff till the month of December, 2004, although no rent receipt had ever been issued by the plaintiff. On and from the month of January, 05, the plaintiff with the malafied intention to evict the defendant from his tenanted premises had refused to accept the monthly rents from the defendants. Being compelled the defendant has been depositing the monthly rents of the suit premises in favour of the plaintiff before this Hon’ble Court, starting from N.J. Case No. 257/2005 on wards till date” 16. It further appears from the record that the plaintiff had lead oral testimony in support of pleadings in the plaint. However, during cross-examination there was no specific challenge to the statement made by the plaintiff alleging default on the part of the defendant w.e.f. the month of March, 2004. Once the plaintiff had succeeded in leading evidence to prima facie establish his case, the onus to disprove the case of the plaintiff by leading cogent evidence would shift upon the defendant in which case it would be the burden of the tenant/ defendant to lead evidence to prove that he has been paying rent regularly w.e.f. the month of March, 2004. A scrutiny of the evidence available on record goes to show that the tenant/ defendant has failed to lead sufficient evidence to prove and establish the said fact. 17. There is yet another aspect of the matter which requires mention in the facts and circumstances of the present case. It is the admitted position of fact that the rent was being deposited in the court w.e.f. the month of January, 2005. Therefore, unless the defendant succeeds in establishing that the deposit made in the court has been in accordance with the provisions of law, he cannot avail the benefit of the protection under Section 5(4) of the Act of 1972 for the deposits made from January, 2005 and would still be liable to be declared as defaulter at least w.e.f. January, 2005 if not from earlier. 18. Law is settled that for making a valid deposit of rent in the court as per Section 5(4) of the Act of 1972, the tenant must first tender the same to the landlord. The aforesaid law has been settled long back by this Court in the case of Rup Chand Daftary Vs. Ashim Ranjan Modak & Anr. reported in [2002] 2 GLR 402. The observation made by this Court in paragraph 6 is quoted herein below for ready reference. “6. The law in this point has been settled by the decision of the Apex Court reported in 1995 (Supp) (3) SCC Page 44 (Rameswarlal Chaudhury v. Ram Niranjan Mour). 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. This 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 V. Ganpatlal and another). This is a case under the Rajasthan Premises (Control of Rent & Eviction) Act and there also certain conditions were imposed to be complied with before the deposit of rent in court. There are other decisions of the Apex Court on this point and another recent decision is 1996(1) SCC 243 (Kuldeep Singh V. Ganpatlal and another). This is a case under the Rajasthan Premises (Control of Rent & 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 the deposit is made straightaway 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 land lord. The ingredients of subletting are two is nature.” 19. In the case of Nirmala Devi Choudhury (Supra) this Court has observed as follows: “13. The materials available on record, it is disclosed that even before the alleged deposit of the rent before the trial court, the tenant has not offered the rent to the plaintiff and on such refusal only, he has deposited the rent in the court. From the aforesaid discussions, it can safely be held that plaintiff has proved that the tenant/ respondent has not discharged his obligation under Section 5(4) of the Act that the rent in question were deposited in the court in accordance with aforesaid mandatory provisions of law. From the aforesaid discussions, it can safely be held that plaintiff has proved that the tenant/ respondent has not discharged his obligation under Section 5(4) of the Act that the rent in question were deposited in the court in accordance with aforesaid mandatory provisions of law. Accordingly, the finding of the learned courts below on issue No. 1 is not correct and the said finding was arrived at without considering the relevant provision of law and as such the said finding on issue No. 1 is set aside and it is held that defendant was a defaulter in payment of the suit rent of the suit premises. So far the issue No. 4 which relates to bonafied requirement, it was also on the evidence on record that the plaintiff requires the suit house for his own business after partition of the partnership firm and the said fact was proved by the plaintiff through PW 1, 2 and 3. The defendant/ respondent challenged the bonafide requirement of the suit premises interalia in the ground that the plaintiff has a godown in Rangia town itself and also started construction of the house wherein he can easily start his business and accordingly, the suit house is not required for his bonafied requirement. The learned appellate court on the question of requirement of such home for such bonafide requirement has not discussed the issue objectively. The learned appellate court rejected the contention on the ground that the plaintiff has constructed a three storied is building at Rangia town. The bonafied requirement is to be decided on objective consideration upon the proved facts.” 20. Again in the case of Arunamayee Bishaya (Supra) it has been observed as follows: “12. A careful reading of the sub-section (4) of Section 5 of the said Act shows that the right of a tenant to deposit rent in the court arises, when a lawfully due rent is offered by him to the landlord 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-fee 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-fee for service of notice upon the landlord. The language, used in sub-section (4) of Section 5 of 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 the 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.” 21. The analysis of the aforesaid judicial pronouncements leaves no room for doubt that once the tenant tenders the rent to the landlord on the same having fallen due and the landlord refuses the same, only then will the tenant be entitled to deposit the same in the court. If the rent is straightaway deposited in the court without first offering to the landlord or in contravention to the prescribed procedure as laid down by law then the tenant would not be entitled to the protection of Section 5(4) of the Act of 1972 and would be liable to be declared as a defaulter. In the instant case, save and except making a omnibus statement that rent has been deposited in the court on being refused by the landlord, no material facts or particulars, whatsoever, has been given either in the written statement or during the course of trial to show that the rent was ever tendered to the landlord/ plaintiff and that the same was refused by him. As such, I am of the considered opinion that this is a clear case where the deposit of rent made by the defendant w.e.f. the month of January, 2005 was done without following the due process of law. Hence, the respondent/ defendant had become a defaulter atleast w.e.f. January, 2005 if not w.e.f. March, 2004. As such, I am of the considered opinion that this is a clear case where the deposit of rent made by the defendant w.e.f. the month of January, 2005 was done without following the due process of law. Hence, the respondent/ defendant had become a defaulter atleast w.e.f. January, 2005 if not w.e.f. March, 2004. Such being the position, the finding recorded by the learned First Appellate Court with regard to the issue No. 2 is clearly erroneous on the face of the record and the same would stand reversed. 22. As to the question of bonafide requirement of the suit premises, it is not in dispute that the petitioner is a job holder who is required to travel from place to place in connection with his service. It is not the case of the defendant that the plaintiff has an alternative piece of land wherein he can reside with his family. Once the plaintiff has adduced evidence in the form of an application made before the concerned authority seeking construction permission, the learned lower Appellate Court ought to have considered the same in a objective manner having regard to the background of the petitioner vis-à-vis his future requirements keeping in mind the fact that the plaintiff is approaching his age of superannuation. The said aspect of the matter has been appropriately considered by the learned Trial Court while recording finding in respect of issue No. 3. However, the learned First Appellate Court had reversed the said finding of the Trial Court by holding that the plaintiff has failed to prove that the suit premises is “temporary in nature” and that no construction permission has already been obtained by the plaintiff from the GMDA till date. In the facts and circumstances of the case, insisting upon the aforesaid conditions by the learned Appellate Court, in my considered opinion would amount to stretching the requirement for the proof of bonafide requirement to an irrational limit. I am, therefore, of the opinion that the findings and conclusion recorded by the learned lower Appellate Court as regards issue No. 3 is not sustainable in the eye of law and hence, the same is also reversed. In view of the reasons and discussions made hereinbefore, I am of the considered view that this revision petition must succeed and accordingly, the same stands allowed. In view of the reasons and discussions made hereinbefore, I am of the considered view that this revision petition must succeed and accordingly, the same stands allowed. The judgment and decree passed by the lower Appellate Court is hereby set aside. Consequently, the judgment and decree passed by the Trial Court stands affirmed. Prepare a decree accordingly. Having regard to the facts and circumstances of the case, there would be no order as to cost. Send back the records.