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2015 DIGILAW 165 (GAU)

ASHOK KUMAR SARAWGI v. BAIJNATH BISWANATH

2015-02-12

HRISHIKESH ROY

body2015
ORDER (ORAL) Heard Mr. S.P. Roy, the learned counsel appearing for the petitioner (plaintiff) (hereinafter referred to as the “landlord”). The respondents (tenants) are represented by the learned Sr. counsel Mr. M.K. Choudhury. 2. The Title Suit No.237/1997 was filed for ejectment of the tenant and also for recovery of arrear rent. After WS was filed by the tenant, the following 5(five) issues were framed by the Trial Judge:- “1) Whether the suit is barred by limitation? 2) Whether the defendants are defaulters in payment of rent with regard to the suit premises? 3) Whether the suit premises is bonafide required by the plaintiff? 4) Whether the plaintiff is entitled to a decree as prayed for? 5) To what other relief or reliefs the parties are entitled to?” 3. Through the judgment dated 20.01.2000, the learned Civil Judge (Sr. Division) No.2, Kamrup, Guwahati, found that the tenant defaulted in payment of rent for the month of January, 1996 and decided the Issue No.2 against the tenant. On the bonafide requirement claimed by the landlord to use the premises for starting new business, the Trial Court decided the issue against the landlord. Therefore on the basis of the defaulter finding, the suit was decreed by ordering ejectment of the tenant with further direction to recover the arrear rent. 4. The Title Appeal No.3/2000 was filed by the aggrieved tenant and the learned Addl. District Judge, Kamrup, Guwahati, through the judgment dated 25.02.2002 (Annexure-15) reversed the ejectment decree with the contrary finding that the tenant is not a defaulter. But the Appellate Court failed to record any finding on the cross objection on bonafide requirement of the landlord. The landlord was however permitted to claim the arrear rent at the enhanced rate of 10% increase w.e.f. January, 1996. 5. Aggrieved by the direction for payment of enhanced rent, the tenant filed the CRP No.107/2002 and on the reversal of the ejectment decree, the tenant filed the CRP No.181/2002 and both cases were disposed of on 21.07.2005 (Annexure-18) by this Court. It was found by the Revisional Court that as the final Court on facts the Appellate Court should have marshaled all the evidence and it should have also framed the points for determination under Order XLI Rule 31 of the CPC and record its finding on those issues framed by the Court. It was found by the Revisional Court that as the final Court on facts the Appellate Court should have marshaled all the evidence and it should have also framed the points for determination under Order XLI Rule 31 of the CPC and record its finding on those issues framed by the Court. But since requisite formulation was not done by the Appellate Court and the appeal was decided without consideration of the cross objection of the landlord, the judgment of the Appellate Court was quashed and the case was remanded for fresh hearing and decision. While remanding the matter, the Court specifically directed that the admissibility of the cross objection of the landlord, should be considered by the Appellate Court. 6. After remand of the matter, the learned Addl. District Judge through the impugned judgment dated 17.07.2006 (page-143) reiterated its earlier finding that the tenant is not a defaulter. The bonafide requirement pleaded for ejectment was answered against the landlord. On the issue of non-payment of the enhanced rent under clause (4) of the lease agreement dated 18.02.1988 (Exbt.-1), the Appellate Court held that the landlord did not demand increased rent despite the provision for 10% increase every 5(five) years under clause (4). Accordingly the landlord was found to have waived his right to claim rent at enhanced rate and on this basis, the rent increase under clause (4) of the Exhibit-1 agreement, was answered against the landlord. With these findings, the tenant’s appeal was allowed, but unfortunately even on the 2nd round, there was no discussion on the merit of the cross objection of the landlord, despite the specific direction in the Court’s remand order dated 21.07.2005 (Annexure-18). 7.1 Assailing the legality of the Appellate Court order, Mr. S.P. Roy, the learned counsel submits that the tenancy was covered under the lease agreement dated 18.02.1988 (Exbt.-1), where it was incorporated that Rs.1 lakh (which was advanced by the tenant to the landlord), is to be adjusted with Rs.750/- p.m., towards the monthly rent of Rs.1,751/- and the balance monthly rent of Rs.1,001/- is to be paid in cash by the tenant to the landlord. The adjustment of Rs.750/- p.m. will continue till the advance of Rs.1 lakh is fully liquidated irrespective of any increase of the monthly rent in future. The adjustment of Rs.750/- p.m. will continue till the advance of Rs.1 lakh is fully liquidated irrespective of any increase of the monthly rent in future. Increment of rent was envisaged under clause (4), which provided 10% increase after expiry of every 5(five) years of tenancy. Placing reliance on the tenancy clauses, the counsel contends that the tenant’s plea of the rent being adjusted against the balance of the advance of Rs.1 lakh is not tenable since clause (3) envisaged payment of Rs.1,001/- monthly rent and adjustment of only Rs.750/- p.m. is permitted, for liquidating the advance. 7.2 On the rent deposited in Court, the landlord’s counsel refers to the evidence of the DW Bimal Kumar Goenka, a partner of the defendant No.1 firm and he projects that the tenant didn’t tender any rent whatsoever after February, 1996 and therefore the direct deposit of the rent in Court through the N.J. cases will not protect the tenant, under Section 5(4) of the Assam Urban Areas Rent Control Act, 1972 (hereinafter referred to as the “Rent Act”). It is further argued that for all subsequent months, the rent was never first offered to the landlord and therefore the deposit of rent in Court without mentioning the date on which rent was tendered to the landlord will not protect the defaulting tenant. Moreover, the process fee and the written up notices were never issued in the rent deposit cases and because of this irregularity, the legal requirements are not met by the tenant. 7.3 The landlord contends that under the lease agreement dated 18.02.1988 (Exbt.-1), the tenant is obliged to offer the monthly rent within the first week of each subsequent month against valid and proper receipt and occasional belated acceptance of the rent does not alter the obligation of the tenant, to tender the rent within the first week of each month. 7.4 The learned counsel for the petitioner also argues that 10% increase of monthly rent after expiry of every 5(five) years of tenancy is automatic as the clause (4) of the agreement did not require the landlord to demand the enhanced rent and therefore the finding of waiver of enhanced rent by the landlord as found by the Appellate Court is challenged by the petitioner. 7.5 Projecting further that a cross objection under Order XLI Rule 22 of the CPC was filed by the landlord and there was a specific direction in this Court’s remand order, the landlord argues that the cross objection should have been properly decided by the Appellate Court and in the absence thereof, the judgment is vitiated. 8.1 Representing the tenant, Mr. M.K. Choudhury, the learned Sr. counsel submits that on the issue of defaulter, the Appellate Court considered the conduct of the landlord that he failed to demand the increased rent after 5(five) years of tenancy and therefore his conduct amounts to waiver and consequently the tenant was rightly found to be a non-defaulter for his failure to tender the increased rent. 8.2 Referring to the submission of the tenant on the adjustable advance of Rs.1 lakh, Mr. Choudhury argues that when balance of Rs.28,000/- remained to be liquidated, the tenant cannot be held to be a defaulter for not tendering the rent as the landlord instructed that the rent need not be paid until the entire advance amount is liquidated. 8.3 The bonafide requirement pleaded by the landlord in his cross objection and also in the plaint is contended to be rightly rejected by both Courts below on the ground that, the landlord failed to adduce any tangible evidence to prove his intention to start his own business in the tenanted premise. 8.4 On the rent receipt(s) and the absence of dates on some of them, the tenant contends that there was no fixed date for tendering rent and it was accepted through mutual understanding despite the stipulation in clause (3) of the agreement and accordingly it is argued that the tenant is rightly found to be a non-defaulter for not tendering the rent by the first week of each succeeding month, as provided under clause (3) of the agreement. 9. In tenancy cases where the Revisional power under Section 115 of the CPC is invoked, since the decision of the Appellate Court on findings of fact is final under Section 8 of the Rent Act, the Court must test the legality of the challenge within the contour of powers of the Revisional Court. 9. In tenancy cases where the Revisional power under Section 115 of the CPC is invoked, since the decision of the Appellate Court on findings of fact is final under Section 8 of the Rent Act, the Court must test the legality of the challenge within the contour of powers of the Revisional Court. Only when there is a jurisdictional error and the finding is wholly unreasonable and not based on the evidence in the case and therefore perverse, interference of the Revisional Court will be justified in such matters. 10. Proceeding with the above understanding, the first thing that strikes the Court in the impugned judgment is the absence of any discussion on the cross objection of the landlord on rejection of his plea on bonafide requirement. When the cases were remanded in the previous round on 21.07.2005, the lower Appellate Court was specifically directed to decide the case afresh, by recording its findings in accordance with Order XLI Rule 31 CPC after due consideration of the appeal and the cross objection. But despite the specific direction in the remand order and the legal requirement, there was no discussion on the merit of the cross objection, by the Appellate Court. 11. The next thing to be decided is the implication of clause (3) and (4) of the tenancy agreement (Exbt.-1) and therefore the stipulations are extracted for ready reference:- “3. That the Landlord has taken an advance of Rs.1,00,000/- (one lakh) as before-stated from the tenant and the same will be adjusted towards the monthly rent of Rs.1,751/- at the rate of Rs.750/- (Seven hundred fifty) only per month and the balance amount of Rs.1,001/- (one thousand one) will be paid in cash by the tenant to the Landlord. The monthly rent shall be payable within 1st week of each subsequent month against valid and proper receipt issued by the landlord or by his authorized agent and representative. The said adjustment of Rs.750/- per month will continue till the advance of Rs.1 (one) lakh is fully liquidated irrespective of any increase in the monthly rent in future. 4. That there will be an increase in the monthly rent payable at present by the tenant, at the rate of 10% after the expiry of every 5(five) years of the tenancy.” 12. 4. That there will be an increase in the monthly rent payable at present by the tenant, at the rate of 10% after the expiry of every 5(five) years of the tenancy.” 12. Under clause (3) of the agreement dated 18.02.1988, only Rs.750/- p.m. is to be adjusted to liquidate the advance of Rs.1 lakh paid by the tenant to the landlord and it was specifically provided that the balance monthly rent will be tendered within the first week of each subsequent month. But although there is no dispute on the applicability of the agreement (Exbt.-1), the Appellate Court held that the tenant is not a defaulter only because he pleaded that, until the entire advance amount is liquidated, the rent need not be tendered. 13. That apart, under clause (3), both parties mutually agreed that the rent shall be payable within the first week of each subsequent month and thus the tenant has the legal obligation to tender the rent in due time. Here just because rent was occasionally accepted even after the due date, the indulgence shown by the landlord does not permit the tenant to offer rent on any date, contrary to the stipulation made in clause (3) of the written agreement. [See: Ram Karanji More Vs. Keshar Dev Jalan reported in 1996(II) GLT 526] 14. The DW-1 in his evidence claimed that when he offered the rent for January 1996, the landlord informed him to not to tender any rent till the remaining advance of Rs.28,000/- is liquidated. Because of this, the tenant did not tender any rent from February 1996 to April 1997 when he made an offer to pay Rs.16/- to the landlord, as the balance of the advance amount. From this testimony of the defendant, it is clear that he failed to tender rent at least from February 1996 to April 1997 and the implication of this stand on the tenant’s status is now to be considered. 15. When the tenancy is governed by a written agreement stipulating the time for rent payment and how the advance is to be liquidated (by what amount each month), the protection to the tenant under the Rent Act cannot be legally extended when rent is admittedly not tendered. Yet the learned Appellate Court by ignoring the tenant’s own evidence, reached an unreasonable conclusion on the tenant not being a defaulter. 16. Yet the learned Appellate Court by ignoring the tenant’s own evidence, reached an unreasonable conclusion on the tenant not being a defaulter. 16. The landlord in his evidence as PW-1 admitted that due to oversight he did not demand the increased rent after expiry of 5(five) years of tenancy. But he also testified that in January 1996, he demanded the increased rent from the tenant. But despite the landlord’s demand, the increased rent was never tendered and even today, only the originally fixed rent is being deposited in Court. Therefore, the Appellate Court failed to exercise its jurisdiction and acted with material irregularity, in not considering the implication of failure of the tenant, to tender the increased rent, despite the January 1996 demand of the landlord. 17. While claiming protection under Section 5(4) of the Rent Act, the tenant must produce evidence that there was refusal by the landlord and therefore he deposited rent in Court. Moreover the date of refusal must be written in the tenant’s application and deposit should be made together with process fee for service of notice on landlord and also written up notices. [See: Abdul Matin Choudhury Vs. Nilyananda Dutta Banik reported in 1997(II) GLT 590]. But here the tenant failed to take requisite steps in the rent deposit cases. Moreover the treasury challans for various months do not contain the seal of the bank. These significant omissions were overlooked by the Appellate Court in giving the non-defaulter verdict in favour of the tenant. The deposit of rent in Court was not in accordance with the laid down procedure envisaged in Abdul Matin Choudhury (supra) and this was overlooked by the Appellate Court. 18. On the tenant’s plea on waiver by the landlord, it must be observed that this tenancy is governed by the written agreement dated 18.02.1988, which envisages monthly rental payment and adjustment towards advance is limited to only Rs.750/- p.m. Therefore the non-default finding given by the Appellate Court is inconsistent with the legal obligation of the tenant, enunciated in Raminder Singh Sethi Vs. D. Vijayarangam reported in (2002)4 SCC 675 [2002 AIR SCW 2152]. In this case, the Court discussed the purpose of advance rent and declared that the tenant remains liable to pay rent month by month, regardless of the advance amount available with the landlord. 19. D. Vijayarangam reported in (2002)4 SCC 675 [2002 AIR SCW 2152]. In this case, the Court discussed the purpose of advance rent and declared that the tenant remains liable to pay rent month by month, regardless of the advance amount available with the landlord. 19. The Appellate Court while re-considering the ejectment decree of the Trial Court, ought to have given its judgment in accordance with Order XLI Rule 31 CPC, by deciding the points for determination, giving decisions thereon with supporting reasons. But in the instant case, the impugned judgment doesn’t satisfy the requirement of Order XLI Rule 31 CPC. Moreover, there was no determination of the cross objection filed by the landlord. 20. The core issue here is whether the contracting parties can deviate from the terms of the agreement as the right to receive and the obligation to pay rent, arise out of that agreement. When the written agreement states that this amount of rent is payable by such date and only Rs.750/- each month will be adjusted to liquidate the advance and Exhibit-1 is not disputed by either party, the projection to the contrary made by the defendant through verbal testimony shouldn’t have been accepted. In doing so the Appellate Court in my view acted illegally and with material irregularity. 21. The increased rent was demanded albeit belatedly by the landlord but this was never tendered. Significantly with the plea of adjustment towards balance advance, the tenant stopped paying rent to the landlord. Moreover the defendant didn’t deposit the rent in Court through due process as ordained by law and some of the documents in the rent deposit cases are not believable. Yet a no default finding was rendered which according to me amounts to ignoring crucial evidence and in the process the Court failed to exercise its jurisdiction as a final Court of facts under the Rent Act. 22. For the aforesaid discussion and reason, the judgment and decree dated 17.07.2006 in the Title Appeal No.3/2000 rendered by the learned Addl. District Judge, Kamrup, Guwahati, is held to be unsustainable and the same is therefore quashed. Since vital evidence was overlooked for the impugned conclusions, the case is remanded back for a fresh decision on the basis of the available evidence. District Judge, Kamrup, Guwahati, is held to be unsustainable and the same is therefore quashed. Since vital evidence was overlooked for the impugned conclusions, the case is remanded back for a fresh decision on the basis of the available evidence. But due care must be taken by the learned Appellate Court to give its verdict in accordance with Order XLI Rule 31 CPC on the appeal as well as on the cross objection. To facilitate fresh exercise, the parties are directed to appear before the Appellate Court on 16.03.2015. The Registry is accordingly directed to immediately return the LCR along with a copy of this order to the concerned Court. 23. With the above order, the case stands allowed without any order on cost.