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Gauhati High Court · body

2015 DIGILAW 629 (GAU)

Jagdish Prassad Agarwala v. Madanlal Dugar

2015-05-26

HRISHIKESH ROY

body2015
JUDGMENT Heard Mr. O.P. Bhati, the learned counsel appearing for the petitioners (tenants), against whose predecessor Jagdish Prassad Agarwala, the ejectment suit was filed by the respondents. Also heard Mr. R.C. Sancheti, the learned counsel appearing for the respondents (landlords). 2. The godown covered by Holding No.65 in Ward No.29 at Fancy Bazar, Guwahati was let out to the defendant under the tenancy agreement dated 13.8.1987. The monthly rent for the godown was fixed at Rs.2300/-, payable within the 1st week of every succeeding month with provision for escalation of rent by 15%, in a five yearly circle. The applicable rent was Rs.3041/- P.M. when the ejectment proceeding was started on the ground of rent default under the Assam Urban Areas Rent Control Act, 1972 (hereinafter referred to as ‘the Rent Act’). According to the pleadings in the Title Suit No.242/1998, the rent was being regularly paid until March, 1998 but since April, ’98 till filing of the suit, the rent remained unpaid. While seeking ejectment the plaintiff also applied for recovery of arrear rent of Rs.21,287/- and future rent from November, ’98 till recovery of possession of the tenanted godown. 3. In his written statement (W.S.), the defendant contended that he is not defaulter since rent was payable on demand by the plaintiffs and the requirement of paying rent within 1st week of subsequent month as stipulated in Clause 6 of the tenancy agreement of 13.8.1987 (Exhbt.1) was waived and modified by the conduct of the parties. According to the tenant, the landlords used to send rental bills and then the rent was paid the by cheque for which receipts are issued. But since the plaintiffs did not submit any bill from April to October, 1998, the tenant on his own, tendered the 7 months rent by the cheque No.373681 dated 20.11.1998 for Rs.21,287/-, drawn on the Federal Bank Ltd. But the plaintiffs did not issue any receipt for the said cheque. Since bills were not raised for the month of November, ’98 also, the defendant paid the rent of Rs.3,041/- for this month, through another cheque dated 13.12.1998. But since receipt was not issued and rent for the month of December, ’98 was refused, the tenant deposited the rent in Court for the subsequent months under the provisions of the Rent Act. But since receipt was not issued and rent for the month of December, ’98 was refused, the tenant deposited the rent in Court for the subsequent months under the provisions of the Rent Act. The tenant pleaded that upon acceptance of the cheque of Rs.21,287/- on or about 20.11.1998 (rent dues from April to October, 1998) and the 2nd cheque for Rs.3,041/- on or about 13.12.1998 (rent for November, ’98), no default of rent can be attributed and therefore the tenant can’t be evicted. 4. On the basis of the pleadings of the parties, the learned Civil Judge (Sr. Division), No.3, Kamrup, Guwahati formulated the following six issues:- 1. Whether the suit is maintainable in its present form? 2. Whether there is any cause of action for the suit? 3. Whether the suit is hit by the principles of estoppels, waiver and acquiescence? 4. Whether the defendant is a defaulter in respect of payment of rent for demanded suit premises? 5. Whether the plaintiffs are entitled for a decree as prayed for? 6. To what other relief the parties are entitled? 5.1. The learned Trial Judge considered the evidence and declared that the suit is maintainable and that there is cause of action for the ejectment suit. On whether the suit is hit by the principles of estoppel, waiver and acquiescence? (3rd issue), the learned Court examined the Exhibits A—Q and also the testimony of the PW.1 and DW.1. The Court noted that rent was not being realized as per Clause 6 of the tenancy agreement of 13.8.1987 (Exhbt.1) and observing the prevalent practice it was held that the plaintiff can’t claim that rent was payable within the 1st week of the succeeding month and therefore this issue was answered against the landlord. 5.2. On the key issue of rent default (Issue No.4), the Trial Judge noted the evidence of the two witnesses. In his deposition, the DW.1 stated that he is the son and also the attorney holder of the defendant. In his cross-examination, the DW.1 stated that plaintiffs used to raise bills and collect rent until March, ’98 but for the next 2/3 months, the landlord did not issue any bills as per the prevalent practice. Therefore the witness himself went to the plaintiff and requested him to submit the rental bills. In his cross-examination, the DW.1 stated that plaintiffs used to raise bills and collect rent until March, ’98 but for the next 2/3 months, the landlord did not issue any bills as per the prevalent practice. Therefore the witness himself went to the plaintiff and requested him to submit the rental bills. However he was told that since the landlord’s Accountant is not available, the bills will be submitted later. The DW.1 again visited the plaintiffs 1½ months later but the landlords did not accept the rent. But on advice of his father (defendant), the DW.1 handed the account payee cheque towards the rent of April—October, 1998. He denied the suggestion that the cheque was never tendered to the plaintiffs or that the witness deposited the cheque himself in the landlord’s Bank Account. The witness also proved that the rent for the month of September, 2000 was deposited in Court on 3.10.2000 and similarly the rent for October, 2000 was deposited in Court on 14.11.2000. However the witness was unsure as to whom he had handed over the rental cheque. 5.3. After noting the above evidence, the Court opined that when the plaintiffs refused to accept the rent from the DW.1 for the 7 months, the tenant should have deposited the rent in Court within a fortnight of the last day of the month of refusal, as provided under Section 5(4) of the Rent Act and since this was not done and instead rent for several months was tendered, the tenant was held to be a defaulter. On the basis of this finding, the learned Trial Court through its judgment dated 24.12.2001 (Annexure-B), ordered for ejectment by granting two months time to the tenant, to vacate the suit godown. 5.4. The aggrieved tenant then filed the Title Appeal No.4/2007, where the learned Addl. District & Sessions Judge (FTC) No.1, Kamrup, Guwahati elaborately considered the defaulter issue. The Appellate Court noted the Clause 6 of the tenancy agreement and held that the stipulation for rent payment stood modified by the practice of the parties and rent became payable on demand. The Court also noted that if the arrear rent for April—October, 1998 was tendered by cheque, the tenant should have insisted for receipt and since the rent was refused, the tenant ought to have deposited the refused rent in Court. 6. The Court also noted that if the arrear rent for April—October, 1998 was tendered by cheque, the tenant should have insisted for receipt and since the rent was refused, the tenant ought to have deposited the refused rent in Court. 6. Noticing that the defendant/tenant failed to enter the witness box to testify in support of his case and instead his attorney holder Praveen Kumar Agarwala testified as the DW.1, the Court held that the opportunity of cross-examining the tenant was thus denied. Moreover for the pleaded case of the defendant, the DW.1 was incompetent to depose on the transaction between the landlord and the tenant. The Court also found the tenant to be defaulter of rent for the month of September, 2000 as this month’s rent was deposited in Court on 3.11.2000, whereas the Civil Court re-opened on 30.10.2000 after the Puja Vacation. Thus the defaulter finding of the Trial Court was upheld by the Appellate Judge and through the impugned judgment dated 9.7.2009 (Annexure-A) in the Title Appeal No.4/2007, a concurrent ejectment decree was passed against the tenant, leading to the present Revision Petition. 7.1. Mr. O.P. Bhati, learned counsel submits that the defaulter conclusion is incorrect since the rent for April—October, 1998 tendered by cheque was accepted by the landlord. Moreover as this amount was debited from the tenant’s Bank Account, the Court should presume lawful tendering of rent and acceptance thereof by the landlord for these 7 months. In so far as the rent for September, 2000 is concerned, Mr. Bhati submits that this rent was deposited in Court on 3.11.2000 soon after the Court re-opened on 30.10.2000 after the Puja Vacation and he pleads that only because of this 3 days’ nominal delay, the tenant should not be held to be a defaulter. 7.2. The learned counsel submits that the cheque for Rs.21,287/- was debited from the defendant’s Bank Account and unless it was proved that the landlords had no role in depositing that cheque in their own Account, the tenant can’t be held to be a defaulter. Projecting that the DW.1 is the son and also the attorney holder of the tenant, Mr. Bhati submits that the witness was competent to testify on the transaction between the landlord and the tenant and accordingly it is argued that the Appellate Court erred in ignoring the evidence of the DW.1. 8.1. On the other hand, Mr. Projecting that the DW.1 is the son and also the attorney holder of the tenant, Mr. Bhati submits that the witness was competent to testify on the transaction between the landlord and the tenant and accordingly it is argued that the Appellate Court erred in ignoring the evidence of the DW.1. 8.1. On the other hand, Mr. RC Sancheti, the learned counsel submits that when the tendered rent was refused by a landlord, the tenant is obliged to deposit the rent in Court within a fortnight of its becoming due, under Section 5(4) of the Rent Act and in this case, the tenant never deposited the rent for April—October, 1998 in Court after it was refused by the landlord. Therefore it is argued that the tenant is not entitled to any protection under the Rent Act and he must face the consequences of being defaulter. 8.2. The respondents contend that the pleaded case of the tenant is that he himself tendered the rent for the concerned months to the landlord and no receipt was issued for the cheque tendered by the tenant. Therefore it is argued that the DW.1 could not have testified about what the defendant did. Moreover contrary to the defendant’s pleaded role, his attorney holder as the DW.1 testified as if it was the witness who tendered the rent to the landlord. Therefore it is argued that the evidence of the DW.1 being inconsistent with the defendant’s pleaded case was rightly disbelieved by the Appellate Court. 8.3. The evidence of the DW.1 being relevant is extracted as follows: “ ……………………….. Plaintiff used to submit bill and then we have to collect the rent and have used to pay the rent. Plaintiff issued the bill till March, 98. After the month of March, 98 no bill was submitted. After 2 or 3 months I went to the plaintiff and about to give the bills. Plaintiff replied that as the accountant is not available and have the bill with the submitted further. The plaintiff told that he will collect the rent together but did not told when he will collect the rent. After one and half month again I went to the plaintiff, but the plaintiff did not accept the rents. As per advise of father, I have handed over cheques for the month of April/98 to Oct./98 father Rajrai and Laxmipal. Said cheque was A/C payee ……………………………………”. 9. After one and half month again I went to the plaintiff, but the plaintiff did not accept the rents. As per advise of father, I have handed over cheques for the month of April/98 to Oct./98 father Rajrai and Laxmipal. Said cheque was A/C payee ……………………………………”. 9. From the above evidence of DW.1 it is clear that the tenant did not himself offer rent to the landlord as was pleaded in the W.S. but it was the DW.1, who claimed the credit for tendering the rent for April—October, 1998 to the landlord. Therefore on this transaction between the landlord and the tenant, if one goes by the pleaded case, the tenant should have testified in Court since his attorney could not have testified on the transaction between the tenant and the landlord (Janki Vashdeo Bhojwani vs. Indusind Bank Ltd. reported in (2005) 2 SCC 217 (Para 9). On the other hand, if the evidence of PW.1 is believed, the same is inconsistent with the claim made by the defendant in his W.S. 10. That apart, when the rent is refused as is the stand of the defendant, the tenant should have deposited the rent for April—October, 1998 in Court under Section 5(4) of the Rent Act in order to avoid being a defaulter and since this was not done, the tenant, according to me, is disentitled to any protection under the Rent Act. 11. Apart from the default of the 7 months’ rent as noted above, the tenant also was found to be a defaulter in respect of the rent for October, ’99 by the Appellate Court. The rent for this period when refused by the landlord, should have been deposited in Court within a fortnight and if the intervening period falls within the Court’s Puja vacation, the rent should have been tendered on the Court reopening date i.e. on 30.10.2000. But here the refused rent for October, 2000 was deposited in Court only on 3.11.2000. Therefore the tenant can’t avoid being declared to be a defaulter of rent for this month if one considers the legal consequences of the Rent Act. 12. The case record reflects that the cheque for Rs.21,287/- was debited from the tenant’s Bank Account and this amount was found to be credited in the landlord’s Account. But the landlord specifically denied that any rent for April—October, 1998 was tendered by the tenant. 12. The case record reflects that the cheque for Rs.21,287/- was debited from the tenant’s Bank Account and this amount was found to be credited in the landlord’s Account. But the landlord specifically denied that any rent for April—October, 1998 was tendered by the tenant. Therefore when the tenant takes the plea that they tendered the cheque and the landlord refused to give a receipt for the same, the tenant should have summoned the Bank’s official to prove that the tenant had nothing to do with transfer of the cheque amount to the landlord’s Account from the tenant’s Account. Of-course the landlord also did not adduce any evidence to show that they did not en-cash the tenant’s cheque. But when one considers the pleaded case of the tenant and notice that the DW.1 clearly deposed that the landlord refused to accept the rent, it is the legal obligation for the tenant to deposit the rent in Court in accordance with Section 5(4) of the Rent Act. But since they failed to take the required legal steps to deposit the rent in Court after the same was allegedly refused by the landlord, I hold that the concurrent finding of rent default given against the tenant is consistent with the legal provisions of the Rent Act. One can find support for this view from United Commercial Bank vs. M/s. Rekhab Chand Sohanlal reported (1988) 1 GLR 121 and Rup Chand Daftary vs. Ashim Ranjan Modak reported in 2000 (2) GLT 75. 13. From the above discussion and reasoning, I hold that the concurrent finding of rent default given against the tenant is correct and the evidence supports this conclusion. Therefore in the absence of any perversity or jurisdictional error, there is no basis for allowing this Revision Petition and accordingly the same is dismissed, leaving the parties to bear their own cost. The Registry is accordingly directed to return the L.C.R. with a copy of this order, to the concerned Court.