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2016 DIGILAW 218 (GAU)

S. James Gregory v. Thakursidas Banwarilal

2016-03-28

SUMAN SHYAM

body2016
JUDGEMENT : 1. Heard Mr. S. Dutta, learned senior counsel assisted by Ms. N. Modi, learned counsel appearing for the petitioners. Also heard Mr. S.C. Keyal, learned counsel representing the respondents. 2. This revision petition is directed against the judgement and decree dated 16/09/2015 passed by the learned Civil Judge, Dibrugarh in Title Appeal No. 01/2012 dismissing the appeal filed by the petitioners/defendants against the judgement and decree dated 30/09/2011 passed by the learned Munsiff No.1, Dibrugarh in Title Suit No. 126/2006. 3. The brief factual background of the case is that the petitioner No. 1 had entered into possession in respect of the tenanted premises under the respondent/ plaintiff for the purpose of running an English Medium School therein. Initially i.e. on the commencement of the tenancy, the monthly rent was fixed at Rs. 1221/- and the tenancy had commenced w.e.f. 01/02/1980. However, subsequently, the rent was increased to Rs. 1500/- and thereafter upto Rs. 2,000/- per month w.e.f. 01/01/1983, pursuant where-to a written agreement was also entered into by and between the parties on 11/09/1983 laying down the terms and conditions of tenancy. Despite the agreement of tenancy entered into between the parties, according to the respondent /plaintiff, the petitioner No.1 defendant No. 1 was irregular in payment of monthly rent, as a result of which substantial amount of rent had become due and payable in respect of the tenanted premises. As such the plaintiff/respondent was compelled to institute a money suit No. 7/1992 for recovery of arrear rent amounting to Rs. 72,000/- corresponding to the period from the month of August, 1987 to January, 1992, leaving aside such portion of the arrear rent that stood barred by the Law of Limitation. 4. During the pendency of the aforesaid suit, an amicable settlement was reached by and between the parties on 09/08/1992 whereby, it was agreed that rent in respect of the tenanted premises would stand enhanced to Rs. 2500/- per month with effect from 01/08/1992 and a fresh agreement for tenancy would be entered into by and between the parties for a period of 3 (three) years. However, despite the same, the defendant No.1/tenant had paid the rent only up to the month of July, 1994 but thereafter suddenly started depositing the rent before the Rent Controller, Dibrugarh without tendering the same to the plaintiff. However, despite the same, the defendant No.1/tenant had paid the rent only up to the month of July, 1994 but thereafter suddenly started depositing the rent before the Rent Controller, Dibrugarh without tendering the same to the plaintiff. The notice dated 19/11/1994 issued by the plaintiff calling upon the defendant/tenant to pay the outstanding rents with effect from August, 1994 was also not responded to by the tenant, as a result of which the respondent /plaintiff was compelled to institute Title Suit No. 1/2001 in the Court of learned Munsiff No.1, Dibrugrah seeking a decree of ejectment and recovery of the arrear rent against the petitioners/defendants. 5. The defendants had entered appearance and contested the suit, questioning the maintainability of the suit on the ground of want of cause of action. In their written statement, the defendants have taken a stand that the rent on being tendered was refused by the plaintiff as a result of which the same had to be deposited before the Rent Controller, Dibrugarh. The defendants have denied that they were defaulter under the Law in respect of payment of rent or that the tenanted premise was bonafide required by the plaintiff. 6. Based on the pleadings of the parties, the learned trial Court had framed the following issues :- “(1) Is there any cause of action for the suit? (2) Whether the suit is maintainable in law? (3) Whether the plaintiff bonafide requires the suit premises? (4) Whether the defendants are defaulters within the meaning of Assam Urban Rent Control Act? (5) Whether the plaintiff is entitled for a decree for ejectment of the defendant from the suit house? (6) To what relief/reliefs, the parties are entitled?” 7. During the course of trial, both parties had led evidence. On the basis of the materials available on record and after hearing learned counsels for the parties, the trial Court had decreed the suit filed by the respondent/plaintiff by answering all the issues in favour of the plaintiff. 8. Being aggrieved by the impugned judgement and decree dated 30/09/2011 passed by the learned Trial Court, the defendants as appellants had preferred Title Appeal No. 1/2012 before the Court of learned Civil Judge, Dibrugarh. 8. Being aggrieved by the impugned judgement and decree dated 30/09/2011 passed by the learned Trial Court, the defendants as appellants had preferred Title Appeal No. 1/2012 before the Court of learned Civil Judge, Dibrugarh. After hearing the parties and on reappreciation of the evidence, the learned lower appellate Court had affirmed the finding of the trial Court as regards issue No. 4 by holding the petitioners/defendants as defaulters under the Assam Urban Areas Rent Control Act, 1972. However, the finding of the trial Court in respect of issue No. 3 pertaining to bonafide requirement of the suit premises was reversed by the learned first appellate Court. Although the findings in respect of issue No. 3 stood reversed by the lower appellate court, yet on account of the concurrent findings recorded by both the Courts below in respect of issue No. 4, the outcome of the plaintiff’s suit remained un-altered. 9. Being highly aggrieved and dissatisfied with the aforementioned judgement and decree dated 16/09/2015 passed by the learned Civil Judge, Dibrugarh and Title Appeal No. 1/2012, the defendants as petitioners are before this Court by filing the instant appeal. 10. From a perusal of the impugned judgement and order passed by the lower appellate Court, it can be seen that the learned Court below has recorded a categorical finding of fact to the effect that the DW-1 had admitted in his evidence that the defendants had deposited the rent directly before the Rent Controller since the month of August, 1994 without offering the same to the plaintiff/landlord. Mr. Dutta, learned senior counsel appearing for the petitioners fairly submits that the aforesaid finding of fact has been correctly recorded by the learned Court below on proper appreciation of evidence available on record. 11. Such being the position and in view of the law declared by this Court in the case of Abdul Matin Choudhury and Ors. Vs. Nilyananda Dutta Banik reported in 1997 (2) GLT 590, the petitioners/defendants had become defaulters in the eye of law since the deposit of rent before the Rent Controller without first tendering the same to the landlord, cannot be held to be valid deposit in the eye of law. 12. In view of the above, I am of the opinion that the learned court below had rightly decided the issue No. 4 against the petitioners/defendants and in favour of the respondents/plaintiffs. 12. In view of the above, I am of the opinion that the learned court below had rightly decided the issue No. 4 against the petitioners/defendants and in favour of the respondents/plaintiffs. As such it is held that the impugned judgement and decree does not suffer from any illegality warranting interference by this Court. Consequently, this revision must fail and is hereby dismissed. 13. At this stage, Mr. Dutta, learned senior counsel for the petitioners submits that the petitioner No.1 is running an English medium school in the tenanted premises and as such if some time is not permitted to the petitioner to vacate the tenanted premises then in that event the interest of a large number of school going children will suffer serious prejudice. He, therefore, prays for time till 30/04/2017 to vacate the tenanted premises. 14. Mr. S.C. Keyal, learned counsel for the respondents submits on instruction from his client that he would have no objection if the time is granted by this Court till 30/04/2017 to the petitioners to vacate the tenanted premises, subject to the condition that no further time will be sought by the petitioners in this regard. Mr. Dutta gives an assurance on behalf of his client that the tenanted premises will be vacated on or before the date fixe by this Court for the aforesaid purpose. 15. Considering the facts and circumstances of the case an also bearing in mind the fact that the academic interest of large number of school going children of the petitioner No. 1 School may be affected unless adequate time is granted to the petitioners to shift the school to a suitable accommodation, I am inclined to allow the prayer of the petitioner for granting time till 30/04/2017 to vacate the tenanted premises. It is, however, made clear that if the petitioners fail to vacate the tenanted premises on or before the aforesaid date then the decree for ejectment shall be executed without any further notice to the petitioners. 16. Needless to mention here that the privilege granted to the petitioners by the orders passed today permitting them to occupy the tenanted premise till 30/04/2017 will be subject to payment of monthly rent directly to the respondents for each month up to the month of April, 2017 on the 7th day of each succeeding month. With the above observation, the revision petition stand disposed of.