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2016 DIGILAW 859 (GAU)

Shanti Bastralaya v. Arun Kedia

2016-09-16

SUMAN SHYAM

body2016
JUDGEMENT AND ORDER : 1. Heard Mr. S. Dutta, learned senior counsel assisted by Ms. N. Modi, learned counsel appearing for the petitioner. Also heard Mr. G.N. Sahewalla, learned senior counsel assisted by Ms. B. Sarma, learned counsel representing the respondent. 2. This revision petition is directed against the judgment and decree dated 18/03/2015 passed by the Court of learned Civil Judge, Dibrugarh in Title Appeal No.61/2013, affirming the judgment and decree dated 06/08/2013 passed by the Munsiff No.1, Dibrugarh in Title Suit No. 51/2007, decreeing the suit filed by the respondent/plaintiff for ejectment of the petitioner. 3. The brief facts of the case is that the predecessor of the petitioner/defendant had entered as a tenant in respect of the suit premises under the predecessor-in-terest of the plaintiff on condition of paying monthly rent as per English calendar. The tenancy had commenced in the year 1957 and thereafter, the rent was increased from time to time with the agreed rent being fixed at Rs.2000/- per month. According to the plaintiff, one of the conditions of tenancy was that the defendant would vacate the same on being requested to do so by the landlord and that the monthly rent was to be paid in cash. 4. It is the case of the plaintiff that the defendant had failed to pay the rent for the month of April, 2004, as a result of which a notice demanding payment of rent was sent by the plaintiff which was also received by the defendant on 09/10/2004. However, despite receipt of the same, the defendant had failed to deposit the rent. On 13/10/2004, although the defendant had sent a bank draft for an amount of Rs.12,000/- being the arrear rent for the tenanted premises for the months of April, 2004 to September, 2004, yet, the plaintiff did not encash the same as payment of rent by way of demand draft was against the agreed mode of payment of rent. On 29/10/2004, the defendant had sent another bank draft for an amount of Rs.2,000/- being the monthly rent for the month of October, 2004 but the same was also not encashed by the plaintiff for the same reason. On 29/10/2004, the defendant had sent another bank draft for an amount of Rs.2,000/- being the monthly rent for the month of October, 2004 but the same was also not encashed by the plaintiff for the same reason. On the contrary, the plaintiff had issued a registered letter dated 29/10/2004 requesting the defendant to make payment of the rent in cash and take back the bank drafts, which letter was also duly received by the defendant on 01/11/2004 but the defendant had failed to comply with the same and instead started depositing the rent in the Court without tendering the same before the landlord. Since the rent for the months of April, 2004 till November, 2004 had been deposited in the Court by the defendant in the month of October, 2004 and November, 2004 without offering the same to the landlord, hence, according to the plaintiff, the defendant had become a defaulter in the eye of law. The plaintiff’s further case was that the tenanted premises have become very old and dilapidated structure warranting immediate repair. The plaintiff was desirous of constructing a multi-storied building by demolishing the tenanted house and use the property in a more beneficial manner since the same was located in the heart of Dibrugarh town. Hence, the plaintiff had also claimed bonafide requirement of the suit premises. Situated thus, the plaintiff had intstituted Title Suit No. 51/07 (old Title Suit No. 57/2005) for ejectment of the defendant and for recovery of arrear rent of Rs.38,000/- besides other consequential relief. 5. On receipt of summon, the defendant had entered appearance and contested the suit by filing writing statement, thereby denying the averments made in the plaint. The stand of the defendant was that Shri Shiva Kumar Jain, the proprietor of the defendant firm had paid rent up to the month of March, 2004, which was also duly accepted by the landlord but, when the rent for the month of April, 2004 was tendered before the landlord, viz. Bhagabati Prasad Kedia, the same was not accepted by him on the ground that there was a family settlement in progress and as such the defendant was asked to hold on the rent for sometime until the process of family settlement was completed. Bhagabati Prasad Kedia, the same was not accepted by him on the ground that there was a family settlement in progress and as such the defendant was asked to hold on the rent for sometime until the process of family settlement was completed. Bhagabati Prasad Kedia expired in the month of June, 2004, as a result of which his son Arun Kedia i.e the plaintiff, had become the owner of the tenanted premises. When the defendant had tendered the rent for the month of April, 2004 to Arun Kedia, he refused to accept the same, as a result of which the defendant had to send the rent by means of bank drafts. It is also the case of the defendant that after receipt of the notice dated 02/10/2004, the defendant had once again offered the rent to the plaintiff by giving a cash amount of Rs.14,000/- in lieu of the demand drafts earlier sent by the defendant but the plaintiff neither received the cash amount nor returned the bank drafts. Again on 08/11/2004, the defendant had sent Postal Money Order for an amount of Rs.14,000/- to the plaintiff being the rent in respect of the tenanted premises but the plaintiff refused to receive the same. As such, finding no other alternative the defendant had deposited the rent for the month of April, 2004 to November, 2004 before the Court of Rent Controller and has continued to do so. As such, according to the defendant, there was no cause of action for the plaintiff to institute the suit. 6. Based on the pleadings of the parties, the trial Court had framed the following issues:- “(1) Whether there is cause of action in the suit? (2) Whether there was any agreement in between the parties/their predecessor-in-interest to tender and receive the rent in cash? (3) Whether the defendant is a defaulter and liable to be evicted even though tendered the rent on cheque and through court? (4) Whether the suit premise is required by the plaintiff for bona-fide purpose? (5) Whether the parties are entitled to any other relief/s as prayed for respectively?” 7. On an analysis of the evidence available on record, the learned Trial Court had recorded the findings in respect of issue nos. 2, 3 and 4 in favour of the plaintiff, thereby decreeing the suit for ejectment. 8. (5) Whether the parties are entitled to any other relief/s as prayed for respectively?” 7. On an analysis of the evidence available on record, the learned Trial Court had recorded the findings in respect of issue nos. 2, 3 and 4 in favour of the plaintiff, thereby decreeing the suit for ejectment. 8. Being aggrieved by the judgment and decree dated 06/08/2013 passed by the Munisff No. 1, Dibrugarh in Title Suit No. 51/2007, the defendants as appellant had preferred Title Appeal No. 61/2013 before the Court of Civil Judge, Dibrugarh. Being aggrieved by the findings recorded by the trial Court with respect of issue no. 5, thereby refusing the prayer of the plaintiff to grant the relief for recovery of future rent, the plaintiff had also preferred a Cross Objection under Order 41 Rule 22(1) of the CPC. 9. Upon hearing the learned counsel for the parties and on re-appreciation of the evidence available on record, the lower appellate court had dismissed both the title appeal as well as cross objection by affirming the decision and conclusion of the trial Court. Being aggrieved by the concurrent judgment and decree dated 18/03/2015 passed in TA No. 61/2013, the defendant, as petitioner, has approached this Court by filing the instant revision petition. 10. Mr. Dutta, learned senior counsel appearing for the petitioner submits that the defendant had offered the rent in cash to the original landlord i.e. Bhagabati Prasad Kedia for the month of April, 2004 but it was only when the landlord had advised the defendant to hold on to the payment for sometime pending the family settlement that the same was not paid for the month of April, 2004. Even during the subsequent period, the defendant had offered the rent to the plaintiff and thereafter sent bank draft of an amount of Rs.12,000/- by a registered letter, thereby, tendering the rent for the month of April, 2004 to September, 2004. But the plaintiff did not encash the same. Mr. Dutta submits that there is no evidence on record to show as to what was the accepted mode of payment of rent or the due date in this case. As such, the findings recorded by the learned Court below that there was no valid tender of rent is not correct in the eye of law and calls for reconsideration by this Court. 11. Mr. As such, the findings recorded by the learned Court below that there was no valid tender of rent is not correct in the eye of law and calls for reconsideration by this Court. 11. Mr. Dutta, further submits that law is settled that when there is a dispute between the landlord and the tenant, remittance of rent by way of Money Order and/or bank draft would amount to a valid tender and there was no need for the tenant to make an offer of the rent for each month before depositing the same before the Court. Such being the position, the findings recorded by the Court below in respect of issue nos. 2,3 and 4, in the submission of Mr. Dutta, stands vitiated by perversity warranting interference by this Court. In support of his aforementioned arguments, Mr. Dutta has relied upon the following decisions:- (i) (1977) 3 SCC 1 (Dr. Brahmanand Vs. Smt. Kaushalya Devi & Another),. (ii) 2002 (1) GLT 51 (Tushar Kanti Dey Vs. Sulata Choudhury & Ors.), (iii) 2008 (1) GLT 421 (Arunamayee Baishya & Ors. Vs. Rabindra Kumar Bora & Ors.), (iv) Un-reported decision of this Court in the case of M/s. Verma Crockery Stores & Anr. Vs. M/s. Arun Kedia & Sons & Anr., In CRP No. 290/2015. 12. Resisting the submissions made by the learned senior counsel appearing for the petitioner, it was argued by Mr. G.N. Sahewalla, learned senior counsel representing the respondents that both the Courts below have recorded a concurrent finding of fact holding that there was no valid tender of rent before the same was deposited in the Court. Such finding of fact has been recorded on the basis of cogent evidence available on record. As such, there was no scope for this Court to interfere with such finding of fact on a re-appreciation of evidence. Mr. Sahewalla further submits that even assuming for the sake of argument that there was a valid tender of rent before the same was deposited in the Court, even then, it is the admitted position of fact that as many as 3 (three) Misc. N.J. Cases pertaining to deposit of rent in respect of the tenanted premises had been dismissed for want of steps. N.J. Cases pertaining to deposit of rent in respect of the tenanted premises had been dismissed for want of steps. Therefore, even on such count, the defendant had clearly become a defaulter in the eye of law and the Courts below have rightly held the same in favour of the plaintiff. 13. Mr. Sahewalla further submits that besides the ground of defaulter, the plaintiff’s suit was also based on the plea of bona-fide requirement of the tenanted premises whereby both the Court below have answered the issue no. 4 in favour of the plaintiff. There is no illegality or infirmity in such findings of fact recorded by the Courts below. As such, according to Mr. Sahewalla, the petitioner has completely failed to make out any case warranting interference by this Court in the matter. In support of his argument, Mr. Sahewalla has relied upon two decisions of this Court in the cases of Abdul Matin Choudhury & Ors. Vs. Nilyananda Dutta Banil, reported in 1997 (II) GLT 590 and On death of late Jagdish Prasad Agarwala his Legal Heirs: Praveen Kumar Agarwalla and others Vs. Madanlal Dugar and another, reported in (2015) 3 GLT 622. 14. I have considered the submissions made by the learned counsel appearing on behalf of both the parties and have also perused the materials available on record. 15. In a suit of this nature where the landlord is seeking ejectment of the tenant on the ground of being a defaulter in payment of rent it is of immense importance is to first ascertain as to whether the tenant was entitled to the protection of section 5(4) of the Assam Urban Areas Rent Control Act, 1972 (here-in-after referred to as the Act of 1972). In the present case, it is not in dispute that the tenancy was on month to month basis as per the English calendar. It is also the admitted position of fact that the rent for the month of April, 2004 was offered to the original landlord, viz, Bhagabati Prasad Kedia but he had refused to accept the same on the ground that the property was under a process of partition. It is also the admitted position of fact that the rent for the month of April, 2004 was offered to the original landlord, viz, Bhagabati Prasad Kedia but he had refused to accept the same on the ground that the property was under a process of partition. As per section 5(4) of the Act of 1972, when the landlord refuses to accept the lawful rent offered by the tenant, the rent should be deposited in court along with process fees for service of notice upon the landlord, within a fortnight of it becoming due. Law is also settled that in the absence of any agreement to the contrary, rent will become due on the last day of each month. Based on materials available on record, the courts below have held that there is no evidence on record to establish the mode of payment of rent. As such, the rent for the month of April, 2004 having been refused by the landlord, the same ought to have been deposited in the court within a fortnight of its having become due as per the provision of section 5(4) of the Act of 1972, which has admittedly not been done in the instant case. Whatever be the ground for refusal, the fact of the matter is that the rent for the month of April, 2004, on being refused by the landlord, was not deposited by the defendant/tenant in the Court within the statutory period as mandated section 5(4) of the Act of 1972. 16. It is also the admitted case of the defendant that he had prepared a bank draft for an amount of Rs.12,000/- covering the rent for the months of April, 2004 and September, 2004 and sent the same to the landlord on 13/10/2014.It is not the case of the defendant that the rent used to be paid by demand draft on all previous occasion. The plaintiff had sent notice dated 29/10/2004 (Ext-8) demanding payment of rent by cash on the specific plea that demand draft was not the agreed mode of payment of rent. From the evidence available on record there is nothing to suggest that the demand draft was encashed by the plaintiff or that rent was tendered in cash as per demand made by Ext-8. From the evidence available on record there is nothing to suggest that the demand draft was encashed by the plaintiff or that rent was tendered in cash as per demand made by Ext-8. As such, in my opinion, payment of rent for the months of April 2004 to September 2004 by means of demand draft would not come in his aid of the defendant so as to extend the protection of section 5(4) of the Act of 1972 for the simple reason that the tenancy being on month to month basis, there was no scope for the defendant to pay the rent for 4 (four) months together by means of a demand draft since the same was not an accepted mode of payment. Moreover, law does not permit a tenant to deposit the rent of four months together unless there is an express agreement by and between the landlord and the tenant permitting the same. In the present case, the defendant has failed to establish that there was any agreement between the landlord and tenant to receive rent for several months at a time. Therefore, by the own showing of the petitioner, the defendant had become a defaulter in the eye of law on such count alone. As such, the decisions relied upon by Mr Dutta would not be of any help to the petitioner in the facts and circumstances of the case. 17. Besides the above, it is also the admitted position of fact that the Exts. 464, 468 and 471 being the NNJ Cases for depositing of rent were dismissed for default on the part of the defendant/tenant. The obligation on the part of the tenant to pay rent has crystallised since the decision of this court in the case of Abdul Matin Choudhury & Ors. Vs. Nilyananda Dutta Banil, reported in 1997 (II) GLT 590. By relying upon the decision rendered in the case of Abdul Matin Choudhury (supra), this court had held in the case of Birendra Nath Sarma vs Arunamayee Bishaya, reported in 2005 (Suppl) GLT 467, that non-payment of rent even during the pendency of proceeding under the Act of 1972 for the period subsequent to the filing of the suit would render the tenant as a defaulter and liable to be evicted. Again, in the case of Bansal Traders and Ors vs Nandalal Gattani, reported in 2006 (3) GLT 715, this court has held that section 5(4) of the Act of 1972 was mandatory and deposit of rent in court without taking steps to issue Notice to landlord would amount to non-compliance of section 5(4) of the Act of 1972.What is therefore, clear from the above is that if there is default on the part of the tenant in deposit of rent strictly in accordance with the requirement of section 5(4) of the Act, even for a single month during the pendency of the proceeding, even in that case, the tenant would become a defaulter in the eye of law and the Court would be authorised to take note of the same and pass a decree of ejectment. 18. As has been observed hereinabove, in the present case, 3 (three) of the NJ cases pertaining to deposit of rent made by the defendant during the pendency of the proceeding having been dismissed for default, the defendant had become a defaulter. Even on such count, the defendant is liable to be evicted from the suit property. The protection under Section 5(4) of the Act of 1972 would be available only if the tenant makes payment and/or deposit the rent in the Court although out the proceeding by following the provisions of Section 5(4) of the Act and not otherwise. As such, I am of the considered opinion that the learned Court below had rightly found the defendant as a defaulter in respect of payment of rent in respect of the suit premises. 19. Coming to the next question of bonafide requirement of the suit premises, it is the case of the plaintiff landlord that the tenanted premises was very old and dilapidated structure requiring urgent repair. That apart, the property being situated in the heart of Dibrugarh town, has got great commercial value and the plaintiff is desirous of availing the commercial benefits of such property by constructing a multi-storied building upon the said plot of land for his own use. In this modern age of rapid commercialisation of immovable property, the need of the owner to exploit and unlock the commercial value attached to a plot of land has to be borne in mind while appreciating the plea of bonafide requirement of the property. In this modern age of rapid commercialisation of immovable property, the need of the owner to exploit and unlock the commercial value attached to a plot of land has to be borne in mind while appreciating the plea of bonafide requirement of the property. In the present case, the plaintiff has also claimed that the tenanted premises were required for his own use after re-constructing the same. The defendant could not lead any evidence to disprove the aforesaid claim made by the plaintiff. The Courts below have concurrently recorded finding of fact holding that the tenanted premises were bonafide required by the plaintiff. I do not find any illegality or perversity in such finding of fact recorded by the Court below. 20. For the reasons stated above, I am of the opinion that this revision petition is devoid of any merit and the same is accordingly dismissed. There would be no order as to costs.