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2017 DIGILAW 1478 (GAU)

Nilpadma Bowal v. Adil Ara Khanam

2017-11-29

PRASANTA KUMAR DEKA

body2017
JUDGMENT : 1. Heard Mr. P.P. Baruah, learned counsel for the petitioners and Mr. G. Saikia, learned counsel for the respondents. 2. The present petitioners are the defendants in Title Suit No. 93/2003 in the court of learned Civil Judge (Jr. Divn.) No. 1, Nagaon. The said suit was filed by the plaintiff-respondents as the landlord against the present defendant-petitioners who are the tenants with respect to the suit premises described in the schedule of the plaint. The plaintiff-respondents are the landlords and owners of one shop house consisting of two doors with C.I. Sheet roofs standing over land covered by Dag No. 1526 of Periodic Patta No. 678 in Nagaon Kisam under Mouja town in the district of Nagaon. During the life time of the predecessor-in-interest of the plaintiff-respondents, the predecessor-in-interest of the defendant-petitioners took the suit premises on monthly rent fixed at Rs. 160 per month payable within the first week of subsequent month as per Assamese calendar month. The house rent was subsequently enhanced to Rs. 280 per month. On the death of the predecessor-in-interest of the defendant-petitioners they acknowledged and accepted the plaintiffs as their landlord and paying the rent to them. The plaintiff-respondents in the year 1984 demanded the rented premises for their own use and occupation and for reconstruction of the tenanted premises. The plaintiff-respondents instituted Title Suit No. 7/1984, later on renumbered as Title Suit No. 142/1993, which was dismissed. Thereafter, the defendant-petitioners filed Title Suit No. 202/1993 against the plaintiff-respondents for declaration of right, title and interest over the Schedule C properties and for confirmation of possession and for permanent injunction restraining the present plaintiff-respondents from evicting them from the suit premises. Schedule C property of Title Suit No. 202/1993 and the present suit are same. The learned Munsiff No. 1, Nagaon declared right, title and interest of the defendant-petitioners in respect of the suit house and not over the suit land described in the Schedule C property. Permanent injunction was also granted restraining the present plaintiff-respondents from evicting the present defendant-petitioners unless they are evicted by due process of law. The plaintiff-respondents alleged that in the said suit (T.S. No. 202/1993), the defendant-petitioners admitted that without tendering rent to the plaintiff-respondents they are depositing the monthly rent before the court since 1984. Permanent injunction was also granted restraining the present plaintiff-respondents from evicting the present defendant-petitioners unless they are evicted by due process of law. The plaintiff-respondents alleged that in the said suit (T.S. No. 202/1993), the defendant-petitioners admitted that without tendering rent to the plaintiff-respondents they are depositing the monthly rent before the court since 1984. It is further pleaded that the defendant-petitioners since Poush 1407 B.S. deposited rent in violation of the section 5(4) of the Assam Urban Areas Rent Control Act, 1972 (‘the Act’) deposited the rent in the court at Nagaon. As such, those deposits are no deposit of rent in the eye of law and, hence, they are defaulters since 13.12.2000 to 14.01.2001 (Poush 1407 B.S.) and the suit house is required bona fide by the plaintiff-respondents. Hence, they filed the suit for decree of ejectment of the defendant-petitioners from the Schedule A premises and to deliver khas possession to them along with decree of arrear rent. 3. The present defendant-petitioners contested the suit by filing their written statement. They admitted that their predecessor-in-interest, Ramchandra Bhowal during his life time took the suit premises on monthly rent basis from the predecessor-in-interest of the plaintiff-respondents. On the death of Ramchandra Bhowal, they stepped into the shop premises and they became the tenant under the plaintiff-respondents. They submitted that they were not defaulter in respect of payment of rent and there is no bona fide requirement of the suit premises. Defendant-petitioners further submitted that earlier Ram Chandra Bhowal with his six brothers constructed 5 rooms with due approval from the predecessor-in-interest of the plaintiff-respondents. Thereafter on amicable settlement, brothers of Ramchandra Bhowal separated their business and the original shop house fell in the share of Ramchandra Bhowal and was the monthly tenant in respect of the suit premises and after his death the defendant-petitioners occupied the house and the tenancy continued between the parties to the suit. They tendered the monthly rent but the same was refused to accept by the plaintiff-respondents and as such, they started depositing the same in the court. They prayed for dismissal of the suit. 4. On the basis of the pleadings, the learned trial court framed the following issues: 1. Whether there is any cause of action for the suit? 2. Whether the suit is bad for non-joinder of necessary parties? 3. Whether the suit is barred by principle of res-judicata and acquiescence? They prayed for dismissal of the suit. 4. On the basis of the pleadings, the learned trial court framed the following issues: 1. Whether there is any cause of action for the suit? 2. Whether the suit is bad for non-joinder of necessary parties? 3. Whether the suit is barred by principle of res-judicata and acquiescence? 4. Whether the defendants are defaulter in respect of the suit premises? 5. Whether the suit premise is bona fide required by the plaintiffs for their own use and occupation? 6. Whether the plaintiffs are entitled to a decree as prayed for and the defendants are liable to be evicted from the suit premises? 7. What relief or relieves the plaintiff are entitled to the law and equity? 5. The plaintiff-respondents adduced evidence of one witness and exhibited 13 numbers of documents out of which Exhibits 3 to 13 are the MNJ case records. The defendant-petitioners adduced evidence of defendant No. 1 and exhibited 12 numbers of documents. The learned trial court after hearing the parties decided the issue No. 4 against the defendant-petitioners by holding that the defendant-petitioners failed to deposit the rent of the months Ahar and Shravan within the stipulated period of time (Exhibits 8 and 9, respectively). It was also further held that the defendant-petitioner deposited the notice and process fee for the rent of Ahar on 4.9.2001, i.e. 18th Bhado. The defendant-petitioners further deposited process fee and notice for the rent of month Shravan on 11.9.2001, i.e. 25th Bhado. Both the deposits are beyond the stipulated period and as such, the defendant-petitioners violated the provisions of section 5(4) of the Act and as such they are defaulters. However, the issue with respect to the bona fide requirement of the suit premises was decided in the negative. 6. Being aggrieved by the said judgment and decree dated 18.9.2006 in Title Suit No. 93/2003, the defendant-petitioners preferred Title Appeal No. 36/2006 in the Court of learned Civil Judge, Nagaon which was also dismissed vide judgment and decree dated 11.10.2012. Thereafter the said defendant-petitioners preferred the present revision petition challenging the judgment and decree passed by the learned First Appellate Court. 7. The learned First Appellate Court examined the various MNJ case records exhibited as Exhibits 3 to 13 and examined the same in order to verify the findings of the learned trial court. Thereafter the said defendant-petitioners preferred the present revision petition challenging the judgment and decree passed by the learned First Appellate Court. 7. The learned First Appellate Court examined the various MNJ case records exhibited as Exhibits 3 to 13 and examined the same in order to verify the findings of the learned trial court. The Exhibit-8 is the MNJ Case No. 207/2001 on the basis of which the defendant-petitioners claimed that they have deposited and paid the rent for the month Ahar in the Shravan on due time. By holding that rent for the month of Ahar is paid in the month of Shravan and the month of Shravan starts from middle of July and continues to the middle of August. But the defendant-petitioners submitted notice together with process fee for service on the plaintiff-respondents on 4.9.2001 holding that in the month of September, the month of Bhado starting from the mid of English Calendar month August continues to the middle of September. Accordingly, it was held that the learned trial court rightly found that the defendant-petitioners had not deposited rent for the month Ahar within the stipulated period of time. Similarly, the learned First Appellate Court also found that the defendant-petitioners failed to tender the monthly rent for Ahar within the stipulated time and in this manner the learned First Appellate Court further held that the defendant-petitioners failed to deposit the rent for the month of Shravan as the defendant-petitioners tendered the notice with process fee for service of notice on the plaintiff-respondents on 11.9.2001. The learned First Appellate Court further found the defendant-petitioners to be defaulter in the month of Kati inasmuch as holding that the month of Kati falls in the English calendar month of middle of October to the middle of November and rent for the month of Kati is payable in the month of Aghon, 1408 B.S. The month of Aghon falls in the English calendar month of middle of November to middle of December, 1408 B.S. Vide Exhibit-12 defendant-petitioners deposited rent for the month of Kati in English calendar month November, 2001 and challan was submitted on November 2001 and process fee of notice on the plaintiff-respondents before the court on 13.12.2001 holding that the defendants/petitioners deposited rent for month of Kati with notice to the plaintiff-respondents on 13.12.2001 and on 13.12.2001 Assamese month of Aghon falls and date was 27th Aghon. Thus, the defendant-petitioners failed to deposit the rent for the month of Kati within the stipulated time of the fortnight from the date of its falling due. Finally, the learned first appellate court summing up his scrutiny held that from Exhibits 8, 9 and 12 (MNJ Cases), the defendant-petitioners defaulted in payment of rent for the month of Ahar, Shravan, Kati inasmuch as while depositing rent in the court tenant did not comply the statutory provision of section 5(4) of the Act which is mandatory and failure on the part of the tenant leads to his defaulter-ship though the rent is deposited. Such deposit of rent is not valid till notices with process fee are tendered in the court along with the deposit of the rent in order to serve the same on the landlord. 8. Mr. PP Baruah, learned counsel for the petitioners, assailing the findings of the courts below submits that the rent was validly deposited and the finding of courts below that the deposit of rent without the requisite process fee and notice is not a valid deposit of rent cannot be accepted inasmuch as it is on record that the plaintiff-respondents had withdrawn the rent without being served with any notice. Relying on the case law of Kali Kumar Sen vs. Makhan Lal Biswas, AIR 1969 Assam 66, Mr. Baruah submits that if the deposit of the rent is made in the court beyond time and the rent is withdrawn by the landlord, he cannot thereafter treat the tenant as defaulter. The learned courts below failed to take into consideration of the said law holding the field and as such, the findings of the courts below are liable to be set aside. Except the said findings of the courts below, Mr. Baruah did not assail before the court with respect to the validity of deposit of rent and its tender to the landlord for the months which the courts below held to be beyond the period stipulated under section 5(4) of the Act, i.e. within the period of fortnight from the date of the rent falling due. 9. Countering the submission of Mr. Baruah, Mr. Saikia submits that both the courts below rightly gave the respective findings which are concurrent in nature. 9. Countering the submission of Mr. Baruah, Mr. Saikia submits that both the courts below rightly gave the respective findings which are concurrent in nature. Taking this court to the findings of the courts below, more specifically, the findings of the learned First Appellate Court with regard to the calculations and conversions, Mr. Saikia submits that there is no fault in terms of the appreciation of the evidence by the courts below so far MNJ case records are concerned. The said records specifically show that the rent which ought to have been deposited within a period of fortnight from the date of its falling due were not complied by the defendant-petitioners. In addition to that, to be a valid deposit within the ambit and scope of section 5(4) of the Act, the said deposit of rent is to be accompanied by the notice, the process fee which in the case in hand, as pointed out by the courts below, are apparently clear that the same were deposited to the court much later than the deposit of rent in the court. Such deposit of rent belatedly cannot save the petitioners/defendants from being categorised as the defaulter irrespective of withdrawal of the said rent by their landlord/respondents. In support of his submission, Mr. Saikia relies on the case laws of United Commercial Bank vs. Rekhab Chand Sohanlal, (1988) 1 GLR 121 , Keshab Ch. Singha vs. Moulovi Abdul Matin Choudhury, (2006) 3 GLR 635 and Lahoty Brothers Ltd. vs. Kalidas Ghosh, 2006 (3) GLT 534. 10. Considered the submissions of the learned counsels. The Act under section 5(4) is very specific in order to derive the benefits stipulated therein by the tenants. Before a tenant deposits the rent in the court it is mandatory on his part to offer the same to the landlord unless existence of enmity is proved by the tenant between the landlord and tenant. Once there is refusal on the part of the landlord to accept the said rent so offered, the tenant must deposit the same within a fortnight from the date of its falling due. In order to be a valid deposit of rent in the court, certain process and procedures are stipulated like submission of process fee along with notice for service upon the landlord at the time of deposit of rent in court which are also mandatory in nature. Mr. In order to be a valid deposit of rent in the court, certain process and procedures are stipulated like submission of process fee along with notice for service upon the landlord at the time of deposit of rent in court which are also mandatory in nature. Mr. Baruah, learned counsel for the petitioners, submits that petitioners/tenants deposited the rent within the due period as stipulated under the said provision of section 5(4) of the Act and though there is a delay in depositing the process fees along with the notices, the landlord had already withdrawn the same and as such the same would satisfy the provision as stipulated therein under section 5(4) of the Act. It is his submission that as the notices are required to intimate about the deposit of the rent in the court, once the landlord collects the same from the court that amounts to sufficient notice on the part of the landlord absolving the tenant from being categorised as defaulter. 11. Let me examine the findings of the learned courts below, more specifically, the learned First Appellate Court. Exhibit-8 is the records of MNJ Case No. 207/2001 by way of which the defendant-petitioners claimed that they have deposited and paid the rent for the month of Ahar in the month of Shravana and that too, within due time. It shows that the defendant-petitioners deposited challans in the court on 23.7.2001 but he did not take steps for service of notice to the landlord and he deposited notice with the process fees for service of notice to the respondent/landlord on 4.9.2001. It is also held by the learned First Appellate Court that rent for the month of Ahar is payable in the month of Shravana and month of Shravana starts from mid of July which continues to mid of August. But the defendant-petitioners submitted notice together with process fee for service of notice on the plaintiff-respondents on 4.9.2001. In the English calendar month of September, Assamese month Bhado falls and month of Bhado starts from mid of August which continues upto mid of September. Scrutinising the same, the learned First Appellate Court held that the defendant-petitioners failed to deposit the rent for the month of Ahar within the due time. In the English calendar month of September, Assamese month Bhado falls and month of Bhado starts from mid of August which continues upto mid of September. Scrutinising the same, the learned First Appellate Court held that the defendant-petitioners failed to deposit the rent for the month of Ahar within the due time. Then again the rent for the month of Shravana is payable in the month of Bhado and the statutory period of payment of rent for the month of Shravana is till 21st of Bhado, 1408, B.S. Rent for the month of Kati, 1408 B.S. is payable in the month of Ag hon and the stipulated time for the payment of rent is 21st of Aghon, 1408 B.S. By way of Exhibit-9 the defendant-petitioners deposited the rent for the month of Shravana in the court. The treasury challan was deposited on 24.8.2001 and deposited notice with process fees for service of notice on the plaintiff-respondents on 11.9.2001. On conversion of the said English date of 11.9.2001 to the Assamese Calendar, the learned First Appellate Court correctly came to the finding that on 11.9.2001, the Assamese date was 27th Bhado, 1408 B.S. and as such, the said deposit of rent was not valid, i.e., within the stipulated period of time of the fortnight. Finally, the learned First Appellate Court came to the finding that from Exhibits-8, 9 and 12, the MNJ case records, defendant-petitioners defaulted in payment of rent for the month of Ahar, Shravana and Kati. 12. The plaintiff-respondents in the plaint pleaded that the defendant-petitioners since Poush, 1408 BS in violation of provisions under section 5(4) of the Act, deposited the rent in the court. The defendant-petitioners in their written statement stated that plaintiff-respondents refused to accept the rent since 20/21 years back for the suit premises though tendered by them. As such, they have been depositing the rent in the court. The learned First Appellate Court came to the finding that though defendant-petitioners in their written statement stated that they tendered monthly rent to the plaintiff-respondents, however, there is no specific statement made in the evidence on record as to on which date rent for each month was tendered to the plaintiff-respondents before depositing the rent in the court. The learned First Appellate Court came to the finding that though defendant-petitioners in their written statement stated that they tendered monthly rent to the plaintiff-respondents, however, there is no specific statement made in the evidence on record as to on which date rent for each month was tendered to the plaintiff-respondents before depositing the rent in the court. The learned First Appellate Court also came to the finding that there is no such averment made in the written statement as to on which date and place they tendered the monthly rent to the landlord. Finally, the learned First Appellate Court came to the finding that there was no tender of the monthly rent to the landlord before depositing the same in the court holding that there was violation of the mandatory provisions under section 5(4) of the Act, defendant-petitioners are liable to be held as defaulter. Having gone through the evidence of the parties to the suit, more specifically, the DW-1, Nilapadma Bhowal, it is apparent that the rent was tendered to the landlord by his father, late Ram Chandra Bhowal. Ram Chandra Bhowal died on 3.2.1989 and there is no evidence on record to show that thereafter the said DW-1 or anyone else on their behalf tendered the monthly rent to the landlord. Accordingly, this court finds no illegality in the findings of the learned courts below with respect to the defaulter-ship of the defendant-petitioners. 13. Now, whether non-taking of steps along with process fee for issuance of notice to the landlord and the act of withdrawal of the said rent by the landlord had any consequence in holding the tenant to be a defaulter. In Kalidas Ghosh (supra), in a case similar to this one wherein the tenant failed to take steps for service of notice on the landlord at the time of depositing the rent in the court and which was taken after such deposit, this court held that it cannot be said that the said deposit of rent to the landlord for the period the rent so deposited to be a valid one. 14. In Rekhab Chand Sohanlal (supra), this court held that payment of lawful rent by depositing in court beyond the prescribed limit given under the provision of sub-section (4) of section 5 of the Act, is no payment in the eye of law. 14. In Rekhab Chand Sohanlal (supra), this court held that payment of lawful rent by depositing in court beyond the prescribed limit given under the provision of sub-section (4) of section 5 of the Act, is no payment in the eye of law. Even withdrawal of such deposited rent by the landlord in due course has no consequence to affect the question of default clause which had already occurred. The question of default is to be adjudged from the action of the tenant and not dependable on landlord's exercise of right to withdraw the deposit from the court. A tenant does not recover from the mischief of statutory defaults merely because the landlord withdrew the rent deposited in court beyond prescribed period. The submission of Mr. Baruah to that effect holds no good in view of the findings of this court as discussed above along with the ratio laid down in various decisions by this court. 15. On verification as aforesaid of the records and the pleadings, more specifically, of the defendant-petitioners it is clear and apparent that there is no mention of tender of rent to the landlord-respondents after the death of their father. In the case of National Textile Corporation vs. Dr. Umesh Chanda Tahbildar, (2008) 1 GLR 44, this court held that a tenant has no right to deposit rent in the court unless the rent has been offered to the landlord and refused to be accepted by the landlord. Similar is the view of this court as aforesaid. The defendant-petitioners failed to prove that before depositing the rent in the court, they had ever tendered the rent to the landlord which was refused. Considering the discussions and the jurisdiction of this court as the revisional court, this court finds no jurisdictional error nor any perversity in the findings of the learned First Appellate Court and this court finds no merit in this revision application. This revision petition is accordingly dismissed. 16. The petitioners are given 6 months' time to vacate the tenanted premises failing which law will take its own course. 17. Send back the LCRs. No order as to costs.