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2019 DIGILAW 1250 (GAU)

Machine Sales And Service v. Jugal Kishore Lohia

2019-11-19

MIR ALFAZ ALI

body2019
JUDGMENT : Mir Alfaz Ali, J. This civil revision is directed against the judgment and decree passed by the learned Civil Judge Nagaon in T.A. No. 9/2016, whereby the learned first appellate court, concurring with the finding of the learned trial court dismissed the appeal filed by the defendant and decreed the suit of the plaintiff. 2. The respondent as plaintiff filed a suit (TS No. 90/2010) for ejectment of the defendant, from the tenanted premises and also for recovery of arrear rent. The case of the plaintiff was that the defendant was tenant under the plaintiff in respect of the suit premises under the Urban Area Rent Control Act. The tenancy was monthly according to English calendar and as per the agreement, rent was to be paid within first week of every succeeding month. However, later on, on request of the defendant, the plaintiff agreed to accept accumulated rent of 12 months together and as per such modified arrangement, rent was to be paid for 12 months from the 1st of April till 31st March within April of the succeeding year. The defendant paid rent upto 31.03.2006 and thereafter no rent was paid and as such, the defendant become defaulter. The plaintiff filed the suit for ejectment of the defendant on twin ground of default and bonafide requirement. 3. The pleaded case of the defendant was that the defendant has been tenant under the plaintiff, initially at a monthly rent of Rs. 350/- since 1978. Though, initially it was agreed by and between the parties, that the rent would be paid by 1st week of succeeding month, subsequently by mutual arrangement between the parties, the mode of payment was converted to yearly and rent was to be paid for 12 months from the 1st of April till 31st March within April of the succeeding year. The defendant paid rent regularly till 31.03.2006 through cheque. However, in the month of March, 2007, when the defendant tendered rent to the plaintiff, the plaintiff with ulterior motive to evict the defendant refused to accept the rent. Therefore, the defendant has been depositing rent in Court since 31.03.2007 and as such, the defendant was not defaulter. The defendant also denied the plea of bonafide requirement of the plaintiff. 4. On the basis of the above pleadings, the learned trial court framed the following issues: "1. Therefore, the defendant has been depositing rent in Court since 31.03.2007 and as such, the defendant was not defaulter. The defendant also denied the plea of bonafide requirement of the plaintiff. 4. On the basis of the above pleadings, the learned trial court framed the following issues: "1. Whether the suit is maintainable in its present form? 2. Whether there was land lord tenant relationship between the parties? 3. Whether the defendant is a defaulter in respect of the suit premises? 4. Whether the plaintiff requires the house for bonafie and personal use? 5. Whether the suit house is in a very old and dilapidated condition and requires reconstruction? 6. Whether the plaintiff is entitled for a decree of ejectment and arrear rent against the defendant? 7. To what relief/reliefs, the parties are entitled to?" 5. The plaintiff examined himself as witness to substantiate his case. The defendant also examined three witnesses and after hearing both the parties, the learned trial court decreed the suit of the plaintiff for ejectment of the defendant and recovery of arrear rent. Aggrieved by the judgment and decree of the learned trial court, the defendant preferred an appeal, which was also dismissed and the learned first appellate court upheld the judgment and decree of the trial court. 6. Aggrieved by and dissatisfied with the judgment and decree of the learned first appellate court, the defendant has preferred the instant revision petition. 7. I have heard Mr. G.N. Sahewalla, learned Sr. Counsel for the revision petitioner and Mr. S.P. Roy, learned counsel for the respondent. 8. Both the courts held that the defendants became defaulter as they failed to pay rent to the landlord or to deposit the same in court in accordance with the procedure prescribed under Section 5(4) of the Assam Urban Area Rent Control Act. Bonafide requirement was also decided in favour of the plaintiff by both the courts accepting the pleading and evidence of the plaintiff. 9. Learned Sr. Counsel, Mr. G.N. Sahewalla submitted that as per arrangement between the parties, the rent was paid yearly and the defendant did not default in payment of rent and therefore, the finding of the courts below holding the defendant to be defaulter was illegal and perverse. Mr. 9. Learned Sr. Counsel, Mr. G.N. Sahewalla submitted that as per arrangement between the parties, the rent was paid yearly and the defendant did not default in payment of rent and therefore, the finding of the courts below holding the defendant to be defaulter was illegal and perverse. Mr. Sahewalla further contended that the plaintiff failed to prove the plea of bonafide requirement and as such, the finding of the learned courts below with regard to bonafide requirement of the plaintiff also suffered from illegality requiring interference by this court. 10. Mr. S.P. Roy, learned counsel for the respondent submitted that the defendant failed to deposit rent as per the provision of Section 5(4) of the Assam Urban Area Rent Control Act and therefore, they became defaulter and the finding of the courts below holding the defendant defaulter did not suffer from any jurisdictional error. It was also contended by Mr. Roy that the plaintiff being the best person to decide his requirement or as to how the property shall be used and therefore, learned courts below rightly decided the issue of bonafide requirement in favour of the plaintiff. 11. From the pleadings of the parties as well as the submissions made by the learned counsel for both the sides, the points, which need to be answered in this revision petition may be summarized as under: (i) whether the finding of the learned courts below holding the defendant to be defaulter was illegal, improper and suffered from any jurisdictional error? and (ii) whether the findings of the courts below on the issue of bonafide requirement was incorrect and suffered from jurisdictional error? Point No. 1: 12. The admitted position is that there was relationship of landlord and tenant between the parties. It is also undisputed, that the tenancy was monthly basis and the rent was payable within 1st week of the subsequent month, but subsequently it was agreed by and between the parties, that rent for 12 months i.e. from 1st of April to 31st march should be paid within April of the succeeding year and rent for 12 months shall fall due in the month of April of the succeeding year. It is also admitted position that the defendant paid rent upto 31st March, 2006. It is also admitted position that the defendant paid rent upto 31st March, 2006. The specific plea of the plaintiff was that after 31st March, 2006, the rent was not paid and therefore the defendant defaulted in payment of rent. Whereas, the specific case of the defendant was that the plaintiff refused to accept the rent and therefore, rent has been deposited in court regularly from the month of March, 2007 and therefore there was no question of defendant being defaulter for non-payment of rent. 13. Learned counsel for the respondent Mr. S.P. Roy submitted that the defendant neither offered the rent to the plaintiff, before depositing the same in court, nor did take steps for payment of process fee and service of notice on the plaintiff and therefore the deposit of rent, if any made in court, was not in accordance with the provision of Section 5 (4) of the Rent Control Act and as such not valid deposit. In support of the submission, Mr. Roy placed reliance on the following decisions: (i) (Rup Chand Daftary Vs. Ashim Ranjan & Anr., (2000) 2 GauLT 75 ) (ii) (Radio Talkies Equipment Company Vs. Debdas Ghosh, (2001) 2 GauLT 471 ) 14. Clause (e) of the proviso to Section 5(1) of the Assam Urban Area Rent Control Act provides that a tenant shall be liable to be evicted from the tenanted premises where the tenant has not paid rent lawfully due from him in respect of the house within a fortnight of its falling due. Section 5(4) provides, that where the landlord refuses to accept the lawful rent offered by his tenant, the tenant may within a fortnight of its becoming due, deposit in court the amount of such rent together with process fees for service of notice upon the landlord and on receiving such deposit, the court shall cause a notice of the receipt of such deposit to be served on the landlord. A tenant, who has made such deposit shall not be treated as a defaulter under Clause (e) of the proviso to Section (1) of this section. 15. In Rup Chand Daftary Vs. A tenant, who has made such deposit shall not be treated as a defaulter under Clause (e) of the proviso to Section (1) of this section. 15. In Rup Chand Daftary Vs. Ashim Ranjan (supra), this court held that the protection under Section 5(4) of the Rent Control Act shall be availed only when the tenant deposited rent in court in compliance with the provision of Section 5(4) of the Act, which provides that before depositing the rent in court, the tenant must offer rent to the landlord within a fortnight of its becoming due and only after refusal to accept rent, the tenant can deposit rent in court. Therefore, in order to get the protection under Section 5(4) of the Act, mere depositing rent in court will not be sufficient, rather to avoid the mischief of being defaulter, the tenant must prove all necessary requirement of Section 5(4) of the Act, that he offered rent to the landlord and upon refusal by the landlord, deposited the rent in court within a fortnight of its falling due. The tenant also needs to prove that necessary process fee for service of notice upon the landlord was also paid. Unless all these requirement of Section 5(4) are fulfilled, the tenant cannot get the protection under Section 5 (4) of the Rent Control Act. Similar view was taken by this court in Radio Talkies Equipment Company Vs. Debadas Ghosh & Anr., (2001) 2 GauLT 590 . It is therefore established proposition that in order to avoid the mischief of being defaulter by depositing rent in court, the tenant has to prove that he has complied with all the requirement of Sub-Section (4) of Section 5 of the Rent Control Act. 16. The plaintiff examining himself as PW-1, deposed that after 31.03.2006, no rent was paid to him and defendant never offered rent for the period 2006-2007. The defendant, examining himself as DW-1 stated that in the month of March, 2007, when she tendered the rent to the plaintiff, the plaintiff with ulterior motive and with some wild allegation refused to accept the rent offered by the defendant. During cross examination, DW-1 stated that when she went to pay the rent to the landlord, he told that receipt would be issued after one month, and thereafter she paid rent in court. During cross examination, DW-1 stated that when she went to pay the rent to the landlord, he told that receipt would be issued after one month, and thereafter she paid rent in court. Therefore, from the own admission of the DW1/defendant, it is apparent, that when she allegedly offered rent, the plaintiff only told, that he would issue receipt in the next month and therefore she deposited the rent in court. From the above statement of the defendant, it is apparent that the plaintiff did not refuse to accept rent, rather he only told that receipt would be given in the next month. 17. Dw-2 stated in is evidence that when the defendant (DW-1) offered rent, the plaintiff refused to accept the same. During cross examination, DW-2 stated that he himself offered rent to the landlord by a cheque, which is still with him. Evidently, no such cheque was produced and proved in court. Although the DW-2 claims to have offered rent to the plaintiff, in cross examination, DW-2 stated that he offered rent on 01.04.2007, whereas in examination-in-chief, he has stated that the rent was offered in the month of March, 2007. DW-1 also stated that the rent was offered in the month of March, 2007, whereas in her own admission, the plaintiff did not refuse to accept the rent, rather, he only stated that receipt would be issued in the next month. Learned counsel for the respondent, referring to Ext.E, the rent deposit challan for the period of 01.04.2006 to 31.03.2007 submitted that the rent was purportedly deposited on 21.03.2007. Therefore, Ext. E also belies the oral testimony of offering rent on 01.04.2007 as claimed by DW-2. It was also contended by Mr. S.P. Roy, that as per agreement between the parties, rent for the month 1st April to 31st March, falls due on April in the subsequent year and therefore, depositing rent even before its due itself suggests that there was no offer of rent by the tenant and refusal thereof by the landlord. Thus, the own evidence of the defendant shows that in fact, rent was neither offered nor refused by the landlord before depositing the same in court. 18. Mr. Sahewalla, placing reliance on the decision of Swapan Kumar Saha Vs. Thus, the own evidence of the defendant shows that in fact, rent was neither offered nor refused by the landlord before depositing the same in court. 18. Mr. Sahewalla, placing reliance on the decision of Swapan Kumar Saha Vs. Biswanath Sureka, (2014) 1 GauLT 252 submitted that when relationship between the parties is strained, it is not necessary to offer rent to the landlord on every month before depositing in court, inasmuch as, such offer of rent will be an idle formality. Therefore, contention of Mr. Sahewalla was that payment of rent in advance does not violate the provision of Section 5(4) of the Rent Control Act and it is well within the purview of Section 5(4) of the Act. In Swapan Kumar Saha (supra), this court observed in paragraphs22 and 23 as under: "(22) In the instant case, the defendant, who has examined himself as DW-(1), in his evidence has categorically stated that the rent payable for the month of February, 1993 was offered to the plaintiff/landlord in the first week of next month, namely, the month of March, 1993, which he has refused to accept and hence he has deposited the rent in Court by filing N. J. case (Ext.-G), within a fortnight of its falling due, together with the rent payable for the month of March, 1993 in advance. DW-(1), has also stated that while the rent was offered to the plaintiff no other person was present. DWs-2 and 3 naturally, therefore, did not know about offer of the rent. The plaintiff (PW-1), however, has denied making of such offer by the defendant. It is an admitted position of fact that the rent payable up to the month of January, 1993 has been paid regularly to the plaintiff, who accordingly issued the receipts. There is (sic. no) reason why the defendant would not offer the rent payable in February, 1993 to the landlord when he has paid the rent to him (landlord) regularly till January, 1993. Coupled with that the plaintiff (PW-1), in his deposition admitted bitter relationship with the defendant because of earlier suits, which also lends support to the defendant's case of refusal to accept rent for the month of February, 1993. Coupled with that the plaintiff (PW-1), in his deposition admitted bitter relationship with the defendant because of earlier suits, which also lends support to the defendant's case of refusal to accept rent for the month of February, 1993. That being the position, the finding of fact recorded by the lower appellate Court that the rent for the month of February, 1993 was not offered to the plaintiff cannot be sustained and hence such finding is set aside. (23) Next question which requires determination is whether deposit of rent in advance, based on the facts of this case, is a valid deposit within the meaning of the 1972 Act. The plaintiff (PW-1), during cross-examination has admitted that though there was cordial relationship between the plaintiff and the defendant, such relationship became strained after institution of another suit by the defendant against the plaintiff. A Single Bench of this Court in Muhit Kumar Deb Roy (supra), while considering as to whether the payment of rent in Court in advance before due date would be a valid deposit within the meaning of sub-section (4) of Section 5 of the 1972 Act, in the light of the decision of the Apex Court in Dr. Brahmanand (supra), has held that when the landlord refuses to accept the rent offered by the tenant for a month and accordingly the tenant deposit the rent for the month within the time allowed under the provisions of law together with the rent for the next month in advance, such deposit in advance would be valid deposit, as the physical payment or offer by the tenant for every month and/or wait for the rents becoming due, will be an idle formality." 19. The proposition laid down in the aforementioned decision is distinguishable on the factual matrix of the present case, inasmuch as, as per the ratio laid down in the aforementioned decision, when the relationship between the parties have become strained and the landlord refused to accept the rent forcing the tenant to deposit rent in court, it may not be necessary for the tenant to offer rent on every succeeding month, having regard to the strained relationship between the parties. However, fact of the present case is quite different, inasmuch as, admittedly in the present case, upto 31.03.2006 rent was paid and the rent from April, 2006 to March, 2007, as per agreement between the parties fell due in April, 2007 and the rent for the said period was deposited in court evidently in the month of March, 2007 without any offer to the landlord. It is not the case here, that the relationship between the parties was strained and rent offered by the tenant on earlier occasion was refused by the landlord atleast on one occasion and therefore rent for the subsequent months were paid in advance. Evidently, till 31.03.2006 rent was duly paid and there was no material to show any strain relationship between the parties during previous period. For the first time, the tenant allegedly deposited rent in court in the month of March, 2007, that too, without any offer to the landlord as apparent from the evidence on record. Therefore, in my considered view, the decision in Swapan Kumar Saha (supra) does not help the defendant in the instant case. 20. Learned Sr. Counsel Mr. Sahewalla also placed reliance on the decision of this Court in Upendra Deb Roy Vs. Suhashini Deb, 1989 2 GauLR 7, wherein this court held that when accumulated rent is payable at the convenience of the parties as per mutual agreement and there is no due date for payment of rent, the defendant cannot be held defaulter for not paying rent. In the present case, there was no dispute as to the due date or date when rent fell due. It is admitted position, that although, initially rent was to be paid month to month and rent fells due on the 1st week of subsequent month, such term of agreement was modified mutually and it was agreed by and between the parties, that rent shall be paid for 12 months together i.e. from April to March in the month of April, following the peiod of twelve months for which rent is due. Therefore, in the instant case, admittedly rent was due in the month of April or the rent for the period of 01.04.2006 to 31.03.2007 fell due in the month of April, 2007, and therefore, necessarily, the rent was to be paid within the fortnight from the last day of April, 2007. Therefore, in the instant case, admittedly rent was due in the month of April or the rent for the period of 01.04.2006 to 31.03.2007 fell due in the month of April, 2007, and therefore, necessarily, the rent was to be paid within the fortnight from the last day of April, 2007. Therefore, there was no dispute as to the due date or when the rent falls due in the present case. Situated thus, the decision in Upendra Deb Roy (supra) case also does not appear to be of any help to the defendant. 21. As already indicated above, rent was deposited in court in advance, even before its falling due and the defendant has also failed to prove that rent was offered to the landlord or the same was refused by him. The defendant has examined DW-3, a staff of the court, who has proved the relevant NJ Case register and deposed that vide Misc. N.J. Case No. 132/2007, the defendant deposited rent on 21.03.2007. However, the said record could not be produced as the same was missing, according to DW-3, who is a Sirastader of the office of the Munsiff No. 1. As already indicated above, one of the requirement under Section 5(4) is that the tenant is required to pay the process fee and take steps for service of notice on the respondent/landlord. In the instant case, no evidence could be adduced to show that step was taken for service of process on the landlord in respect of deposit of rent vide Ext.E in NJ Case No. 132/2007. True it is, that the record was missing, but the defendant could have proved the payment of process fee for service of notice by producing the relevant (process fee) register from the concerned court, but no such endeavor was made by the defendant. In a rent suit, it is the duty of the landlord to prove the relationship between the parties as well as the date, when rent falls due or the quantum of rent. Whereas, duty to the tenant is to prove that he paid the lawful rent due or deposited the same in court within the stipulated time as per procedure prescribed by law in order to avoid the mischief of being defaulter. Whereas, duty to the tenant is to prove that he paid the lawful rent due or deposited the same in court within the stipulated time as per procedure prescribed by law in order to avoid the mischief of being defaulter. In the present case, evidently, there was no offer of rent to the landlord before depositing the same in court or refusal by the landlord and the tenant has also not been able to prove that process fee was paid or steps were taken for service of notice on the landlord. Therefore, apparently, there was no compliance with the necessary requirement for a valid deposit under Section 5(4) of the Rent Control Act. Admittedly, the defendant did not pay the rent to the landlord for the period of April, 2006 - March, 2007. The tenant also failed to prove, that he deposited rent for the period from 01.04.2006 to 31.03.2007 in court as per the requirement of Section 5(4) of the Rent Control Act. This being the position, there could be no escape from the conclusion that the defendant/tenant defaulted in payment of rent. The learned courts below elaborately discussed the issue and came to a reasoned finding, that the defendant become defaulter for not paying rent in accordance with Section 5(4) of the Act, and such finding, in my considered view, has not suffered from any jurisdictional error requiring interference by this court. Point No. 2. 22. The plaintiff in his evidence deposed that the tenanted premises is in dilapidated condition and he intended to construct a multistoried building and therefore asked the defendant and other tenant to vacate the premises and the suit premises required for new construction. There is no dispute with regard to the fact that the suit premises was in a dilapidated condition, inasmuch as, the defendant himself stated that upon repeated request for repairing the house, the plaintiff verbally asked the defendant to repair the same. Learned counsel for the appellant, Mr. Sahewalla submitted that even during pendency of the appeal, the plaintiff entered into agreement with some other tenant to let out some shop premises near the suit premises, which would belie the version of the plaintiff that he requested the other tenant to vacate their houses. Learned counsel for the appellant, Mr. Sahewalla submitted that even during pendency of the appeal, the plaintiff entered into agreement with some other tenant to let out some shop premises near the suit premises, which would belie the version of the plaintiff that he requested the other tenant to vacate their houses. The defendant has also annexed two deeds to the revision petition to demonstrate that in the year 2016, the landlord entered into fresh agreement with some other tenant to let out shop rooms. However, those facts were not brought on record and the learned counsel Mr. Sahewalla placing reliance on Kedar Nath Agarwall (dead) and Anr. Vs. Dhanraj Devi (dead) by LRS & Ors., (2004) 8 SCC 76 submitted that these subsequent events can also taken into consideration by this court while deciding the issue of bonafide requirement. The Apex Court in Kedar Nath Agarwalla (supra) observed as follows: "......................The basic rule is that the rights of the parties should be determined on the basis of the date of institution of the suit or proceeding and the suit/action should be tried at all stages on the cause of action as it existed at the commencement of the suit/action. This, however, does not mean that events happening after institution of a suit/proceeding, cannot be considered at all. It is the power and duty of the court to consider changed circumstances. A court of law may take into account subsequent events inter alia in the following circumstances: (i) The relief claimed originally has by reason of subsequent change of circumstances become inappropriate; or (ii) It is necessary to take notice of subsequent events in order to shorten litigation; or (iii) It is necessary to do so in order to do complete justice between the parties." 23. Though ordinarily, the court adjudicate any dispute as it exists on date of filing the suit, but in an appropriate case, where relief sought in the original suit becomes inadequate due to subsequent events, court can take into account such subsequent event. However, subsequent event sought to be relied by the party needs to be brought on record as per procedure. The Apex Court in Ram Kumar Barnwal Vs. However, subsequent event sought to be relied by the party needs to be brought on record as per procedure. The Apex Court in Ram Kumar Barnwal Vs. Ram Lakhan (Dead), (2007) 5 SCC 660 held that subsequent event sought to be relied by the defendant unless brought on record as per established procedure, such event cannot be taken into account in a cavalier manner for the reasons, that acceptance or taken into account the subsequent event at a later stage without giving an opportunity to the other side to respond to such subsequent event, there would always be risk of causing prejudice to other party. Therefore, the subsequent event, sought to be relied by the defendant by producing the document annexed to the revision petition (Annexure-9 & 10) cannot be taken into account at this stage , for the simple reason, that the Annexure-9 & 10 were of 2016, when the first appeal was still pending. Therefore, if the defendant was at all willing to bring on record those documents, as proof of subsequent event, the defendant could have endeavored to bring on record the said annexures 9 & 10 at least, before the appellate court, as per procedure of law. Such endeavor having not been made during pendency of the proceeding, the defendant cannot be allowed to come with such subsequent event without giving an opportunity to the other side to respond to such document at this stage. 24. Placing reliance on the decision of this Court in Kedarnath Agarwal Vs. Dhanraj Devi, (2004) 8 SCC 76 ; Jesrai Sharma & Anr. Vs. Nand Kishore Sureka,1993 1 GauLR 193 , Mr. Sahewalla submitted that the requirement of the plaintiff must be bonafide and genuine requirement and it must contain the element of need in it and mere desire of the plaintiff without honest and genuine need cannot be considered as bonafide requirement. 25. In the instant case, evidently the suit premises is tin shed house and needs repairing, It is also admitted position that the suit premise is shop house situated in commercial place and the specific plea of the plaintiff is that he wants to construct a multistoried building. The Apex Court in Anil Bajaj and Anr. Vs. 25. In the instant case, evidently the suit premises is tin shed house and needs repairing, It is also admitted position that the suit premise is shop house situated in commercial place and the specific plea of the plaintiff is that he wants to construct a multistoried building. The Apex Court in Anil Bajaj and Anr. Vs. Vinod Ahoja, (2014) 15 SCC 610 held that the landlord or owner of the house is the best judge as to how he will use the house and therefore, it is the landlord or owner of the house to decide what is bonafide requirement for him, the defendant cannot dictate as to the bonafide or genuine requirement. [one may also see (2019) 2 GLT 897: (2018) 1 GLT 172]. In the instant case, when the suit premises was in dilapidated condition and situated in a business area and the plaintiff sought to construct a new building in the place of the dilapidated house, the requirement of the plaintiff cannot be thrown away holding the same as not genuine. In the facts and circumstances, both the courts below held that there was bonafide requirement of the plaintiff. Such concurrent findings of facts by two courts below, in my considered opinion, does not appear to have suffered from perversity or jurisdictional error, warranting interference by this court in exercise of revisional power. Accordingly, the point No. 2 is decided against the petitioner. 26. The revisional power of the High Court is circumscribed by Section 115 of the CPC, which provides that an order sought to be revised can be interfered with, only when the court below failed to exercise jurisdiction vested in it or exercised jurisdiction not vested or acted in the exercise of its jurisdiction illegally or with material irregularity. Therefore, unless the finding of the learned court below suffers from jurisdictional error or perversity or material illegality causing miscarriage of justice, revisional court should stay its hands, even if the order or judgment sought to be revised is erroneous in law or facts. The findings relating to defaulter as well as bonafide requirement being question of fact and concurrent finding of the two courts below on facts having not suffered from any jurisdictional error, this court has no reason to interfere and as such the revsion petition is devoid of merit and accordingly dismissed. 27. The findings relating to defaulter as well as bonafide requirement being question of fact and concurrent finding of the two courts below on facts having not suffered from any jurisdictional error, this court has no reason to interfere and as such the revsion petition is devoid of merit and accordingly dismissed. 27. Evidently, the suit premises is used for commercial purpose, therefore, having taken into account the inconvenience that may be caused to the defendant/petitioner, 4 (four) months time is granted to the defendant/revision petitioner to vacate the suit premises. The petitioner/tenant shall appear before the learned Munsiff, Nagaon within 1 (one) month from today and shall give an undertaking before the learned Munsiff, that he shall vacate the premises on expiry of 4 (four) months time without execution and he shall also continue to pay the monthly rent as per the agreed rate for these period of four months. It is made clear that such payment of rent shall not create any new tenancy or any fresh right in favour of the defendant/petitioner. The defendant/petitioner shall not sub-let or create any third party interest in the tenanted premise within the said period of four months. In case of violation of any of the conditions as aforesaid, the decree may be put to execution even before completion of such 4 months time. On completion of the four months time, if the defendant fails to vacate the suit premises, the decree may be put to execution. 28. Send down the record. Parties to bear their own cost.