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2019 DIGILAW 261 (GAU)

Nani Gopal Deb v. Shyamal Rishi

2019-02-26

PRASANTA KUMAR DEKA

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JUDGMENT : PRASANTA KUMAR DEKA, J. 1. Heard Mr. G.N. Sahewalla, learned Senior counsel assisted by Ms. S. Katakey, learned counsel for the petitioners. Also heard Mr. D. Mazumdar learned Senior counsel assisted by Mr. S. Biswas, learned counsel for the respondents. 2. In the present revision petition the judgment and decree dated 4.9.2018 passed by the learned Civil Judge No. 1, Cachar at Silchar in Title Appeal No. 23/2016 is put under challenge. The present respondents are the legal heirs of late Sumanta Rishi who as the plaintiff, since deceased filed Title Suit No. 150/2009 in the court of Munsiff No. 1, Cachar, Silchar against the petitioner defendant for ejectment on the ground of defaulter and bona fide requirement of the tenanted premises. On the death of the plaintiff the present respondents were impleaded. 3. The facts of the case leading to filing of the suit are that the defendant petitioner is a tenant with respect to the suit premises since 1.4.2000 for a period of three years under the plaintiff at a monthly rent of Rs. 1600/-. In between there were tenancy agreements after the stipulated period and finally an agreement of tenancy exists between the parties w.e.f. 1.4.2006 to 31.3.2009 at a monthly rent of Rs. 2300/- After expiry of period of tenancy on 31.3.2009 the defendant petitioner neither vacated the tenanted premises as per terms of the agreement nor tendered any rent in respect of the tenanted premises resulting the defendant petitioner defaulter in payment of monthly rent since April, 2009. The entire advance amount of Rs. 50,000/- was adjusted against the monthly rent in the month of July, 2006. It is stipulated in each of the agreements including the one dated 14.4.2000 that if the tenanted premises is bona fide required by the plaintiff respondent for her own occupation, the defendant petitioner shall vacate and deliver the possession of the tenanted premises to the plaintiff respondent without any protest. The tenanted room is bona fide required by the plaintiff respondent for the purpose of starting business of her grandson who completed his course of medical Laboratory Technician (Pathology) and he decided to start his own business of Pathology laboratory in the tenanted premises. The tenanted room is bona fide required by the plaintiff respondent for the purpose of starting business of her grandson who completed his course of medical Laboratory Technician (Pathology) and he decided to start his own business of Pathology laboratory in the tenanted premises. After completion of the stipulated period of tenancy the plaintiff respondent requested the defendant petitioner to vacate the premises for her bona fide requirement but in clear violation of the Clause No. 12 of the agreement, without tendering the rent to the plaintiff respondent he deposited the rent in the Court. The suit accordingly was filed for ejectment of the defendant petitioner on the ground of defaulter in payment of monthly rent and also on the bona fide requirement of the tenanted premises by the landlord respondent. Alongwith the said relief arrear rent w.e.f. April, 2009 to October, 2009 @ 16,100/- was also sought to be realised. 4. The defendant petitioner filed his written statement raising the plea of maintainability of the suit including bar of the suit under the Assam Urban Areas Rent Control Act, 1972. Admittedly the defendant petitioner obtained the tenancy of a room measuring 18 feet x 16 feet in single storied house of the plaintiff respondent in the year 1974 at monthly rent of Rs. 125/-. In the year, 1988 a tenancy agreement in respect of the tenanted room was executed by the plaintiff respondent for a period of three year and at a monthly rent of Rs. 450/-. After expiry of the period tenancy, admitted continuation of the same vide various agreements including an advance of Rs. 50,000/- for construction of the present RCC room and the subsequent deduction of the advance of Rs. 50,000/-. Also admitted the tenancy agreement in the year 2006 till 2009 and acceptance of rent till March, 2009. 5. In the first week of May, 2009 the plaintiff respondent was offered Rs. 2760/- as monthly rent which included the earlier rent of Rs. 2300 plus 20% enhancement in cash by the defendant petitioner. But the plaintiff respondent declined to accept such rent which compelled the petitioner to deposit the rent in the court. At the time of such tender of the monthly rent the plaintiff respondent not only refused to accept such rent but expressed that in future also she would not accept any rent from the defendant petitioner. But the plaintiff respondent declined to accept such rent which compelled the petitioner to deposit the rent in the court. At the time of such tender of the monthly rent the plaintiff respondent not only refused to accept such rent but expressed that in future also she would not accept any rent from the defendant petitioner. Thereafter the rent for the month of May, 2009, June, 2009 and July, 2009 were tendered in cash at the rate of Rs. 2760/- per month to the plaintiff respondent within the first week of each of the succeeding months and on refusal to accept the same by the plaintiff respondent the same were deposited in the court. The rent for the month of August, 2009 and advance rent for the month of September, 2009 were offered to the plaintiff respondent within first week of September, 2009 in view of Puja vacation of the court which was also refused by the plaintiff respondent. Accordingly, the defendant petitioner was compelled to deposit the rent for August 2009 and advance rent of September 2009 at the rate of Rs. 2760/- per month in the court. The rent of October to December, 2009 were deposited in the court. Thereafter the defendant petitioner offered rent for the month of January, 2010 and advance rent for February, 2010 to Jun, 2010 together but same having refused by the plaintiff respondent the defendant petitioner was compelled to deposit such rent in the court. In the first week of August, 2010 the defendant petitioner tendered the rent for the month of July, 2010 alongwith advance rent for the month of August to December, 2010 to the plaintiff respondent in cash. But on refusal to accept the rent, the defendant petitioner deposited the same in the court. 6. Regarding the bona fide requirement it was pleaded that the room situated in South is under possession of one tenant since 1st April, 2009. Another room of the plaintiff petitioner is under possession of another tenant since 1.4.2009. Besides that there is a vacant room which is not used and kept it under lock and key by the respondent. As such, the claim of bona fide requirement is totally an afterthought, without there being any genuineness in the claim so made. 7. On the basis of the pleadings the learned trial court framed the following issues. "1. Besides that there is a vacant room which is not used and kept it under lock and key by the respondent. As such, the claim of bona fide requirement is totally an afterthought, without there being any genuineness in the claim so made. 7. On the basis of the pleadings the learned trial court framed the following issues. "1. Is there any cause of action for filling this suit? 2. Is the suit maintainable in its present form and manner? 3. Whether there exist/existed any landlord tenant relationship between the plaintiff and the defendant at the time when the cause of action, if any, arose? 4. Whether the defendant is a defaulter in payment of monthly rent? 5. Whether the plaintiff has/had any bona fide requirement of the shop house/premises in question? 6. Whether the plaintiff is entitled to the relief claimed or any part thereof?" 8. The plaintiff respondent adduced evidence of two witnesses, and P.W. 1 is the son of the plaintiff respondent who is an old aged lady and the said P.W. 1 is the constituted attorney of the said landlord plaintiff. On the other hand, the defendant petitioner also adduced evidence of two witnesses. The learned trial court took for consideration issue Nos. 3 and 4 jointly and held that the defendant petitioner is a defaulter in payment of the monthly rent and also held that the landlord tenant relationship between the parties ceased to exist from the month of April, 2009 and decided the issue No. 3 in negative and the issue No. 4 in the affirmative. However, the learned trial court decided the issue No. 5 regarding bona fide requirement of the tenanted premises by the plaintiff respondent in the negative by holding that though it is the well settled principle that the landlord is the best judge of his requirement but it must be looked into that such requirement is bona fide as mandated by Section 5 of the Assam Urban Areas Rent Control Act, 1972. On the basis of the finding in issue No. 4 the suit was decreed in favour of the plaintiff respondent vide judgment and decree dated 12.4.2016 passed in Title Suit No. 150/2009. 9. On the basis of the finding in issue No. 4 the suit was decreed in favour of the plaintiff respondent vide judgment and decree dated 12.4.2016 passed in Title Suit No. 150/2009. 9. Being aggrieved by the said judgment and decree, the defendant petitioner preferred Title Appeal No. 23/2016 in the Court of Civil Judge No. 1, Cachar, Silchar which was finally dismissed by judgment and decree dated 4.9.2018. On the other hand, the plaintiff respondent filed cross objection against the finding on issue No. 5. While upholding the finding of issue Nos. 3 and 4 the learned first appellate court reversed the finding of the issue No. 5 with regard to the bona fide requirement of the plaintiff respondent. Thereafter the present revision petition is preferred by the defendant petitioner. 10. Mr. Sahewalla, the learned Senior counsel submits that the finding in issue No. 3 by the courts below to the effect that the landlord tenant relationship between the parties to the suit ceased to exist from the month of April 2009 is sufficient to come to a conclusion that the suit is not maintainable under Assam Urban Areas Rent Control Act, 1972. In the first appellate court the plaintiff respondent filed cross objection against the finding of the learned trial court in respect of issue No. 5 i.e. bona fide requirement. However, the plaintiff respondent failed to file any cross objection against the finding given in issue No. 3 in respect of relationship of landlord tenant. The same amounts to acceptance of the finding by the plaintiff/respondent of the learned courts below and as such, the suit ought to have been dismissed by the courts below. Against the said submission, Mr. Mazumdar learned Senior counsel on the other hand submits that the said submission of non-maintainability of the suit cannot be taken into consideration inasmuch as it is the pleading of the parties to the suit which clearly and specifically concluded the fact that landlord tenant relationship is admitted by the defendant petitioner himself. Moreover the spirit of Order 41 Rule 22 CPC can be applied and going through the pleadings and materials on record the said finding can very well be entered into even at this stage and decide the same. 11. Mr. Sahewalla relying on the case of Kundan Vs. Kanahya and Ors. Moreover the spirit of Order 41 Rule 22 CPC can be applied and going through the pleadings and materials on record the said finding can very well be entered into even at this stage and decide the same. 11. Mr. Sahewalla relying on the case of Kundan Vs. Kanahya and Ors. reported in AIR 1953 HIM-P 91 submits that once the plaintiff respondent failed to raise any cross objection under Order 41 Rule 22 CPC before the appellate court the same cannot be agitated in a revision petition u/s. 115 of CPC. In response to the said submission of Mr. Sahewalla, Mr. Mazumdar on the other hand, relies on a Full Bench decision of the Hon'ble High Court of Kerala down loaded from Supreme Today 2019-02-25 and submits that the respondent in a revision petition cannot invoke Order 41 Rule 22 Code of Civil Procedure (for short CPC) filed by the opposite party for the purpose of getting an order in favour of the respondent on a distinct and different ground of eviction which was denied to him by the court below. But the plaintiff respondent is not asking for eviction on a distinct and different ground of eviction as both the courts below was satisfied with the grounds pleaded in the plaint by the plaintiff respondent and on evidence the courts below decreed the suit in favour of the plaintiff respondent. 12. Mr. Mazumdar further relying on (2014) 9 SCC 78 Hindustan Petroleum Corporation Limited Vs. Dilbahar Singh submits that the revisional power under the Assam Urban Areas Rent Control Act, 1972 may not be as narrow as the revisional power u/s. 115 of the CPC but at the same time it is not wide enough to make the High Court a second court of first appeal. The said observation was made while discussing the revisional scope u/s. 25 of Tamilnadu Rent Control Act. Section 15(6) of the Haryana Urban(Control and Eviction) Act 1973 and Kerala Building(Lease and Rent control) Act, 1965. 13. I have given due consideration to the submissions of the learned Senior Counsel. On perusal of the judgment of both the courts below it is noticed that a finding was given by the trial court while deciding the issue No. 3 that the landlord tenant relationship between the parties to the suit ceased to exist from the month of April, 2009. On perusal of the judgment of both the courts below it is noticed that a finding was given by the trial court while deciding the issue No. 3 that the landlord tenant relationship between the parties to the suit ceased to exist from the month of April, 2009. The said finding is also concurred by the first appellate court. It is also the admitted position that the landlord respondent in the first appellate court preferred cross objection under Order 41 Rule 22 CPC against the finding of the learned trial court with respect to the issue No. 5, whether the plaintiff has/had any bona fide requirement of shop house/premises in question. However, there was no cross appeal with respect to the finding in issue No. 3 and Mr. Sahewalla submits that as there does not exist landlord tenant relationship between the parties to the suit, both the courts below exceeded its jurisdiction in deciding the other issues under the Rent Control Act. This is countered by Mr. Majumdar that the spirit of Order 41 Rule 22 of the CPC can be invoked and this revisional court can very well correct the said finding in issue No. 3 by looking into the pleadings of the parties to the suit. 14. There is no dispute as held by a Division Bench of this court in Ranjit Kr Dey and others Vs. Krishna Gopal Agarwal reported in 2004(2) GLT 435 that judgment and decree of the appellate court passed under Section 8 of the Assam Urban Areas Rent Control Act, 1972 can be challenged in a revision petitioner u/s. 115 of the CPC. The said provision under the CPC stipulates the High Court may call for the records of any case which has been decided by any court subordinate to such High Court and in which no appeal lies thereto and if such subordinate court appears to have exercised a jurisdiction not vested by any law or failed to exercise jurisdiction so vested or acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such order in the case as it thinks fit. Section 8 of the Act, 1972 prescribes the right of appeal against any decision or order of the court under the provision of Sections 4, 5 and 7(2) of the said Act in a suit for ejectment of the tenant from the house and such appellate court's decision shall be final. Section 2(a) defines the court under the Act which means the court of ordinary civil jurisdiction which would be competent to pass a decree for the eviction of a tenant from a house. The right of appeal u/s. 8 of the Act clearly and without any dispute prescribes the applicability of Order 41 of the CPC. Cross objection is stipulated in an appeal under Order 41 Rule 22 CPC. A party in an appeal only can prefer cross objection under Order 41 Rule 22 of the CPC, inasmuch as the right of the appeal is a statutory right under the Act, 1972. The scope of cross objection in an appeal cannot be allowed permitting a respondent in a revision petition filed by the revision petitioner keeping in view the limited scope u/s. 115 of the CPC. There is a distinction between an appeal and a revision petition. A Four Judge Bench of the Hon'ble Apex Court in the case of Hari Shankar and others Vs. Rao Giridharilal Choudhury reported in AIR 1963 SC 698 distinguished an appeal and a revision petition which is reproduced herein below: "Para 7: The distinction between an appeal and a revision is a real one. A right of appeal carries with it a right of rehearing on law as well as fact, unless the statute conferring the right of appeal limits the rehearing in some way as, we find, has been done in second appeals arising under the Code of Civil Procedure. The power to hear a revision is generally given to a superior Court so that it may satisfy itself that a particular case has been decided according to law. Under s. 115 of the Code of Civil Procedure. the High Court's powers are limited to see whether in a case decided, there has been an assumption of jurisdiction where none existed, or a refusal of jurisdiction where it did, or there has been material irregularity or illegality in the exercise of that jurisdiction. The right there is confined to jurisdiction and jurisdiction alone. the High Court's powers are limited to see whether in a case decided, there has been an assumption of jurisdiction where none existed, or a refusal of jurisdiction where it did, or there has been material irregularity or illegality in the exercise of that jurisdiction. The right there is confined to jurisdiction and jurisdiction alone. In other acts, the power is not so limited, and the High Court is enabled to call for the record of a case to satisfy itself that the decision therein is according to law and to pass such orders in relation to the case, as it thinks fit." 15. The said decision was rendered in order to examine the scope of the power of interference u/s. 115 of the CPC keeping in view the provision of Section 35 of the Delhi and Ajmer Rent Control Act 1952 to the extent whether the High Court can reassess the value of evidence and interfere with finding of fact. The said Section 35 which is couched by the phrase "according to law" as held by the Apex Court, the High Court exercising its jurisdiction u/s. 115 of CPC can reassess the value of evidence before interfering of the finding of fact. 16. This Court exercising its jurisdiction under Section 115 of CPC will be within its limited revisional jurisdiction u/s. 115 CPC to examine the correctness of the courts below in arriving the finding in issue No. 3. It is the law holding the field that a tenant cannot be evicted without due process of law and the same must be within the ambit and scope of the Act, 1972. Section 5 of the Act stipulates a bar against passing execution of order and decree for ejectment by any court so long as the tenant pays rent to the full extent allowable under the said Act and performs the condition of the tenancy. Here the learned trial court held that the tenant petitioner is liable to be ejected as he is a defaulter in payment of monthly rent but there is no bona fide requirement of the suit premises so far the landlord respondent is concerned. Here the learned trial court held that the tenant petitioner is liable to be ejected as he is a defaulter in payment of monthly rent but there is no bona fide requirement of the suit premises so far the landlord respondent is concerned. The first appellate court in addition to giving its concurrence to the finding in Issue No. 4 that the tenant petitioner is a defaulter in payment of monthly rent also reversed the finding on the Issue No. 5 of the learned trial court and held that the suit premises is required bona fide by the landlord respondent. Both the courts below held that the tenant petitioner is liable to be ejected from the tenant premises. On the face of it, the courts below held that there exist no landlord tenant relationship between the parties to the suit which is contradictory to the findings in Issue Nos. 4 and 5. Now looking back to Section 5 of the Act 1972 which speaks of protection of tenant only and the finding in Issue No. 3 that the relationship of the landlord and tenant between the parties to the suit ceased to exist from the month of April, 2009 I find that it requires examination of the said finding by this court as the revisional court inasmuch as Section 115 of the CPC authorises this court to see if the subordinate court while deciding the said issue had exercised its jurisdiction with material irregularity and if the said findings are left undecided the same itself would amount to wrong application of the jurisdiction by the courts below in deciding the suit invoking the jurisdiction of the Act, 1972. With the aforesaid discussion, I am of the considered opinion that this court without importing the spirit of the provision under Order 41 Rule 22 of the CPC has the jurisdiction to examine the submission made by Mr. Sahewalla. 17. I have perused the plaint. In the plaint the respondent pleaded that the defendant petitioner is the tenant under the plaintiff respondent vide agreement dated 14.4.2000, the monthly rent payable within seven days of the following month according to the English calendar. The said tenancy agreement was for a period of three years. On expiry of the said tenancy agreement another agreement was entered between the parties w.e.f. 1.4.2003 to 31.3.2006 at enhanced rent of Rs. 1920/-. The said tenancy agreement was for a period of three years. On expiry of the said tenancy agreement another agreement was entered between the parties w.e.f. 1.4.2003 to 31.3.2006 at enhanced rent of Rs. 1920/-. The rest of the terms of the said agreement were similar to those stipulated in the agreement dated 14.4.2000. After expiry of the period of the tenancy on 31.3.2006 another agreement was entered into w.e.f. 1.4.2006 to 31.3.2009 with enhanced rent of Rs. 2300/-. After expiry of period of tenancy on 31.3.2009 the defendant petitioner did not vacate the tenanted premises nor paid the monthly rent since April 2009, and the defendant petitioner is in illegal occupation of the tenanted premises and liable to be evicted. 18. In the real state of affairs pleaded by the defendant petitioner in the written statement he admitted that in the year, 1974 he obtained the tenancy of a room measuring 18 feet x 16 feet at a monthly rent which he continued. On 24.4.1998 there was another tenancy agreement for a period of three years w.e.f. 1.1.1998 to 31.12.1990 and rent was fixed at Rs. 450/-. Again a fresh tenancy agreement was entered and continued till 1.1.1997. The tenanted premises was demolished and RCC premises was constructed. A fresh tenancy agreement was entered into for a period of three years from 1.4.2000 to 31.3.2003 at a monthly rent of Rs. 1600/- Another agreement dated 23.4.2006 was entered into for a period of three years up to 31.3.2009 and rent was fixed at Rs. 2300/-. He admitted the subsequent tenancy agreement including the one which expired on 31.3.2009 and further pleaded that he offered rent to the landlord before depositing the same in the court on each and every occasion till the year 2010. 19. The first appellate court while giving its finding in Issue No. 3 held that as per Ext. J tenancy agreement it was for a period from 1.4.2006 to 31.3.2009 and admittedly, there was no fresh tenancy agreement executed by both the parties after expiry of tenancy agreement on 31.3.2009. Therefore in the attending facts and circumstances it is proved that the landlord tenant relationship between the parties ceased to exist from the month of April, 2009. J tenancy agreement it was for a period from 1.4.2006 to 31.3.2009 and admittedly, there was no fresh tenancy agreement executed by both the parties after expiry of tenancy agreement on 31.3.2009. Therefore in the attending facts and circumstances it is proved that the landlord tenant relationship between the parties ceased to exist from the month of April, 2009. The said finding in my considered opinion is a finding though goes to the root of the decision rendered by the courts below, but from the evidence as recorded by the courts below wherein the tenant petitioner admitted deposit of rent for the month of October to December, 2009 at a time, July, 2010 to December, 2010, July 2011 to March, 2012, April, 2012 to December, 2012, January, 2013 to December, 2013 at a time itself goes to show that the relationship of landlord tenant continued at least till the date of filing the suit. Once the tenancy agreement expires the tenant becomes statutory tenant which indicates itself the tenancy is governed by the statute. The Act, 1972 is the statute which clearly gives the protection to a tenant from being ejected until the tenant pays the monthly rent to the landlord within a fortnight of its falling due if not, the tenant is liable to be ejected under the proviso (e) of Section 5(1). On the other hand if the landlord refuses to accept the lawful rent offered by tenant he is protected u/s. 5(4) subject to conditions stipulated therein. There is no dispute at bar that the relationship of landlord tenant can only be looked into by the court when there is denial of such relationship by a party to the suit but even for invoking the jurisdiction by the court for granting reliefs under a Special Statute i.e. the Act of 1972. The act of invoking jurisdiction by a competent court under a Special Statute arises from the nature of dispute pleaded before it but not from the reliefs sought for by a party therein. So the pleadings of the parties for invoking the jurisdiction in such circumstances, plays a vital role. From the perusal of the plaint and written statement of the tenant petitioner, there is no pleading in order to conclude that there was denial of the landlord tenant relationship by the defendant petitioner nor such an inference can be drawn. So the pleadings of the parties for invoking the jurisdiction in such circumstances, plays a vital role. From the perusal of the plaint and written statement of the tenant petitioner, there is no pleading in order to conclude that there was denial of the landlord tenant relationship by the defendant petitioner nor such an inference can be drawn. Under such circumstances, I am constraint to hold that the said finding does not amount to material irregularity rather a casual finding having no bearing on the jurisdiction applied by both the courts below in deciding the dispute between the parties to the suit under the Assam Urban Areas Rent Control Act, 1972. 20. Mr. Sahewalla submits that the defendant petitioner deposited in the court the monthly rent at a time stretching even for a period of six months in advance. The court below came to the finding that there was no tender before depositing the rent in the court. The reason for non tendering the rent was because of the fact that the original landlord declined to accept the rent for the month of April, 2009 tendered in the month of May, 2009 and also expressed that in future also she would not accept any further rent from the tenant petitioner. It is the contention of the learned Senior counsel that once the landlord declined to accept the rent for the month of April, 2009, and subsequent months, the act of further tendering the rent to the plaintiff respondent is nothing but an idle formality. In order to buttress his submission Mr. Sahewalla relied the decision of Swapan Kumar Saha Vs. Biswa Nath Sureka reported in 2014 (1) GLT 252 and submits that the original landlord though filed the suit did not appear in the witness box. Rather her son P.W. 1 deposed on behalf of the said landlord. The fact that the landlord declined to accept the rent remained unrebutted and as such, there was no requirement to tender the rent on each and every occasion. After denial to accept the rent further it does not require the defendant petitioner to tender the rent month to month basis and the only alternate was to deposit the same in the court keeping in view the conduct of landlord. It is sufficient if the rent is deposited in the court. After denial to accept the rent further it does not require the defendant petitioner to tender the rent month to month basis and the only alternate was to deposit the same in the court keeping in view the conduct of landlord. It is sufficient if the rent is deposited in the court. The courts below failed to appreciate that after such denial by the landlord respondent the act of tendering the rent month to month basis is nothing but mere idle formality and misdirected itself by taking into consideration that the relation between the landlord and the tenant was not strained. The basis for such conclusion of the courts below was that the defendant petitioner visited the cremation ground on the death of the landlord respondent and he also attended the 'shraddha' ceremony of the landlord. 21. Mr. Mozumdar on the other hand, countered the submission of Mr. Sahewalla submitting that the terms of tenancy requires payment of monthly rent within seven days of the following calendar month and there was no practice of advance rent. The act of tendering rent for two to six months together is admitted by the defendant petitioner. Such deposit of rent in advance is a clear violation of the tenancy agreement. It is submitted that Section 5(4) of the Act, 1972 requires the tenant to deposit the rent on refusal by landlord within a fortnight from the date of its becoming due together with process fee with notice to the landlord. There is no iota of evidence in order to show that the relation between the landlord and tenant was strained. Mere pleading that the landlord denied to accept the rent cannot be a ground to get the protection u/s. 5(4) of the Act, 1972 in a situation wherein the tenant admittedly deposited rent without tendering the same to the landlord and in clear violation of the condition of the tenancy agreement. Referring to the decision Swapan Kumar Saha (supra) Mr. Mazumdar submits that the factual matrix in the said case and the one in the present case are not similar. The fact of strained relation must be pleaded and proved. Accordingly, the finding with respect to the default in payment of rent by the defendant petitioner is proper which requires no interference. 22. I have considered the submission of the learned Senior counsel. The fact of strained relation must be pleaded and proved. Accordingly, the finding with respect to the default in payment of rent by the defendant petitioner is proper which requires no interference. 22. I have considered the submission of the learned Senior counsel. The court below came to the conclusion that the deposit of rent for the month of September, 2009, November, 2009 and December, 2009, February, 2010 to June, 2010, August, 2010 to March, 2011 etc. were not made as per the provision of Section 5(4) of the Act, 1972 and the said deposit were not valid in the eye of law. The defendant petitioner had defaulted in depositing the rent for the said month. It is an admitted position that the defendant petitioner failed to deposit monthly rent in the court as required under Section 5(4) of the Act, 1972. Whether such deposit in the court can be considered to be lawful deposit. As per Mr. Sahewalla once the landlord refused to accept the monthly rent tendered subsequent tender of the monthly rent is idle formality. On the other hand, it is the contention of Mr. Mazumdar that the tenancy agreement does not speak of any monthly rent to be paid in advance rather the same is payable within seven days of succeeding calendar month. 23. In the written statement the defendant petitioner states that in the 1st week of May, 2009 the plaintiff respondent was offered enhanced rent in cash by the defendant petitioner which the plaintiff respondent declined to accept and was compelled to deposit in the court within the statutory period. It is the further contention that the plaintiff respondent not only refused to accept the rent for the month of April, 2009 tendered in the month of May, 2009, but also expressed that in future also she would not accept any rent from the defendant petitioner. The rent for the month of May, June and July, 2009 were offered by the defendant petitioner within the first week of each of the succeeding month and on refusal by the plaintiff respondent, the same was deposited in the court within the statutory period. The rent for August, 2009 and advance rent for the month of September, 2009 were offered which was refused by the plaintiff respondent. The rent for August, 2009 and advance rent for the month of September, 2009 were offered which was refused by the plaintiff respondent. As such, the same was deposited in the court for the month of August, 2009 alongwith the advance rent for the month of September. Accordingly, in the pleading itself even during the subsequent payment of the rent in advance, the defendant petitioner pleaded that on each and every occasion he offered rent for a particular month alongwith advanced rent which the plaintiff respondent refused to accept. The said pleadings itself goes to show that the fact of strained relation between the landlord and the tenant is totally unacceptable. The courts below however, went a step further and took note of the deposition that as the defendant petitioner went to the cremation ground and the subsequent 'Shraddha' ceremony on the death of the plaintiff respondent, as such the relation was not strained between the defendant and the plaintiff. In Swapan Kr. Saha (supra) there was a clear specific finding that the relation between the plaintiff landlord and the defendant tenant was strained and as such, the offer of the rent for subsequent month before making deposit in the court would be an idle formality. As herein above stated the pleading of the defendant petitioner is specific that on each and every occasion he tendered the rent alongwith advance rent and the plaintiff respondent refused to accept the same. Admittedly, as hereinabove stated, the tenancy agreement stipulated the monthly rent becomes due and payable within the seven days of next succeeding calendar month which is also admitted by the defendant petitioner. The practice itself indicates that there was no agreed terms and condition for acceptance of the monthly rent in advance. That itself is a violation of tenancy condition. Thereafter it is the case of the defendant petitioner that after refusal to accept the rent he deposited the same in the court alongwith advance rent. There is no evidence which leads to a conclusion that the relation between the landlord tenant was bitter nor it was the practice of acceptance of monthly rent in advance. In such a situation, the deposit of monthly rent in violation of the terms and condition of tenancy agreement even under Section 5(4) itself is a ground to hold that the defendant petitioner is a defaulter and liable to be ejected. In such a situation, the deposit of monthly rent in violation of the terms and condition of tenancy agreement even under Section 5(4) itself is a ground to hold that the defendant petitioner is a defaulter and liable to be ejected. Accordingly, I am not inclined to interfere with the said finding of the court below. 24. Mr. Sahewalla submits that the finding of the learned trial court with respect to the Issue No. 5 i.e. bona fide requirement was just and proper. The learned trial court held that there were vacant rooms within the building itself and had there been any genuine and bona fide in the claim of the tenanted premises by the plaintiff respondent for accommodating her grandson, the said vacant rooms which were let out just prior to filing of the suit could have fully utilised for the benefit of the grandson of the plaintiff respondent. The said finding was reversed by the first appellate court merely placing reliance in a decision rendered by the Hon'ble Apex Court wherein it was held that the landlord is the best judge of its requirement for residential or business purpose and he has got complete freedom in the matter. Assailing the said finding it is submitted by Mr. Sahewalla that the court is duty bound in order to examine the genuinity and the bona fide of the claim of the landlord of the tenanted premises. 25. Relying on the decision of Sudama Prasad Vs. Ashok Kumar reported in (2007) 15 SCC 554, Mr. Sahewalla pointed out that the initial burden that the tenanted premises were required by the landlord bona fide must be proved by showing that he does not have any other suitable accommodation of his own. In the present case in hand the fact that two other rooms were let out in the month of April and May, 2009 itself shows that the claim of bona fide requirement is mere an eye wash. 26. Mr. Mazumdar submits that genuineness of a claim for bona fide requirement of tenanted premises is to be assessed not on the ground of any vacant rooms as held by the learned trial court but it is the overall satisfaction to be drawn by the court with respect to the capability including the qualification of the person to be engaged in the business. There is no denial of the educational qualification of the grandson for whom the plaintiff respondent claimed the tenanted premises as her bona fide requirement. In the present case in hand the initial burden stands proved that the grandson is qualified to run the pathological laboratory inasmuch as there is no denial of the fact that the grandson is educationally not qualified to run the pathological laboratory. It is the stand taken by the defendant petitioner that the said grandson is a resident of Tripura having his family members there and the act of induction of tenant in two vacant rooms prior to filing of the suit. It is further submitted that the learned trial court while rejecting the claim of bona fide requirement also held the settled principle is that the landlord is the best judge of his requirement. But the trial court was not satisfied with regard to the requirement as bona fide in the light of Section 5 of the Act, 1972. The said finding by the learned trial court is rightly reversed by the first appellate court by considering the well settled principle referred by the learned trial Court itself. 27. I have taken into consideration of the submissions. The finding of the first appellate court while reversing the finding of the trial court is that the plaintiff landlord wanted the suit room for the purpose of starting a pathological laboratory for his grandson and came to the finding that the business would apparently be a family business. There may be other vacant rooms in the same complex or adjacent to the suit room but those rooms may not be suitable and proper for starting the family business. The first appellate court considered the evidence of the grandson who deposed as P.W. 2 and came to a finding that the tenanted premises is bona fide required by the plaintiff respondent. The said finding, in my opinion requires no interference. There is no dispute that the grandson is not at all qualified nor has the capability for running the said business of pathological laboratory. The genuineness of the claim for the purpose of bona fide requirement may not be looked into within a narrow scope. It must be given due consideration with a wide and variable scope which the landlord is the best person to take a decision thereon. The genuineness of the claim for the purpose of bona fide requirement may not be looked into within a narrow scope. It must be given due consideration with a wide and variable scope which the landlord is the best person to take a decision thereon. Suffice it to hold the claim as genuine in the present factual matrix that the person for whose benefit the claim was made by the respondent possesses the qualification to run a pathological laboratory. The decision rendered in Ragavendra Kumar Vs. Firm Prem Machinery and Co. Reported in (2001) SCC 679 holding that the landlord is the best judge of its requirement for residential or business purpose and has got complete freedom in the matter is applicable which the learned first appellate court rightly applied. 28. The proviso (c) to sub-Section(1) of the Act 1972 stipulates a duty on the court to examine the "bonafide" or "genuinity" of such claim of requirement of the tenanted premises by the landlord (i) for purposes of repairs or re-building or (ii) for his own occupation or (iii) for the occupation of any person for whose benefits the house is held or (iv) any other cause shown by the landlord which may be deemed satisfactory by the Court. In the present case the claim falls under the fourth (iv) requirement. The terms "bonafide" and "genuinely", what it means keeping in view the rent control legislation and the legislative intent are lucidly described in Shiv Sarup Gupta Vs. Dr. Mahesh Chand Gupta reported in AIR 1999 SC 2507 as follows: "13................. Thus the term bona fide or genuinely refers to a state of mind. Requirement is not a mere desire. The degree of intensity contemplated by 'requires' is much more higher than in mere desire. The phrase 'required bona fide' is suggestive of legislative intent that a mere desire which is outcome of whim or fancy is not taken note of by the Rent Control Legislation. A requirement in the sense of felt need which is an outcome of a sincere, honest desire, in contradistinction with a mere pretence or pretext to evict a tenant, on the part of the landlord claiming to occupy the premises for himself or for any member of the family would entitle him to seek ejectment of the tenant. A requirement in the sense of felt need which is an outcome of a sincere, honest desire, in contradistinction with a mere pretence or pretext to evict a tenant, on the part of the landlord claiming to occupy the premises for himself or for any member of the family would entitle him to seek ejectment of the tenant. Looked at from this angle, any setting of the facts and circumstances protruding the need of landlord and its bona fides would be capable of successfully withstanding the test of objective determination by the Court........" The protruding facts brought against by the defendant petitioner (tenant) against the landlord respondent is that prior to filing of the suit there were two rooms which were vacant and let out to other tenants but not kept for own accommodation of the landlord. On the other hand, P.W. 2 is the grandson for whom the tenanted premises is required. The first appellate court took not of the deposition of the P.W. 2 and reversed the finding of the trial court. The qualification of P.W. 2 has its importance in the present factual matrix considering the "protruding" facts against the landlord respondent. In my opinion the P.W. 2 is a specialised in respect of the pathological laboratory. The space required for such a specialised business cannot be decided by the court nor the tenant who is admittedly not in the same line of business what the P.W. 2 is planning. Under such circumstances the landlord would be the best judge to the requirements. Accordingly, the protruding facts brought by the tenant can very well withstand the requirement of the landlord. 29. In the result this revision petition fails and stands dismissed without any cost. The plaintiff respondent shall not execute the decree of ejectment for a period of three months from today keeping in view that the defendant petitioner has been running the business from the tenanted premises since long. During the period of this three months the defendant petitioner shall pay the agreed monthly rent without any default to the plaintiff respondent and in the event of failure to vacate the same after the said period of three months the plaintiff respondent shall be entitled to enforce the decree of ejectment against the defendant petitioner.