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2019 DIGILAW 959 (GAU)

Bikash Barman v. Sushanta Ghosh

2019-08-29

MIR ALFAZ ALI

body2019
JUDGMENT : Mir Alfaz Ali, J. This revision by the defendant is directed against the judgment and decree dated 15.05.2017 passed by the learned Civil Judge, Udalguri in Title Appeal No.07/2016, whereby, the learned Civil Judge having overturned the judgment and decree passed by the learned Munsiff in Title Suit No.04/2015 allowed the appeal and decreed the suit of the plaintiff for eviction of the defendant. 2. The respondent herein as plaintiff, filed a suit being Title Suit No.04/2015 for eviction of the appellant/defendant from the suit premises. The case of the plaintiff was that he was the owner of the suit premises, which was let out to the defendant/appellant initially for a period of 2 (two) years with effect from 01.01.2012. After expiry of the said lease of 2 (two) years, the defendant entered into a fresh lease agreement in the year 2014 for another period of 11 (eleven) months with effect from 01.02.2014 at a monthly rent of Rs.1,201/-. It was agreed by and between the parties that the defendant shall pay the rent of each month within 7 (seven) days of the following month. The defendant had been paying rent regularly up to the month of September, 2014 and since the month of October, 2014, the defendant had failed to pay rent and thereby became defaulter. It was also stated that the suit premise was required for own use and occupation of the plaintiff/landlord and therefore, instituted the suit for eviction of the defendant under the provision of Assam Urban Areas Rent Control Act, 1972 (for short 'the tenancy Act') on the twin grounds of defaulter and bonafide requirements. 3. The defendant contested the suit by filing written statement wherein, the tenancy and the relationship of landlord and tenant between the parties have been admitted. However, the pleaded case of the defendant was that there was no agreement between the parties regarding payment of monthly rent within 7 (seven) days of the following month. Rather, it was settled practice between the parties that the plaintiff would visit the place of the defendant according to his convenience and collect rent from the defendant/tenant. As per the said arrangement the plaintiff sometimes collected the rent in advance, sometimes for one month and sometimes accumulated rent for 2-3 months together. Rather, it was settled practice between the parties that the plaintiff would visit the place of the defendant according to his convenience and collect rent from the defendant/tenant. As per the said arrangement the plaintiff sometimes collected the rent in advance, sometimes for one month and sometimes accumulated rent for 2-3 months together. Therefore, the due date for payment of the rent as per the agreed practice between the parties was as and when the plaintiff visits the place of the defendant and make demand for the rent. The defendant was paying rent regularly up to September, 2014. However, the plaintiff did not come to collect the rent for the month of October with ill motive and therefore, he sent the rent for the month of October and November, 2014 by postal money order dated 12.11.2014, which was refused by the plaintiff. Upon refusal of the plaintiff to receive such money order, the defendant forwarded a cheque drawn in favour of the plaintiff dated 30.11.2014 for an amount of Rs.3603/- as house rent for the month of October, November, December along with a letter which was also refused by the plaintiff and therefore, the defendant deposited the rent in Court on 02.01.2015 with notice to the plaintiff. It was also the case of the defendant, that there was no bonafide requirement of the house by the plaintiff and in order to evict the defendant illegally, the plaintiff did not accept the rent and also issued a notice dated 15.10.2014 requiring the defendant to vacate the suit premises. On the basis of the above pleadings of the parties, the learned trial Court framed the following issues: i. Whether there is any cause of action for the suit? ii. Whether the suit is maintainable in the present form? iii. Whether the defendant is liable to be ejected from the tenanted/suit premises as mentioned in Schedule -'B' of the plaint? iv. Whether the defendant is liable to pay Rs.4404/- being the arrear rent for the months of October 2014 to January 2015? v. To what relief/relief’s the plaintiff is entitled to? 4. Both the parties adduced evidence and after hearing the parties, the learned Munsiff dismissed the suit by holding, that the plaintiff failed to prove the claim of bonafide requirement as well as the defaulter. 5. v. To what relief/relief’s the plaintiff is entitled to? 4. Both the parties adduced evidence and after hearing the parties, the learned Munsiff dismissed the suit by holding, that the plaintiff failed to prove the claim of bonafide requirement as well as the defaulter. 5. Aggrieved, the plaintiff/respondent filed the appeal before the learned Civil Judge and the learned Civil Judge by the impugned judgment allowed the appeal and decreed the suit for ejectment of the defendant/petitioner. Both the Courts below decided the issue of bonafide requirement against the plaintiff. However, the finding of the learned Munsiff with regard to defaulter was reversed by the appellate Court and held that the defendant/petitioner was proved to be defaulter and therefore, decreed the suit. 6. Challenging the appellate decree, the defendant/petitioner has preferred the instant revision petition. 7. Mr. N Chakrabotry, learned counsel for the revision petitioner and Mr. RC Saikia, learned counsel for the respondent were heard. Also perused the records. 8. Both the Courts rendered a concurrent finding on the issue of bonafide requirement and such finding has not been put to challenge in this revision petition. Learned counsel placing reliance on a decision of this Court in "On the death of Upendra Nath Paul His Heirs Ranjit Kumar Paul and Others Vs. P. Sen & Company, 1990 1 GauLR 418 " contended that there was no agreement between the parties to pay rent within 7 (seven) days of the following month, rather, it was agreed between the parties, that the plaintiff/landlord would collect the rent as per his convenience by visiting the place of the defendant/petitioner and accordingly, the landlord used to collect rent for more than one month together. The finding of the first appellate Court, that tenancy was month to month and rent became due on the last date of each month was erroneous and required to be interfered by this Court, submits Mr. Chakraborty. 9. Mr. RC Saikia, learned counsel for the plaintiff/respondent contends that as per the agreement, tenancy was month to month and therefore, rent fell due on the last date of the month, but the defendant/appellant did not pay any rent for the month of October, November and December, 2014 and deposited the accumulated rent in Court in the month of January, which was not valid deposit as per the provisions of Section 5(4) of the tenancy Act. The defendant/petitioner became defaulter for not paying/depositing rent within the fortnight of its becoming due and therefore, the finding of the learned appellate Court has not suffered from any illegality or impropriety requiring interference by this Court in exercise of revisional jurisdiction, submits Mr. Saikia. 10. As already indicated above, the suit for eviction in the instant case was filed basically on two grounds -viz- (i) bonafide requirement, & (ii) defaulter. Both the trial as well as the appellate Court came to the concurrent finding with regard to the issue of bonafide requirement and decided the same against the plaintiff and such concurrent finding of fact has not been challenged. The only question raised in this revision petition and is required to be answered is whether the finding of the learned appellate Court holding the defendant/petitioner defaulter in payment of rent was legal and proper. 11. The undisputed facts in this case are that the defendant/petitioner is a tenant under the plaintiff/respondent at a monthly rent of Rs.1,201/- and the tenancy agreement was for 11 (eleven) months and the tenancy between the parties was month to month. 12. The pleaded case of the plaintiff is that as per the agreement, the defendant/petitioner was to pay rent within 7 (seven) days of the subsequent month, whereas, the plea of the defendant was that there was no agreement as to when the rent will fall due. Rather, the plaintiff/landlord as per practice used to take accumulated rent for more than 1 (one) month together by visiting the tenanted premises and according to the defendant, rent needs to be paid as and when the plaintiff visited the defendant and made demand for the rent. 13. Section 5(1)(e) of the tenancy Act provides that a tenant cannot be evicted so long he pays the lawful rent within fortnight of its falling due. Section 5(4) of the Act provides that when the landlord refuses to accept the lawful rent offered by the tenant, the tenant may within a fortnight of its becoming due, deposit the rent in Court together with the process fee for service of notice, as per the requirement of sub-section (4). Section 5(4) of the Act provides that when the landlord refuses to accept the lawful rent offered by the tenant, the tenant may within a fortnight of its becoming due, deposit the rent in Court together with the process fee for service of notice, as per the requirement of sub-section (4). Therefore, if the tenant pays the lawful rent due from him within fortnight of its falling due or deposit rent in Court with all necessary steps as per the requirement of sub-section (4) within fortnight of its falling due upon refusal by the landlord to accept the rent offered by the tenant, the requirement of section 5(1)(e) of the Act stands satisfied and a tenant shall not be treated as defaulter under the clause (e). Therefore, in order to come to a finding whether the tenant has defaulted in payment of rent, the most important fact to be taken note of is, when the rent falls due. Usually it is the burden of the landlord to show as to when the rent becomes due and the tenant's burden is to show that he has paid the rent or deposited the same in Court within fortnight of its becoming due in order to get the protection from being evicted. 14. In Kalikumar Sen Vs. Makhanlal Biswas, (1969) AIR Gauhati 66, this Court held that tenant would normally try to pay the rent in accordance with contract, if any, or in absence at the end of the month, when the rent will normally due. In the instant case, evidently the tenancy is month to month according to English calendar. This Court in Arunamayee Bishaya and Others Vs. Rabindra Kumar Bora and Ors, (2008) 1 GauLT 421 , held that when the tenancy is month to month or monthly tenancy, rent would become due and payable at the end of each month unless otherwise agreed by the parties concerned. In Ram Karanji More Vs. Keshar Dev Jalan, (1996) 2 GauLT 526 , this Court observed that when there is no written contract, the tenancy is always monthly tenancy and the rent is due/payable at the end of the month. 15. In Bhawani Sankar Vs. In Ram Karanji More Vs. Keshar Dev Jalan, (1996) 2 GauLT 526 , this Court observed that when there is no written contract, the tenancy is always monthly tenancy and the rent is due/payable at the end of the month. 15. In Bhawani Sankar Vs. On The Death of Jugal Kishore Garodia, his legal heirs Smti Laxmi Devi Garodia & Others, 1984 2 AIR GLR pg 182, this Court on the basis of the factual matrix of the case that the landlord used to collect the accumulated rent of several months from the tenant, held that if the landlord does not visit the defendant's place for collecting the accumulated rent as per the conduct and practice, and the defendant, therefore remit the accumulated rent to the landlord by money order, which was refused to be accepted, the defendant/tenant cannot be termed as defaulter, provided the rent is deposited in Court within fortnight from the date of refusal to accept such rent offered. 16. In Upendra Deb Roy Vs. Suhashini Deb, 1989 2 GauLR 7, this Court held as under : "..... The determination of the date when the rent actually falls due in a particular case depends upon the arrangement or agreement between the parties. The rent may be fixed on monthly basis but that by itself will not indicate the date when the rent will fall due. The parties might mutually agree that the rent would be paid monthly said within a week or a fortnight or a month or any other interval from the expiry of the month for which it is due. In considering the evidence of the landlord in such cases, the court may also take into account the conduct of the parties. There may be evidence before the Court to show that the rent was being paid at varying intervals which the landlord has been accepting without any protest or grievance. That may indicate that there was no arrangement between the parties to pay the rent by any specific date. In such cases, the Court can infer and imply the agreement between the parties to pay rent at varying intervals on demand from the landlord at his convenience. That may indicate that there was no arrangement between the parties to pay the rent by any specific date. In such cases, the Court can infer and imply the agreement between the parties to pay rent at varying intervals on demand from the landlord at his convenience. Even if it is shown that there was some arrangement to pay the rent within a specified time from the expiry of the month, conduct of parties spreading over fairly long period of time to the contrary without any protest or objection from either party may indicate that the agreement or arrangement in regard to the payment of rent between the parties was modified. A landlord who, continues to receive the rent at varying intervals from the tenant without any objection whatsoever for several years cannot be permitted to suddenly turn back and say that the arrangement between him and his tenant was otherwise seek eviction of a tenant on the ground that he was a defaulter. In such cases, the Court may infer that there was no arrangement between the parties to pay the rent from month to month within a specified time or if there was such an arrangement, the same stood impliedly modified by the conduct of the parties." 17. In On The Death of Upendra Nath Paul His Heirs Ranjit Kumar Paul and Others Vs. P. Sen & Company, 1990 1 GauLR 418 , this Court held that when rent was paid in mutual convenience of the parties, a tenant cannot be termed as defaulter on account of non-payment of rent within fortnight from the end of each month. 18. In Dilawar Hazarika Vs. Paraminder Singh, 1992 2 GauLR 12 , this Court held that: "on the ratio of the decisions (1983) 1 GLR 268 and (1984) 2 GLR 182 (supra), I now answer to the question when the rent falls due u/s 5(1)(e) and 5(4) of the Act thus: it varies from case to case. In general, a monthly rent falls due on the last day of the following month. Where the parties agree that the monthly rent shall be paid by the fixed date the rent falls due on the fixed date. In general, a monthly rent falls due on the last day of the following month. Where the parties agree that the monthly rent shall be paid by the fixed date the rent falls due on the fixed date. But where inspite of agreement for payment by the fixed date the landlord used to collect rents sometimes for one month and sometimes for 2/3 months or even more at a time the rent shall be deemed to fall due not on the fixed date; in such a case, the accumulated rents fall due on the last day of the month of landlord's demand. And if, in such a case, the tenant before being demanded by landlord, tenders accumulated rent and the landlord refuses to accept it, the rents will be deemed to fall due on the last day of the month of refusal. A tenant must pay the refused rent within a fortnight of such due date to avoid being a defaulter. 19. In Nityananda Dutta Vs. Anisul Hoque and Anr, (2008) 2 GauLT 364 , this Court held that in a situation where the landlord used to collect the accumulated rent from the tenant, the date when the rent falls due would be the last day of the month in which the landlord demand the tenant to pay the accumulated rent and in case the tenant before making such demand by the landlord, offers such accumulated rent to the landlord, the date when such accumulated rent falls due would be the last date of the month in which the tenant offers such accumulated rent. 20. In Ram Karaji More (supra), this Court observed that the plaintiff/landlord even if gives indulgence to the landlord to pay accumulated rent in one or two occasion for any reason, such indulgence cannot be taken as agreement to pay rent at the tenant's convenience. The Court held that "even in case of monthly payment, the landlord may agree to accept the rent at the convenience of the tenant, but this indulgence cannot change the nature of monthly tenancy, even to accommodate the tenant in some given circumstances. The landlord may accept the rent beyond the stipulated period of tenancy in certain occasion, but this cannot be a deviation from the payment of rent at the stipulated date. The landlord may accept the rent beyond the stipulated period of tenancy in certain occasion, but this cannot be a deviation from the payment of rent at the stipulated date. In that case for ascertaining the mode of payment and default there for, Court requires to determine it according to conduct of the parties on the basis of evidence and the circumstances appearing in evidence." In Abdul Matin Choudhury and Ors Vs. Nityananda Dutta Banik, (1997) 2 GauLT 590 , also this Court held - "some acceptance of rent at the convenience of tenant and/or accommodation given to the tenant in some circumstances cannot change the mode of payment of rent at the stipulated date." 21. What therefore follows from the above authorities is that the rent falls due in case of monthly tenancy:- i. When there is an agreement between the parties that rent shall fall due on a particular date, it will fall due on such date and defendant/tenant shall be considered as defaulter if he fails to pay/deposit the rent within fortnight from the date when it falls due as per the agreement. ii. In absence of any expression or implied agreement to the contrary, the rent falls due on the last date of the month. iii. When there is no agreement - express or implied and where the landlord used to collect the accumulated rent from the tenant, the date when the rent falls due would be the last day of the month in which the landlord demand the tenant to pay the accumulated rent and in case the tenant, before making such demand by the landlord, offers such accumulated rent to the landlord, the date when such accumulated rent falls due would be the last day of the month in which the tenant offers such accumulated rent. iv. Where, inspite of agreement between the parties laying down the date when the rent falls due, neither party adheres to such date, rather accumulated rent for more than one month is paid by the tenant and accepted by the landlord as usual practice, in such case, the agreement might stand modified by the conduct and prolonged practice of the parties. Where, inspite of agreement between the parties laying down the date when the rent falls due, neither party adheres to such date, rather accumulated rent for more than one month is paid by the tenant and accepted by the landlord as usual practice, in such case, the agreement might stand modified by the conduct and prolonged practice of the parties. In such a situation rent will fall due neither on the last day of the month nor on the due date fixed in the agreement but on the last day of the month, in which the landlord makes the demand or on the last day of the month when the tenant offers the rent. What is important to note here is that in order to hold that the mode of payment or due date for rent stood modified by the conduct and practice of the parties, there must be pleadings and evidence to establish that the conduct and practice continued for long time and the parties infact, did not adhere to the agreed mode of payment. Deviation in one or two occasion or acceptance of accumulated rent by the landlord in one or two occasion to accommodate the tenant or for any other circumstances shall not amount to modification of the agreed mode of payment. 22. In the present case, the tenancy being monthly is not in dispute. The tenancy agreement proved as exhibit-4 also shows that the tenancy was monthly tenancy for a period of 11 (eleven) months. However, the exhibit-4 tenancy agreement is silent as to the mode of payment of the rent or due date, inasmuch as, no date has been fixed for payment of rent in the agreement, Exhibit-4. Therefore, necessarily the presumption would be that the rent shall become due on the last day of the month. Though, normally it is the burden of the plaintiff/landlord to show as to when the rent becomes due, when landlord pleads that rent falls due on a particular date of or within 7 days of the following month as in the present case, and the defendant/tenant takes a stand that accumulated rent was paid for more than one month together at the convenience of the parties and upon demand of the landlord, the onus to proof such mode of payment stands shifted to the tenant. 23. 23. The plaintiff (PW-1) denied the suggestion given by the defendant that he used to collect rent for 2/3 months together as per his convenience. The defendant (DW-1) in his examination-in-chief clearly stated that he paid the rent monthly and the owner of the house issued receipts. Therefore, admittedly rent was paid monthly and the landlord used to issue receipts on payment of the rent. However, no rent receipt has been proved by the defendant in the instant case, which amounted to withholding of the best evidence to prove the mode of payment of rent. DW-2, examined by the defendant on 14.07.2016 deposed that two years back, he along with Sailen went to the house of the plaintiff to pay rent and the plaintiff refused to accept the same and since then, the plaintiff did not receive the rent. Though the specific plea of the defendant was that in spite of tenancy being month to month, rent was paid for 2/3 months together and as per practice, the plaintiff used to visit the place of the defendant to collect the rent, but no evidence has been brought on record to show that there was a practice of accepting accumulated rent for more than 1 (one) month by the landlord, who used to collect the same from the tenant. Therefore, when admittedly and evidently the tenancy was month to month and the agreement was silent as to the mode of payment, normally the rent would fall due on the last day of the month, unless, the defendant can prove by adducing evidence that by conduct of the parties accumulated rent was paid for more than one month together only upon demand of the landlord. As already indicated above, even if in one or two occasions the landlord gives the indulgence to the tenant and accept accumulated rent for more than 1 (one) month, such indulgence for one or two occasions shall not change the mode of payment. In the instant case, as already indicated above, the defendant has not been able to adduce any evidence, oral or documentary, to show that as per practice and conduct of the parties, the landlord used to collect the accumulated rent for more than 1 (one) month together and the rent was due only upon demand by the landlord. In the instant case, as already indicated above, the defendant has not been able to adduce any evidence, oral or documentary, to show that as per practice and conduct of the parties, the landlord used to collect the accumulated rent for more than 1 (one) month together and the rent was due only upon demand by the landlord. Therefore, there was no escape from the conclusions, that rent in the present case fell due on the last date of the month as the tenancy was monthly. Admittedly, after September, no rent was paid and the accumulated rent for the month of October, November and December 2014 was deposited in the Court on 02.01.2015 meaning thereby, the rent for the month of October and November was not deposited in Court within fortnight of its becoming due and therefore, the defendant defaulted in payment of rent for the month of October and November. 24. Looking from another angle, admittedly the plaintiff served a notice on the defendant, asking to vacate the tenanted premise and to pay the due rent which has been proved by the defendant as Exhibit-A. In the said notice (Exhibit-A) sent by the landlord through his counsel on 15.10.2014, defendant was asked to vacate the suit premises within 31st December and he was also asked to pay the rent due. Therefore, admittedly by Exhibit-A the landlord not only asked the tenant to vacate the suit premises but also demanded the tenant to pay rent which was due and such demand for payment of rent was admittedly made on 14.10.2014. Therefore, even if assuming for the sake of argument, that rent would fall due only on the demand of the landlord, then also admittedly the demand having been made on 15.10.2014 by the landlord, the tenant ought to have paid or deposited in Court within fortnight from the last day of October, 2014. 25. The case of the tenant/defendant is that he sent the rent by postal money order on 12.11.2014 which was not accepted by the landlord but no evidence was adduced to establish the said averment as to sending the rent through postal money order. A full bench of this Court in Kalikumar Sen Vs. Makhanlal Biswas, (1969) AIR Gauhati 66, observed that Assam Urban Areas Rent Control Act does not provide for payment of rent by money order. It provides for special procedure for deposit of rent. A full bench of this Court in Kalikumar Sen Vs. Makhanlal Biswas, (1969) AIR Gauhati 66, observed that Assam Urban Areas Rent Control Act does not provide for payment of rent by money order. It provides for special procedure for deposit of rent. Be that as it may, as per the admission of the defendant, even if, it is accepted that he offered the rent by sending money order on 12.11.2014 and the same was refused by the landlord, in that case also, rent ought to have been deposited in Court within fortnight from the last day of November, 2014. But admittedly rent was deposited in Court on 02.01.2015 and therefore, the defendant was defaulter even according to his own case. 26. If a tenant wants protection under section 5(4) of the Act from being evicted, the rent has to be deposited in Court within fortnight of its falling due in accordance with the procedure laid down in sub-section (4) of section 5 of the Act. In the present case, evidently rent was neither paid, nor deposited in Court within fortnight of its falling due. Having regard to the evidence and materials brought on record, as discussed herein before, there could be no escape from the conclusion that the defendant became defaulter, and therefore, the finding of the learned appellate Court holding that tenancy was month to month and rent fell due on the last day of the month and that the defendant became a defaulter for not paying/depositing the rent in Court within fortnight of its falling due, can by no stretch of imagination be held to have suffered from any illegality or impropriety requiring interference by this Court. 27. This being the position, the revision petition is without merit and accordingly dismissed. The judgment and decree passed by the learned appellate court for eviction of the defendant/petitioner is upheld. Decree to be prepared accordingly. 28. 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 judgment and decree passed by the learned appellate court for eviction of the defendant/petitioner is upheld. Decree to be prepared accordingly. 28. 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, Udalguri 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. 29. Send down the record. Parties to bear their own cost.