Revision against decrees holding a tenant a defaulter for non-payment of rent after notice. Court rejected tenant's claim of rent deposit in court due to lack of evidence. Found no illegality in lower courts' decision regarding default.
Revision dismissed; tenant granted 6 months to vacate premises.
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GAHC010030992016
THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRP 429/2016
1:RANA PAUL
S/O. LT. SUDHIN KUMAR PAL @ SURENDRA, R/O. COTTON ROAD, NEAR NAMGHAR, TEZPUR, P.O. TEZPUR, MOUZA-MAHABHAIRAB, DIST. SONITPUR, ASSAM.
VERSUS
1:SMT. MINU DAS
W/O. LT. GAURISH CHANDRA DAS, R/O. M.C. ROAD, TEZPUR, MOUZAMAHABHAIRAB, DIST. SONITPUR, ASSAM, PIN-784001.
Advocate for the Petitioner : MS.J KAKOTI
Advocate for the Respondent : MR.H J TAMULI
BEFORE HONOURABLE MR. JUSTICE MIR ALFAZ ALI
ORDER
Date : 14-02-2019
Heard Mr. S. Biswas, learned counsel for the petitioner and Mr. B. Chakraborty, learned counsel for the respondent.
This revision is directed against the judgment and decree dated 10.08.2016 passed by the learned Civil Judge, Tezpur, Sonitpur in Title Appeal No. 31/2012, whereby and whereunder the learned Civil Judge dismissed the appeal filed by the defendant and upheld the judgment and decree passed by the learned Munsiff.
The sole question raised in this revision is as to whether the decision of the trial
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court as well as the appellate court holding the defendant/appellant defaulter suffered from any illegality or impropriety.
The brief facts of the case leading to the present revision petition are as follows.
The respondent herein as plaintiff instituted Title Suit No. 39/2007 for ejectment of the defendant (appellant herein) from the suit premises and also for recovery of arrear rent. The defendant/appellant (hereinafter referred to as appellant) was inducted in the suit premises as a monthly tenant. Initially rent was fixed at Rs. 350/- per month, which was enhanced subsequently and ultimately the rent was fixed at Rs. 1000/- per month to be paid within 10th day of each succeeding month as per the English calendar. The appellant paid rent till March, 2005 and thereafter no rent was paid for the month of June and July, 2005. Consequently, the appellant became defaulter, whereupon the plaintiff/respondent issued a notice demanding the defendant/appellant to vacate the suit premises. Upon receipt of the notice, the defendant/appellant approached the respondent and there was an amicable settlement, whereby the appellant was allowed to continue as tenant and the defendant/appellant also agreed that he pay the rent regularly. Thereafter, again the defendant/appellant failed to pay the rent from the month of July, 2006. Hence the respondent/plaintiff filed the suit for eviction and recovery of arrear rent on the ground of defaulter amongst other.
The plea taken by the defendant/appellant in the written statement was that the mode of payment of monthly rent was not within the 10th day of each succeeding month and since the beginning of the tenancy, the plaintiff used to accept house rent for couple of months together, which was the practice of payment of rent. The defendant/appellant has been paying rent regularly for several months together and respondent was accepting without objection. The plaintiff/respondent refused to accept the rent from October, 2006 and as such, the defendant/appellant has been depositing rent in the court since October, 2006.
On the basis of the above pleadings, the following issues were framed.
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Both the parties adduced evidence and after hearing the parties, learned Munsiff decreed the suit. Feeling aggrieved, the defendant/appellant preferred and appeal. Learned appellate court also dismissed the appeal concurring with the finding of the learned Munsiff.
Though, besides the plea of defaulter, some other pleas, such as changing the nature of the suit premises or using the suit premises for some other purposes were taken, those please were not pressed and basically the controversy remained limited to the issue of defaulter, which was decided by both the courts against the defendant.
Mr. Biswas, learned counsel for the petitioner placing reliance on a decision of this court in Upendra Chandra Deb Roy Vs. Smt. Subhashini Deb & 2 Ors. reported in (1989) 2 GLR 7 submits that the learned court below did not determine the due date or as to when the rent fell due and in absence of such finding, the decision rendered by both the courts below holding the defendant/appellant defaulter was illegal and improper.
The contention of Mr. Chakraborty, learned counsel for the respondent is that the defendant/appellant failed to adduce any evidence as to tender of rent to the landlord or deposit of rent in court, as per law. When it was admitted position, that no rent was paid to the landlord/respondent after June, 2006 and the defendant/appellant did not adduce any evidence to prove that rent was deposited in court, the question of due date became redundant, submits Mr. Chakraborty.
The relationship between the parties as landlord and tenant and that no rent was paid to the landlord by tenant/appellant, at least since October, 2006 was not in dispute, inasmuch as, the specific plea of the defendant/appellant was that they have been depositing rent in court since October, 2006.
In support of depositing rent in court, the defendant/appellant produced two
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challans being Ext.A & Ext.B, which shows the deposit of rent in court for the month of October, 2006 & November, 2006. Besides Ext-A & Ext-B, no other evidence could be adduced by the defendant to establish that the rent was deposited in court as per the provision of law. Apparently, the suit was filed in the month of June, 2006 and decree by trial court was passed on 07.09.2012. When admittedly no rent was paid directly to the landlord after June, 2006, and it is the specific case of the defendant, that they have been paying rent in court and such deposit of rent in court was denied by the plaintiff, it was naturally the burden of the defendant/tenant to prove that he deposited the rent in court in order to avoid the mischief of being defaulter.
Sub-section 4 of section 5 of the Assam Urban Areas Rent Control Act, 1972, 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, and the amount of the deposit may thereafter be withdrawn by the landlord on application made by him to the Court in that behalf. A tenant who has made such deposit shall not be treated as a defaulter under clause (e) of the proviso to sub-section (1) of this section.”
When a tenant takes a plea that he deposited the rent in court, he takes the burden upon himself to prove that the rent was deposited within a fortnight of its becoming due and also took all other necessary steps including sending notice etc. Once the tenant discharges his burden that he has deposited the rent and take all necessary steps as per requirement of sub-section 4 of section 5 of the Assam Urban Areas Rent Control Act, 1972, and inspite of that, the plaintiff takes the plea of defaulter for not depositing rent within time, burden necessarily shall be on the landlord to prove as to when the rent falls due and court shall also be under obligation to give a definite finding, when the rent falls due, more particularly where there is no specific mode or due date for payment of rent.
In the instant case, admittedly and evidently the defendant did not adduce any evidence, except producing two challans as indicated above, showing deposit of rent in court only for the month of October, 2006 and November, 2006 in order to establish their plea, that since October, 2006 the rent was deposited in court. Leaving aside the
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period during pendency of the suit, the plaintiff even failed to adduce any evidence to show, that the rent atleast from the month of December till filing of the suit in June, 2007 were deposited in court. When the defendant has failed to adduce any evidence to substantiate their plea that rent was deposited in court, the question as to whether the rent was deposited within fortnight of its falling due or what was the due date for payment of rent becomes redundant. The plea of the defendant as regards depositing of rent in court having fallen flat as appears from the evidence on record, the decision rendered in Upendra Chandra Deb Roy (supra) is of no help to the defendant. The evidence brought on record clearly demonstrated that the defendant failed to prove, that rent was deposited in court after November, 2006 and as such, findings of the learned trial court that the defendant/appellant was defaulter cannot be faulted. Therefore, I find no irregularity or illegality in the decision of the learned trial court as well as the first appellate court holding the defendant/appellant a defaulter.
Since the issue crucial to decide the suit as regards defaulter has been rightly decided by both the courts below, the impugned judgment rendered by the trial court as well as the appellate court, in my considered view did not suffer from any irregularity, impropriety or illegality requiring interference of this revisional court. Therefore, the present revision is held to be devoid of merit and accordingly dismissed.
However, taking note of the fact that the defendant/appellant has been in the rented house for long time, he should be given some reasonable time to vacate the suit premises. Accordingly, the appellant/tenant is given 6 (six) months time from this date of judgment to vacate the suit premises and inform the learned trial court as to his compliance within 7 (seven) days of vacating the suit premises, as indicated above, by filing an affidavit. In the event of failure of the appellant/tenant to vacate the suit premise within six months as above, the respondent/landlord shall be at liberty to put the decree in to execution.
The revision petition is accordingly disposed of.
JUDGE
Comparing Assistant
3 issues framed by the court
Whether the measure of the lower courts in holding the tenant a defaulter was illegal or improper.
Whether the landlord must prove the due date of rent when the tenant failed to prove deposit of rent in court.
Whether the revision petition deserves interference with the impugned decrees.
Colour shows how this judgement treated each authority
Upendra Chandra Deb Roy Vs. Smt. Subhashini Deb & 2 Ors.Doubted¶33
(1989) 2 GLR 7
1 provisions across 1 enactments
RANA PAUL
SMT. MINU DAS
MIR ALFAZ ALI
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
MIR ALFAZ ALI
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