Gauhati High Court
Bina Paul And 2 Ors vs Samyabrata Paul @ Bacchu Paul And 2 Ors on 23 September, 2019
Author: Prasanta Kumar Deka
Bench: Prasanta Kumar Deka
Page No.# 1/18
GAHC010253902018
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRP 179/2018
1:BINA PAUL AND 2 ORS.
W/O- LATE SUKUMAR PAUL, R/O- RADHAMADHAB NAGAR, BILPAR,
SILCHAR TOWN, P.O AND P.S- SILCHAR, DIST- CACHAR, ASSAM
2: BISHNU PAUL
S/O- LATE SUKUMAR PAUL
R/O- RADHAMADHAB NAGAR
BILPAR
SILCHAR TOWN
P.O AND P.S- SILCHAR
DIST- CACHAR
ASSAM
3: BISWAJIT PAUL
S/O- LATE SUKUMAR PAUL
R/O- RADHAMADHAB NAGAR
BILPAR
SILCHAR TOWN
P.O AND P.S- SILCHAR
DIST- CACHAR
ASSA
VERSUS
1:SAMYABRATA PAUL @ BACCHU PAUL AND 2 ORS
S/O- LATE SURESH CHANDRA PAUL, R/O- HOSPITAL ROAD, SILCHAR
TOWN, P.O AND P.S- SILCHAR, DIST- CACHAR, ASSAM
2:BIVA PAUL
W/O- SRI SURAJIT KUMAR PAUL
MALIGAON, REST CAMP, GUWAHATI
ASSAM
Page No.# 2/18
3:BABY PAUL
W/O- SRI DIPAK PAUL OF MOTHCHOWMOHONI
COLLEGE ROAD
AGARTALA
TRIPURA WEST
PIN- 79900
Advocate for the Petitioner : MR D CHAKRABORTY
Advocate for the Respondent : MR. D MOZUMDER
BEFORE HONOURABLE MR. JUSTICE PRASANTA KUMAR DEKA JUDGMENT AND ORDER(ORAL) Date : 23-09-2019 Heard Mr D.K.Mishra, learned Senior Counsel assisted by Mr. D. Chakraborty, learned counsel for the petitioners and Mr. D. Mazumdar, learned Senior Counsel assisted by Mr. S. Biswas, learned counsel for the respondent.
2. Judgment and decree dated 1.9.2018 passed by the learned Civil Judge,No.2, Cachar at Silchar in Title Appeal No. 15/2014 is put under challenge in this revision petition. The petitioners are the defendants in the suit filed by the plaintiff respondent for ejectment of the defendants petitioners on the ground of defaulter and bonafide requirement of the plaintiff respondent, the defendants petitioners being tenants in the suit premises.
3. The case of the plaintiff respondent is that late Suresh Chandra Paul, the predecessor- in-interest of the defendants petitioners took on rent the suit premises by an oral agreement about 45 years back at a monthly rent of Rs 30/- payable within the Ist week of the following Page No.# 3/18 Bengali calendar month. The monthly rent was enhanced from time to time and from the month of Jaistha 1403 B.S, the rent was enhanced to Rs. 180/- per month. After death of Suresh Ch. Paul, the plaintiff respondent received monthly rent up to the month of Bhadra 1403 B.S. from late Sukumar Chandra Paul(son of late Suresh Chandra Paul) and rent receipts were duly issued. Thereafter the defendants petitioners nor their predecessor tendered any rent from the month of Aswin 1403 B.S nor deposited any rent in the court and as such, defendants petitioners are defaulters. The suit room was let out to Sukumar Ch. Paul, predecessor of the defendants petitioners, for carrying out grocery business for a period of five years but after the completion of said five years he did not vacate the tenanted premises inspite of repeated demands and Sukumar Ch. Paul violating the terms of the agreement and without obtaining any permission from the plaintiff respondent converted the said grocery shop to a hardware shop storing building materials resulting damage of the tenanted premises. The plaintiff respondent's shop room under the name and style of ' Radha Raman Hardware' is situated adjacent to the north of the suit room which measures only 5 feet in breadth and as such the suit room is bonafide required by the plaintiff for extension of the business and also for accommodating his family members. As such the suit for ejectment is filed.
4. The defendants petitioners entered appearance and filed their written statement. Besides taking the defence in respect of maintainability of the suit, the claims of defaulter and bonafide requirement were denied. It is pleaded that Sukumar Paul is their predecessor- in-interest. During his life time he took the suit premises from the landlord Suresh Chandra Paul and his brother Girish Ch. Paul for carrying out business at a monthly rent of Rs 60/- as per Bengali calendar month. The rent was payable within seven days of its becoming due of Page No.# 4/18 the succeeding month and the landlord used to collect the rent from the predecessor of the defendant but refused to accept the rent in the year, 1973. The predecessor of the defendants deposited rent in the court for the year 1381 B.S. and rent for the month of Kartik 1382 BS @ Rs. 35 per month vide various rent deposit cases. The predecessor of the plaintiff subsequently enhanced the rent to Rs. 80/- per month and received the rent up to Chaitra 1392 B.S but again refused to accept the rent for the month of Baisakh 1394 BS and the same was deposited in the court which was later received by the predecessor of the plaintiff. Again the rent was enhanced to Rs 160/- per month which was paid in Baisakh 1403 BS and after enhancing the same to Rs.180/-, the landlord collected rent up to Bhadra 1403 B.S. thereafter the same was refused to be accepted and issue receipt for which rent for the month of Aswin 1403 B.S. was deposited in the court vide R. C. Case No. 604/1996. The plaintiff thereafter refused to accept any rent. As such the rent for the month of Kartik 1403 B.S. alongwith advance rent of Agrahayan to Chaitra 1403 B.S. was deposited in the court vide Misc RC case No. 653/1996. The predecessor of the defendants petitioners deposited the rent in court from the year 1404 BS to 1413 B.S. vide Misc RC case No. 294/1997, 310/1998, 282/2001, 285/2002, 264/2002, 302/2004, 298/2005 and Misc. R.C Case No.297/2006. Sukumar Chandra Paul died on 9.5.2007 leaving behind the defendants petitioners as his legal heirs and the rent for the month of Baisakh 1414 was offered by the defendants to the plaintiff alongwith the advance rent for the rest 11 months which the plaintiff refused to accept. As such, the defendant petitioner No. 2 and 3 deposited rents on behalf of all the legal heirs in the court vide Misc. R.C.Case No. 282/2007. Accordingly, on the basis of said pleadings the defendants petitioners claimed that they are not defaulters in payment of rent and on the other hand, the plaintiff respondent possessed the vacant space Page No.# 5/18 for extending his shop room and his residential accommodation and the suit premises is not required bonafide by the plaintiff. For the said reason they prayed for dismissal of the suit.
5. On the basis of the pleadings, the following issues were framed:
"i. Is there is any cause of action for the suit ?
ii. Whether the suit is maintainable in its present form and manner? iii. Whether the suit is bad due to non-joinder of necessary parties?
iv. Whether there is landlord-tenant relationship between the plaintiffs and the defendants? v. Whether the defendants are defaulters in the matter of payment of rent? vi. Whether the suit premises is bonafide requirement of the plaintiff? viii. Whether the plaintiff is entitled to a decree as prayed for ?"
6. The plaintiff side adduced evidence of the plaintiff himself as PW 1 and exhibited two documents which includes the rent receipt book and the counter part of the rent receipts. On the other hand, the defendants side adduced evidence of Bishnu Paul, one of the defendants as DW 1 and other defendant Biswajit Paul, DW 2 and exhibited various documents including rent receipts, Misc. rent cases and the petition filed thereof alongwith the challans.
7. The trial court decreed the suit and the first appellate court also upheld the finding of the trial court. Being aggrieved the defendants petitioners preferred this revision petition challenging the judgment and decree passed by the first appellate court concurring the findings of the trial court.
8. Mr Mishra, learned Senior Counsel for the petitioners submits that as per the scheme of the Assam Urban Areas Rent Control Act, 1972 (hereinafter referred to as the Act) for eviction of a tenant on the ground of defaulter is provided under Section 5(1) proviso (e) of the Act. A duty is cast upon the court to give a finding as to whether the landlord was able to show that the tenant is a defaulter within the meaning of Section 5(1) proviso (e) of the Act and then only the court should proceed to consider the safeguard provided to the tenant u/s 5(4) of the Act. In the present case there is no such finding by the court below that the Page No.# 6/18 tenant has become a defaulter within the meaning of Section 5 (1) proviso (e) of the Act. Without such declaration or finding, the court below made a jurisdictional error by straightway considering the non-compliance of the required conditions by the tenant under Section 5(4) of the Act. Citing Upendra Chandra Deb Roy vs. Smti Subhashini Deb and 2(two) others reported in 1989(2) GLR 7, Mr. Mishra submits that the said finding as hereinabove stated are mandatory requirement while deciding the issue of ejectment of a tenant on the ground of defaulter. Relying Prasanna Kr. Khemani Vs. Biswanath Cherenia reported in 2005(3) GLT 284 and Jugal Kishore Joshi Vs. Babulal Kucheria & Ors reported in 2016(3) GLT 72, it is further submitted that in the absence of proof of a particular due date of rent, the tenant cannot be held to be a defaulter. The conduct of the parties in a suit under the Rent Control Act is also relevant inasmuch as, even if a due date is fixed for payment of rent but by conduct of the parties same may be changed.
9. Coming back to the facts it is the contention that the landlord plaintiff used to collect the rent from the tenant petitioners. Accordingly the allegation of defaulter on the part of the tenant petitioners must arose on the basis of the said practice because of the fact that the landlord as per the practice used to collect the rent. However, no such evidence was led as apparent from the evidence. In support of his contention, Mr. Mishra goes back to the pleadings of the defendants petitioners in the written statement and in order to show that the said pleadings were proved, Mr. Mishra relied the evidence of DW 1.
10. Mr. Mishra to bring out the conduct of the landlord submits that in the evidence of DW 1, it is stated that the landlord Sukumar Chandra Paul refused to receive the rent and as such, the rent for the whole year 1380 BS @ 35/- per month was deposited in the court. Similarly on refusal , Sukumar Chandra Paul deposited the rent for the year 1381 BS vide Page No.# 7/18 R.C.Case No. 192/1974. Again the predecessor of the plaintiff in order to make the predecessor of the defendants defaulter in payment of rent did not receive the rent for the month of Kartik 1382 BS and as such rent for six months up to Chaitra 1382 BS @ Rs. 35/- per month was deposited in the court vide RC Case No. 377/1975. The subsequent rent was enhanced and landlord started receiving the rent up to Chaitra 1383 BS and again refused to accept for the month of Baisakh, 1394 BS following which the same was deposited in the court vide Misc Case No. 410/1997. However the predecessor of the plaintiff received the rent after the monthly rent was enhanced to Rs. 160/- which continued and accepted up to Baisakh 1403 B.S. The rent was again enhanced to Rs 180 per month and landlord collected the rent up to Bhadra 1403 B.S. As there was an apprehension that the landlord would demolish the rooms before the Durga Puja in 1403 B.S. suspecting foul play, the tenants through Misc R.C. Case No. 604/1996 deposited the rent for the month of Aswin before the commencement of Puja vacation as on tendering the said rent in advance there was refusal to accept by the landlord . The rent for the month of Kartik, 1403 B.S, was deposited alongwith advance rent from Agrahayan to Chaitra by filing Misc. Case No. 653/1996. Thereafter as the plaintiff did not accept the rent annually as such for the next 10 years till the year 2006, the rent was paid annually vide various cases in the Court. Referring the said conduct of the parties, Mr Mishra wants to submit that the landlord used to accept the rent in advance.
11. The court below ought to have considered such conduct on the part of the landlord and wrongly held the defendants petitioners as defaulters in paying the monthly rent. Relying again Upen Chandra Vs. Subhasini (Supra), it is submitted that the requirement of the landlord could not have been held to be bonafide in the light of the fact that the PW 1 Page No.# 8/18 admitted that there are other tenants in the same premises under the same landlord and under such circumstances, the landlord in order to expand his business identified the shop room of the defendants petitioners leaving aside the other shop premises. This goes to show that there is no bonafide requirement of the tenanted premises. Accordingly Mr. Mishra submits that the court below made a jurisdictional error and as such it is a fit case for remand to determine the issue of default and that of the bonafide requirement as required under Section 5 (1) proviso (e) and (c) of the Act.
12. Mr. Mazumdar submits that the petitioners did not raise the issue that the trial court gave no findings in respect of the due date before the first appellate court and now the petitioners cannot raise that issue moreso when the findings are concurrent. The plaintiff in the plaint at the very first paragraph pleaded that the grandfather of the defendant Nos. 2 to 5 and father-in-law of the defendant No.1, Sukumar Paul took the settlement of the house from the father of the plaintiff on monthly rental basis as per oral agreement about 45 years back subject to payment of rent @ Rs. 30/- per month payable within first week of the next month. The monthly rent falls due according to Bengali calendar month and to obtain rent receipts thereof. As against the said pleadings in the plaint the defendants in the written statement in para-6 while dealing with para 1 of the plaint made no specific denial in respect of the terms of the tenancy including the due date. Rather in para 17 of the written statement, the defendants admitted as to the fact that the mode of payment of the rent was previously 15(fifteen) days and subsequently it became 7(seven) days of the following month which is the accepted mode of payment of rent between the parties.
13. Referring the said pleadings, Mr. Mazumar submits that there was no agreement to accept the rent in advance before falling due and as such the submission of Mr. Mishra that Page No.# 9/18 by conduct the landlord had given up the original agreed terms of the tenancy is not acceptable. Rather as there was clear violation while tendering the rent of Kartik 1403 BS alongwith the advance rent for Agrahayan to Chaitra, the landlord refused to accept the same because of the violation of the terms of the tenancy. The subsequent payment of the monthly rent annually itself shows that the rent though deposited in the court was not as per the agreed terms nor within a period of fortnight from the date of refusal to accept the rent by the landlord inasmuch as, it is clear and apparent that the advance rent was not tendered to the landlord as per evidence appreciated by the courts below.
14. There is a clear finding in respect of the due date by the first appellate court and as such, no jurisdictional error was made by the appellate court. In support of the contention, Mr. Mazumdar relies Kuber Prasad Gupta Vs. Parbati Devi and Another reported in 2015(5) GLR 743 wherein it was held that the tenant is not entitled to deposit the rent in the court if the rent has not become due and payable to the landlord nor if the same is not offered to be paid to the landlord and the same is not declined by the landlord.
15. The trial court while deciding the issue No. 5 discussed in detail including the evidence of the DW 1 and DW 2 and came to the finding that the evidence of the defendants does not disclose any date on which rent was tendered to the plaintiff inasmuch as PW 1(Plaintiff) denied in his cross-examination that he was offered rent by the defendant for the month of Aswin , 1403 BS to 1416 BS and he refused to accept the same. The trial court rightly held that the burden lies on the defendants to prove that he is not a defaulter. Under such circumstances the finding in issue No. 5 that the plaintiff was able to show that the defendants are defaulter in payment of rent is sufficient discharge of the burden as required u/s 5(1) proviso(e) of the Act. Mr.Mazumdar also relying the pleadings in the written Page No.# 10/18 statement submits that the due date of rent is an admitted fact and there is no requirement to give a finding on the admitted fact u/s 58 of Indian Evidence Act. Accordingly, the finding in respect of the issue of default is a correct finding which requires no interference nor there is any jurisdictional error.
16. The finding of the court below in respect of the issue of bonafide requirement of the plaintiffs respondents cannot be disputed. The suit premises is adjacent to the shop premises of the plaintiffs respondents and breadth of the said room is 5 feet and it is quite obvious that business of hardware cannot be carried out in such a small room and as such the suit premises is required by the plaintiff in order to demolish a portion thereof to widen the breadth of the shop premises of the plaintiff. For the said requirement the defendant cannot dictate the plaintiff to expand his shop room or to build in the vacant space . The court below rightly held that the landlord is the best judge of his own requirement and he has complete freedom in the matter. Accordingly Mr. Mazumdar submits that the revision petition has no merit and liable to be dismissed.
17. I have given due consideration to the submissions of the learned counsel. Section 5(1) of the Assam Urban Areas Rent Control Act, 1972(hereinafter referred to as the Act) stipulates that no order or decree for the recovery of possession of any house shall be made or executed by any court so long as tenant pays rent to the full extent. The proviso(e) of Section 5(1) however stipulates where the tenant has not paid the rent lawfully due from him in respect of the house within a fortnight of its falling due, then the said bar against passing an execution of decree does not come in the way for ejectment of the tenant from the tenanted premises. For the said reason in order to decide whether the rent is paid lawfully the due date must be decided by the court before holding a tenant defaulter and to Page No.# 11/18 remove the bar as hereinabove stated.
18. Mr. Mishra submits that a burden is cast upon the plaintiff landlord to prove that the defendants petitioners as the tenant defaulted to pay the rent lawfully due within a fortnight of its falling due. Under the proviso (e) of Section 5(1) of the Act and/or, in a suit principal burden for proving the relevant facts entitling him to get the relief sought for in the suit always lies on the landlord as per Section 101 of the Indian Evidence Act. Here in this case the plaintiff respondent in his pleadings stated that the predecessor-in-interest of the defendants petitioners took on rent the suit premises by an oral agreement on a monthly rent of Rs. 30/- payable within the Ist week of the following Bengali calendar month. The rent was enhanced time to time and from the month of Jestha 1403 B.S, the rent was enhanced to Rs. 180/- per month. Thereafter the respondent received monthly rent up to the month of Bhadra 1403 B.S and rent receipts were duly issued. But from the month of Aswin 1403 B.S, the defendants petitioners defaulted in paying the rent and as such the plaintiff respondent sought for the relief of ejectment of the defendants petitioners on the ground of defaulter. So the burden to prove the said pleading is on the plaintiff respondent.
19. The defendants petitioners as the tenant filed their written statement. However, without disputing the date on which the rent fell due, it is pleaded that the father of the plaintiff respondent refused to receive the rent for the year 1380 B.S whereafter his father deposited the rent for that year by filing Misc.Case No. 34/73 in the court. Similarly on refusal to accept the rent for the year 1381 B.S., his father deposited the same in the court. Then the rent for the month of Kartik 1382 B.S. was refused to be accepted and the predecessor- in-interest of the defendants deposited the rent for the year 1382 B. S. Again for the month of Baisakh 1394 B.S. rent was paid in the court . Later on as the rent was enhanced the Page No.# 12/18 father of the plaintiff respondent accepted the monthly rent for the month of Baisakh and issued receipt thereof . In that manner he received the monthly rent up to Baisakh 1403 B.S. The rent was enhanced to Rs 180/- and monthly rent was accepted till Bhadra, 1403 B.S thereafter, vide Misc R.C.Case 604/96 the rent for the month of Aswin was deposited in the court but in advance. In the month of Kartik 1403 B.S. the predecessor-in-interest of the defendants petitioners offered rent for the month of Kartik alongwith advance rent from Agrahayan to Chaitra and the same was refused whereafter the said rent was deposited in the court vide Misc Case 653/1993. From the next year onward the father of the defendant petitioner No. 1 asked the plaintiff respondent to collect the rent annually at the end of Baisakh every year and to issue receipt thereof. The plaintiff respondent did not receive the rent and as such the defendants petitioners through various Misc. Cases deposited the annual rent in the court. Offer was made to the plaintiff respondent the rent for the month of Baisakh 1414 alongwith advanced rent for the month of Jestha and Chaitra and for rest of the year which was refused and thereafter vide Misc. Case No. 282/2007 deposited the rent in the court.
20. The pleadings and the evidence of the parties to the suit are more or less similar. From the aforesaid pleadings alongwith the admission on the part of the defendants petitioners, it is found that the monthly rent fell due within the seventh day of the succeeding month. It can be inferred that the monthly rent offered by the defendants petitioners were accepted by the plaintiff respondent but the monthly rent alongwith advance rent was never accepted by the plaintiff respondent.
21. Mr. Mishra wanted to project that the general practice was to deposit the monthly rent annually in total and as such the due date is of utmost importance in deciding the issue of Page No.# 13/18 defaulter in the present suit. Let me go through the evidence in the cross-examination of the DW 1 he deposed that after the death of his father they paid rent to the plaintiff respondent for the month of Bhadra 1403 B.S. against receipt. He also deposed that the settlement was according to Bengali calendar and they were supposed to pay the rent of a month within seventh day of the next month. On the other hand, PW 1 in his cross-examination also deposed that the rent for every month was scheduled to be paid within the seventh day of next month and they collected the rent as per that schedule. He also deposed that he received rent from the defendants till Shravana/Bhadra 1403 B.S. As per practice the plaintiff respondent collected the rent from the shop of the defendants and some time the defendants paid the same to the plaintiff respondent. From the evidence led by the parties and from the respective cross-examination it can be held that as per the tenancy agreement the mode of paying the rent is month to month basis . But the defendants petitioners offered the monthly rent alongwith the advance rent and the same was refused by the plaintiff respondent to accept. Thus from the pleadings and also from the evidence the plaintiff respondent did not change nor he had any intention to change the mode of payment of the monthly rent as agreed by the parties even by his conduct. This finding is arrived keeping in view the pleadings in the written statement and the evidence recorded of the defendant side. Accordingly the plaintiff respondent is able to establish that the defendants petitioners avoided in paying the rent as per agreed terms of tenancy meaning thereby that the burden on the plaintiff respondent was discharged as required u/s 101 of the Indian Evidence Act.
22. Section 5(1) proviso(e) provides if the landlord refused to accept the rent lawfully due from the tenant , the tenant can very well deposit the lawful rent within a fortnight of its becoming due in the court u/s 5(4) of the Act. In order to get the protection from being Page No.# 14/18 ejected under the Act as held by the Full Bench Decision of this Hon'ble Court in Kalikumar Sen Vs. Makhanlal Biswas reported in AIR 1969 A & N 66, the burden lies on the tenant to prove that he was not defaulter in payment of rent.
23. In the written statement the defendants petitioners pleaded that the mode of payment of the rent was previously 15 days and subsequently it was agreed seven days of the following month and the same is the accepted mode of payment between the parties. On the face of the said pleadings the DW 1 admitted the said arrangement. In the written statement it is further stated that the rent was deposited for the month of Aswin 1403 B.S. vide Misc Case No. 604/1996 because he offered the rent in advance to the plaintiff respondent due to the Puja vacation from 12 October to 10th November, 1996 which was refused. Thereafter also the predecessor of the answering defendants petitioners offered the rent for the month of Kartik 1403 B.S. alongwith advance rent of Agrahayan to Chaitra 1403 B.S. But the plaintiff refused to accept the same and accordingly the said rent was deposited in the court Vide Misc.Case No. 653/1996. It is also pleaded that the predecessor of the answering defendants after offering the rent from the year 1404 B.S. to 1413 B.S. being refused by the plaintiff respondent, the said predecessor deposited the rent in the court vide 10 Nos. of Misc. Cases. The said act of deposit of the rent in the court, was for a period of ten years, each Misc. case covering the rent of one year.
24. The first appellate court came to the finding that from the pleadings and the evidence led it is not disputed or denied by either side that the monthly rent of the suit premises was duly paid till Bhadra 1403 B.S. and there was no dispute as regards the quantum of rent to be paid monthly as per Bengali calendar within the first week of each succeeding month . It is Page No.# 15/18 further held that in order to discharge the burden that the defendants petitioners are not defaulter, the DW 1 exhibited few rent receipts and also certified copies of Misc.(R/C) cases filed before the learned Munsiff. DW 1 exhibited certified copies of the cases and the DW1 deposited the same because of the fact that the plaintiff respondent refused to accept the rent when offered by him . But they did not mention the date when they had gone to offer the rent. Similarly the DW 2 in his cross-examination admitted that he could not say the date and time of offering the rent to the plaintiff in 1414 B.S. It is also held by the First Appellate court that when the tenancy is admittedly a monthly one and the rent is payable after each month , tender of rent for 12 months together cannot be held to be lawful tender. The rent for the period from Baisakh 1415 to Chaitra 1415 vide Ext.T, Baisakh 1416 to Chaitra 1416 vide Ext.U, Baisakh 1417 to Chaitra 1417 vide Ext V and Baisakh 1418 to Chaitra 1418 vide Ext. W were deposited for a period of 12 months together even for subsequent years too. Considering the evidence of DW 2 that he could not say on which month he deposited the rent in connection with those exhibits T, U, V, W and X, the court below came to the conclusion that it is clear that there is no specific evidence on record to show that the rents were offered within seventh day of subsequent month by the defendants to the plaintiff even for the month of Baisakh 1414 B.S to Chaitra 1414 BS and thereafter. The first appellate court rightly held that a monthly tenancy and the payment of monthly rent i.e. the mode can be changed by the landlord and the tenant through their conduct. The court below considered the rent receipts exhibited by both sides i.e. plaintiff respondent through Ext.1 and the defendant petitioners through Ext. D and the court below came to the conclusion that the said rent receipt does not suggest such changes in the mode of payment of the monthly rent inasmuch as the rent was always tendered monthly and receipts thereof were given as Page No.# 16/18 per the terms of the tenancy . Referring back to the mode of payment of the monthly rent as agreed to by the parties and the admission of the same by DW 1 in his cross-examination, the court below while deciding the issue No. 5 held that as per the evidence led it was amply proved that the defendant did not deposit the rent as per the provision of Section 5(4) of the Act and hence, the deposit of the rent in the court was not valid in the eye of law.
25. The findings of the court below are concurrent in nature. I have perused the certified copies of the evidence of the parties to the suit and having gone through the findings of the court below , I am unable to hold that the court below failed to determine the due date for paying the rent.
26. The practice as admitted by the parties is that rent must be offered within 7 (seven) days of the succeeding month to the landlord and on acceptance of the monthly rent landlord to issue rent receipt . The plaintiff respondent through exhibit 1 placed on record the counterfoils of the rent receipts issued and on the other hand, the said rent receipts were exhibited by the defendant side through DW 1. The ground for refusal of rent by the landlord is specific inasmuch as the defendants petitioners offered the rent in advance which the plaintiff respondent refused to accept and as such in my opinion, it is sufficient to hold that the plaintiff respondent established that the defendants petitioners are defaulter under proviso (e) of Section 5(1) of the Act.
27. Mr. Mishra submits that the finding in respect of issue No. 6 regarding bonafide requirement of the suit premises by the plaintiff respondent has no genuinity and the court below holding that the landlord has the complete freedom in respect of suitability of the particular tenanted premises are required to be interfered.
Page No.# 17/18
28. I have perused the finding of the first appellate court in issue No. 6. Referring to the evidence on record the court below considered the evidence of PW 1 wherein he stated that his own shop room under the name and style ' Radharaman Hardware' is situated adjacent to the suit room in the Northern side which is only 5 feet in breadth which is hardly sufficient to accommodate his hardware business , he can barely attend two customers at a time and as such the suit room is bonafide required by him for extension of business of hardware. It is further stated that his homestead is situated adjacent to the boundary of the suit premises and due to increase in the family members, they are unable to live properly in the said premises. In the cross-examination PW 1 stood by his deposition and the pleadings in the plaint and the same remained uncontroverted . On the other hand, the DW 1 admitted that the suit premises is 13 ½ feet in breadth and 52 feet in length. Accordingly the court below held that the plaintiff respondent is in a disadvantageous position in respect of area of his shop premises. On comparison of the area of suit room of the defendants petitioners and the one under possession of plaintiff respondent, it held that sufferance was going on inspite of the fact that he is the owner of the suit premises which is much more spacious compared to the one under his occupation. It is also observed by the first appellate court that DW 1 in his cross examination while denying that they had other landed property but admitted that they have tenants at Hospital Road, Silchar. On the said comparison made from the evidence on record the court below assessed the claim of the bonafide requirement of the plaintiff respondent to be a genuine one and under such circumstances, I do not find any erroneous finding of the court below in respect of issue No. 6.
29. From the aforesaid discussions, I do not find any merit in this revision petition nor any jurisdictional error on the part of the courts below while deciding the suit and this revision Page No.# 18/18 petition stands dismissed however, without any cost.
30. The defendants petitioners are occupying the suit premises since long and as such in my opinion it would be proper to allow the defendants petitioners to remain in possession of the tenanted premises for a period of six months from today and during the said occupation the defendants petitioners shall pay the monthly rent as per the agreed terms. On expiry of six months from the date of passing the judgment in this revision petition, the defendants petitioners fail to vacate the tenanted premises, the plaintiff respondent shall initiate execution proceeding to eject the defendants petitioners.
JUDGE Comparing Assistant