Gauhati High Court
Keshab Prasad Gupta vs Bhagirath Prasad on 3 April, 2019
Author: Prasanta Kumar Deka
Bench: Prasanta Kumar Deka
Page No.# 1/4
GAHC010002162017
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRP 9/2018
1:KESHAB PRASAD GUPTA
S/O- LATE CHANDRAMA PRASAD GUPTA, R/O- SANTIPUR, WARD NO.5,
P.O, P.S BISWANATH CHARIALI, MOUZA- BISWANATH, DIST- SONITPUR,
ASSAM
VERSUS
1:BHAGIRATH PRASAD
W/O- LATE RAM PRASAD R/O- CHARIALI TOWN, NH 5, P.O AND P.S
BISWANATH CHARIALI, MOUZA- BISWANATH, DIST- SONITPUR, ASSAM
Advocate for the Petitioner : MR. J SARMAH
Advocate for the Respondent : MS B CHOUDHURY
BEFORE
HONOURABLE MR. JUSTICE PRASANTA KUMAR DEKA
ORDER
03.04.2019 Heard Mr. J. Sarmah, the learned counsel for the petitioner. Also heard Ms. B. Choudhury, the learned counsel for the respondent.
2. The respondent as the plaintiff filed a suit for eviction from the tenanted premises against the present petitioner tenant. The tenancy started since the year 1996 on the basis of a written up tenancy agreement wherein the due date for paying the rent is within 5 (five) days in the succeeding English calendar month. The petitioner tenant paid the Page No.# 2/4 monthly rent till February 2009. It would not be out of place to mention here that after the tenancy period of 3 years and subsequent thereto there were no such written up tenancy agreement but it is apparent from the pleadings of both the parties that the tenancy agreement as started initially continued between the parties. Since March 2009 onwards till May 2011, the defendant/ petitioner defaulted in paying the monthly rent. Later on, a notice from the learned Court of Munsiff was received by the plaintiff/respondent wherefrom it came to the knowledge of the plaintiff/respondent that the petitioner had deposited the rent in the Court for the month of June 2011. Accordingly, referring the said cause of action and in addition to that the suit premises was bonafide required by the plaintiff/respondent, the suit was filed for eviction of the tenant petitioner.
3. In the written statement the defendant/petitioner did not deny the due date and the terms of tenancy. However, it is the stand taken by the defendant/petitioner that the plaintiff/respondent with an ulterior motive to evict the defendant illegally refused to receive rent from him and as such having no alternative deposited rent in the court. On the basis of the pleadings of the parties the following issues were framed:-
"1. Whether there is any cause of action for the suit?
2. Whether the suit is maintainable in its present form?
3. Whether the defendant is a defaulter in respect of payment of rents to the suit room?
4. Whether the defendant is liable to be evicted from the suit room?
5. Whether plaintiff is entitled to get any relief or reliefs as prayed for?"
4. The learned trial court decreed the suit and the first appellate court also upheld the findings of the trial court except with respect to the entitlement of the arrear rent by the plaintiff/respondent which was modified in respect of the quantum.
5. Mr. Sarmah submits that the defendant/petitioner paid the monthly rent regularly till May 2011. However, in the month of June 2011, the plaintiff/respondent refused to accept the rent for which the defendant/petitioner was compelled to deposit the same in the court. Moreover, the claim of monthly arrear rent by the plaintiff/respondent is totally Page No.# 3/4 false and as such, the learned first appellate court had to interfere after going through the evidence on record. There are jurisdictional error inasmuch as there is no finding in respect of the due date. Submitting so, it is the contention of Mr. Sarmah for interference by this Court.
6. Ms. Choudhury, on the other hand, vehemently opposed the submission of Mr. Sarmah. It is submitted that there is no dispute with respect to the due date inasmuch as the defendant/petitioner specifically admitted the terms of the tenancy. Non-recording of the due date once the parties admitted to it, cannot be held to be a jurisdictional error. The defendant/petitioner failed to prove the requirements under Section 5(4) of the Assam Urban Areas Rent Control Act, 1972 to get the protection from being ejected inasmuch as he failed to call for the NJ Case records. The fact of interference by the first appellate court with respect to the arrear rent cannot itself be a ground to hold that the whole finding of the courts below are liable to be interferred. Accordingly, she supported the findings of the court below.
7. I have given due consideration to the submissions of the learned counsel. It is the requirement under the Act, 1972 to give a finding by the court in respect of the due date before holding a tenant defaulter and if there is no such finding the same will hit by proviso
(e) of Section 5(1) of the Act, 1972.
8. In the present case in hand, the learned trial court has given a clear finding from the Ext.1, the tenancy agreement executed in the year 1997 that the monthly rent was fixed at Rs.500/- payable within 5 (five) days of every succeeding month. The said tenancy agreement Ext-1 is admitted by the defendant/petitioner and came to the finding that the facts admitted need not be proved. This itself is sufficient to come to the finding that the due date of paying the monthly rent is within next 5(five) days of its succeeding month. The plaintiff/respondent produced some of the rent receipts in order to support that the defendant/petitioner failed to pay the monthly rent with effect from March 2009 to May 2011. The same was denied by the defendant/petitioner. It is his contention that he did not default in paying the monthly rent for the period March 2009 to May 2011 but in support of that contention he failed to adduce any evidence. In my opinion, the said burden lies upon the defendant/petitioner which he utterly failed and as such he is a defaulter under Section 5(1) proviso (e) of the Act. Regarding the payment of rent in the court the defendant/petitioner Page No.# 4/4 failed to produce the case records of the various rent cases in order to prove that the deposit of the rent in the court was as per requirement under Section 5(4) of the Act, 1972.
9. Under such circumstances, I do not find any materials in order to interfere with the judgment passed by the appellate court. Accordingly, this revision petition stands dismissed.
10. It is submitted by Mr. Sarmah that the suit premises is situated in a commercial place and as such, the tenant requires at least 6(six) months time to shift from the suit premises and as such, he sought for a direction to the plaintiff/respondent not to execute the decree of eviction at least for the next 6 (six) months from today.
11. Ms. Choudhury fairly submits that for the next 6(six) months with effect from today the decree shall not be put into execution subject to payment of the monthly rent by the defendant/petitioner at the rate he last paid in the court. In terms of the submission of Ms. Choudhury let the plaintiff/respondent shall not execute the decree till the expiry of the next 6(six) months from today and on the other hand, the defendant/petitioner shall pay the monthly rent to the landlord as per the observation made hereinabove.
12. This revision petition stands disposed of.
JUDGE Comparing Assistant