Gauhati High Court
Sankar Gogoi vs Smti. Sazeda Ahmed Hazarika on 20 April, 2017
Author: Kalyan Rai Surana
Bench: Kalyan Rai Surana
IN THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM; NAGALAND; MIZORAM & ARUNACHAL
PRADESH)
CRP 330 OF 2015
Sri Sankar Gogoi
- Petitioner
- Versus -
Smt. Sazeda Ahmed Hazarika
- Respondent
BEFORE HON'BLE MR. JUSTICE KALYAN RAI SURANA For the petitioner : Mr. J. Ahmed.
For the respondent : Mr. R. K. Bhuyan.
Date of hearing : 05.04.2017
Date of judgment : 20.04.2017
JUDGMENT & ORDER (CAV)
Heard Mr. J. Ahmed, learned counsel for the petitioner and Mr. R.K. Bhuyan, learned counsel for the respondent.
2) By order dated 18.01.2016, on the prayer made by the learned counsel for the petitioner, this court opined that the matter may be taken up for disposal at the admission stage. Accordingly, with the consent of the learned counsel for both the sides, the matter was taken up for disposal at the admission stage on the basis of materials on record.
3) This revision by the petitioner/tenant is directed against the concurrent finding of both the learned courts below and in challenge is the first appellate judgment and decree dated 11.05.2015 passed by the learned Civil Judge, Jorhat in Title Appeal No. 8/2014, whereby the judgment and decree in the original suit dated 22.04.2014 passed by the learned Munsiff No.1, Jorhat in Title Suit No. 10/2013 was upheld.
Page No. 24) The case in brief is that the petitioner was a monthly tenant under the respondent herein in respect of a commercial shop space by virtue of a Deed of Agreement of Lease for the period from 01.01.2011 to 31.12.2001. Thesaid agreement contained a renewal clause, further providing that on renewal, the rent would be enhanced by 10%. The respondent projected that she was a widow and apart from supporting herself, she had to take care of her spastic (mentally and physically challenged) daughter and, as such, in order to make her ends meet, the respondent requested all her tenants including the petitioner herein to enhance rent of Rs.2,130/- by 15% w.e.f. 01.01.2012 and accordingly, the petitioner tendered monthly rent at the enhanced rate of Rs.2,450/- for the month of January, 2012. It was further projected by the respondent that the petitioner took the draft agreement for renewal of the tenancy, but did not return the same for execution. Thereafter, the petitioner received an Advocate's notice dated 20.01.2012 by which the petitioner declined to renew the agreement and claimed that he had tendered the monthly rent of Rs.2,130/- for January, 2012 and claimed that the respondent had received Rs.2,500/- from the agent of the petitioner and claimed a refund of excess amount. Thereafter, the petitioner/tenant did not tender any further rent from the month of February, 2012 despite repeated demands and, as such, he was a defaulter and had become liable to be evicted from the suit premises. The respondent, therefore, filed the suit for ejection of the petitioner and for recovery of possession of suit premises and for arrear rent. It was stated in the plaint that the suit room was covered by Municipal Holding No. 315, but in the agreement it was wrongly written as 254. By filing written statement, the petitioner stated that the suit premises was in Municipal Holding No. 254, and claimed that the respondent refused to accept monthly rent at the rate of Rs.2,130/- and did not refund the excess money retained for the month of January, 2012, as such, the petitioner was depositing monthly rent of Rs.2,130/- in court and, as such, projected that he was not a defaulter.
5) The following issues were framed by the learned Trial Court:-
(1) Whether the defendant is a tenant in respect of the suit premises? If so whether he defaulted in payment of rent?
(2) Whether the plaintiff is entitled to decree as prayed for? (3) To what other relief/ reliefs the plaintiff is entitled to?
6) In course of trial, the respondent/ plaintiff examined 2 witnesses and exhibited 5 documents and the petitioner/ defendant examined 2 witnesses.Page No. 3
7) In his cross examination, the petitioner admitted that in his advocate's notice, he had informed the respondent that if the dispute regarding monthly rent was not settled between them, he would deposit the monthly rent in court and also admitted that he had not signed the draft agreement sent by the respondent. PW-2 (Sri Mona Sarkar) deposed that he was paying monthly rent on behalf of the petitioner and since February, 2012 he never went to the respondent to tender monthly rent. Thus, from the evidence of both the petitioner's witness, it appears that the petitioner has taken a categorical stand that he did not offer monthly rent to the respondent from the month of February, 2012, as such, since there was no offer or tender of monthly rent, no occasion arose for the respondent to refuse to accept the lawful rent tendered by the petitioner. Thus, based on the statutory provisions contained in Section 5(4) of the Assam Urban Areas Rent Control Act, 1972, the learned trial court held that the petitioner was a tenant under the respondent and he was a defaulter and, as such, the issue No.1 was decided in the positive and in favour of the respondent/ plaintiff. Consequently, the other issues No.2 and 3 were also decided in favour of the respondent and the suit was decreed in terms of the prayer made in the plaint.
8) Upon challenge before the learned First Appellate Court, the said learned appellate court has re-examined the pleadings and evidence on record and formulated the following points of determination:-
A. Whether the appellant had agreed to pay the enhanced rate of monthly rent @ Rs.2,450/- to the Respondent w.e.f. 01.12.2011?
B. Whether the Appellant had defaulted in paying the due rent to the Respondent?
C. Whether the Appellant is liable to be evicted from the suit premises?
9) The learned appellate court arrived at an independent finding that the petitioner had accepted to pay enhanced rent otherwise he would not send Rs.2,500/- to the respondent if the actual agreed monthly rent was much below and therefore, held the petitioner to be a defaulter, having not paid monthly rent of Rs.2,450/- per month. The learned appellate court on perusal of the evidence, held that the enhanced monthly rent was paid for the month of December, 2011 and January, 2012 and evidence of DW-1 (Petitioner) on payment of monthly rent was held to be hearsay as he admittedly did not tender monthly rent to the respondent, but the same was admitted to have been tendered by DW-2. Hence, point for Page No. 4 determination No.1 was decided in the affirmative and against the petitioner. In respect of Point of Determination No.2, the learned appellate court held that the petitioner never tendered monthly rent to the respondent and he had admitted that he did not call for the rent deposit case records to prove the deposit of monthly rent in court, as such, the mere statement of depositing monthly rent was disbelieved. It was further held that as per the provisions of Section 5(4) of the Assam Urban Areas Rent Control Act, 1972, it was mandatory for the tenant to offer rent to the landlord and only on failure of the landlord to accept lawful rent, the tenant could deposit rent in court and it was held in the present case that there was no refusal of the respondent to accept the rent and, as such, held that in the absence of evidence of refusal, the deposit of rent in court was neither legal nor valid and held that the petitioner had defaulted in paying rent within due date. Thus, the said point was also decided in the affirmative and against the petitioner. In respect of Point of Determination No.3, the learned appellate court held that notwithstanding the describing of Municipal Holding No.315 as 254, the other description of suit premises with area, Dag and Patta and specific boundaries were same and it constituted compliance of the provisions of Order VII Rule 3 of Civil Procedure Code and, as such, held that the petitioner was a tenant of the respondent and decided the said Point of Determination in the affirmative and against the petitioner.
10) In this revision, the petitioner had filed an affidavit on 29.07.2016 to bring on record the rent deposit challans for 8 months. On the perusal of the same, it appears that the first challan was for the month of February, but no year was mentioned and though the bank seal is not readable, there is no statement in the affidavit about the date of deposit in bank, which is very material in view of the express provisions contained in section 5(4) of the Assam Urban Areas Rent Control Act, 1972. In the second challan, the monthly rent for March, 2012 was deposited on 13.03.2012, which is before the due date. Similarly, monthly rent for April, 2012 was deposited in the month of April, 2012, which is before the due date and though the bank seal is not readable, there is no statement in the affidavit about the date of deposit in bank. Similarly, monthly rent for May, 2012 was deposited in the month of May, 2012, which is before the due date and though the bank seal is not readable, there is no statement in the affidavit about the date of deposit in bank. Similarly, Similarly, monthly rent for January, 2012 was deposited in the month of January, 2016, which is before the due date and though the bank seal is not readable, there is no statement in the affidavit about the date of deposit in bank. The monthly rent for February, 2016 was deposited in bank on 22.03.2016. Similarly, monthly rent for Page No. 5 March, 2016 and April, 2016 was deposited in the bank on 09.05.2016 by separate challans. Thus, it is seen that notwithstanding that at this revisional stage, the court is not inclined to look into new documentary evidence, which was not introduced in evidence before the learned Trial Court or before the First Appellate Court, but on a cursory perusal of the said 8 challans, the inevitable presumption which can be drawn by this Court is that either for all the months from February, 2012 till date of filing of the said affidavit on 29.12.2016, rent was not deposited in court or they were not deposited in time for which the rent deposit challans were not filed the petitioner with his affidavit.
11) It would be relevant to reproduce the provisions of section 5(4) of the Assam Urban Areas Rent Control Act, 1972, which is as follows:-
"5. Bar against passing and execution of decree and orders for ejections (4) 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."
12) This Court, in the case of Arunamoyee Bishaya V. Rabindra Nath Bora, (2008) 1 GLT 421 has held that unless the tenant proves the conduct of landlord, the logical conclusion would be that since tenancy is a monthly tenancy, the rent would become due and payable at the end of each month according to the English Calendar month and in the case of Ram Karanji More V. Keshar Deo Jalan, (1996) 2 GLT 526, this Court has held that when there is no written contract, the tenancy is always monthly, and the rent is due at the end of the month. In a catena of cases, including the case of Smt. Sushila Devi Khemka V. Smti. Sabitri Devi Kejriwal, (2016) 5 GLJ 275, it has been held by this Court as follows:-
18. .... A mere deposit of rent in Court would not be a valid deposit unless the conditions precedent enumerated in section 5(4) of the Assam Urban Areas Rent Control Act, 1972 are satisfied. Those requirements are as follows:-
(i) The tenant has to offer the rent to the landlord before deposit;
(ii) Upon such offer, landlord has to refuse to accept the rent;
(iii) The tenant thereafter has to make the deposit in Court within a fortnight of its falling due; and Page No. 6
(iv) Such deposit has to be of the entire amount of the rent along with process fee for the service of notice upon the landlord.
In a case, therefore, where the defendant takes the plea that he is not a defaulter because he has been depositing rent in Court under section 5(4) of the Act, in that event, burden falls heavily on such defendant to plead and establish all the aforesaid conditions precedent. If any of these conditions precedent is not pleaded and established, in that event, deposit will not be a valid deposit and the tenant will not get the benefit of section 5(4) of the Act so as to avoid the rigour of default under section 5(4) of the Act.
13) In the present case in hand, the said four prerequisites as mandated by this court as referred above, are neither pleaded in the written statement of the petitioner nor the same have been proved. Thus, this court finds no infirmity whatsoever, in the judgment and decree passed by both the learned Trial Court and the First Appellate Court. This Court also does not find any perversity or jurisdictional error in both the said judgments, rather, the findings on defaulter is found to be passed on the basis of materials available in the record. The concurrent decree for eviction of the petitioner/ defendant, for realization of arrear rent from the month of February, 2012 onwards and for recovery of suit premises in favour of the respondent is found fully justified and sustainable and the same are, accordingly, upheld.
14) This revision is found to be devoid of any merit. It is accordingly, dismissed with cost. Counsel fee is assessed at Rs.10,000/-. The stay order passed earlier by order dated 12.08.2015 was extended by order dated 07.09.2015, but thereafter, it stood lapsed without being extended, nevertheless, the said interim order passed earlier, shall stand automatically vacated.
15) As the petitioner has projected that he is doing business from the suit premises, this court is inclined to give 3 (three) months time from today to vacate the suit premises, subject to the following conditions:
a. The petitioner shall deposit the decreetal sum as decreed before the learned Court of Munsiff No.1, Jorhat within a period of one month from today;
b. The petitioner shall submit an unconditional undertaking in writing before the learned Court of Munsiff No.1, Jorhat within 1 (one) month from today to vacate the suit premises on or before 31.07.2017;Page No. 7
c. The petitioner shall not hand over the suit premises to anyone other than any one of the respondent herein (plaintiff);
d. The petitioner shall continue to deposit monthly rent every month in favour of the respondent/ plaintiffs, which shall not constitute any further tenancy or create any tenancy right in favour of the petitioner. e. The petitioner shall not cause any nuisance or any other disturbance and/or cause any damage to the suit premises in the meantime. f. It is made clear that if any of the above five conditions (a) to (e) are not complied with, the respondent/ plaintiff shall be entitled to enforce the decree.
JUDGE Kalpana