Gauhati High Court
Khagen Hazarika vs Puniram Nath on 4 November, 2019
Author: Prasanta Kumar Deka
Bench: Prasanta Kumar Deka
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GAHC010126292018
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRP 78/2018
1:KHAGEN HAZARIKA
SON OF LATE RAJAN HAZARIKA, PANCHAYAT SECRETARY, RESIDENT OF
VILLAGE- NA-BHATI, WARD NO. 10, P.O.MORIGAON, P.S.- MORIGAON,
DIST. MORIGAON, ASSAM, PIN- 782105.
VERSUS
1:PUNIRAM NATH
SON OF LATE NABIN CHANDRA NATH, RESIDENT OF VILLAGE-
MAYENGIA, P.O. CHARAIBAHI, P.S. MIKIRBHETA, DIST. - MORIGAON, PIN-
781006.
Advocate for the Petitioner : MR. A K PURKAYASTHA
Advocate for the Respondent : MR. R K BHUYAN
:: BEFORE ::
HON'BLE MR. JUSTICE PRASANTA KUMAR DEKA
-O R D E R-
04.11.2019 Heard Mr. AK Purkayastha, learned counsel for the petitioner and Mr. RK Bhuyan, learned counsel for the respondent.
The present petitioner is the defendant in Title Suit No. 16/2016 filed by the respondent as the landlord/plaintiff in the court of learned Munsiff No. 1, Morigaon for ejectment and recovery of arrear rents. In a short compass, the facts of the case is that the defendant/petitioner is one of the tenants of the plaintiff/respondent since 01.12.1997. The room no. 3 in the building accommodating the tenanted premises is described in the Schedule Page No.# 2/5 'B'. Initially the monthly rent was Rs. 500/- along with a deposit of Rs. 5,000/- as the security. The defendant/ petitioner had paid the rent at the rate of Rs. 500/- till the end of the year 2007. In the year 2008 the rent was enhanced to Rs. 550/- on the basis of an oral agreement and the said arrangement went on till the end of the year 2010. Further there was enhancement in the year 2011 to Rs. 800/- per month and the same proceeded till the month of March, 2015. On the basis of a mutual arrangement, the monthly rent from April, 2015 was enhanced to Rs. 1,300/-. As per the new agreement a sum of Rs. 95,000/- was to be deposited as the security. However, the defendant/ petitioner paid a sum of Rs. 3900/- on 12.07.2015 and money receipt was issued to the defendant/petitioner. In this manner, the defendant/ petitioner paid rent up to 15.11.2015 but from the calculation made by the plaintiff/ respondent it was found that there was a deficit of Rs. 24,400/- of the monthly rent till January, 2016. The said amount was calculated on the basis of the monthly rent from 01.12.2007 till the last payment made on 15.11.2015. Legal notice was issued and on the other hand, the defendant/ petitioner used to deposit the rent before the court wherein he deposited Rs. 1,000/- as the monthly rent instead of Rs. 1,300/-. Further, the plaintiff/respondent requires the tenanted premises for his son who intends to run a business for his livelihood.
The defendant/ petitioner contested the suit thereby admitting the tenancy however, pleading that the last rent to be paid as Rs. 1,000/- instead of Rs. 1,300/- as claimed by the plaintiff/ petitioner. Since 01.01.2015 the defendant/petitioner was paying regularly the rent of the room at the rate of Rs. 1,000/- without any default to the plaintiff. The defendant who is in employment, had to carry out the business from the tenanted premises through his brother. Admitting the receipt of the legal notice, the defendant/ petitioner denied his defaultership and asked the plaintiff/respondent to take the rent of the rented room from the month of November, 2015 as earlier but the plaintiff/ respondent did not come to take the rent from the defendant/petitioner as usual. By the said defence the defendant/ petitioner sought dismissal of the suit.
On the basis of the pleadings, learned trial court framed the following issues:-
1. Whether the suit is maintainable u/s 5(1) of The Assam Urban Areas Rent Control Act, 1972?
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2. Whether defendant No. 1 has been paying monthly rent of the rented room as mentioned in Schedule 'B' of the plaint under provision of 5(4) of The Assam Urban Areas Rent Control Act, 1972?
3. Whether the defendant has defaulted payment of rent of Rs. 24,000/- till January, 2016 in respect of Schedule 'B' room?
4. Whether the defendant has closed the suit premise since 2010 which has affected the business of the plaintiff?
5. Whether the plaintiff is entitled to a decree for eviction of the defendant and his articles from the suit room as mentioned in Schedule 'B'?
6. Whether the plaintiff is entitled to a decree as prayed for in the plaint?
7. To what other relief/reliefs is the plaintiff entitled to?
Evidence were led by the parties to the suit. The learned court below decided issue no. 3 against the plaintiff/ respondent holding that it could not determine if the defendant/ petitioner defaulted to make payment of Rs. 24,000/- till January, 2016. However, the learned court below decided the issue no. 2 in favour of the plaintiff/ respondent by holding that the monthly rent as Rs. 1,300/- for all the shop premises of the market complex including the tenanted premises. But as the defendant petitioner paid the monthly rent of Rs. 1000/- so the same was not as per Section 5(4) of the Assam Urban Areas Rent Control Act, 1972. The suit was accordingly decreed by the trial court.
Being aggrieved by the said judgment and decree passed by the learned Munsiff No. 1, the defendant/petitioner preferred Title Appeal No. 31/2017 in the court of learned Civil Judge, Morigaon which was also dismissed.
The learned first appellate court considered issue nos. 2 and 3 and held both the issues in favour of the plaintiff/respondent. The first appellate court held that on the basis of the agreement dated 01.12.1997 the tenancy was initiated and the rent agreed thereby was enhanced to Rs. 1000/-. Taking note of the allegation of the plaintiff/respondent that the defendant/petitioner failed to pay the rent and required the tenanted premises bona-fide, the learned court below examined evidence of the witnesses of both the parties. It concluded that from the evidence on record it revealed that the business in tenanted premises was run Page No.# 4/5 by the defendant's younger brother though the agreement was between the plaintiff and the defendant. There was no fresh agreement entered into by the plaintiff and the defendant after the defendant handed over the tenanted premises to his brother owing to his employment. Taking note of the fact that the plaintiff/respondent deposed that the defendant/petitioner paid rent till November, 2015 and the counter evidence of the defendant/ petitioner that he deposited the rent from December, 2015 till April, 2016 in the court after the plaintiff/ respondent refused to accept the rent, the learned court below considered the treasury challans exhibited as 'Ka' series by the defendant/ petitioner in order to support the fact that the monthly rent starting from November, 2015, January, 2016 to March, 2016 were deposited in the court. The learned court below came to the conclusion that mere deposit of the rent in the court was not sufficient as the defendant failed to discharge his burden under section 5(4) of the Assam Urban Areas Rent Control Act. Putting the burden on the defendant/ petitioner that he was duty bound to call for the rent deposit receipts and the rent deposits were made along with process fee and steps upon the landlord, the court below came to the conclusion and the decision of issue no. 3 by the trial court was reversed.
I have heard the submissions of the learned counsel for the parties. On perusal of the judgment passed by both the courts below it is observed that both the courts below failed to decide and come to a conclusion as to the due date for paying the monthly rent. In my considered opinion Section 5(1) of the Assam Urban Areas Rent Control Act, 1972 stipulates that no order or decree for recovery of possession of any house shall be made or executed by any Court so long as the tenant pays the rent to the full extent under the Act and perform the conditions of tenancy. However, the proviso (e) to the said sub section (1) stipulates where the tenants are not paying the rent in respect of the house within a fortnight of falling due then the Court is to pass a decree for execution. This shows the necessity and the requirement of a finding by the courts below the due date of paying the rent in order to assume that the court has the jurisdiction to pass a decree for ejectment keeping in view the non-obstante clause in sub-section (1) of the Section 5 of the Act. Without coming to the said finding, in my considered opinion, the Rent Control Court has no jurisdiction to pass a decree when the plaintiff is the landlord and files a suit for ejectment of a tenant on the ground of Page No.# 5/5 defaulter as prescribed under Section 5(1) detaching the proviso (e) of the Act. Considering the same, without entering into the merits of the findings of the courts below nor commenting thereof, there is an error apparent on the face of the judgment due to the aforesaid jurisdictional failure. I deem it necessary to set aside the judgment passed by the learned first appellate court and remand the same to decide it afresh on the basis of the evidence on record keeping in view the cause for setting aside and remanding the matter as observed. Accordingly, this revision petition succeeds.
The parties to the suit shall appear before the court on 29.11.2019 and the learned first appellate court shall dispose of Title Appeal No. 31/2017 within a period of 2 (two) months from the said date of appearance.
Interim order passed earlier stands vacated.
JUDGE Comparing Assistant