Gauhati High Court
Tushar Kanti Dey vs Sulata Choudhury And Ors. on 7 January, 2002
Author: A.H. Saikia
Bench: A.H. Saikia
JUDGMENT A.H. Saikia, J.
I have heard Mr. A.R. Banerjee, learned Senior Counsel assisted by Ms. B. Choudhury, learned counsel appearing-for the petitioner. None appears for the Respondents/opposite parties.
1. This Revision Petition is directed against the Judgment & Order dated 30.3.1996 passed by the learned Assistant District Judge, Dhubri in Title Appeal No. 23 of 1994 dismissing the Appeal and thereby affirming the Judgment dated 8.8.1994 passed by the learned Musniff No. 2, Dhubri in Title Suit No. 55 of 1986 by which the suit for eviction of the Petitioner-Defendant was decreed directing the Defendant/Petitioner to vacate the suit premises within a period of one month from the date of decree and thereafter the plaintiff/ Respondent to take Khas possession of the suit house.
2. The moot question involved in this Revision Petition is whether the Defendant/Tenant is liable to be ejected without deciding as to when the rent becomes due for payment.
3. The facts, briefly stated, of the case are that the Plaintiff/ Respondents being the owner of holding No. 139 in Ward No. II of Dhubri town, let out the said suit house to the Defendant/Petitioner on rent @ Rs. 120 per month with the agreement that the rent would be paid on the first day of the next month and if the plaintiff was not found at Dhubri the rent was to be sent to Rupsi where the Plaintiff/ Defendant lived by way of money order within 7 (seven) days of the next month. But as per the said agreement the Defendant/Petitioner had not paid the rent from the month of February 1985. But the defendant sent Rs. 360 by way of money order on 12.4.1985 to the Plaintiff/Respondent for the month of February, March and April, 1985 which the Plaintiff/Respondent did not accept alleging that the Defendant/Petitioner was defaulter and thereafter the Defendent/ Petitioner did not offer any rent to the Plaintiff. Besides, the Plaintiff/ Respondent had no residence at Dhubri and as such, he had bona fide requirement of the suit house for his residence. Contesting the suit by filing written statement the Defendant/Petitioner pleaded that there was no agreement as averred in the plaint and the Plaintiff/ Respondent used to receive the rent sometime in advance as per his requirement, sometime rent was sent by way of money order and sometime the rent was paid at a time for several months which generally the plaintiff/Respondent used to receive. It was denied that there was any agreement to the fact that rent would be due within seven days of the next month. It was further pleaded that since February 1985 the Plaintiff/Respondent did not come to receive rent as was usually done and as the plaintiff could not be found at Dhubri, the Defendant/Petitioner could not make payment of the rent In spite of his best efforts and at last the Petitioner paid the rent at the Court on 30.4.1985 vide N.J. Case No. 227/85 and since then he was paying the rent in the Court for which he was not at all defaulter as alleged by the Plaintiff/Respondent.
4. The learned Munsiff on consideration of the evidence on record and after hearing the learned counsel for the parties by his order dated 8.8.1994 decreed the suit in favour of the Plaintiff/Respondent and the Defendant/Petitioner was directed to vacate the suit house within one month from the date of decree. Feeling aggrieved, the Defendant/Petitioner preferred an Appeal before the learned Assistant District Judge, Dhubri against the Judgement and Decree dated 8.8.1994 and the appellate Court below dismissed the appeal affirming the Judgement and decree passed by the learned Court below holding that the Defendant/Petitioner was defaulter in payment of rent of the suit house.
5. Mr. Banerjee, the learned counsel appearing on behalf of the Defendant/Petitioner contended that both the Courts belows in decreeing the suit in favour of the Plaintiff/Respondent directing the eviction of the Petitioner from the suit house, did not consider at all the vital question as to when the rent became due for payment. Drawing my attention to the impugned Judgment of the appellate Court, Mr. Banerjee, pleaded that though provision of Section 5 of the Assam Urban Areas Rent Control Act, (for short the Act) was elaborately discussed, there was no finding as to when the rent fell due. It was the duty of the Court to decided at the very out set the factual position as to when the rent becomes due and if the Defendant fails to deposit the rent on becoming due, then only he may be said to be a defaulter in payment of rent. In the instant case, it was the admitted position that the Plaintiff/Respondent and the Defendant/Petitioner (Landlord and Tenant) were in a habit of receiving rent together for several months as arrear rent and as such, the provision of Section 5 of the Act, requiring the payment of rent within a fortnight of falling due by the tenant is not applicable. The relevant findings of the appellate Court in paragraphs 9 and 10 Is reproduced hereunder :
"9. THEN THE LEARNED MUNSIFF AGAIN CAME INTO FINDING' that the defendant/appellant was a defaulter on the ground that he deposited the rent in the Court not in accordance with the provisions under Section 5 of the Assam Urban Areas Rent Control Act. The payment of rent within the fortnight of falling due by the tenant is appeared to be not applicable in the instant suit as provided under Section 5 of the Act. It is because, as discussed above that the landlord and tenant i.e. the plaintiff/ respondent and defendant/appellant were in the habit of receiving rent together with several months as arrear rent. But what it requires that while depositing the rent in the court the tenant has to observe procedure laid down under Assam Urban Areas Rent Control Act which is as follows :
"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 deposits to be served on the landlord, and the amount of the deposit may thereafter be withdrawn by the land lord on application made by him to the count in the bahalf. 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".
10. BUT IN OUR PRESENT CASE THERE IS NO EVIDENCE TO show that the defendant/appellant had made payment of the rent by way of depositing in the court together with the notice to be served on the landlord that is the plaintiff/respondent. In 1995 GLT II pg. 462 it was held by his Lordship held the held the tendering rent to the Landlord. It is mandatory that the tenant made to offer rent to the landlord at first and on failure of the landlord to accept such lawful rent the same could be deposited in the court."
6. To buttress his argument above mentioned, Mr. Banerjee placed reliance on a decision of this Court in Upendra Chandra Deb Roy v. Smti Subhashini Deb Roy and two ors. reported in (1989) 2 GLR 7 and stated that ratio of the said case is squarely applicable in this case. On perusal of the above cited case, it is found that in the said case this Court allowed the Revision Petition holding in paragraph 8 that "...The most important fact that has to be proved, therefore, is 'the date when the rent actually fell due". Without determination of the aforesaid fact, it is difficult or rather impossible to hold a tenant defaulter, because in that case, the very starting point from which the period of a fortnight within which the rent has to be paid runs is not available. The determination of the date when the rent actually falls due in a particular case depends upon the arrangement or agreement between the parties. The rent may be fixed on monthly basis but that by itself will not indicate the date when the rent will fall due. The parties might mutually agree that the rent would be paid monthly say within a week or a fortnight or a month or at any other interval from the expiry of the month for which it is due. There may be cases where no due date is fixed between the parties for payment of the rent and the rent is paid on demand to the landlord from time to time. There may be cases where the landlord, due to various reasons or for his own convenience wants the rent to be paid for two or three months at a time either in advance or on expiry of the period for which it is due. There may also be cases where the landlord resides at some place far away from the place where the house is situated and makes an arrangement with that the tenant that the rent would be paid to him from time to time as and when he visits the town and demands the payment thereof instead of remitting the same month to month or at any other interval to the place of his residence. Such contracts or arrangements are not unknown or uncommon. Nor are they always in writing. The landlord has therefore, to prove by adducing suitable evidence as to when the rent fell due. Where there is no agreement in writing fixing the date for payment of the rent, the landlord has to prove the same by other evidence. In considering the evidence of the landlord in such cases, the Court may also take into account the conduct of the parties. There may be evidence before the Court to show that the rent was being paid at varying intervals which the landlord has been accepting without any protest or grievance. That may indicate that there was no arrangement between the parties to pay the rent by any specific date. In such cases, the Court can infer and imply the agreement between the parties to pay the rent at varying intervals on demand from the landlord at his convenience. Even if it is shown that there was some agreement or arrangement to pay the rent within a specified time from the expiry of the month, conduct of parties spreading over fairly long period of time to the contrary without any protest or objection from either parry may indicate that the agreement or arrangement in regard to the payment of rent between the parties was modified. A landlord who continues to receive the rent at varying intervals from the tenant without any objection whatsoever for several years cannot be permitted to suddenly turn back and say that the arrangement between him and his tenant was otherwise and seek eviction of a tenant on the ground that he was a defaulter...."
7. Having regard to the judicial pronouncement above cited and upon perusal of the impugned judgment and decree passed by the Courts below, I find enough force in the submissions of Mr. Banerjee and I am of the considered opinion that the Courts below failed to determine as to when the rent becomes due for payment failure of which has required intervention of his Court in revisional jurisdiction. I am in full agreement with the proposition of law laid down in Upendra Chandra Deb Roy's case (supra) and in my view the ratio of the same is very much applicable in the present case.
8. It is incumbent on the part of the Court to determine at the threshold the fact situation as to when the rent becomes due for payment by the tenant to the land Lord. Only after deciding the said point the Court can come to conclusion to arrive at a finding so as to declare the tenant a defaulter. In this instant case in hand, admittedly, both the land lord/plaintiff and the tenant (Defendant-Petitioner) were usually paying and receiving rent together for several months as arrears of rent. Therefore it is highly necessitated to find out the exact date when the rent actually fell due. I am absolutely convinced that the Courts below in arriving at the decision that the tenant ~ Petitioner was a defaulter, did not decide the factum as to when the rent becomes due for payment of rent.
9. Consequently for the reasons and discussions indicated above, the impugned judgments and decrees passed by the learned Courts below are hereby set aside. The case is remanded to the trial Court to decide it afresh by determining the crucial point of facts as to when the rent actually fell due for payment by the tenant to the land lord. Records be sent down to the trial Court immediately.
10. The Revision Petition is accordingly allowed.
The parties are, however, directed to bear their own costs.