Gauhati High Court
Bikash Barman vs Smti Bina Kakoty And Ors on 28 April, 2015
Equivalent citations: AIR 2015 (NOC) 949 (GAU.)
Author: Hrishikesh Roy
Bench: Hrishikesh Roy
IN THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
CRP NO. 126/2010
Bikash Barman,
S/o Late Noren Barman,
R/o Durgabari, Manik Hazarika Road,
P.O., P.S. & District-Tinsukia, Assam. ... Petitioner/defendant
VERSUS
1. Smti. Bina Kakoty,
W/o Bidyadhar Das,
R.o Seujpur, Dibrugarh Town,
P.O., P.S. & District - Dibrugarh, Assam. ....Respondent/plaintiff.
2. Smti. Bhanu Barman, W/o Late Noren Barman.
3. Shri Pankaj Barman, S/o Late Noren Barman.
4. Shri Pronab Barman, S/o Late Noren Barman.
5. Shri Probal Barman, S/o Late Noren Barman.
(Proforma Respondent No.2 to 5 are resident of Bordoloi Nagar, Near Arunachal I.B., P.O., P.S. & District - Tinsukia, Assam) ....Proforma-Respondent BEFORE THE HON'BLE MR JUSTICE HRISHIKESH ROY For the petitioner : Mr. S.K. Medhi, Mr. S.R. Gogoi, Mr. P.R. Mahanta. ... Advocates.
For the respondent No.1 : Mr. D. Das. ... Sr. Advocate.
Mr. S. Khound.
Mr. R. Singha ... Advocates
For the respondents 2 to 5. : Smt. B. Gogoi. ... Advocate.
Date of hearing and Judgment : 28.4.2015.
CRP No.126/2010
Page 1 of 4
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JUDGMENT AND ORDER
Heard Mr. S.K. Medhi, the learned Counsel appearing for the petitioner (tenant). Also heard Mr. D. Das, the learned Senior Counsel appearing for the respondent (plaintiff).
2. The Title Suit No.71/2006 was filed to seek ejectment of the defendant on the ground of rent default and bona fide requirement. The claim for arrear rent was also made in the suit. In the W.S. filed by the defendant, he claimed to have paid the monthly rent of Rs.300/- upto the month of November, 2006 and his pleaded case was that when the rent for the month of December, 2006 was tendered to the plaintiff, on her visit to Tinsukia, the plaintiff refused to accept the same and accordingly the rent for December 2006 was dispatched through Money Order under Transaction No.1 on 27.12.2006. Similarly the rent for the January 2007 was also dispatched by Money Order through Transaction No.182. But the plaintiff refused to receive the rent and consequently 2 months' rent (Rs.600/-) was deposited in Court through the Misc.(Rent) Case No.102/2007 (Exbt.-A) by the defendant.
3. On the basis of the pleading of the parties, the learned Munsiff No.1, Tinsukia framed the following issues :
"(1) Whether the plaintiff has right to sue ?
(2) Whether the suit house is required for the bonafide use of the plaintiff ?
(3) Whether the defendant tenant is a defaulter to the landlord ?
(4) Whether there is any cause of action to the suit ?
(5) Whether the defendant is entitled to any cost as claimed ?
(6) Whether the plaintiff is entitled to any relief(s) as prayed for ?"
4. In support of her case, the plaintiff examined herself as PW-1 and tendered 8 documents in evidence; the defendant examined himself as DW-1 and also produced the Postal Department staff as his witness and tendered 15 documents in support of his pleaded case.
5. In course of trial, the plaintiff did not press her plea of bona fide requirement and thus the suit was decided primarily on the issue of rent default. The learned Trial Judge considered the inconsistencies in the testimony of the CRP No.126/2010 Page 2 of 4 3 defendant and disbelieved him as he alternately claimed to be a permissive occupier or a tenant, for the suit house. Moreover the defendant also claimed protection from eviction through deposit of rent, under Section 5(4) of the Assam Urban Areas Rent Control Act, 1972 (hereinafter referred to as "the Rent Control Act").
6. The learned Court after considering the fact that the rent for the month of December 2006 was dispatched through Money Order before expiry of the month and since this was not the arrangement for rent payment, declared that this was not valid tendering of rent by the defendant. Moreover after considering the Exhibits on the rent deposit cases in Court, the Court found that rent dues were not initially tendered to the landlord and the Court deposit was not in accordance with Section 5(4) of the Rent Control Act. Therefore the issue of rent default was answered in plaintiff's favour and against the tenant. On the basis of this finding, the ejectment decree was granted on 25.5.2009 (Annexure-C) by the learned Munsiff No.1, Tinsukia.
7. The resultant Title Appeal No.15/2009 filed by the aggrieved tenant was dismissed by the learned Civil Judge, Tinsukia through the impugned Judgment dated 22.12.2009 (Annexure-E). The Appellate Court found that the rent deposited in Court was without any process fee and notice to the landlord and as such it was not a valid deposit in accordance with the applicable law. The Appellate Court also found that the tenant was a rent defaulter for the month of December, 2006 as the rent is due only after the expiry of the month and rent can't be tendered in advance before end of the month. On the basis of these observations, the tenant's appeal was dismissed.
8. I have considered the rival submission for the parties and have noted the basis for the concurrent finding on rent default given against the tenant, by the two Courts. The Misc.(Rent) Case No.102/2007 shows deposit of rent for 2 months on 28.2.2007 whereas rent for due month must be deposited in the succeeding month, under Section 5(4) of the Rent Act. It is further seen that rent for the month of March and April, 2008 was deposited through the Misc.(Rent) CRP No.126/2010 Page 3 of 4 4 Case No.174/2008 (Exbt.-8) and this deposit on account of rental dues was without any notice to the landlord. When a monthly tenancy was operating, it was incumbent for the tenant to tender rent every month and in this case, Exbt.- A and Exbt.-H itself indicate that rent was deposited not at the end of each month but was tendered analogously for 2 months. Thus on this count itself, the finding of default against the tenant is found to be substantiated. Therefore no perversity is noticed with the impugned decision and in the absence of any jurisdictional error, the concurrent ejectment decree passed against the tenant can't be disturbed.
9. At this stage, Mr. S.K. Medhi, the learned Counsel for the Judgment Debtor (J.D) was asked to obtain instruction as to whether his client is willing to voluntarily vacate the premises in which event he may be given reasonable time to make alternate arrangement. The learned Counsel has received telephonic instruction from the client and the tenant has agreed to give vacant possession of the suit premises, if he gets time to find other accommodation. In response Mr. D. Das, the learned Senior Counsel for the Decree-Holder (D.H) submits that his client will not mind retention of possession for reasonable time by the J.D., if the landlord is spared of the burden to apply for execution.
10. In view of above, this Revision petition is dismissed as being devoid of merit. But noticing the willingness of the J.D. to handover peaceful possession to the D.H., subject to furnishing an undertaking to this Court within 3 weeks to vacate the suit premises by 31.10.2015, the J.D. is permitted to retain possession until 31.10.2015. With this order, the Revision petition stands disposed of. No cost.
11. The Registry should return the LCR with a copy of this order.
JUDGE Datta.
CRP No.126/2010 Page 4 of 4