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2011 Supreme(Gau) 819
IN THE HIGH COURT OF GAUHATI
Iqbal Ahmed Ansari, J.
Sohanlal Sewak
Vs.
Mohanlalagarwala
Crl. Rev. P. No. 440 of 2007
Decided On: 29.09.2011
For Appellant/Petitioner/Plaintiff:Mr. T. C. Khatri, Mr. P.Mahanta & Mr. S. K. JainAdvocates
For Respondents/Defendant: Mr. K. Agarwal & Mr. R. J. Baruah
Headnote:
Assam Urban Areas Rent Control Act, 1972 - of Section 5(4) - Evidence Act - Section 114, 47, 45, 101, 114(g) - Title Suit - Revision is directed against decree - Respective cases of parties concerned - (i) Case of the plaintiff - Plaintiff is the absolute owner and, proprietor Town and the defendant was his tenant in respect of suit premises with an undertaking to pay monthly rental Rent becoming due on the last day of the current month according to English calendar - Plaintiffs son has been collecting rent for and on behalf of plaintiff issuing receipts - Defendant paid rent till the month, and he failed to pay rent. As the defendant failed to pay rent for the months, and became a defaulter, the suit was instituted by the plaintiff for the defendants eviction from the suit premises and for recovery of Khas possession recovery of arrear and future rents and also for mesne profit, etc. - (ii) During the pendency of the trial, the plaintiff amended the plaint to include, as a ground of eviction of the defendant for bona fide requirement of the suit premises by the plaintiffs son for his own use for business purposes – Held, defendant (DW l), in his evidence, claimed that he went to the plaintiff and requested him to accept the rent, but the plaintiff refused to accept rent and, left with no alternative, he had to deposit rent, in the Court, Defendant, nowhere, discloses, in his examination-in-chief, on what date he went to offer rent. The defendant was, therefore, cross-examined by the plaintiff on this aspect of his evidence. In his cross-examination, the defendant could not say the date on which he had gone to tender rent to the landlord and the landlord refused to accept the offer so made. Failure on the part of the defendant, to disclose the date on which he had offered the rent to be paid was, in the context of the facts of the present case, a fatal defect in the case inasmuch as in the absence of the date on which offer to pay rent had allegedly been made, the defendant could not have deposited rent in the Court - Defendant had totally failed to prove the offer of rent to the plaintiff, the deposit of rent, as rightly concluded by the learned appellate Court, was illegal and the same being contrary to the provisions of Section5(4), the plaintiff had, thus, proved that the defendant was a defaulter in respect of payment of rents and was liable to be evicted from the suit premises - Learned appellate Court, on the basis of the finding, as noted above, is wholly justified in reversing the judgment and in decreeing the suit - Court do not find the findings of the learned appellate Court suffer from any infirmity, legal or factual. The appeal has, therefore, been justifiably allowed on the ground that the plaintiff had proved that the defendant was a defaulter - Decree, so granted, on the ground of the defendant being a defaulter, cannot be interfered with. In the result and for the reasons discussed above, this revision fails and the same shall accordingly stand dismissed – Appeal is Dismmised.
I.A.Ansari, J.
1. This revision is directed against the judgment and decree, dated 29.09.2007, passed by the learned Civil Judge, Sonitpur, Tezpur, in Title Appeal No.01/2006, setting aside and reversing the judgment and decree, dated 07.10.2005, passed, in Title Suit No.92/99, by the learned Civil Judge, Junior Division No.2, Sonitpur, Tezpur, whereby the suit for eviction of the defendant stood dismissed. Before I come to the merit of this revision, let me take note of the respective cases of the parties concerned.
(i) The case of the plaintiff-opposite party is, in brief, thus:
The plaintiff is the absolute owner and, proprietor of M/s. Mahadeolal Mohanlal of Dhekiajuli Town and the defendant was his tenant in respect of the suit premises with an undertaking to pay monthly rental of Rs.575/-, the rent becoming due on the last day of the current month according to English calendar. The plaintiff's son has been collecting rent for and on behalf of the plaintiff issuing receipts therefor. The defendant paid rent till the month of June, 1999, on 30.06.99 and, thereafter, he failed to pay rent. As the defendant failed to pay rent for the months of July, August, September, October and November, 1999, and became a defaulter, the suit was instituted by the plaintiff for the defendant's eviction from the suit premises and for recovery of Kha's possession recovery of arrear and future rents and also for mesne profit, etc.
(ii) During the pendency of the trial, the plaintiff amended the plaint to include, as a ground of eviction of the defendant for bona fide requirement of the suit premises by the plaintiff's son for his own use for business purposes.
2. The defendant resisted the suit by filing his written statement, his case being, briefly stated, thus:
The defendant had deposited a sum of Rs.6,101/- only as advance rent to the plaintiff and the period of tenancy was to be over with the end of the month of December, 1999. Hence, upon payment of rent for the month of June, 1999, the plaintiff asked the defendant not to pay monthly rental from July, 1999. In the month of November, 1999, the plaintiff informed the defendant that if he liked to continue his tenancy after the month of December, 1999, he would be required to pay Rs.30,000/- as salami to the plaintiff. The defendant, immediately, told the plaintiff that he would not be able to pay Rs.30,000/- as salami and requested the plaintiff not to make such an illegal demand. Be that as it may, the plaintiff has adjusted the total amount of Rs.5,750/- against the said deposited amount as monthly house rent from with effect from July, 1999, to April, 2000. Thereafter, the defendant approached the plaintiff and tendered the rent for the month of May, 2000, but the plaintiff refused to accept the rent so offered. The defendant, then, deposited the monthly rents, in accordance with the provisions of Assam Urban Areas Rent Control Act, 1972, in the Court. There is, thus, no arrear rent to be paid to the plaintiff by the defendant. The defendant is, therefore, not a defaulter and the plaintiff is not entitled to any arrear rent.
3. Upon amendment of the plaint, the defendant filed an additional written statement contending, inter alia, that the demand of bona fide requirement of the suit premises, as made by the plaintiff, was factually incorrect and legally not tenable.
4. The learned trial Court framed the following issues for determination in the suit:
1. Whether there is cause of action for the suit?
2. Whether the Defendant is a defaulter in respect of suit premises?
3. Whether the suit premises is bona fide required by the Plaintiff?
4. Whether the defendant is protected from eviction under Assam Urban Areas Rent Control Act?
5. Whether the Plaintiff is entitled to the relief as prayed for?
6. To what other relief/reliefs the parties are entitled to.
5. In support of his case, the plaintiff, Mohanlal Agarwalla, examined himself as PW1, and his son, Dinesh Agarwalla, as PW2. The defendant t
