Heard Mr. BK Jain, learned counsel for the petitioner.

2. This is an application under section 115 of the CPC challenging the judgment dated 10.2.87 passed by the Assistant District Judge, Dibrugarh in Title Appeal No.49 of 1986 dismissing the appeal on contest affirming the judgment and decree passed by the Sadar Munsiff No.l in Title Suit No.89 of 1977.

3. It appears that the plaintiff filed a suit against the defendant for eviction of the defendants on the three grounds. Firstly the plaintiff alleged that the defendant was a defaulter in making payment of rent, secondly the said premises was bonafide required by the plaintiff, thirdly the rent was never tendered to the plaintiff before the same was deposited in the civil Court. The trial Court raised 8 issues. Issues No.4 was - Are the defendants tenants under the plaintiff in respect of the suit premises as claimed by the plaintiff and are the defendants defaulters ? The first portion of the aforesaid issue was answered in favour of the plaintiff and it held that the plaintiff became owner of the suit premises and so the defendant was a tenant under him. However, on the ground of defaulter and tendering of rent the trial Court held that the defendant was not a defaulter. Going through the judgment of the trial Court I find that there is no finding by the trial Judge that rent was tendered to the plaintiff at any time. There is only a finding that the rent was deposited with the civil Court. As against this judgment, the plaintiff went before the appellate Court. The appellate Court upheld the findings of the Court below and dismissed the appeal. The appellate Court also did not make any finding regarding the tendering of the rent to the plaintiff. In the premises I hold that the defendant at no stage tendered the rent to the plaintiff. Under sub-section (4) of section 5 it is mandatory that the tenant should offer rent to the landlord at first and no failure of the landlord to accept such lawful rent the same could be deposited in the Court. In the instant case there is no such finding that the plaintiff refused to accept the rent offered by the tenant and as such the tenant was forced to pay the rent in the civil Court. In the absence of such finding the deposit of rent in the Court is not legal or valid. The defendant will be a defaulter if he fails to tender rent within the stipulated time as provided under the Act. In the instant case I hold that the defendant was a defaulter.

4. Without even going into the aforesaid question as to whether the defendant was a defaulter prior to filing of the suit again, admittedly the defendant had not paid the rent since October, 1989 after the filing of the suit either with the civil Court or with the plaintiff. The plaintiff filed a misc application on 17.5.93 before the appellate Court alleging that no rent has been paid since October, 1989 onward. The respondent in spite of notice and in spite of having a copy of the misc application has failed to file any counter denying the aforesaid allegations in the petition. On last Monday when this matter was called, Mr. A. Roy appeared in this matter on behalf of the defendant and prayed time till today to file an affidavit in the matter. However, when the matter was called today, Mr. Roy did not appear nor any affidavit was filed. In the circumstances it is obvious that the defendant has failed to pay any rent subsequent to the filing of the suit at least on and from October, 1989.

5. In 1993 SPJ 248 the Supreme Court also held that the amount due occurring in the third proviso in the context will mean the amount due on and from and upto the date of the order of eviction. It will take into account not merely the arrears of rent which gave cause of action to file a petition for eviction but also include the rent accumulated during the pendency of eviction petition as well. In view of the aforesaid judgment of the Supreme Court I hold that under section 5 (1) (e) the defendant has not paid the

Click Here to Read the rest of this document