The jurisdictional error in the finding on the tenant's default in rent payment led to the dismissal of the landlord's Revision Petition.

Heard Mr. PK Roy Choudhury, the learned counsel appearing for the petitioner, who as a tenant filed the T.S. No.45/1994, for a declaration that the tenancy continues under the defendant No.1 with a further prayer for mandatory injunction for removal of the obstruction to the suit premises caused on 13.8.1994 by the defendants. After the defendants (landlord) appeared, the counter claim was filed for ejectment on the ground of bona fide requirement and rent default. The learned counsel Mr. BK Bhagabati appears for the respondents (landlord).

2. The learned Civil Judge (Sr. Divn.), Barpeta, after consideration of the pleadings, framed the following 7 issues:-

1. Whether there is any cause of action for the suit?

2. Whether the plaintiff is a tenant under the defendant?

3. Whether defendant No.1 entered into an agreement with the plaintiff on 19.10.91 for a fixed period from 1.10.91 to 31.8.92 without the acquiescence of their legal heirs of late Krishna Kt. Das @ 650/- p.m.?

4. Whether the plaintiff is a defaulter in respect of the suit premises?

5. Whether the defendants are entitled to khass possession of the suit premises by evicting the plaintiff?

6. To what other relief or reliefs if any the parties are entitled?

7. Whether the suit house is bona fide required by the defendant?

3. During the trial, the tenant examined three witnesses including himself and exhibited documents, whereas the defendant/landlord examined himself and also exhibited few documents.

4. The Trial Court held that cause of action was present for the suit and further declared that tenancy of the plaintiff existed since 1985 even prior to the written agreement of 19.10.1991. However on the counter claim for ejectment the Court declared through the judgment dated 25.4.2001 (Annexure-D) that the (plaintiff) tenant is not a defaulter. Moreover the issue of bona fide requirement was also answered against the landlord. On the basis of this finding, the Trial Court held that the tenancy between the plaintiff and the defendant No.1 is subsisting and the landlord was restrained from creating obstruction in the peaceful enjoyment of the tenanted premises.

5. The aggrieved defendants (landlord) then filed the T.A. No.26/2006 to challenge the verdict in favour of the tenant. The learned Addl. District Judge, FTC, Barpeta through his judgment dated 26.5.2009 (Annexure-E), reversed the decree and ordered for ejectment by declaring that the tenant is a defaulter and the bona fide requirement is proved by the landlord to facilitate his unmarried sister to open an embroidery shop, in the room let out to the tenant.

6.1. Mr. PK Roy Choudhury, the learned counsel submits that the tenancy started in the year 1985 and therefore notwithstanding the expiry of the lease agreement dated 19.10.1991 (Exhbt.1), which was valid from 1.10.1991 to 31.8.1992, the plaintiff should be considered as a protected tenant under the Assam Urban Areas Rent Control Act, 1972 (hereinafter referred to as ‘the Rent Act’). Referring to the protection provided to the tenant under Section 5 of the Rent Act, the Counsel submits that so long as the tenant pays rent and performs the condition(s) of the tenancy, he can’t be evicted.

6.2. Assailing the basis for the defaulter finding of the Appellate Court, the petitioner contends that when the landlord refused to accept the rent in November, 1992, the tenant deposited the rent in Court and on this basis it is argued that the defaulter finding is not based on cogent materials.

6.3. On the issue of bona fide requirement for the embroidery shop for the landlord’s unmarried sister, Mr. Roy Choudhury submits that 3 shop rooms were let out by the landlord and there is no basis on why ejectment from the room occupied by the plaintiff was sought. Moreover unless all the 3 tenanted rooms are vacated, there can be no new construction where the landlord’s sister can have her shop room on the ground floor of the new building.

7.1 Representing the defenda