Heard Mr. T.C. Khetri, the learned Senior Counsel appearing for the Judgment-Debtor (J.D) who has analogously filed a Revision petition as well as Second Appeal, to challenge the ejectment decree passed against them. Also heard Mr. S. Dutta, the learned Senior Counsel appearing for the Decree-Holders (D.Hs).

2. The Title Suit No. 44/2005 was filed for ejectment and khas possession with the plea of rent default and bona fide requirement. It was pleaded that the defendant failed to pay the rent despite demand and the plaintiffs required the shop premises for use of their two sons.

3. The defendant filed written statement (W.S) with the plea that rent was paid regularly and when the tendered rent was refused by the landlord, the rent was deposited in Court. The general plea of non-maintainability of the suit was also advanced by the defendant.

3. on the basis of the pleadings, the following Issues were framed–

“1. Whether there is cause of action in the suit?

2. Whether the suit is maintainable in law and fact?

3. Whether the defendant is defaulted to pay rent for the suit premises?

4. Whether the suit premises is bonafide required to the plaintiffs?

5. Whether the suit is bad for non-joinder of necessary parties for non-joining of all the legal heirs of the plaintiff No. 3?

6. Whether the plaintiffs are entitled to decree as prayed for?

7. Whether any other relief or reliefs the parties are entitled to?

4. The 1st two issues relating to cause of action and maintainability of the suit was answered in the affirmative. On the 3rd issue pertaining to rent default, the Trial Court on the basis of evidence noted that the rent was not deposited in Court in due time after the alleged refusal and accordingly the tenant was declared to be a defaulter. On the bona fide requirement pleaded for establishment of business by the sons, the plea of the landlord was accepted by the Court. With these conclusions, the ejectment suit was decreed on 4.5.2010 (Annexure-C) by the learned Munsiff No. 1, Dibrugarh.

5. The aggrieved defendant then filed the Title Appeal No. 18/2010 and after due consideration the Appellate Court upheld the ejectment decree.

6. Mr. T.C. Khetri, the learned Senior Counsel representing the J.D contends that since the tenanted property is located in a non-urban area in Moran township, the provision of the Assam Urban Areas Rent Control Act, 1972 (hereinafter referred to as “the Rent Act”) is inapplicable and therefore it is argued that a jurisdictional error was committed in ordering ejectment from a non-urban property, under the Rent Act. The Counsel relies on the landlord’s objection filed on 14.7.2009 (Annexure-A) to the tenant’s application for repairing of the tenanted premises to project that, the landlords themselves submitted that the shop premises is situated in Moran Mouza and such area is non-urban area, as defined under Section 2(g) of the Rent Act.

6. Representing the plaintiffs (landlords), Mr. S. Dutta, the learned Senior Counsel however argues that the defendant never pleaded as to how and under what facts, the suit of the plaintiffs is not maintainable. He further argues that unless the defendant specifies through his pleadings on how the suit is not maintainable, the Court is not obliged to make a roving enquiry to adjudicate an unpleaded maintainability issue.

7. In the W.S., the defendant did generally plead that the suit is not maintainable in law as well as in facts. But there was no specific pleading on the inapplicability of the Rent Act for the tenanted premises located in non-urban area. In fact only with the Memo of Appeal filed before the Civil Judge, the defendant took this ground.

8. In the present case, the defendant took recourse to Sub-Section (4) of Section 5 of the Rent Act to deposit rent in Court and therefore the tenant indirectly accepted the applicability of the Rent Act for the suit in question. More importantly in the absence of any pleadings, neither the Court nor the plaintiffs were made aw