Failure to prove payment of rent led to the finding of default in payment and upheld the eviction suit.

Kalyan Rai Surana, J.

Heard Mr. G. N. Sahewalla, learned senior counsel assisted by Mr. P. Deka, learned counsel for the petitioner as well as Mr. A. Ganguly, learned counsel appearing for the respondent.

2. By this application under Section 115 CPC, the petitioner has challenged the concrete finding of the learned First Appellate Court, thereby decreeing the suit for eviction and arrear of rent against the petitioner-dependant and thereby reversing the judgment and decree passed by the learned Trial Court in the suit.

3. The respondent herein is the plaintiff in T. S. No. 31/2001. As per the plaint, the respondent had a steel and iron material manufacturing factory under the name and style of M/s Assam Udyog Company, situated at Mancotta Road, Dibrugarh, under Municipal Holding No. 246 of Ward No.16 of Dibrugarh Municipality, Dibrugarh standing on land measuring 8 Bigha 4 Katha 6 Lecha covered by Dag No. 72 (Ka) and 72 (Kha) of PP No. 7 of Rehabari Ward, Dibrugarh Town Mouza Dibrugarh.

4. Due to unavoidable circumstances, the said factory was closed in the year 1997 and the suit premises was kept in locked condition. On 31.03.2001 when the respondent visited the factory premises and staff quarters of the erstwhile Assam Udyog Company he came to know that the petitioner including his family members had occupied the staff quarter consisting of four rooms in the first floor of building of Assam Udyog Company.

5. On enquiry, the petitioner informed the respondent that he had entered into the suit premises on 17.12.1998 by taking the suit premises on rent from his son (since deceased), agreeing to pay rent at the rate of Rs. 1,650/- per month w.e.f. 17.12.1998, for which no documents could be produced in respect of payment of rent or any agreement. Hence, it was pleaded that taking advantage of the death of the son of the plaintiff, false plea was taken for permissive occupancy by the petitioner. Hence, after serving a notice for eviction dated 30.06.2001, demanding arrear of rent of Rs. 49,500/- w.e.f. 17.12.1998 to 17.06.2001, the petitioner was asked to quit the suit premises within 30 days from the date of receipt of notice.

6. Thereafter, the petitioner deposited the monthly rent in Court for which the respondent received a notice in respect of Misc. Case (J) 47/2001 from the Court of Civil Judge (Junior Division) No.1, Dibrugarh for consumption of electricity under Section 6 & 7 of the Assam Urban Areas Rent Control Act, 1972. Accordingly, the suit was filed for eviction of the petitioner and for recovery of the arrear rent.

7. The petitioner contested the suit by filing his written statement, denying the allegations and took a plea that he was a bona-fide tenant, having paid the sum of Rs. 43,000/- to the son of the respondent on 17.12.1998 and that he was paying monthly rent of Rs. 1,650/- per month. Stating that he was not a defaulter, the petitioner had prayed for dismissal of the suit with cost and compensation of Rs. 50,000/-.

8. In course of trial, the learned trial Court had framed the following seven issues for trial:

i. Whether the plaintiff has got any right, title and interest over the suit premises?

ii. Whether the defendant occupied the suit premises on 17.12.1998 unlawfully without proper authority?

iii. Whether the defendant has made any payment to the plaintiff for the suit premises?

iv. Whether the defendant is a trespasser to the suit premise?

v. Whether the defendant is a defaulter in making payment?

vi. Whether any lease is existing in between the parties?

vii. To what reliefs the parties are entitled?

9. In support of the case, the respondent had examined one Rajender Mishra as the PW-1, who had deposited the strength of Power of Attorney (Ext. 2 & 3) and he exhibited 22 exhibits. The petitioner, though filed his evidence-on-affidavit on 12.04.2016, but did not appear for his cross-examination despite being given several opportunities. Accordingly, his evidence stood expunged from record.

10. The learned trial