Point of Law: when a suit is filed for eviction of a tenant for being a defaulter in payment of rent, can the tenant thereafter file an application for fixation of rent.

JUDGMENT :

DEVASHIS BARUAH, J.

1. Heard Mr. P.K. Khataniar, the learned counsel for the petitioners and Mr. J.C. Gaur, the learned counsel appearing on behalf of the respondents.

2. This is a proceeding under Section 115 of the Code of Civil Procedure, 1908 challenging the judgment dated 13.03.2015 passed by the Civil Judge No. 3, Kamrup (Metro), Kamrup, Guwahati in Misc. Appeal No. 1/2014, whereby the judgment dated 22.11.2013 passed in Misc. (J) Case No. 569/2007 was set aside, thereby directing the Trial Court for determination of the standard rent of the tenanted premises as per Section 2 (e) of the Assam Urban Areas Rent Control Act, 1972.

3. The facts of the case, in brief, for the purpose of disposal of the instant proceeding are that the petitioners, as plaintiff filed the suit seeking ejectment of the defendants (the respondents herein) on the ground of default in payment of rent as well as on account of bona-fide requirement. It is the specific case of the petitioners in the suit that the petitioners are the landlords of the suit premises and the defendants (the respondents herein) had been paying rent in respect to the suit premises till the month of October, 2004 and since November, 2004, the defendants had defaulted in making payment of rent, which was fixed @ Rs. 11,000/- per month. The allegations as regards the bona-fide requirement as stated in the plaint being not relevant to the present lis is not stated herein.

4. The respondents, who are the defendants in the suit filed their written statement. In the written statement at paragraph 12, the respondents had categorically stated that with effect from 01.04.2004, the rent was increased to Rs. 11,000/- per month. It was further stated that they have been regularly making payment of the rent @ Rs. 11,000/- till March, 2005. However, when the respondents went to tender rent for the month of April, 2005 the plaintiffs refused and demanded Rs. 15,000/- as rent w.e.f. the month of April, 2005 and consequently, from the month of April 2005 the defendants had deposited the same in the Court of Civil Judge, Senior Div. No. 1 at Guwahati in Misc. (N.J.) Case No. 3/2005. It has also been averred that the defendants had been paying the rent subsequent thereto by depositing the same before the Rent Deposit Court after first tendering the house rent for subsequent months to the plaintiff and the refusal by the plaintiffs. The other statements and allegations made in the written statement being not relevant are not mentioned herein.

5. Subsequent thereto, the respondents filed an application under Section 3 of the Assam Urban Areas Rent Control Act, 1972 (for short ‘the Act of 1972’) for fixing the fair rent. Objections were filed to the said application both on law as well as on facts. The Trial Court vide an order dated 03.03.2009 dismissed the said application primarily on the ground that the respondents having not objected to the increment of rent and having been paying the same amount raise the issue of fixation of the fair rent in the proceedings.

6. An appeal being Misc. Appeal No. 7/2009 was preferred against the said order dated 30.03.2009 passed in Misc. (J) Case No. 569/2007, which was also dismissed. Thereupon a revision application under Section 115 of the CPC was preferred against the order dated 23.11.2009 passed in Misc. Appeal No. 7/2009 before this Court on the ground that no reasons were assigned and by a single sentence the appeal was dismissed without bothering to discuss the materials available on record. This Court remitted back the matter before the Appellate Court for adjudication on merits as well as also on the question of maintainability of the proceedings.

7. Upon being remanded back the matter to the First Appellate Court, the First Appellate Court vide a judgment and order dated 19.05.2011 upheld the order dated 30.03.2009 holding inter-alia that the fixation of fair rent of the petitioner is not maintainable in the suit filed for eviction and recovery