Point of Law: It is no longer res integra that it is the burden of the defendant to prove that he had not defaulted in payment of rent in order to get the protection under section 5 (1) of Assam Urban Area Rent Control Act.

JUDGMENT :

1. Heard Mr. J. Kalita, the learned counsel appearing for the petitioner and Mr. B. Deka, the learned counsel for the respondents.

2. This is a petition under Article 277 of the Constitution of India challenging the order dated 06/09/2019 passed by the Civil Judge, Senior Division No. 3, Kamrup(Metro), Guwahati in Title Appeal No. 98/2016, whereby the judgment an decree dated 26/08/2016 passed by the Munsiff No. 1, Kamrup(Metro), in Title Suit No.5/2014 was confirmed.

3. Before embarking upon the merits of the case, it would be relevant to take note of that, that this is a proceeding under section 115 of the Code of Civil Procedure, whereby the revisional jurisdiction of this Court has been invoked. It must be noted that revisionsal Court is not the 2nd Court of First Appeal and as such, the question of re-appreciating the evidence does not arise. What can be exercised in a proceeding while exercising the revisional jurisdiction is to look into as to whether there has been an error in exercise of the jurisdiction and/or there has been any illegality or overlooking or ignoring the material evidence altogether, or the finding of the Courts below suffers from perversity, or any such illegality or such finding has resulted in gross mis-carriage of justice. In other words, interference with an incorrect finding of fact for the purpose of exercising revisional jurisdiction must be understood in the context, where such findings is perverse, based on no evidence or misreading of evidence, or on the ground of perversity or such findings has been arrived at by ignoring or overlooking the material evidence or such finding is so grossly erroneous, if that is allowed to stand, will occasion in mis-carriage of justice.

4. In the backdrop of the above, material facts relevant for the disposal of the instant petition are that the predecessor-in-interest of the respondent herein, Lt. Ratin Choudhury, instituted a suit as plaintiff against the defendant (the petitioner herein) seeking for ejectment of the defendant and for realization of arrear rent, electricity charges and compensation. The said suit was registered and numbered as Title Suit No. 5/2014.

5. The case of the plaintiff in the said suit was that the defendant, who had taken on rent the Schedule “A” and “B” premises from the plaintiff have defaulted in payment of rent since January, 2013 and consequently the defendant is a defaulter in payment of rent. It is also the case of the plaintiff, that he has a son, who is 31 years old and is an unemployed youth require the schedule premises.

6. The defendant filed his written statement. In his written statement it is the specific case of the defendant (the petitioner herein) that he paid the monthly rent of the Schedule “A” and “B” premises till August 2013 by cash and when the plaintiff refused to accept the rent and serve the pleaders notice, the defendant deposited the rent in the Court. In paragraph 20 of the written statement the defendant stated that till August 2013 he paid rent by way of cash and when the plaintiff refused to accept the monthly rent for October, 2013, the defendant is paying a sum of Rs. 8,550/-per month and Rs. 550/-as electricity charges by way of Court process. There is no averment in the written statement that subsequent to the refusal of accepting rent in the month of October,2013, he had approached the plaintiff for tendering rent for the subsequent periods when he had been depositing the rent in the Court. It is also pertinent herein to take note that there was no mention whatsoever in the averments made in the written statement as regards the rent for the month of September, 2013.

7. On the basis of the pleadings of the parties as many as five issues were framed and for the sake of convenience the said issues are quoted here-in-below :

” (1) Whether there is cause of action for the suit ?

(2) Whether the suit is bad for non-joinder of necessary parties ?

(3) Whether the defendant has defaulted in payment o