JUDGMENT :

1. Heard Mr. A Iqbal, learned counsel for the petitioner. Also heard Mr. P Khataniar, learned counsel for the respondent.

2. The present petition is filed under Section 115 read with Section 151 of the Code of Civil Procedure, 1908 assailing judgment and decree dated 26.04.2022 passed by the learned Civil Judge No. 2, Kamrup (M) at Guwahati in TA No. 62/2018 whereby the judgement and decree dated 05.09.2018 passed by the learned court of Munisiff No.1, Kamrup (M) at Guwahati in TS No. 349/2013 was upheld.

3. The case of the plaintiff as pleaded in the plaint can be summerized as follows:

I. The respondent as plaintiff instituted a title suit being TS No. 349/2013 against the petitioner for ejectment under Assam Urban Areas Rent Control Act, 1972 (hereinafter referred to as Act, 1972). The suit was also filed for arrears of rent.

II. The father of the present petitioner was the original tenant under the respondent in respect of Assam type rooms, which is described in the schedule to the plaint.

III. The rent was payable within the first week of the succeeding month.

IV. It was the case of the plaintiff that that the respondent had failed to pay the rent.

V. The basic ground for seeking such eviction was bona-fide requirement and default in payment of rent.

VI. It is the case of the plaintiff that the rent for each English calendar month falls due on last day of English calendar month and rent was fixed at Rs. 5,000/- per English calendar month.

VII. The monthly rent for the English calendar month of July, 2013 full due on 31.07.2013 and was payable within seventh of August, 2013. Similar was the case in respect of the month of August, 2013. However, said rents were not paid within the stipulated time period and accordingly the suit was filed.

4. As the bona-fide requirement is held to be not available to the plaintiff by both the learned courts below and such decision is not under challenge, this court is not going to enter into such finding in this judgment.

5. The case of the defendant as pleaded in the written statement are, amongst other, non-maintainability of the suit, which has been seriously urged before this court also and shall be dealt with at the later part of the judgment.

6. The other plea taken by the defendant was that though the defendant went to offer the rent for the month of July and August, 2013 within the period it became due, however, the wife of the landlord intimated that as her husband is not available, same may be given at later point of time. Subsequently, such rents were not accepted and having no alternative the defendant deposited the rent through the process as provided under Sub-section 4 of Section 5 of the Act, 1972.

7. The learned trial court formulated as many as four issues like the maintainability of the suit, issue of default in payment of rent and the issue of bona-fide requirement. As the bona-fide requirement is not a subject matter for the purpose of the present determination, let this court look into the issue of default in payment of rents.

8. To prove default in payment of rents, the plaintiff adduced himself as the PW1. The learned court below while determining such issue, found that the evidence of PW1 had remained un-shaken. In that view of the matter, the learned trial court below dealt with the evidence led by the defendant to prove that there was no default on his part rather it was the action of the plaintiff, for which there was some delay in payment of the rents. The learned Trial Court while discussing the evidence of DW1 i.e. the tenant defendant came to the following conclusion:

I. There is not dispute regarding the tenancy, the amount of rent and the due date.

II. The defendant admitted that the rents for the month of July, 2013 and for the month of August, 2013 could not be paid within the stipulated time as the landlord refused to accept same. To prove such refusal, the defendant examined himself as DW1.

III. Though the defendant pleaded that he along with