JUDGMENT :

The revisional jurisdiction of this Court has been sought to be invoked by filing this petition under Section 115 of the Code of Civil Procedure by which, the petitioners have put to challenge a judgment dated 22.08.2012 passed by the learned Civil Judge, No. 2, Kamrup, Guwahati in Title Appeal No. 92/2010. By the aforesaid judgment, the appeal preferred by the petitioners, as appellants against the judgment and decree dated 30.06.2010 passed by the learned Munsiff No.3, Kamrup, Guwahati in TS Case No. 659/2006, which was earlier numbered as TS No. 193/2005 has been dismissed and the judgment of the learned Trial Court has been affirmed.

2. The petitioners were the plaintiffs in the suit which was instituted for ejectment of tenant and recovery of arrear rent. While the petitioners were the landlords, the two defendants in the suit who were the tenants. At this stage itself, it is required to be noted that the respondent no. 2 has not contested the case and in this regard, this Court had passed an order dated 25.04.2013 to proceed ex-parte against the said respondent no. 2.

3. It is the case of the petitioners that since July 2004, no rent was paid or even tendered to them. The ground of bona fide requirement was also taken. On the other hand, the defence of the respondents was that rent was paid and since receipt was not given, it was again deposited in the Court. To prove the case of the plaintiffs, evidence was adduced through two numbers of PWs. The defendants had also adduced evidence through two numbers of DWs.

4. The learned Munsiff No. 3, Kamrup vide the judgment and decree dated 30.08.2010 had dismissed the suit. As mentioned above, the first Appellate Court had also affirmed the aforesaid judgment of dismissal of the suit.

5. I have heard Shri N. Alam, learned counsel for the petitioners. I have also heard Shri A.C. Sharma, learned Senior Counsel assisted by Shri S.S. Baruah, learned counsel for the contesting respondent. The materials placed before this Court, including the LCR have been carefully examined.

6. Shri Alam, the learned counsel for the petitioners, by referring to the plaint, more specifically, the pleadings in paragraph 4 has submitted that it was clearly pleaded that no rent from the month of July, 2004 was paid till date. The aforesaid pleadings were supported by the evidence of the PW-1 who, in paragraph 5 of the examination-in-chief had clearly stated that rent was not paid from the month of July, 2004. The learned counsel for the petitioners has submitted that the aforesaid version of the PW-1 could not be shaken in the cross-examination.

7. With regard to the issue no. 4 pertaining to bona fide requirement, the learned counsel has submitted that the entire approach of the Trial Court as well as the First Appellate Court was not in accordance with law. He has submitted that both the Courts below had proceeded with the presumption that the plaintiff was required to show that she had initiated the process for which the premises in question is necessary. He has further brought to the notice of this Court that the learned Trial Court took into consideration that there were other rooms and open space and therefore it was held that the ground of bona fide requirement was not substantiated.

8. By referring to the judgment of the Appellate Court, Shri Alam, the learned counsel by referring to Section 5 (4) of the Assam Urban Areas Rent Control Act (hereinafter the Act) submits that mere deposit of rent in the Court would not be sufficient and there is a requirement to exhibit the NJ cases as it is only from the records of the NJ cases it can be ascertained whether the provisions of Section 5 (4) of the Act have been fulfilled. He submits that the aforesaid provision is mandatory in nature.

9. With regard to the defence of payment of rent in the Court, Shri Alam, the learned counsel has submitted that the contesting respondent had filed the written statement in September, 2005 and there is no pleading re