The Act of 1956 does not require 'wilful default' for eviction, but only rent in arrears for four months or more. The burden of proving a fact always lies upon the person who asserts it.

JUDGMENT :

Meenakshi Madan Rai, J.

1. This Appeal assails the Judgment and Decree, both dated 22-04-2016, of the Learned District Judge, Special Division – II, East Sikkim, at Gangtok, being Eviction Suit No.12 of 2013, Smt. Taramani Devi Agarwal vs. M/s. Krishna Company. The Learned Trial Court dismissed the Suit of the Plaintiff seeking eviction of the Defendant from the suit premises on account of default in payment of rent for four months. (The Appellant shall hereinafter be referred to as the “Plaintiff” and the Respondent as the “Defendant”.)

2. The facts, as per the Plaintiff, summarised herein are that, the Defendant in the year 2001 took on rent a shop space belonging to the Plaintiff, consisting of the entire first basement floor measuring an area of 1,230 sq. ft., on a monthly rent of Rs.6,000/- (Rupees six thousand) only, payable by the 10th day of each succeeding English Calendar month. The rents were thereafter successively enhanced in various years @ 20% on the previous rent. From April, 2010 to March, 2012, the rent was increased to Rs.11,520/- (Rupees eleven thousand, five hundred and twenty) only. Although enhancement of rent for the years 2010 to 2012 was made from April, 2010, but payment by the Defendant was made in July, 2010, only, for the months of April to June, 2010, being a consolidated amount of Rs.34,560/- (Rupees thirty four thousand, five hundred and sixty) only. Thereafter, the Defendant tendered the monthly rents belatedly viz; for the months of July, 2010 on 20-08-2010, for August, 2010 on 18-09-2010, for October, 2010 on 20-11-2010 and for November, 2010 on 13-12-2010 much beyond the 10th day as stipulated. This was followed by default in payment of rents for the months of December, 2010, to March, 2011, rendering the Defendant liable for eviction under the Gangtok Rent Control and Eviction Act I 1956 (hereinafter “the Act of 1956”). Besides the shop premises were closed for the last two and half years. On account of the default, a lawyer’s notice dated 29-04-2011 was issued by the Plaintiff and responded to by the Defendant on 02-06-2011 denying arrears of rent as alleged or of closure of the shop. The Defendant also sent along with its reply a Demand Draft bearing No.000334 for Rs.69,120/- (Rupees sixty nine thousand, one hundred and twenty) only, dated 01-06-2011, in favour of the Plaintiff, drawn on the Union Bank of India, Gangtok Branch, as payment of rent for the months of December, 2010 up to May, 2011, which the Plaintiff declined to receive. A Notice dated 09-06-2011 was issued thereafter by the Plaintiff, demanding immediate vacation of the premises by the Defendant, which the Defendant failed to comply with but continued sending Demand Draft of Rs.11,520/- (Rupees eleven thousand, five hundred and twenty) only, every month as tender of monthly rent. It is averred that the reason for the refusal of rent sent by the first Demand Draft and others thereafter is that tenancy had determined on account of default in payment of rent from December 2010 to March 2011. Hence, the prayers for eviction of the Defendant and ‘khas’ possession of “Schedule B” premises from the Defendant, arrears of rent for the months of December, 2010 to March, 2011.

3. The Defendant contested the Suit inter alia contending that tenancy was on mutual understanding and good faith, the rents were payable on demand and not on the 10th day of each successive English Calendar Month as claimed. That, for the last few years rent receipts were being issued on payment of rent however no agreement for enhancing rent at a fixed percentage existed. Admittedly rent was enhanced on 09-07-2010 @ Rs.11,520/- (Rupees eleven thousand, five hundred and twenty) only, retrospectively from April to June, 2010, after a water tank was installed by them on the terrace of the Plaintiff’s building and on agreement entered between the parties to construct a toilet in the tenanted premises. The Defendant was paying the said amount till November