IN THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) CRP NO. 363/2009 Sri Prasanta Kumar Bose @ Prasanta Bose, S/o Late Nepal Chandra Bose, Residents of Central Board, Silchar Town, Pargana-Barakpar, District-Cachar, Assam. Petitioner/Plaintiff. VERSUS 1. Sri Subrata Kumar Dey. 2. Sri Sukriti Kumar Dey. Both sons of Late Sunil Dey. 3. Smt. Sabita Dey, W/o Late Sunil Dey. - All residents of Itkhola, Opposite Cachar High School, Silchar, Pargana-Barakpar, District-Cachar, Assam. Respondents/Defendants BEFORE THE HON BLE MR JUSTICE HRISHIKESH ROY For the petitioner : Mr. G.N. Sahewalla. Sr. Advocate. Ms. S. Senapati, Mr. P. Deka Advocates. For the respondents : Ms. P. Chakraborty, Ms. G. Deka, Ms. A. Das. Advocates Date of hearing and Judgment : 28.5.2015. JUDGMENT AND ORDER Heard Mr. P. Deka, the learned Counsel appearing for the petitioner (plaintiff). Also heard Ms. P. Chakraborty, the learned Counsel appearing for the respondents (defendants). 2. The respondents are the tenants in respect of the Assam Type House under Holding No.326, Ward No.23 of Silchar town where the tenants and their predecessor operated a grocery shop in the suit premises. The Title Suit No.75/2004 was filed by the landlord under the Assam Urban Areas Rent Control CRP No.363/2009 Page 1 of 8
2 Act, 1972 (hereinafter referred to as the Rent Act ) for ejectment of the tenant by pleading rent default from April 2004 to July 2004 and also claiming bona fide requirement for the business of the plaintiff s 2 nd son Archit Bose. The original tenant Sunil Dey was the predecessor of the respondents and after his death on 3.6.2004, the defendants became the successor tenants. According to the landlord, the rent was regularly received from the tenant Sunil Dey until March 2004 but thereafter when the tenant fell ill, the rent remained unpaid from April 2004 and the successors did not make the payment despite demand of the landlord. It was further pleaded that the plaintiff s younger son has remained unemployed since he graduated in 1997 and therefore the suit premises in the business area of the Silchar town was needed for the new business to be set up by the unemployed son of the plaintiff. 3. After receiving summons from the Court, the defendants appeared and in their joint Written Statement (W.S.), they denied the allegation of rent default. The defendants pleaded that there was no fixed date or mode of rent payment and it was paid on landlord s demand and there are instances of the landlord collecting 14 months and 16 months rent respectively, at one go. For the unpaid rent preceding the ejectment suit, the W.S. stated that in April, 2004, the original tenant Sunil Dey fell seriously ill and during his treatment, the plaintiff met the defendants and assured that the rent need not be paid until the tenant recovers. Believing the landlord s utterances on account of their long standing relationship, the rent due for 2/3 months were not paid while Sunil Dey was ill. But after the ailing tenant died on 3.6.2004, the defendants tendered the rent for April, May and June 2004. But the landlord refused to accept the same by stating that he will collect rent during Durga Puja when he will be in need of money. Then the defendants offered Rs.3,500/- in cash as 7 months accumulated rent from April to October 2004 @Rs.500/- P.M., but the landlord refused to accept the same by informing that he has filed an ejectment suit in the meantime because of the rent default for the previous months. Thereafter the defendants deposited the rent for April to October 2004 in Court through Misc.(RC) Case No.582(A)/2004. The rent for next 5 months i.e. Nov 2004 to March 2005 was also deposited in Court through Misc.(RC) Case No.673/2004. Page 2 of 8
3 4. On the basis of the above pleadings of the contestants, the learned Civil Judge (Jr. Division) No.1 framed the following issues : 1. Is there any cause of action for the suit? 2. Is the suit barred by limitation? 3. Whether the suit is maintainable in the present form and manner? 4. Whether the defendants are defaulter in payment of rent of the suit room? 5. Whether the usit room is required for bonafide purpose? 6. Whether the plaintiff is entitled to get any relief as prayed for? 7. To what relief/reliefs the plaintiff is entitled to? 5. In support of his case, the plaintiff examined himself and his son and also adduced some documentary evidence. The defendants examined one witness and also adduced some Exhibits to prove of their own case. 6.1 The leaned Trial Judge after considering the evidence declared that there is proper cause of action for the ejectment suit and the same is maintainable. On the 4 th issue of rent default, the Trial Court considered the two rent receipts (Exbt.A & B) which reflects that rent for several months were accepted together by the landlord. But on the basis of other evidence and the Rent Act the Trial Judge held that the tenant is obliged to pay rent on monthly basis and it is his burden to prove that the rent was tendered in due time. Noticing that the 7 months rent from April 2004 onwards was deposited in Court only in October 2004, the Court held that the defendants failed to prove due payment of rent on time and accordingly it was concluded that they were defaulters. 6.2 In so far as the landlord s plea of requirement of the tenanted premises, the Court noted the evidence of the P.W.2, who was unemployed son of the plaintiff. Considering the landlord to be the best judge of his requirement, the plea of bona fide requirement was answered in the landlord s favour by the learned Trial Judge. 6.3 On the basis of the above conclusion on the key issue No.4 & 5, the other issues were answered in landlord s favour and ejectment of the tenant was ordered by the Civil Judge (Jr. Division) No.1, Silchar on 4.5.2006 (Annexure-III), in the Title Suit No.75/2004. Page 3 of 8
4 7.1 The aggrieved defendants challenged the ejectment verdict through the Title Appeal No.29/2006. The Appellate Court noted the cordial and long standing relationship between the landlord and the tenant and observed that during the sickness period of the tenant Sunil Dey in April, 2004, the landlord out of human concern told the tenant to recover first and then to pay the rent. The subsequent offering of rent for April, May and June 2004 by the defendants to the landlord after the demise of the original tenant Sunil Dey on 3.6.2004 was also taken into account, when the landlord purportedly refused to accept the same by stating that he will collect the accumulated dues during Durga Puja period. Next when the defendants re-tendered the 7 months rent to the landlord on 1.10.2004 and the same was refused with the information that the ejectment suit was already filed, the rent for those 7 months was deposited in Court on 5.10.2004. Considering that the due rent was deposited in Court immediately after it was refused by the landlord and noting that Exbt.A & B shows that the accumulated rent was received earlier for several months, the Appellate Court reversed the finding on issue No.4 and declared that the tenants are not defaulter of rent. 7.2 On the plea of bona fide need, the Appellate Court noted that the plaintiff s son graduated in 1997 and although he was unemployed since then, yet the ejectment suit with a plea of bona fide requirement came to be filed only in the year 2004. Considering this and the fact that the landlord has other tenanted premises which were let out to other tenants, the landlord s plea of bona fide requirement was negative by the second Court. 7.3 Because of the contrary conclusion on the two vital issues of rent default and bona fide requirement the learned Civil Judge No.1, Cachar, Silchar through the impugned judgment dated 6.6.2009 (Annexure-IV) allowed the tenants Title Appeal No.29/2006 and consequently the ejectment suit was dismissed. 8.1 Assailing the legality of the Appellate Court s verdict, Mr. P. Deka, the learned Counsel submits that it is the legal obligation of the tenants to prove that they tendered the rent in due time to the landlord. The Counsel submits that when 3 months rent for April 2004 to June 2004 was tendered but was refused by the landlord, the defendants under the Rent Act should have deposited the rent in Court within a fortnight of its becoming due and since this was not done Page 4 of 8
5 and the 7 months unpaid rent was admittedly deposited in Court only on 5.10.2004, the defaulter finding shouldn t have been reversed by the Appellate Court. 8.2 As the tenants deposited 5 months rent from November 2004 to March 2005 on 7.10.2004 in Court through the Misc.(RC) Case No.673/2004, Mr. Deka argues that this advance deposit of rent is not due tendering and this can t protect the tenant under the Rent Act. The Counsel argues that liability to pay monthly rent to the landlord subsists during the pendency of the eviction proceeding and for default of rent after filing of the suit also, a landlord acquires the right to get the decree of ejectment. 8.3 The Counsel for the landlord further contends that the requirement of the plaintiff on the business need of his son is a matter to be decided by the landlord himself and just because other tenanted premises may have been available to the landlord, his bona fide requirement for the suit premises can t be summarily rejected by the Court. 9.1 On the other hand, Ms. P. Chakraborty, the learned Counsel for the respondents (tenants) submits that it is because of the five decade old tenancy and the cordial relationship between the landlord and the tenant, the defendants believed the utterances of the landlord who assured that if the accumulated rent be paid during Durga Puja period and that is why the defendants offered the unpaid rent to the landlord on 1.10.2004. But since it was refused by the landlord, they immediately deposited the rent in Court on 5.10.2004 under Section 5(4) of the Rent Act and therefore they can t be held to be defaulter of rent for the month of April to October 2004. 9.2 The respondents contend that rent receipts exhibited as Exbt.A & B clearly shows that rent was not required to be paid on monthly basis because the landlord on earlier occasion accepted rent for several months at one go and on this basis, the defaulter declaration of the Trial Court against the tenants is questioned by Ms. Chakraborty. 9.3 The Counsel further submits that the respondents family are earning their livelihood from the tenanted grocery shop for last several decades and since the landlord has other premises on rent, the comparative hardship of both sides Page 5 of 8
6 should be considered before ordering ejectment of the tenants. 10. A tenant is protected from ejectment under the Rent Act only if the rent is paid on due time or in the event of refusal by the landlord to accept the tendered rent, the same should be deposited in Court within a fortnight of it becoming due (see Nityananda Dutta vs. Anisul Haque; 2008 (2) GLT 364). 11. In the present case, the defendants own case is that they tendered 3 months rent for April, May and June 2004 to the landlord soon after the original tenant Sunil Dey died on 3.6.2004. But when the landlord refused to accept the rent, the tenants didn t deposit the 3 months due in Court within the permitted time stipulated under Section 5(4) of the Rent Act. Therefore the question is whether the landlord s assurance to the defendants will absolve the later from the consequences of not depositing this 3 months rent in Court, after the tendered rent was refused by the landlord. 12. The tenanted premises was let out to the same family for several decades and one can presume that the relationship between the landlord and the tenants was cordial. Thus when the original tenant Sunil Dey fell ill, it will not be unnatural for the landlord to say that the rent be paid later and the tenant believing the humanitarian gesture of the landlord. But when the ailing tenant Sunil Dey died on 3.6.2004 and the landlord refused to accept the 3 months accumulated rent from the successor tenants, the defendants should have deposited the rent in Court within a fortnight of the date of refusal by the landlord. But the defendants project that the landlord asked for the accumulated rent to be paid during the Durga Puja period and that is why the unpaid rent was tendered on 1.10.2004. When this explanation of the defendants is examined in the backdrop of the Exbt.A & B receipts it may not automatically result in the defaulter conclusion against the tenants as they deposited the rent in Court on 5.10.2004 through the Misc. (RC) Case No.582(A)/2004. 13. However when the defendants were made aware on 1.10.2004 by the landlord of the ejectment suit filed against them, the pre-existing cordial relationship was certainly clouded and the tenants were on notice. Therefore Page 6 of 8
7 from this stage onward, the defendants should have been extra cautious to tender the rent at the end of each month as admittedly this was a monthly tenancy as per the English calendar month. But what is perplexing is that even before the rent was due for November 2004 to March 2005, the tenants deposited these 5 months rent in Court on 7.10.2014 through the Misc. (RC) Case No.673/2004. Unless the rent is legally due i.e. at the end of each month in a monthly tenancy, the rent can t be paid in advance. Here it is apparent that the rent for these 5 moths was never tendered to the landlord but was deposited in Court unilaterally and that too, before it fell due, on 7.10.2004 itself. Such deposit of rent in Court is not consistent with the procedure prescribed by Sub- Section (4) of Section 5 of the Rent Act and accordingly it has to be held that this was not due tendering of rent and thus the tenant defaulted by not paying rent for these months, during the ejectment proceeding. 14. In the above context, a Division Bench of this Court in Sobha Biswas vs. Ranjit Lodh reported in 2006 (1) GLT 479 held that the tenant is under a legal obligation to pay the monthly rent during the pendency of the ejectment proceeding and in this case, after the suit was filed on 23.8.2004, the defendants had not tendered the monthly rent in due time at least from November 2004 to March 2005. Therefore if we apply the ratio of this judgment under the Rent Act the defendants can t escape the defaulter consequence for their failure to tender rent to the landlord in due time from November 2004 to March 2005. The rent deposited in advance in Court on 7.10.2004 through the Misc. (RC) Case No.673/2004 can t according to my opinion be considered as legal tendering of rent and thus this amounts to non-payment of rent for 5 months during the continuance of the ejectment suit. 15. At this stage it is necessary to consider the fact that the landlord has let out other premises in the market area and some of them became available through ejectment even after the son graduated in the year 1997. On this aspect bearing in mind the evidence available, I find that the learned Appellate Court rightly gave a decision against the landlord on the bona fide plea and this finding is held to be logical and cogent. Page 7 of 8
8 16. But on 4 th issue of defaulter, it is apparent that the Court failed to consider the obligation of the tenants to tender rent in due time during the pendency of the ejectment proceeding. As the 5 months rent from November 2004 wasn t paid to the landlord but was deposited in advance in Court before the due date, this Court is constrained to conclude that a jurisdictional error was committed by the Appellate Court. Therefore finding merit in the challenge to the impugned conclusion on this aspect, this Revision petition stands allowed by ordering for ejectment of the tenants on the ground of rent default. 17. Next the hardship of the tenant will have to be considered. When the landlord has made out case for ejectment, it will not be correct for this Court to totally obliterate the right earned by the landlord. But one can t also ignore that the respondents family is running a grocery shop in the tenanted premises for last several decades and they will certainly need time to get alternate accommodation. Therefore balancing the rival claim for justice, the tenants are granted time until 31.3.2016 to voluntarily vacate the premises and till vacant possession is given, the tenants will continue to pay the due rent to the landlord in accordance with law. Thus the ejectment suit is decreed in favour of the landlord by granting sufficient time to the tenants to make other arrangement. 18. With the above order, the case stands allowed by leaving the parties to bear their own cost. The Registry should return the LCR along with a copy of this order. JUDGE Datta. Page 8 of 8