Abdul Matin Choudhury and Another vs Nityananda Dutta Banik

J.N. Sarma, J.—This Civil revision has been filed by the Landlord. A suit was filed being Title Suit No. 230/85 in the Court of Munsiff No. 1, Karimganj for ejectment of the Defendant/Respondent. The grounds of ejectment were as follows:

1) That the tenant was defaulter in payment of rent for the month of Srabana, Bhadra and Aswin 1388 B.S.

ii) That the house in question is required bonafide for the purpose of construction and expansion of the business of the Plaintiffs.

The Defendant filed a written statement denying both the allegations. The Learned Munsiff by judgment dated 2.5.89 decreed the suit holding interalia as follows:

i) That the agreed date of payment of rent is admittedly within 7 days of the Bengali month next following the month of tenancy.

ii) That the rent was not paid in accordance with the law and as such the Defendant is a defaulter.

iii) It was also found that it was not established that the rent was refused by the landlord and in that connection, the trial Court found that the money was sent by money order was not established.

iv) It was found that the house in question is required bonafide by the Plaintiffs.

There was an appeal being Title Appeal No. 46/89 before the Learned Assit. District Judge at Karimganj. The Learned Asstt. District Judge on consideration of materials on record came to the finding that the plea of bonafide requirement was not established. He also found that there was no clear norms of accepting the rent and the Plaintiffs have taken rent for 2 months, 3 months, 4 months, or 6 months as and when required. He found that there was no fixed date of payment of rent and as such the deposit of rent in Court is valid in the eye of law. Regarding bonafide requirement, it was found that this plea was not established.

I have heard Sri N.M. Lahiri, Learned Advocate for the Petitioner and Sri J.P. Bhattacharjee, Learned Advocate for the Opp. party/Respondent. Sri Lahiri, Learned Advocate for the Petitioner in his usual fairness submits that the finding arrived at by the appellate Court on the plea of bonafide requirement is basically finding of fact and he also submitted that it cannot be said that in the instant case this finding is a perverse finding. Learned Judge considered the materials on record and having considered materials on record arrived at the finding. Another Court on consideration of the materials on record may take a different view but that will not make it perverse as such for the disposal of this case it is not necessary to consider this plea but Sri Lahiri strenuously urged that the Defendant/tenant is a defaulter in the eye of law and on this ground he urged that this revision is to be allowed and suit has to be decreed. Regarding default Sri Lahiri makes the following submissions:

i) There is a written contract regarding payment of rent and that written contract provides that the rent is to be paid within 7 day of the succeeding Bengali month. Mere acceptance of rent as and when offered by the tenant shall not wipe out this written contract regarding mode by payment of rent.

ii) Before deposit of rent in court the tenant is bound to establish that there was refusal of rent by the landlord. Sri Lahiri submits that this refusal of the rent by the landlord was not established and in that view of the matter the deposit of rent cannot be deemed to a valid deposit.

iii) That the rent for three months were deposited together and written notices were also not furnished and as such this deposit is not a valid deposit.

On die other hand, Sri J.P. Bhattacharjee. Learned Advocate for the Respondents submits that the parties by their conduct may bring to (sic) a different contract regarding payment of rent and such a long standing conduct regarding acceptance of rent will show that there was no fixed date regarding payment of rent, the question of default in such a situation shall not arise. Regarding refusal by the landlord he submits that the rent was sent by money order and that was not accepted and thereafter the rent was deposited in Courts regularly and as such this is a valid deposit in the eye of law. Before we go to this rival contention let us have a look regarding the protection granted to the tenant by the Rent Control Act, 1972. In Ganpat Ladha Vs. Sashikant Vishnu Shinde, in paragraph 11 the Supreme Court pointed out as follows:

If there is statutory default or neglect on the part of the tenant whatever may be its cause, the landlord acquires a right u/s 12(3)(a) to get a decree for eviction. But where the conditions of Section 12(3)(a) are not satisfied there is a further opportunity given to the tenant to protect himself against eviction. He can comply with the conditions set out in Section 12(3)(b) and defeat the landlord''s claim for eviction. If, however, he does not fulfil these conditions, he can not claim the protection of Section 12(3)(b) and in that event, there being no other protection available to him, a decree for eviction would have to go against him. It is difficult to see how by any Judicial valour discretion exercisable in favour of the tenant can be found in Section 12(3)(b), even where the conditions laid down by it are satisfied, to be strictly confined within the limits prescribed for their operation we think that Chagla, C.J., was doing no thing less than legislating in Kalidas Bhavan''s case (1953) 60 Bom LR 1359) (Supra), in converting the provisions of Section 12(3)(b) into a sort of discretionary jurisdiction of the Court to relieve tenants from hardship. The decisions of this Court referred to above, in any case, make the position (sic) that Section 12(3)(b) does not create any discretionary jurisdiction in the Court. It provides protection to the tenant on certian conditions and these condition have to be strictly observed by the tenant who seeks die benefit of the section. If the statutory provisions do not go far enough to relieve the hardship of the tenant the remedy lies with the legislature. It is not in the hands of Courts.

This was a case where the Supreme Court was considering the Bombay Rents, Hotel and Lodging House Rates Control Act. The Assam Act came for consideration in 1969 Gau 66 (Kalikumar Sen v. Makhan Lal Biswas and Anr.) (Full Bench) wherein this Court pointed out interalia as follows:

i) That the Assam Act does not provide for payment of rent by money order. It provides for special procedure for deposit of rent. A deposit made or a money order sent could not be regarded as a vaild tender.

ii) It has been held in the latter case by this Court that the tenant in order to claim protection under Sub-section (1) must prove that he has paid rent lawfully due from him in respect of the house and the tender or deposit in Court can only be regarded as payment if it has been done under the provisions of Sub-section (5). It is, therefore, clear that the tenant in order to claim benefit under Sub-section (1) of'' Section 6 of die Act must have paid the rent lawfully due from him in respect of the house. The rent ''lawfully due'' means the rent that is to be paid under contract or the fair rent if fair rent has been determined by the Court under the Act. The lawful rent has to be paid within the time stipulated by the contract and if the landlord refuses to accept the lawful rent offered by the tenant, the tenant may within fortnight of the rent becoming due may deposit it in Court in accordance with Sub-section (5) of Section 6 and in that case the tenant will be deemed have paid rent lawfully due to the landlord and he will not be considered as defaulter forfeiting the benefit under Sub-section (1) of Section 6. Since in the instant case the tenant has been found to be a defaulter, on a proper consideration of Section 6(1) of the Act the Plaintiffs are entitled to a decree for ejectment.

iii) Whether a tenant will be defaulter or not will depend upon the payment of the rent lawfully due within the stipulated period under the contract or on refusal by the landlord, on the deposit of rent made in Court as provided under Sub-section (5) of Section 6 of the Act.

iv) In my considered opinion, in order to avoid the bar of defaulter as laid down in Clause (e) to the proviso the rent must be paid to the landlord within the stipulated time and when the landlord refuses to accept, it must be deposited in Court within the period prescribed in Sub-section (5).

In case of L.P.A. 11176 (R.C. Basak v. D.N. Pandit) date of judgment of D/B 13.4.79 on difference by the third Judge on 30.10.79 this Court pointed out that the Rent Control Act has curtailed the right of land lord but at the same time this casts a duty on the tenant to perform his part of the obligation, as protection has been given to the tenants who are dutiful and diligent. If it is found that the tenant has not performed his part of the obligation, the tenant shall forfeit the protection given to him and shall be liable to be ejected. To the same effect there is the decision of the Apex Court reported in 1979 SC 1745 (V. Dhanapal Chettiar v. Yesodai Ammal) wherein the law has been laid down as follows:

In spite of the notice, the law says that he continues to be a tenant and he does so enjoying all the rights of a lessee and is at the same time deemed to be under all the liabilities such us payment of rent etc. in accordance with the law.

A Single Judge decision of this Court in 1997 (1) GLR 5 (Sekhar Chandra Swami and Ors. v. On the death of Nandalal Agarwalla His heirs and Smti. Savitri Agarwalla and Ors.) wherein the same law has been reiterated. So, it is crystal clear that a tenant is deemed to be under all liabilities as such payment of rent etc. in accordance with law all along if he wants to avail the protection granted by a rent control legislation. The protection granted to a tenant cannot be a one way traffic. If he wants to enjoy certain previleges or benefits, the corresponding duty/obligation thrust on him by the legislature must be performed/discharged by the tenant. As pointed out in the case of R.C. Bashak, this liability shall subsist all through the proceedings even when the matter may be pending in highest Court. If at any point of time, the landlord by prudent manner can bring to the notice of the Court even during the pendency of the proceeding that the tenant has failed to discharge his liabilities a right right shall spring up in favour of the landlord to get the decree for ejectment on any of the grounds as incorporated in the Assam Urban Areas Rent Control Act, 1972 (hereinafter called the Act for the sake of brevity) In the same manner a right available to the landlord for ejectment of the tenant may be wiped out by the happening of certain events during the pendency of the proceeding and if such event is brought to the of the Court by the tenant, the Court is bound to take notice of it to mould the relief in accordance with law. This is highly desirable state of things inasmuch as this will do away with the multiplicity of litigations. There is no justification that if by happening of any event during the pendency of the proceeding, the landlord gets a right to eject the tenant (sic) the tenant derives certain benefits by happening of the certain event, the Court should not take note of such things to avoid multiplicity of litigation. So, it is the duty and obligation of the tenant to prove that he is entitled to the protection during the pendency of the entire proceeding and he has performed his duties and obligations. This is a wholesome provision.

Regarding the deposit of rent in Court u/s 5(4) of the Act, there must be evidence that there was refusal by the landlord. In a series of cases this Court has held that Section 5(4) of the Act is a mandatory provision and the tenant seeking protection under the provision must tender or offer due rent within a fortnight of its falling due. The tender must be made which is the precondition to the deposit of rent in Court the question of depositing of rent in Court comes only when the landlord refuses to accept the rent. This question now has been clinched by a recent decision of the Apex Court in Rameswarlal Chaudhury v. Ram Niranjan Mour, wherein Section 5(4) of the Act was considered by the Court and the Apex Court has pointed out as follows:

In this case in which the Appellant-tenant did not tender the rent to the landlord, without resorting to such tender he has deposited the rent into the Court. That is not in compliance with Section 5(4) of the Assm Urban Areas Rent Control Act, 1972. The High Court is correct in its conclusion. Civil Appeal is dismissed. No costs.

Sri J.P. Bhattacharjee, Learned Advocate for the Respondent urges that in this case there was no due date regarding payment of rent. He submits that the conduct of parties may modify the date of payment and in this connection he relies on the following decisions:

i) 1990 (1) GLR 418 (on the death of Upendra Nath Paul his heirs Ranjit Kumar Paul and Ors. v. M/s P. Sen and Company). That was a case where the Plaintiff contended that the rent was payable within 1st week of the next month. There was no written contract. The Defendant denied this claim. This Court relying on the earlier decision reported in 1989 (2) GLR 7 (Upendra Deb Roy v. Subhasini Deb) pointed out that the Court may also take into account the conduct of the parties. The conduct of the parties spreading over fairly long period of time regarding payment of rent may indicate that the agreement or arrangement with regard to the payment of rent was modified. Reliance also was placed in a Division Bench judgment of this Court in Hari Shankar Sahu v. Giridharilal Sarmah 1989 (2) GLR (NOC) 33 wherein the same principle was laid down. In that case on the basis of facts, the Court drew the inference that the rent was payable according to mutual convenience of the parties. It was further found by the Court that in the facts of that case the question of tenant being a defaulter far non payment of rent within a fortnight from the end of the month cannot arise. On the other hand, the Learned Advocate for the Petitioner relies on a recent decision of this Court reported in 1996 (2) GLT 526 (Ram Karanji More v. Keshar Dev Jalan) wherein in paragraph 9 this Court laid down the law as follows:

Now it is to be seen what was the mode of payment, as would be evident from records. The question of default has to be decided from the facts available before the Court. Even in a case of monthly payment, landlord may agree to accept the rent at the convenience of the tenant but this indulgence cannot change the nature of monthly tenancy even to accommodate the tenant in some given circumstances. The landlord may accept rent beyond the stipulated period of tenancy in certain occasion, but this cannot be a deviation front the payment of rent at the stipulated date. In that case for ascertaining the mode of payment and default therefore, Court requires to determine it according to conduct of the parties on the basis of the evidence and the circumstances appearing in evidence.

This Court pointed out that some acceptance of rent at the convenience of tenant and/or accommodation given to a tenant in some circumstances cannot change the mode of payment of rent at the stipulated date. In the case in hand there is a written contract Ext. I dated 14.2.77, that will show that the rent was payable within 7 day of the succeeding Bengali month.

In the instant case it is the pleading that the Defendant failed to pay rent for the month of Baisakha and Jaistha 1388 BC. After that the Defendant on 24.6.81 paid Rs. 405/- as rent for Baisakha and Jaistha and Ashara and the Defendant promised to pay the future rent regularly month to month i.e. paragraph 6 of the plaint. In paragraph 10 of the written statement it is staled that though there was a written agreement it was not adhered to and the rent was being collected by the Plaintiff landlord according to his convenience by sending their rent collector. The rent receipts Ext. A series shows that the rents were being paid by the end of different months as will be evident from Ext. A1 to Ext. A7. By Ext. A8 rents were paid for six months together. Thereafter rent receipt shows that the rents were paid for months together. Thereafter, during the pendency of the suit rents were deposited by challans for months together. Ext. ''D'' Challan does not show that the rent was deposited as it does not bear the seal of the State Bank of India. By this it is not deposit in the eye of law. Ext. rent of Rs. 810/- was stated to be deposited on 2.11.81. Ext. DI is a rent deposit for months together for an amount of Rs. 1,620/- Ext. D2 is Anr. rent deposit challan for Rs. 620/-. Ext. D3, D4 and D5 are also challans showing the deposit of rent for months together. That shows that even during the pendency of the suit rents were not deposited regularly but for months together according to the choice and pleasure of the Defendant. The findings of the learned Appellate Court that the conduct of the parties establish a new mode regarding payment of rent is not a corrent finding. Further, the observation of the Learned Judge that "So, I do not like to discuss elaborately like the Munsiff who has discussed in his style everything. Though his approach is very wrong and erroneous, "is a perverse approach to the whole matter inasmuch as the appellate Court has to give reasons to reverse the findings rendered by the trial Court. The trial Court came to the findings that the rent was due within 7 days of the succeeding Bengali month and the rent was not paid accordingly, and it was found that the tenant is a defaulter. The findings of the Learned Judge that the deposit of rent made by the tenant according to his choice and pleasure will save him from being a defaulter is a finding absolutely without jurisdiction inasmuch as the Learned Judge in order to decide the question of default must find out the following things:

i) When the rent become due according to contract or according to the conduct of the parties.

ii) Whether a valid tender was made by the tenant and whether there was a refusal of the rent by the landlord to enable the tenant to make the deposit u/s 5(4) of the Act.

iii) Whether the deposit was made in accordance with law with the process fee as well as written notice.

As indicated above, it will be seen that the rent was due within 7 days of succeeding Bengali Month and there was no refusal by the landlord to accept the rent. As indicated above, 1969 Assam and Nagaland Page 66 (Supra) sending of rent by money order cannot be deemed to be a valid lender to the landlord and further there is absolutely no evidence that this money order was sent to the landlord and that it was refused the money order receipt is dated 17.10.81. The money order coupon which is Ext. CI does not bear any seal and signature of the post (sic) has not been passed by examining the postal employee. Thereafter, on (sic) the deposit is sought to be made by Ext. D of the rent from Srabana to (sic) indicated above this Ext. ''D'' Challan does not show that money was deposited in as much as this challan which has been exhibited does not bear the seal of the State Bank. So, it cannot be accepted that this money was deposited as required by law according to procedure prescribed under the Act. There is an endorsement, in this challan to the following fact:

Rs. 810/- and it was accepted by die Nazir

But even this endorsement was not proved, Payment to Nazir is not deposit of rent under the Act.

There is no case No. in this challan regarding rent deposit case. Some deposit of money with the Nazir of the Court without complying with the other requirements of law as provided in Section 5(4) of the Act is not a deposit in the eye of law. Section 5(4) of the Act requires that the money must be deposited in the Court together with process fee for service of notice upon the landlord and on receiving such deposit, the Court shall cause a notice of the receipt of such deposit to be served on the landlord. A deposit made with the Nazir cannot be deemed to be a deposit in the Court and that also without process fee and written up notice for service on the landlord. That it is the requirement of the law that has been pointed out by a large number of decisions of this Court. I may only point out a recent decision of this Court reported in 1997 (1) GLR 5 (Sekhar Chand Swami and Ors. v. on the death of Nandalal Agarwalla his heirs and Smt. Savitri Agarwalla and Ors.) wherein in paragraph 19, 20, 21 and 22, the law has been laid down as follows:

Para 19: In the case of (1982) 2 GLR NOR 8 it is held as follows:

So, the process fees, as required under Sub-Section 4 having not been paid the deposit of the rent is not as per the said section and it cannot give any protection.

Para 20: This view has been followed in 1991 (1) GLR 249 (Shri Sudhir Chandra Deb and Anr. v. Shri Parsuram Prasad Verma and Ors.) and in (1992) 1 GLR (Sudhir Chandra Deb and Anr. v. Parsuram Prasad Verma and Ors.).

Para 21: The position of law is that the proceeding u/s 5(4) of the Act is a proceeding in the Civil Court and therefore the procedure laid down in the Civil Rules and orders is to be followed.

Para 22: The note under Rule 42 of the Civil Rules and Orders framed by the Gauhati High Court is quoted below:

It should be particularly noted that the additions made by the High Court to Schedule-1 of the CPC requires that every plaint shall be accompanied by necessary number of its copies, draft forms of summons and fee for service thereof (Order 7, Rule 91A) and a statement of party''s address for service (as per Rule 15 of the High Court Rules and Order 6, Rule 14A).

So, this Ext. D so called challan showing the deposit of rent is not a deposit as required u/s 5(4) of the Act, 1972. Accordingly, it must be held that the tenant is a defaulter in not complying with the provisions of Section 5(4) of the Act, before deposit, rent was not tendered to landlord as it was not tendered and there was no proper deposit.

This being the position, this revision application is to be allowed which I hereby do. The judgment of the lower appellate Court in Title Appeal No. 46/89 of the Court of Asstt. District Judge, Karimganj shall stand set aside and quashed and the judgment of the learned Munsiff dated 2.5.89 in P.S. No. 230/85 shall stand restored. The suit is decreed. Before I part with the record, I grant time for one year to the tenant to make the alternative arrangement subject to the following conditions:

i) Within two months from to-day, the tenant shall give an undertaking before the trial Court i.e. before the learned Munsiff No. 1 at Karimganj to the effect that he will vacate the premises after expiry of one year from to-day without execution.

ii) For this period of one year, the tenant shall go on (sic) rent of Rs. 135/- per month in the Court by the end of each month but this payment of (sic) shall not create any new tenancy or any right in favour of the tenant.

iii) The tenant shall not sublet and/or part with the possession of the premises within the period.

iv) If the tenant fails to give the undertaking as provided above or if he (sic) any of the conditions of the undertaking the decree may be put into execution.

v) After expiry of one year if the tenant fails to vacate the premises then also the decree may be put into execution.

This disposes of the revision application.