Bata India Ltd. vs Dr. P.K. Das Pvt. Ltd. <BR> Dr. P.K. Das Pvt. Ltd. Vs Bata India Ltd.

T.S. Misra, C.J.—This revision arises out of a suit filed by the Plaintiff-opposite party for eviction of the Defendant-Petitioner from the premises in question. The facts in brief are these:

The Plaintiff is the owner and landlord of a building described at the foot of the plaint. The Defendant, took the said premises on lease at a monthly rental of Rs. 300/- for the purpose of carrying on business thereon. The period of the lease was for 15 years commencing from the first day of September, 1958 subject to renewal for a further term of 5 years. The lease deed was accordingly executed between the parties incorporating the terms and conditions of the lease. The Plaintiff has alleged in the plaint that the Defendant paid rent of the said premises upto December, 1973 and failed to pay the rent for the sub-sequent months.

It thus became a defaulter in making payment of rent and therefore became liable to be ejected from the said premises. The Plaintiff further alleged in the plaint that he bonafide required the said premises for the purpose of constructing a three storeyed R.C.C. building. He needed the said building for his own use to carry on his own business therein. The lease came to an end by efflux of the period on 31st August, 1978. A notice was served on the Defendant on 12th August, 1978 requiring it to vacate the said premises nod deliver vacant possession of the same to the Plaintiff on the expiry of the said period. But it failed to comply with the same. Rather, the Defendant by its letter dated 18th August, 1978 declined to vacate the premises in question. Hence the suit for eviction of the Defendant was filed.

The suit was resisted by the Defendant who filed its written statement pleading, inter alia, that it was not a defaulter in payment of cent and denying that the said premises were required by the Plaintiff for his own use as alleged. The Defendant further pleaded that in terms of the lease deed it had paid an advance of Rs. 11,000/- to the Plaintiff which was adjusted against rent and in this way the rent upto December, 1973 had been paid up. With regard to the rent for the subsequent months, it had been alleged in the written statement that the rent for the months of January, February and March, 1974 was sent to the Plaintiff but be declined to accept the same. Hence the rent due upto and including the month of December, 1978 had been deposited in the Court under the provisions of the Assam Urban Areas Rent Control Act in favour of the Plaintiff from time to time. It was also pleaded that one big three storeyed building had been constructed on a plot belonging to the Plaintiff and the said plot was just adjacent to the said premises and in that building a pharmacy named Swami Medical Hall had been started. Hence the Plaintiff had no bona fide requirement of the building in question. Both the parties adduced oral and documentary evidence in support of their respective contentions. The trial Court on consideration of the evidence on record found that the Defendant had committed, default in payment of rent. It also that the Plaintiff bona fide required the said premises. Hence the was decreed. Aggrieved, the Defendant preferred an appeal in the Court of the District Judge, Cachar at Silchar. The learned District Judge on reappraisal of the evidence concurred with the trial Court on both the issues and held that the Defendant was a defaulter in making payment of rent and that the building in question is bona fide required by the Plaintiff foe his own use. The appeal was accordingly dismissed. The Defendant has preferred the instant revision petition impugning both the aforesaid judgments and decrees passed by the Courts below.

For the Defendant Petitioner it was urged that both the Courts below fell in error in holding that the Defendant was a defaulter in making payment of rent. The submission was that the lease deed did not specify as to when the rent of each month was to be paid. The parties had made their own arrangement in this behalf and the rent was being paid as and when the Defendant liked to pay it in lump sum; it might be for two months or for five months or eight months, and, therefore, the Courts below should not have held that the Defendant was a defaulter inasmuch as, the rent was not only tendered to the Plaintiff but was also deposited in the Court under the provisions of the aforesaid Act. With regard to the finding as to whether the Plaintiff bona fide required the said premises for his own use it was submitted on behalf of the Defendant Petitioner that the Plaintiff did not require the said premises at all and the need was just a faked one cooked up for the purpose of the case to seek eviction of the Defendant. The learned Counsel for the Plaintiff opposite party while refuting the various submissions made on behalf of the Defendant petitions submitted that the evidence adduced on behalf of the Defendant itself indicated that the Defendant was a defaulter within the meaning of Section 5(e) of the Assam Urban Areas Rent Control Act 1972, hereinafter referred to as ''the Act''. It was also urged that both the Courts below bad found that the Defendant was a defaulter and that the Plaintiff bona fide requited the said premises for his own use and these findings being findings of fact based on evidence are not liable to be interfered with in a revision petition. In order to appreciate the rival contentions of the parties it would be appropriate to read here Clauses (c) and (e) of Sub-section (1) of Section 5 of the Assam Urban Areas Rent Control Act, 1972:

(1) No order or decree for the recovery of possession of any house shall be made or executed by any Court so long as the tenant pays rent to the full extent allowably under this Act and performs the conditions of the tenancy:

provided that nothing in this Sub-section shall apply in a suit or proceedings for eviction of the tenant from the house:

(c) Where the house is bonafide required by the landlord either for purposes of repairs or rebuilding, or for his own occupation or for the occupation of any person for whose benefit the house is held or where the landlord can show any other cause which may be deemed satisfactory by the Court, or

(e) Where the tenant has not paid the rent lawfully due from him in respect of the house within a fortnight of its falling due.

Section 5 of the Act imposes certain restrictions on ejectment of a tenant from a premises in question. No decree can be passed for eviction of a tenant from any premises governed by the Act so long as the tenant pays rent allowable under the Act and performs the conditions of the tenancy. The rigours of these restrictions are however mitigated by the proviso to Sub-section (1) of Section 5 of the Act which in clear-terms stipulates that the provisions of Sub-section (1) shall not apply to a suit or proceedings for eviction of the tenant from a house where the tenant has not paid rent lawfully due from him within a fortnight of its falling due. In other words, the protection granted to a tenant by Section 5 would not be available to him if he fails to pay the rent due from him within a fortnight of its "falling due". The tenant has, therefore, to be very vigilant in making the payment of rent. He may forego his meals and may not provide himself and family members with other necessities of life, but if he wants to have a shelter over his head, which every citizen must have, he should see that the rent is regularly paid by him and should in any event pay the same within a fortnight of its "falling due". Even one lapse on his part in this behalf may prove fatal and he may have to quit the house. Howsoever careful be might have been in the past, his one negligence would be sufficient under Sub-clause (e) of Sub-section (1) or Section 5 to bring him and his family members out of the house on the payment. The provision of Sub-section (e) of Section 5 have therefore to construed not liberally. A bare reading of Clause (e) would indicate that in order to condemn a tenant as a defaulter liable to eviction, it must be established by the Plaintiff-landlord seeking eviction that the tenant has not paid the rent "lawfully due from him". The first ingredient, therefore, to be established is as to whether the rent was lawfully due from the tenant which he has not paid and the second ingredient is that the rent was not paid by him within a fortnight of its falling due. The crucial point in this behalf to be deter-mined is as to what is the date when the rent actually falls due in a particular case. It may be that the tenancy may be monthly or half-yearly or yearly. But there may be also an arrangement or agreement between the parties that the rent would be paid not monthly but half-yearly or yearly or after a particular period. The parties may by their own agreement fix the date when the rent would become payable. It is that date when the tent is said to have fallen due and the tenant it given liberty to pay the rent either on the date when it actually falls due or within a fortnight of its falling due. If he does not do so, he renders himself liable to eviction. The rent must, however, be lawfully due from the tenant. If it is not lawfully due, it will not be taken into consideration for the purpose of Clause (e) of Section 5. Applying this test to the instant case it is to be noticed that the rent agreed to be paid by the tenant was Rs. 300/- per month. The lease deed Ext. ''A'' contains two clauses which are relevant, namely:

(d) that the term will commence on the first day of September, 1958 for a period of 15 years at a rent of Rs. 300/- per month inclusive of all rates and charges.

(e) that the Lessee will pay to the Lessor the said sum of Rs. 11,000/- as advance rent adjustable as follows viz., the lessee will month by month deduct Rs. 235/- from the monthly rent till the entire advance is liquidated.

(emphasis supplied)

A conjoint, reading of these clauses makes it quite plain that the rent agreed to be paid by the Defendant to the Plaintiff was Rs. 300/- per month; and that the Defendant was to pay sum of Rs. 11,000/- to the lessor as advance rent which was to be adjusted by the tenant month by month by deducting Rs. 225/- from the monthly rent till the entire advance was liquidated. In other words, out of Rs. 300/- payable as rent per month, the Defendant was to deduct Rs. 225/- and pay the balance to the Plaintiff-landlord. This deduction was to be made by the lessee-Defendant month by month. The rent was therefore, payable by the Defendant to the Plaintiff-landlord every month and the deduction of Rs. 225/- was to be made every month so as to liquidate the entire amount of Rs. 11,000/- which had been paid by the tenant to the landlord in advance. The date when the rent fell due according to the lease deed was therefore, the last date of the month. The submission, however, on behalf of the Defendant was that the Defendant used to pay the rent not at the end of each month but in lump sum when the rent for several months had accumulated and therefore the date when actually fell due was not the last date of the month. I am unable to accept this contention. The sum of Rs. 11,000/- was paid as advance rent with a clear stipulation that the said amount was to be adjusted towards payment of future rent as and when it fell due and the deduction of Rs. 225/- was to be made month by month till the entire advance was liquidated. The Defendant did male the deduction accordingly and therefore it has to be construed that the rent fell due on the last date of each month. It would also be noticed that in the written statement the Defendants did not say as to when the rent of each month actually fell due. Its contention in the written statement was that the rent for the months of January to September, 1974 has been deposited in the Court. Likewise, the rent for the subsequent months had also been deposited in the Court and therefore it was not a defaulter. It would be seen that the rent for the months of January to September, 1974 was deposited by the Defendant in the Court on 13th August, 1974; similarly the rent for the months of October to December 1974 was deposited in the Court on 3rd December, 1974. Quite obviously, the rent for January 1974 was not paid within a fortnight of its falling due. Similarly the rent for the months of February, March, April, May and June, 1974 had also not been paid to the Plaintiff nor deposited in the Court within a fortnight of becoming due. The Defendant was therefore a defaulter within the meaning of Sub-clause (e) of Sub-section (1) of Section 5 of the Act. Both the Courts below were, in these circumstances, justified in holding likewise. Since this ground alone would be sufficient for passing a decree for eviction against the Defendant, it would be not necessary to go in detail into the question as to whether the Plaintiff bona fide required the premises in question for re-building and for his own occupation. Suffice it to say that both the Courts below have recorded a concurrent finding of fact in this behalf against the Defendant and in favour of the Plaintiff. I have, however, held that the Defendant was defaulter, inasmuch as, it did not pay the rent lawfully due from it in respect of the house within a fortnight of its falling due, the decree for eviction was rightly passed against the Defendant. The Defendant has failed to make out that the Court below has acted illegally or with material irregularity in exercise to its jurisdiction. There is, therefore, no justifiable ground to interfere with the judgments of the Courts below and the decree passed in the suit.

The revision petition lacking merits must fail. It is accordingly dismissed.

The learned Counsel for the Defendant admitted that since the Defendant has been carrying on business on a large scale in this premises and it will take some time for the Defendant to find out another accommodation and to vacate the premises in question, it should be given reasonable time to vacate the premises. The learned Counsel for the Plaintiff-opposite party submitted that the Plaintiff will have no objection if a reasonable time is given to the Defendant to vacate and deliver vacant and peaceful possession of the said premises to the Plaintiff. Keeping in view the facts and circumstances of the case, I am of the opinion that ends of justice would be met if the Defendant is allowed four months'' time to vacate the said premises and deliver its vacant and peaceful possession to the Plaintiff. The Plaintiff will not therefore execute the decree for the eviction of the Defendant for a period of four months.

The Plaintiff-opposite party shall be entitled to Rs. 600/- as costs in this Court.