Chabir Roy Burman And 4 Ors vs Sahnaj Akhtar

Prasanta Kumar Deka, J

Heard Mr. T. J. Mahanta, the learned Senior Counsel assisted by Mr. T. Gogoi, the learned counsel for the petitioners. Also heard Mr. P. J. Saikia, the learned counsel for the respondent.

The present petitioners are defendants in Title Suit No. 151/2008 in the Court of learned Munsiff No.1 which was filed by the present respondent for the ejectment of the predecessor-in-interest of the defendants/respondents from the suit premises. The original plaintiff died during the pendency of the Title Appeal No.26/2011 and also the predecessor-in-interest of the defendants/respondents and thereafter, their legal heirs were substituted respectively. However, the term "defendant/petitioner" shall mean the original sole defendant and the "plaintiff/respondent" shall mean the sole plaintiff in the suit. The defendant/petitioner, Tapash Roy Burman, took suit premises for a period of 5 years on rent at monthly rent of Rs.1200/- as per calendar month payable in advance in the first week of every current month to the plaintiff/respondent. The tenancy deed was executed on 21.05.1993. After expiry of the period of tenancy it was continued by way of enhancing the monthly rent by Rs.150/- with effect from June 1998 and the monthly rent was again re-fixed at Rs.1550/- from the month of June 2003 on the same terms and conditions as per the earlier tenancy agreements. There is a clause that after expiry of the tenancy in the month of May 2005, the defendant/petitioner would vacate the tenanted premises and as such, no fresh tenancy agreement was executed. The defendant/ petitioner was irregular in payment of rent for which the plaintiff/respondent had to demand the monthly rent to be paid regularly as per the terms of the tenancy. The defendant/petitioner failed to pay the monthly rent from the month of December 2007. Thus, the defendant/petitioner was a defaulter. The suit premises was also required on the bonafide ground that the plaintiff/respondent was an aged lady, implanted pacemaker and also to widen the passage from the main road to the residential house of the plaintiff/respondent situated on the backside of the suit premises.

The daughter of the plaintiff/respondent who is an advocate by profession requires staying at Dibrugarh owing to the health condition of the plaintiff/respondent but due to lack of space for opening her chamber, she was unable to come and reside with her mother, plaintiff/respondent.

The defendant/petitioner contested the suit denied that he was a defaulter in paying the rent nor executed any tenancy agreement as stated by the plaintiff/respondent. Denying the terms and conditions of any tenancy agreement, it was also denied that the monthly rent of the suit premises was to be paid in advance in the first week of every current month. Rather he took the stand that the rent was offered and paid as per his convenience. He did not commit to vacate the tenanted premises and also denied the fact of bonafide requirement of the plaintiff/respondent.

On the basis of the pleadings, the following issues were framed:-

"i) Whether the suit maintainable in law and in facts?

ii) Whether there is any cause of action for the suit?

iii) Whether the defendant is defaulter in paying the due rents to the plaintiff in respect of the suit premises?

iv) Whether the suit premises requires bonafide by the plaintiff for accommodating her daughter or otherwise?

v) Whether the plaintiff is entitled to get any relief/s as claimed for?

vi) To what relief/s the parties are entitled to in the facts and circumstances of the case?"

The plaintiff/respondent side adduced two witnesses including the plaintiff/respondent herself and exhibited some documents including the registered deed of agreement dated 26.07.1986 and one unregistered deed executed on 01.04.1993. On the other hand, the defendant/petitioner adduced two witnesses and also exhibited some documents. The learned trial court decided all the issues in favour of the plaintiff/respondent. The learned trial court considered the evidence of PW-1 (the plaintiff/respondent) and referring Ext-2 the lease deed executed between the plaintiff/respondent and the defendant/petitioner came to the conclusion that the monthly rent was Rs.1200/- payable in advance in the first week of every month to the plaintiff/respondent. After expiry of the tenancy period, the defendant/petitioner was allowed to stay in the suit premises by increasing the rent to Rs.1550/- with effect from June 2003. The defendant/petitioner became irregular in paying the rent from December 2007. The learned trial court also considered the evidence adduced by the defendant/petitioner as DW-1 and in the cross-examination, he admitted that he is the tenant under the plaintiff/respondent and also admitted the Ext-2, the un-registered tenancy agreement. The said DW-1 admitted in cross that he was a defaulter since December 2007 and the trial court held that such admission supports the plaintiff's version that the defendant/petitioner was a defaulter. The learned trial court also held the issue No.4 in favour of the plaintiff/respondent thereby holding the suit premises is bonafide requirement more specifically, for the chamber of the daughter of the plaintiff/respondent who is an advocate. The suit was decreed in favour of the plaintiff/respondent.

The defendant/petitioner preferred Title Appeal No.26/2011 in the Court of learned Civil Judge, Dibrugarh against the judgment and decree dated 22.03.2011 passed by the learned court of Munsiff No.1 in Title Suit No.151/2008. The said appeal was also dismissed vide judgment and decree dated 18.04.2016 thereby concurring the findings of the trial court. Thereafter, this revision petition was filed challenging the judgment and decree passed in Title Appeal No.26/2011.

Mr. Mahanta, the learned Senior Counsel assailed the findings of the court below more specifically the issue No.3 wherein the courts below came to the finding that the defendant/petitioner was a defaulter only on the ground that the said defendant/petitioner as the DW-1 admitted the fact of the default in payment of the rent with effect from December 2007. Referring to the deposition of the plaintiff/respondent as PW-1 it is submitted that the plaintiff/respondent even if the defendant/petitioner defaulted in paying the rent she accepted the rent which clearly goes to show that the stand taken by the defendant/petitioner in the written statement that the rent was paid as per his convenience. In fact, there was no such fixed mode for payment. Even there is instance that the plaintiff/respondent accepted rent amounting about 31,000/- even during pendency of the suit. Though there is an admission on the part of the defendant/petitioner that he was a defaulter in paying the rent from December 2007, the said rent was tendered accepted which amount comes to Rs. 31,000/- as such, the issue of default in payment of rent by the defendant/petitioner cannot be accepted until and unless the conduct of the landlord is decided by the courts below before holding the defendant/petitioner a defaulter in payment of rent. It is further pointed out that the defendant/petitioner did not pay the rent in the court and as such, the court ought to have given a finding on the mode of payment of rent agreed to, by the parties inasmuch as there is an admission on the part of the plaintiff/respondent that she used to accept the rent for 3-4 months at a time.

On the issue of bonafide requirement Mr. Mahanta submits that as the daughter of the plaintiff/respondent is an advocate that itself cannot be a ground for holding by the court that the suit premises is bonafide required when there are other tenants under the plaintiff/respondent.

Mr. Saikia, on the other hand, vehemently opposed against the submission of the learned counsel for the petitioners and submits that once the defendant/petitioner admitted that he is a defaulter with effect from December 2007 it is sufficient to arrive at a finding as held by the courts below there is no requirement for determining the conduct of the landlord while accepting the rent inasmuch as the due date is very much specific in Ext-2 which the defendant/petitioner admitted in his deposition as DW-1. The issue of bonafide requirement was rightly decided by the courts below inasmuch as there is no denial of the fact that the daughter of the plaintiff/respondent is an advocate. Accordingly, he submits the revision needs no interference and request to be dismissed.

I have given due consideration to the submissions of the learned counsel. The contention of Mr. Mahanta has some force inasmuch as from the evidence it is clear and apparent that the monthly rent falls due in advance i.e. in the first week of the current month. The plaintiff/respondent in the evidence admitted the fact that she accepted the rent even after the defendant/petitioner defaulted to pay as per the terms of the tenancy agreement. Under such circumstances, the preponderance of probability that there was a change in the mode a payment of rent vis-à-vis the terms in the Ext-2 is quite natural.

I have perused the cross-examination of the DW-1, the defendant/petitioner. In the said deposition there is a startling revealation wherein he stated that after filing of the suit the plaintiff/respondent asked him (tenant/defendant) to pay the rent regularly. The suit was filed in the year 2008. In the subsequent statement thereafter, the DW-1 deposed that on 30.09.2009 he paid a sum of Rs.1550/- as rent and on 08.12.2009 he paid a sum of Rs.8650/- i.e. rent for 3 months at a time. Herein it would be proper to take note of the decision rendered by the Hon'ble Supreme Court in S. P. Deshmukh -vs.- Shah Nihal Chand Waghajibai Gujarati, reported in 1977 (3) SCC 515. It was held that normally a monthly tenant is under obligation to pay the rent from month to month but his obligation is subject to a contract to the contrary. Such a contract need not be reflected in a formal document and can be spelt out from the conduct of the parties spread over a fairly long period of time. In that particular case before the Hon'ble Apex Court the tenant was paying rent at an interval of 3 or 4 months which the landlord was willingly accepting and always without any complaint of any irregularity on the part of the tenant in paying the rent thereby accepting the conduct of habitual defaulter of the tenant. In the present case in hand, though the plaintiff/respondent accepted the monthly rent paid at a time for 3 to 4 months but from the conduct of the landlord, plaintiff/respondent she accepted the rent but with an action by filing the suit warning the defendant/petitioner to pay the rent regularly. The subsequent conduct in payment of rent as per the deposition of the DW-1 itself goes to show that even thereafter, he never changed his habit of habitual default. Accordingly, if the said ratio is applied it cannot be accepted that the intent of the plaintiff/respondent was to accept the manner in which the defendant/petitioner was paying the monthly rent as such, the said admission of defaulter by the DW-1 has to be considered and in my opinion, the court below has rightly accepted the said deposition and held that the defendant/petitioner is a defaulter and liable to be ejected.

The issue of bonafide requirement by the plaintiff/respondent needs no interference inasmuch as per the subsequent events that the plaintiff/respondent died and admittedly her daughter i.e. the substituted respondent herein this revision petition is an advocate by profession. Under such circumstances, the importance of a chamber cannot be denied moreso, the benefit of having a road side room which clearly is a convenient place for an advocate to open a chamber.

Accordingly, this revision petition stands dismissed.

However, as the locality the suit premises is situated in a commercial place and the defendant/petitioner has been carrying out the business, the defendant/petitioner shall be permitted to stay in the tenanted premises for another 3 months from today subject to payment of the rent as per the terms of tenancy last entered into with the plaintiff/respondent. After 3 months if the tenanted premises is not vacated, the plaintiff/ respondent shall be at liberty to execute the decree of ejectment.

No cost. Send back the LCR.