Kishanlal Singol and Another vs Hari Kisson Lohia

Sarjoo Prosad, C.J.—This is a defendants'' appeal arising out of a suit for ejectment from a house belonging to the plaintiff. It appears that the plaintiff rented the house in May, 1947 at a rent of Rs. 60/- in addition to 10 per cent by way of taxes payable monthly by the defendants to the plaintiff, as rent. The defendants thus continued to pay the rent at Rs. 66/- per month for about a year and a half, but thereafter they defaulted.

The plaintiff therefore issued a notice for ejectment of the defendants terminating their tenancy and then instituted this suit. The defendants contention on the other hand was that Rs. 6/- payable by the defendants to the plaintiff was only in respect of the Municipal taxes.

It was contended that the tax payable was actually less than lie amount and therefore when they came to learn of it they offered to pay rent to the plaintiff at the rate of Rs. 60/- plus Rs. 3/- by way of municipal taxes, but the plaintiff refused to accept the same, and then the defendants remitted the tune by Money Order which was also refused. It was therefore urged that the defendants were not defaulters and the suit for ejectment did not lie.

The Courts below have concurrently held that defendants were defaulters and could not be protected from ejectment u/s 4, Assam Urban Areas Rent Control Act. They have accordingly decreed the plaintiff''s suit. In fact this was the only point urged before the Court of appeal below. A tenant becomes a defaulter within die meaning of Section 4 of the Act if he fails to pay the rent due by him, of the louse in his occupation within the time fixed in the contract with his landlord.

Under the terms of the contract or Kerayanama executed by the defendants, it appears that the rent was payable in the first week of each month with all requisite taxes municipal, latrine, etc. According to die plaintiff the rent was fixed at Rs. 1. 60/- plus Rs. 6/- as municipal and other maintenance charges and on the evidence it has been found that this rent of Rs. 66/- per month was paid from 1-5-47 to 80-12-49 and after that the defendants arbitrarily stopped payment and were agreeable to pay only Rs. 60/- plus Rs. 3/- as municipal tax.

The Court has found that there was no convincing evidence that the tax for the house in question occupied by the defendants was only Rs. 3/- and: not more. The fact that for one and a half year the defendants had paid rent at the rate of Rs. 66/- per month including Rs. 6/- on account of municipal taxes and other charges, coupled with the circumstances that other tenants living in the same barrack with the defendants paid these taxes and charges by way of rent to. the plaintiff at 10 per cent over the amount of rent determined shows that the rent payable by the defendants, according to the agreement was Rs. 66/- per month and not Rs. 63/- as claimed by the plaintiff and the defendants not having paid rent accordingly were rightly held to be defaulters.

Mr. Medhi in support of the appeal argues ill at the defendants were not liable to pay anything towards maintenance charges of the premises for providing light and other facilities and therefore they could pay only Rs. 3/- on account of tax to the plaintiff. It is not contended by the defendants that this extra charge by way of taxes was not payable as a part of the rent itself.

The contention simply is that only Rs. 3/- Was payable on account of these taxes by way of rent and not more. This the defendants have failed to prove and in the circumstances disclosed in the evidence the Court below was justified in finding that the total rent payable was Rs. 66/- and not as claimed by the defendants.

It is then contended that the Assam Urban Areas Rent Control Act has no application to this case and the defendants were not liable to be evicted, The protection of the Assam Urban Areas Rent Control Act was claimed by the defendants them* selves on the ground that they were not defaulters within the meaning of the Act and therefore they; could not be evicted. If the Act gave no protection to the defendants then the claim of the plaintiff should prevail.

Mr. Medhi then argues that u/s 114, T.P. Act, he should be given relief against forfeiture'' for non-payment of rent. Unfortunately, Mr. Medhi did not claim the benefit of this section in either of the Courts below and it seems even if such a relief could be given to him, it is now too late to do so because I understand that the defendants have already delivered possession of the premises, to the plaintiff after vacating the same.

The Court has discretion u/s 114, T.P. Act; to grant the relief against forfeiture or to refuse the same. In this case, it does not appear to mo that the conduct of the defendants in withholding payment of rent to the plaintiff as they had done for about'' a year and a half, without any adequate cause justifies any such relief.

It is also urged by Mr. Medhi that the notice to quit was illegal, because under the terms of the contract, he should have been given a month''s notice to quit and not a notice of 14 days only. This point again was never raised in any of the Courts below. It is not purely a question of law, but a mixed question of law & fact and even if under the terms of the contract his clients were entitled to any such notice, they appear to have waived the same and to have been satisfied with the sufficiency and validity of the notice which was served on the defendants.

In the trial Court the defendants did not seriously question the sufficiency or validity of the notice but they only disputed the factum of service thereof. The notice sent under a registered cover was held to be duly proved and the finding of the Court on the point was not assailed in the Court of appeal below.

On the whole, therefore, I am not satisfied that there is any substance in this appeal. It is accordingly dismissed. The parties, however, will bear their own costs of this appeal.