Muhit Kumar Deb Roy and Others vs Gaurangalal Roy

Manisana, J.—This is a revision petition against the judgment and decree dated 19.6.1985 pawed by the learned Assistant District Judge (I), Cachar, Silchar, in T.A. No. 37 of 1984, affirming and modifying the judgment and decree passed by the learned Sadar Munsiff (2) Silchar, in T.S. No. 443 of 1981.

It is a case of concurrent findings of facts. The case of the Plaintiff-landlords is that the Defendant-tenant had not paid the rents due from him for the period from November 1978 to October 1981 amounting to Rs. 5400/-. The Court below have given concurrent findings that the landlords refused to accept the rent for the month of November 1978 offered by the tenant; and that the tenant deposited the rent for November 1978 in time as provided under the law; however, the tenant deposited the rent for the month of December also in advance along with the rent for November; and that the amount of Rs. 5400/- had already been deposited, although some of the deposits have been made in advance.

Mr. Acharyya submits that some of the deposits made in advance in the Court after October 1978 will not amount to payment under Sub-section 4 of Section 5 of the Assam Urban Areas Rent Control Act, 1972. His Contention is that only when the landlord refused to accept the lawful rent offered by his tenant, the tenant may, within a fortnight of its becoming due, deposit in Court the amount of such rent together with process fees for service of notice upon the landlord. Mr. Acharyya further submits that there was no offer at all by tenant because the rent had already been deposited earlier before it becomes due; and that there was no contract for such advance deposit and the amount deposited in advance would be treated as a loan to the landlord, and not the rent; and that the tenancy was renewable month to month.

Mr. Acharyya refers me to the decisions in Ramlal 63 (1921) IC 587; Tilok Chand AIR 1962 Cal 204; Khatha Bhatt AIR 1950 Raj 19; Phukan Chandra AIR 1980 Gau 63 , and Pradesh Kumar Bajpai Vs. Binod Behari Sarkar (Dead) by Lrs., to support his contention that before the rent become due, any thing was paid in advance to the landlord; it was a simple loan to the landlord and it could not be taken as a discharging for the rent due as there was no contract for such payment and the tenancy was renewable from month to month. It may be noted that the decision in Ramlal, 63 IC 587; Tilok Chand AIR 1962 Cal 204 , and Katha Bhatt Nand Kumar Vs. Chotey Lal, are in connection with Section 50 of the T.P. Act and those in P.G. D''Ombrain and Others etc. Vs. Collector of Kamrup Gauhati and Another, etc., and Praderh Kumar AIR 1930 SC 1214 relate to the application of provisions u/s 114 of the T.P. Act to the proceedings under the rest control laws.

In the light of the decision of the Supreme Court in Dr. Brahmanand Vs. Smt. Kaushalya Devi and Another, the interpretation of Sub-section (4) of Section 5 of the Act is to be conditioned by the circumstances prevailing between the parties. In the case where relation between the parties being very estranged it is an idle ritual to insist on a physical tender of payment of the rent where the circumstances made it impracticable; and a liberal construction of the expression "rent offered by his tenant" in Sub-section (4) is necessary. It is also settled that in the absence of special and adequate grounds the tenant cannot drive the landlord to collect his rent every time through the court with all the attendant inconvenience and expense.

There are clear findings of the Courts below that the landlords refused to accept the rent offered by the tenant for the month of November 1978; and that the rents for the period from November 1978 to October 1981 claimed by the landlords had been deposited although some of the deposits were made in advance; and that the tenant provided money for the construction of the suit house under an agreement; and that some amount of money which was/is to be adjusted partly towards the payment of the rents is still lying with the landlords; and that the deposits were accepted by the Court under the Rent Control Act without any objection; and that the landlords did not challenge the deposits and also did not withdraw the validly deposited rent for the month of November, and all other subsequent deposits; and that the suit house is/was not bonafide required by the landlords. The first appellate Court has also given findings that the landlords took the plea of bonafide requirement of the suit premises with an ulterior motive as a device to secure the eviction of the tenant.

The findings of the Courts below above show that the landlords had decided or planned to evict the tenant some-how or other, or by one means or another; and that the intention or motive of the landlords was not to receive rents, but to evict the tenant, therefore, the landlords would not receive any rent offered after November 1978. The records also show that the parties had become unfriendly (estranged relationship). In such circumstances, I am of the view that a physical payment or offer by the tenant for every month and/or to wait for the rents becoming due, in the context of the present case, will be an idle formality in the light of the decision of the Supreme Court in Dr. Brahmananda (Supra). In this view of the matter, the contentions of the learned Counsel must fail.

The cases cited by Mr. Acharyya, in the context of the case and in view of the above discussions are not applicable to the present case. However, it is made clear that in making the order, it must not be presumed that I have expressed any opinion on the questions raised by Mr. Acharyya.

Apart from the above discussions, it cannot be said that the Courts below have acted arbitrarily while coming to their conclusions. The findings and conclusions are based on materials on record. The decisions of the Courts below may be wrong or may not be in accordance with law. But it is not a case that the Courts below have exercised their jurisdiction either illegally or with material irregularity. That being so, the High Court cannot invoke its jurisdiction u/s 115, Code of Civil Procedure.

For the foregoing reasons, the petition is rejected. With the above observation; the petition is disposed of. No costs.