Prasantakumar Deb vs Gauri Shankar Pau. and Others

A. Hazarika, J.—The lis between the parties revolves within a narrow campus and the following questions are required to be answered in the instant revision petition, viz:

(a) Whether the Defendant/Petitioner is a defaulter and is liable to be evicted? and,

(b) Whether the learned Courts below have exercised a jurisdiction not vested in it by law or have failed to have exercised jurisdiction so vested or to have acted in the exercise of its jurisdiction illegally or with material irregularity?

The instant revision petition arises out of the judgment and decree dated 21.9.2002 and 3.10.2002 respectively passed by the Civil Judge (Sr. Division), No. 1, Cachar, Silchar, in Title Appeal No. 6 of 1999, dismissing the appeal of the Petitioner/Defendant affirming the judgment and decree passed by the Civil Judge (Jr. Division), No. 4, Silchar, Cachar, in Title Suit No. 94 of 1993 on 11.1.1999 and 28.1.1999 respectively.

The background of the case is that the Plaintiff filed the suit being Title Suit No. 94 of 1998 before the learned Civil Judge, (Jr. Divn.), Silchar against the Defendants contending inter alia therein, that the suit land was purchased by him from the vendor Shri Mujamil Ali Laskar on 8.5.1992, corresponding to 25.1.1399 B.S. by executing a registered sale deed wherein the Defendants were the tenants under the aforesaid vendor at a monthly rent of Rs. 312.50. After the purchase of the suit land, the purchaser i.e. the Plaintiff issued a notice conveying the purchase of the suit land which the Defendants had received on 20.5.1992. The Defendants after receipt of the notice did not make any payment to the Plaintiff as regards the rent agreed upon between Mujamil Ali Laskar and the father of the Defendants with effect from 25.1.1399 B.S. to 31.1.1399 B.S. and for the months of Jaistha 1399 B.S.to Ashar 1400 B.S. and hence, the title suit was filed for khas possession of the premises described in the schedule of the plaint by ejecting the Defendants and for a decree of arears of rent.

The Defendant No. 1 contested the suit by filing the written statement contending inter alia, that he had received the notice of transfer of tenanted premises to the Plaintiff and tendered the rent for 7(seven) days to the Plaintiff and on his refusal to accept the rent he had deposited the rent to the Court vide Misc. (RD) Case No. 388/92, Misc. (RD) Case No. 387/92, Misc. (RD) Case No. 456/92 and Misc. (RD) Case No. 517/92 and hence, claimed that he is not a defaulter and he is entitled to get the protection u/s 5(4) of the Assam Urban Areas Rent Control Act, 1972 (Rent Control Act to be referred to hereinafter), and he had denied all other averments made in the plaint.

On the pleadings of the parties, the learned trial Court had framed as many as 7(seven) issues which are quoted hereunder, viz:

(1) Is the suit maintainable in its present form?

(2) Is there any cause of action for the suit?

(3) Is the suit bad for estoppel, waiver and acquiescence?

(4) Is the suit bad for non-joinder of parties?

(5) Is the Defendant a defaulter and liable to be evicted from the suit room?

(6) Whether the Defendant is in arrear of rent?

(7) To what relief, if any, the Plaintiff is entitled?

During the course of trial, the Plaintiff has examined himself and exhibited certain documents and the Defendant has examined himself and exhibited certain documents in support of their respective cases.

The learned trial Court, after hearing the parties and after going through the material evidence on record, has decided the Issue No. 1 in favour of the Plaintiff and, while deciding the issues No. 2 and 5, has held that there is a cause of action for the suit and has further held that the Defendant is a defaulter and all other issues answered in the affirmative and decreed the suit.

Being aggrieved with the aforesaid judgment and decree, the Defendant preferred an appeal being Title Appeal No. 6 of 1999 before the learned Civil Judge (Sr. Division), Cachar, Silchar. The learned appellate Court heard the arguments advanced by the parties, both on law and on facts and after re-appreciating the evidence on record, dismissed the appeal, affirming the judgment and decree passed by the learned Court below and hence, the revision petition.

Heard Miss P. Chakraborty and Miss. S. Senapati, learned Counsel appearing on behalf of the Petitioner and opposite parties respectively. The contentions raised in support of the Petitioner/Defendants and the arguments advanced against have been considered.

To appreciate the arguments advanced by the parties, it would be appropriate to quote Section 5(4) of the Assam Urban Areas Rent Control Act, 1972, in order to determine as to whether the Petitioner/Defendant has made out a case for interference against the judgment and decree in exercise of power u/s 115 of the Code of Civil Procedure.

Section 5(4).-Where the landlord refuses 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, and on receiving such deposit the Court shall cause a notice of the receipt of such deposit to be served on the landlord, and the amount of the deposit, may thereafter be withdrawn by the landlord on application made by him to the Court in that behalf. A tenant who has made such deposit shall not be treated as a defaulter under Clause (e) of the proviso to Sub-section (1) of this section.

A bare reading of the provisions of the Rent Control Act, 1972, it would reveal thai it has been enacted by the legislature which is statutory one and mandatory in nature ana any infraction of any provisions of the Act would disentitle the protection available under the Act. The admitted facts relating to the tendering of rent to the landlord and on refusal the Defendant has deposited the rent to the Court vide Misc. Case (R/D) No. 388/92. Ext. 5 is the certified copy of the order passed in the said case Ext. 4 is the petition where by the Defendant/Petitioner sought permission to deposit the rent for the period from 25.1.1399 B.S. to 31.1.1399 B.S. In respect of the suit premises. Aperusal of Ext. 4 and 5 would reveal that the Defendant/Petitioner did not take steps for causing service of notice u/s 5(4) of the Rent Control Act on the plaintifl/opposite party. On Scrutiny of Ext. 5 it transpires that the aforesaid Misc. Case (R/D) No. 388/92 was failed for want of steps by order dated 5.8.1993 and thus in absence of the mandatory provisions being fulfilled the Defendant/Petitioner is not entitled to get the protection u/s 5(4) of the Act and on that count it was held that the Defendant/Petitioner is a defaulter.

The following decisions have been referred by the learned Counsel appearing on behalf of the parties:

(1) AIR 1970 A & N 59 Amar Bahadur Thapa and Anr. v. Abdul Hai and Anr.

(2) S. Sundaram Pillai and Others Vs. `R. Pattabiraman and Others,

(3) (1996) 2 GLT 102 Chittaranjan Ghosh v. Abdul Rahman

(4) (1988) 1 GLJ 277 On the death of Rashik Roy, his heir Smti Renu Roy and Ors. v. Shri Boloram Kalita.

(5) Radio Talkies Equipment Company Vs. Debadas Ghosh and Others,

(6) (1997) 2 GLR 468 : (1997) 2 GLT 590 Abdul Matin Choudhury v. Nilayananda Dutta.

(7) Kuldeep Singh Vs. Ganpat Lal and another,

I have gone through the decisions referred to above. The case reported in AIR 1970 A & N 59 is a decision rendered by Full Bench of this Court and the case relates to Section 6(1)(e)(4) of the Assam Urban Areas Rent Control Act, 1955, wherein it has been held that deposit of rent not conforming to requirement of statutes is irregular, which this Court held is a finding of fact and the finding of fact cannot be gone into a second appeal.

The second case referred to above and reported in S. Sundaram Pillai and Others Vs. `R. Pattabiraman and Others, relates to Tamil Nadu Rent Control Act dealing with wilful default which is not applicable in the instant case.

In the third case reported in (1996) 2 GLT 102 relates to deposit of rent in Court, wherein it was held that if rent is deposited without process fee alongwith the notices, the requirement of Section 5(4) of the Rent Control Act, 1972, cannot be said to be fulfilled. It was held that compliance of statutory provision u/s 5(4) is mandatory, failing which the tenant becomes a defaulter. While dealing with the case reported in (1997) 2 GLT 590, it was held in the said case that rent must be deposited in Court together with process fee for service of notice on landlord and also with written up notice. Following cases viz. (1997) 1 GLR 5, (1982) 2 GLR NOC 8, (1991) 1 GLJ 249 and (1992) 1 GLR 250 has been referred at paragraphs 15 of the judgment.

The case reported in (1988) 1 GLJ 277 is on a different context and is not applicable in the instant case.

In the case reported in Radio Talkies Equipment Company Vs. Debadas Ghosh and Others, it was held that while depositing rent in Court u/s 5(4) of the Assam Urban Areas Rent Control Act, 1972, payment of process fees for service of notice is mandatory, without payment of process fees, the deposit is not valid.

In the case reported in (1997) 2 GLR 468, it was held that deposit of rent (money) in the Court without process fee as required u/s 5(4) of the Act, 1972 is not deposit in the eye of law.

The last case referred and reported in Kuldeep Singh Vs. Ganpat Lal and another, relates to Section 19-A(3)(c) of Rajasthan Premises (Control of Rent and Eviction) Act, wherein the Apex Court held that the tenant depositing the rent in Court without satisfying the condition therein is no deposit according to Clause (e) of Sub-section (3) of Section 19-A and hence is not entitled to protection from eviction.

There is yet another Full Bench decision of this Court reported in AIR 1969 A & N 66 (Kali Kumar Sen v. Makhan Lal Biswas and Anr.) wherein it has been held that the rent on refusal by the landlord, must be deposited within a fortnight of its becoming due and if the same is not paid within the stipulated period in accordance with Sub-section (1) of Section 6, the tenant is a defaulter and once a defaulter is always a defaulter.

From the foregoing discussions made above, this Court hold that the Defendant/Petitioner though deposited the rent in Court was not in conformity with the provisions of Section 5(4) of the Rent Control Act, 1972, which is mandatory under the statute and he is a defaulter and is not entitled to get the protection u/s 5(4) of the Rent Control Act, 1972.

With regard to the second question, as to whether the learned Courts below have exercised a jurisdiction not vested in it by law or have failed to exercise a jurisdiction so vested or to have acted in the exercise of its jurisdiction illegally or with material irregularity in order to exercise power u/s 115 of the Code of Civil Procedure, this Court holds that the power u/s 115 of the Code of CPC is very limited and there is no substantive right in applying for revision and only right associated with the revision is the right of proceeding in the manner prescribed as is true of all procedure. Power ofhearing the revision petition is given to superior Court to satisfy itself that the case has been decided according to law. The right u/s 115 of the Code is confined to jurisdiction and jurisdiction alone. this Court does not find any jurisdictional error committed by the learned Courts below and the revision petition thus stands dismissed with costs.

Before parting with the judgment, this Court noticed that the Plaintiff had purchased the suit premises in the year 1992 and he has been denied the possession of the suit premises for the last more than 12(twelve) years by now. However, considering the nature of possession, the Defendant/Petitioner is allowed to remain in possession for three months from today and thereafter, he will hand over the vacant possession to the Plaintiff along with all arrear rents before expiry of aforesaid three months, failing which, the Plaintiff will be at liberty to proceed further in accordance with law.

Lastly, the Court appreciates both Miss. Papia Chakraborty and Miss. Subarnalekha Senapati, learned Counsel appearing for the parties, for their persuasive arguments made in the case in assisting the Court in arriving at a decision.