Shri Chiraranjan Paul and Others vs Shri Sunil Kumar Choudhury

B.L. Hansaria, J.—A question which very often arises in an eviction suit but has remained undecided as far in a clinching way has fallen (sic) the determination in this case. The question is as to when rent (sic)an be said to have become due'' or ''fallen due''. The importance of the question lies in the fact that if a tenant pays the rent within a fortnight of its becoming due he cannot be regarded as a defaulter, with the result that his case would not be covered by proviso (e) to Section 5(1) of the Assam Urban Areas Rent Control Act, 1972, for short, the Act. There being no direct (sic)sion of this Court on this point, the importance has become (sic) added significance.

To appreciate this aspect it may be stated that the suit (sic) which this revision is concerned was filed only on the ground (sic) the opposite party was a defaulter in respect of the rent (sic) the month of November, 1978. The Plaintiffs'' case was that (sic) Defendant was a monthly tenant and he was required to(sic) rent within the 1st part of the subsequent month. As against (sic) the Defendant averred that the arrangement was that two (sic) months rent was to be paid at a time within the next month. (sic) was then contended that the rent for the months of September (sic) October, 1978 had been paid at a time on 11.11.78; and (sic)t the rent for November and December, 1978 became due in (sic) month of January, 1979, and on the refusal of the Plaintiffs, (sic) receive rent the same was deposited in the Court on 6.2.79.

There is a finding of fact by the Court below that the (sic)landlords used to receive rent at a time after 2 to 5 months (sic)they used to grant receipts for the months for which the (sic) rent was paid. On the basis this finding it was concluded by (sic) learned Asst. District Judge that the agreement between the parties was to pay rent according to the convenience of the tenants and that the landlord would accept the rent if and when paid by the Defendant. Being of this view it was held that Defendant was not in default in having deposited rent of November, 1978 in Court on 6.2.79. The Plaintiffs'' have assailed this view of the matter in this revision application.

Shri B. Sarma for the Petitioners contends that on the face of averment of the opposite party in his written statement that rent for two months was to be paid within the next month, the finding arrived at by the Court below that rent could be paid almost at any time as per the convenience of the opposite party is absolutely unwarranted, and the same has to be set aside even in this proceeding. It is urged that this is a case of total departure from the pleading and as such the finding can be said to be not only perverse but one which the Court had no jurisdiction to arrive at.

There seems to be some force in this contention. Shri J.N. Sarma for the opposite party has not placed his case as high as held by the Court below. According to him, the opposite party was not a defaulter even on the case pleaded in the written statement. It was therefore to be examined whether on the base(sic) of the case put-up in written statement which was accepted, (sic)it be held that the Defendant was a defaulter for the month of November, 1978 because of the deposit of the rent on 6.2.79.

This question can be answered only by finding as (sic) when the rent for November 1978 had become due in this case. According to Shri B. Sarma even if rent of November, 1978 was to be paid alongwith that of December, 1978, the rent of both the months became due on the expiry of 31st day of December, 1978 and as such the deposit on 6.2.79 cannot assist the Defendant as it was beyond a fortnight of the rent becoming due. As against this Shri J.N. Sarma contends that the sin of defaul(sic)tership can be fastened on the Defendant only on his failure (sic) deposit within a fortnight from the date upto which he could have paid rent as per the agreement. As in this case the agreement was that rent for the months of November and December 1978 could be paid within January, 1979, the contention is that the fortnight visualised by Section 5(4) of the Act must be (sic) counted from 31st January 1979.

Both the sides have only, referred to support their contentions to the Full Bench decision of this Court in Kalikumar v. Makhnalal AIR 1969 Gau 66. That decision(sic) however, had not dealt with the point with which we are seized. (sic)course, this much is apparent from that decision that this (sic)pect has to be determined with reference to the contract which (sic) parties might have entered relating to the mode of payment. It is not disputed by Shri B. Sarma that rent of a tenancy (sic)uld become due as per the contract between the parties. Reference has been made by Shri J.N. Sarma in this context to Bajranglal v. Meghraj (S.A. 110/58 disposed of on 12.5.69) and (sic) Kulchand v. Bireswar (S.A. 110/69 disposed, of on 11.6.73) wherein the arrangement between the parties had been taken note (sic) in deciding the question of default.

According to Shri B. Sarma even if the agreement were that the rent for the month of November, 1978 along with it at (sic) of December, could be paid by the end of January, 1979, the (sic) had really became due by the end of December, and (sic)-deposit of the same within a fortnight of 31st December, 1978 made the tenant a defaulter. It is difficult to accept this (sic) contention in as much as such a view would make the provisions of the Act, which are meant to safeguard the interest of (sic)ants, rather harsh and really unreasonable. This would be so (sic)use though as per agreement in this case the Defendant could (sic) be paid rent by 31st January, 1979 without inviting any wrath, (sic) shall have to be, labelled as defaulter within the purview of (sic)Section 5(4) of the Act if he would have failed to deposit (sic) rent by 15th January, 1979, and the provisions of the Act (sic) from providing any benefit to the tenant would hit him hard (sic) as per the agreement between the parties the tenant (sic)d have been on the safe-side even if he would have paid (sic) rent by 31st January, 1979. Such an interpretation of bene(sic) provisions would be unreasonable and the Act having con(sic)d some right on a tenant has to be interpreted to have (sic)lied him with some extra benefit which would not have been (sic)able to him otherwise. The period of fortnight has to be (sic)thing additional to one which under the contract or arrangement (sic) is a tenant is entitled to.

This thinking finds support from what was stated by Pathak, (sic)as he then was) in Kalikumar (supra). In that case the rent was payable by the 7th of the following month. But as the rent of Vaisakha was deposited in Ashar, it was observed by the Lordship that as the deposit was not within a fortnight (sic) Jaistha, the tenant was not entitles to the benefit under the Act. I most respectfully agree with this view. Any other view would leave the tenant absolutely at the mercy of the landlord. The present case brings out this aspect most eloquently as the agreement permitted the tenant to pay the rent of the month in question upto 31st January, 1979. He could have therefore approached the landlords, say even on 25th January, 1979 not knowing that the rent would be refused by any ulterior motive. How could then it be held that the tenant must have deposited the rent by the 15th January, 1979 to avoid becoming a defaulter and to get the benefit of a beneficial legislation in such a view would be absolutely against the entire theme and object of the Act.

Because of the above, I would hold that a rent would become due within the meaning of Section 5(4) of the Act on the last day upto which rent could have been paid as per the agreement between the parties. This would give sufficient time as the tenant to deposit rent in Court to avoid himself becoming a defaulter. This would also take care of the hazard to which a tenant might be put due to last minute refusal by the landlord. As a tenant has to pay rent within the period agreed upon he must tender the same accordingly, and refusal even by the last day would give sufficient time (15 days) to the tenant to make deposit in the Court.

In the above view of the matter, it is held that the opposite party in this case was not a defaulter and as such the decree for eviction granted by the learned Munsiff was rightly set aside by the learned Asstt. District Judge. The result that this petition stands dismissed.