HIGH COURT FORM NO.(J)2

HEADING OF JUDGMENT IN ORIGINAL SUIT

DISTRICT: KAMRUP (M)

IN THE CIVIL COURT OF THE MUNSIFF NO.1 KAMRUP (M), GUWAHATI

Present: Sri Lakhinandan Pegu

Munsiff no.1, Kamrup (M), Guwahati

Wednesday, the 1st day of June, 2016

T.S. No.426/2012

Sri Nipen Nath

……….Plaintiff

Versus

Sri Rakesh Das

….……….Defendants

This suit/case coming on for final hearing on 20/05/2016 in the presence

of—

Sri Rupjyoti Bordoloi -----Learned Advocate for the Plaintiff.

Smti Namitra Konwar:- The learned counsel for the defendant.

And having stood for consideration to this day, the court delivered the following

judgment:-

JUDGMENT

A. NATURE OF THE SUIT:-

1. It is a suit for ejectment and arrear rent.

B. THE BRIEF FACTS OF THE PLAINTIFF’S CASE IN A NUT-SHEL:-

2. The plaintiff is the owner of an Assam Type house measuring approximately

180 sq. feet area consisting two rooms one measuring 10 x 12 ft. and another

measuring 5 x 12 ft. covered by House No.17 of Municipal Ward No.31 situated

at C.K. Road, Panbazar, Guwahati-1. The defendant is a tenant under the

plaintiff in respect of aforesaid house since the year 2001. Initially, rent of the

premises was mutually fixed at Rs.2, 500/- (Rupees Two Thousand Five

Hundred) only per month. However, subsequently same was enhanced and since

1st October, 2004 the rent of the premises was enhanced and fixed at Rs.2,750/-

(Rupees Two Thousand Seven Hundred Fifty) only per month. Moreover, as per

agreed terms of the agreement rent was payable within 1st week of every English

calendar month. As per terms of the agreement, defendant has paid monthly

rent of the tenanted premises to the plaintiff up to the month of August, 2009.

But, since the month of September, 2009 defendant has failed to pay the

monthly rent to the plaintiff in spite of repeated request/demand made by the

plaintiff from time to time. The tenanted premise presently occupied by the

defendant is required by the family members of the plaintiff for starting their

own business. The sister of the plaintiff wants to start her own business of

cosmetic and gift items. The present Assam Type house being situated at C.K.

Road of Pan Bazar, it is ideal for starting such business by the sister of the

plaintiff. Therefore, defendant is required to vacate the tenanted premises in

favour of the plaintiff as family members of the plaintiff required the same in

bonafide.

C. THE PLAINTIFF’S PRAYER:-

a) Ejectment of the defendant his men, agent etc. from the premises mentioned

in the schedule of the plaint.

b) For realization of Rs.99,000/- being arrear house rent from the defendant for

the period from September,2009 to August,2012.

c) For further rent at the rate of Rs.2, 750/- (Rupees Two Thousand Seven

Hundred Fifty) only per month from the month of September, 2012 till the

defendant is ejected from the suit premises.

d) Cost of the suit.

e) Any other relief/relief(s) as prayed for.

3. Summons has been issued against the defendant for his appearance before

the court. The defendant has appeared before the court after the receipt of

summons and contested the suit by filing written statement.

D. THE CASE OF THE DEFENDANT IN A NUT-SHEL:-

4. The defendant’s version is that he is not a tenant under the plaintiff and there

was no tenancy agreement executed between the plaintiff and the defendant in

respect of any premises for which the plaintiff did not make any statement as

regard to the suit premises by way of schedule in his plaint. The plaintiff has filed

a petition before the learned Deputy Commissioner, Kamrup (M), Guwahati

under section 107/144 Code of Criminal Procedure, 1973 which is still pending.

5. On the basis of the pleadings of both the parties, initially this court framed 6

(six) issues, but subsequently on the basis of an application filed by the plaintiff

this court for proper adjudication of the case has framed another 3 (three)

additional issues. Those are as follows:-

E. ISSUES

1) Whether the suit is maintainable in the present form and

manner?

2) Whether the suit is barred by the law of limitation?

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

4) Whether the plaintiff is entitled to recovery of Rs.99,000/-

from the defendant along with further rent?

5) Whether the plaintiff is entitled for any other relief as

prayed for?

6) Whether the plaintiff is entitled to get khas possession of

the suit premises?

F. ADDITIONAL ISSUES

7) Whether the suit premise is required bonafide by the plaintiff?

8) Whether the defendant is defaulter in payment of rent?

9) Whether the defendant is tenant under the plaintiff?

G. DISCUSSION, DECISION AND REASONS THEREOF:-

6. Plaintiff has filed the evidence-on-affidavit of 3 (Three) witnesses. They are as

follows:-

P.W.1- Sri Nipen Nath

P.W.2- Smti Lakshmi Devi

P.W.3- Sri Pradeep Dutta

7. Plaintiff has exhibited certain documents. These are as follows:-

Exhibit-1- Certified copy of the sale-deed no.4519/1997

Exhibit-2- The copy of jamabandi of Mouza-Ulubari Sahar, Guwahati 4 th part

patta no.315.

Exhibit-3- The copy of Revenue paying receipts.

Exhibit-4(1) and Exhibit-4(2)- The Bill cum Notice of Demand by GMC.

Exhibit-5(1) and Exhibit-5(2)- The GMC tax paying receipt.

Exhibit-6- The copy of Tenancy Agreement dated 05/10/2004.

Exhibit-7- The counter-folio of the rent paying receipt for the month of August,

2009 dated 07/08/2009.

8. Defendant has adduced as many as 2 (Two) witnesses. Defendant has

examined himself as D.W.1 and another witness, namely,Sri Bibhas Chakraborty

as D.W.2.

9. The defendant has exhibited certain documents which are as follows:-

Exhibit-I (I) to Exhibit-I (5)- Money receipts against the house-rent issued by the

plaintiff.

Exhibit-II- The money received in respect of the house-rent for the period of 7

(Seven) months issued by P.W.2.

Exhibit-III (1) to Exhibit-III (31)- The copies of treasury challan from the month

of December,2011 to April,2015

Decision on issue no.1:- Whether the suit is maintainable in the present

form and manner?

10. The issue has been framed on the basis of averment made in the written

statement. But, there is no specific plea as to why the suit is not maintainable.

As per section 9 of the Code of Civil Procedure,1908, court can try all suits of a

civil nature, excepting suits of which their cognizance is either expressly or

impliedly barred. The suit is based on landlord-tenant relationship and the instant

suit has been instituted against the defendant/tenant as per provision of section

5 of the Assam Urban Areas Rent Control Act,1972 on the ground of defaulter

and banafide requirement. It is suit of a civil nature and there is no express or

implied bar under any provision of law regarding non-maintainability of the suit.

Under section 2 (a) of the Assam Urban Areas Rent Control Act,1972 “Court”

means the court of ordinary civil jurisdiction in the area in which a house is

situated which would be competent to pass a decree for eviction of a tenant

from that house. Therefore, as per provision of the said Act, the present suit

instituted by the plaintiff before this court being the competent court is

maintainable in law. The Hon’ble Gauhati High Court in a judgment, Dr.

Dwijendra Mohan Lahiri –Vs- Rajendra Nath, reported in AIR 1971 Assam and

Nagaland 143 has held that unless there is a specific averment that the suit is

not maintainable either facts or in law , the court should refrain from framing

such issues as such plea is vague and in the present suit also the Defendant has

failed to express how the suit is not maintainable, therefore no issue is at all

required to decide regarding maintainability of the suit.

11. Hence, the issue is decided in affirmative and in favour of the plaintiff.

Decision:-The suit is maintainable in the present form and manner.

Decision on issue no.2:- Whether the suit is barred by the law of

limitation?

12. The present suit is instituted by the plaintiff for ejectment and arrear rent

under Assam Urban Areas Rent Control Act, 1972 on the grounds of defaulter

and bonafide requirement. The present suit is instituted by the plaintiff in the

year 2012, and according to the plaintiff, the tenancy of the defendant is

determined from September,2009 when the defendant was default in payment of

rent. The Article 67 of the Limitation Act, 1963 provides 12 years limitation from

the date when the tenancy is determined. Apart from it, the plaintiff has claimed

arrear rent from the defendant from the month of September, 2009 till August,

2012 as the defendant has defaulted in payment of rent from the month of

September,2009. However, the present suit is instituted by the plaintiff on

13/09/2012 before this court i.e. within three years from the date of payable of

rent for the month of September, 2009 which is covered under Article 113 of the

Limitation Act, 1963. On the other hand, the other ground of the plaintiff

regarding bona fide requirement of the suit premises was arose at the time of

filing the suit only i.e. in the year 2012 itself.

13. Hence, the issue is decided in negative and in favour of the plaintiff.

Decision: -The suit is not barred by the law of limitation.

Decision on issue no.3:- Whether there is any cause for the suit?

14. The term “cause of action” denotes nothing but a right to sue. Simply

speaking, it means whether the plaint discloses the existence of any right and

any infringement thereof so as to enable the plaintiff to bring a suit for

adjudication of his right. In other words, cause of action is a bundle of facts

which a party has to prove to get judgment in his favour. The plaintiff in his

plaint has pleaded that he is the owner of the scheduled tenanted premise and

he let out the same to the defendant. It is further pleaded that the defendant is

defaulter in payment of rent and he requires the tenanted premise bonafide. On

the other hand, the defendant in his pleading as well as evidence-on-affidavit

has admitted the relation of landlord and tenant; but he has denied that he is

defaulter in payment of rent as well as the bonafide requirement of the tenanted

premise by the plaintiff. It, thus, appears that the plaintiff pleaded a bundle of

facts which are opposed by the defendants. The plaintiff has to prove all those

facts to secure a judgment in her favour. So, there is a cause of action for the

suit.

15. The issue is decided in affirmative and in favour of the plaintiff.

Decision: - There is a cause of action for the suit.

Decision on issue no.8:-Whether the defendant is defaulter in payment

of rent?

Decision on issue no.4:- Whether the plaintiff is entitled to realize an

amount of Rs.99, 000/- (Rupees Ninety Nine Thousand) only from the

defendant as arrear rent along with further rent?

16. For the purpose of convenience and as both the issues are interlinked to

each other, both the issues are decided together. The present suit is instituted

by the plaintiff for a decree of recovery of arrear rent of Rs.99,000/- from

September,2009 to August,2012 and further rent till ejectment of the defendant

from the suit premises along with other relief(s). The plaintiff in his plaint has

specifically pleaded that as per the terms of the agreement, defendant has paid

monthly rent of the tenanted premise up to the month of august,2009. But, since

the month of September,2009 defendant has failed to pay the monthly rent to

the plaintiff in spite of repeated request/demand made by the plaintiff from time

to time. In support to the said pleadings, the plaintiff has adduced his evidence

as PW-1. To prove his pleadings, the plaintiff has exhibited Tenancy Agreement

dated 05/10/2004 as Exhibit-6 and the counter-Folio of last rent paying receipt

as Exhibit-7 along with other documents. The defendant who adduced his

evidence as DW-1 has admitted the Tenancy Agreement i.e. Exhibit-6. Apart

from it, the plaintiff in his evidence has stated that as per terms of the

agreement defendant has paid monthly rent of the tenanted premises up to the

month of August,2009. But, since, the month of September,2009 the defendant

has failed to pay the monthly rent to the plaintiff in spite of repeated

request/demand mad by the plaintiff from time to time. On the other hand,

against the pleadings of the plaintiff regarding defaulter as well as other

allegations made in the Plaint, the defendant in his written statement in

paragraph 5 has made evasive denial by simply stating that “5. That, the

statement made in para 2,3,4,5 & 6 of the plaint are all false, incorrect

and misleading statements made by the plaintiff, hence all are denied

by the answering defendant.” Hence, it appears that the defendant in his

written statement has not specifically denied the allegations regarding his

defaulter in payment of rent as required under Order VIII Rule 3 & 5 of the Code

of Civil Procedure,1908.

17. Order VIII Rule 3 of the Code of Civil Procedure,1908 reads as follows:-

“Denial to be specific- It shall not be sufficient for a defendant in

his written statement to deny generally the grounds alleged by the

plaintiff, but the defendant must deal specifically with each allegation

of fact of which he does admit the truth, except damages.”

18. Order VIII Rule 5 of the Code of Civil Procedure,1908 which reads as

follows:-

(1) Every allegation of fact in the plaint, if not denied specifically or

by necessary implication, or stated to be not admitted in the pleadings

of the defendant shall be taken to be admitted except as against a

person under disability.

Provided that the court may in its discretion require any fact so

admitted to be provided otherwise than by such admission.

19. Therefore, within the meaning of Order VIII Rule 3 & 5 of the Code of Civil

Procedure,1908, the reply of the defendant made in written statement can be

regarded as evasive denial, which amounts to admission in the eye of law.

20. However, although the defendant in his written statement has denied the

landlord-tenant relationship with the plaintiff, but in his evidence-on-affidavit,

the defendant has admitted the tenancy with the plaintiff by denying the

defaulter and bonafide requirement as alleged by the plaintiff in his plaint. Apart

from it, defendant has not filed any documents with his written statement, but

at the evidence stage, the defendant without seeking leave from this court has

exhibited 57 nos. of rent paying receipts as Exhibit Nos. I (1) to I (57), a Money

Receipt as Exhibit No.II and 39 Nos. of Treasury Challans as Exhibit No.III(1) to

III (39) with his evidence-on-affidavit (DW-1). All the statements made by the

defendant in his evidence-on-affidavit and the documents exhibited with his

evidence is apparently beyond his pleadings/written statement. Therefore, those

statements made in evidence (DW-1) and the exhibits filed therewith cannot be

considered as their defence.

21. However, although the defendant in the present suit has tried to adduce

evidence beyond his pleadings by exhibiting the aforesaid documents, but from

the documents specially the challans exhibited by the defendant itself reveals

that the defendant is defaulter in payment of rent. The defendant in his

evidence has stated that he paid rent up to the month of September,2010 to

the plaintiff, there after paid Rs.20,000/- to the sister of the plaintiff being rent

for 7 (Seven) months and thereafter due to refusal of the plaintiff to accept the

rent, the defendant has deposited the rent before the court from

December,2011. Therefore, on his own statements also defendant is a defaulter

as there is no payment since May,2011 to November,2011. Moreover, there is

no pleading made by the defendant regarding payment of any rent to Smti Tiliki

Devi. In support of the statements regarding payment of rent, defendant has

failed to exhibit N.J. cases before the court. The defendant has also failed to

prove offering of rent. In his evidence, defendant has specifically admitted that

he went to the house of the plaintiff in the year 2011 or 2012 for 3 to 4 times to

offer rent; but thereafter he did not offer rent to the plaintiff. Thereafter, he is

depositing the rent in the court. Moreover, the defendants has also admitted

that in the month of December,2011 for the last time he went to the house of

the plaintiff to offer rent; but subsequent to this he did not offer rent to the

plaintiff. Therefore, it is apparent that the defendant had not paid within time as

required under the provision of law. As per section 5 (4) of the Assam urban

Areas Rent Control Act,1972, the tenant can deposit the rent in the court. But,

before depositing the rent in the court, the tenant has to offer rent to the

landlord. On refusal by the landlord to accept rent, the tenant may, within a

forthnight 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. The

Hon’ble Gauhati High Court in a judgment, Parul Bala Debnath and others –Vs-

Umatara Roy, reported in 2005 (1) GLT 532 has held that deposit of rent in

court is permissible only on refusal of the landlord to accept the same. It is also

held in the said judgment that before depositing the rent in the court, the

tenant shall have to follow the mandatory requirements enshrined in section

5(4) of the Assam Urban Areas Rent Control Act,1972. Deposit of rent in the

court in breach of these requirements will not save the tenant from being a

defaulter. In another judgment, the Hon’ble Gauhati High Court ( Himangshu

Paul Vs. On the death of Pabitra Mohan Das His Legal heirs promita Das and

another; reported in 2007 Legal Eagle (Gau) 218 has held that it was the duty

of the defendant to prove to the satisfaction of the court that he had either paid

the rent to the landlord, when the rent had become due, or that he had

deposited the rent, on the landlord’s refusal to receive the rent, in the court.

But, in the instant case in hand, the defendant has failed to prove that he has

offered rent to the plaintiff and on refusal of the plaintiff to accept rent, he has

deposited the rent in the court. As per section 5(4) of the Assam Urban Areas

rent Control Act, 1972, specific date of offering rent to the plaintiff is to be

mentioned in the pleading as well as evidence of the defendant. The defendant,

nowhere, mentioned in his examination-in-chief, on what date he went to offer

rent. In the absence of specific plea as to on which date the defendant has

offered rent to the plaintiff, he cannot deposit rent in the court. Therefore, the

defendant has failed to prove the offer of rent to the plaintiff. Furthermore, the

defendant has not exhibited the N.J. Case-records before the court. The burden

to prove the deposit of rent in the court lies on the defendant. Mere plea of

depositing the rent is not enough. Therefore, it is proved that the defendant is

defaulter in payment of rent for the period of September, 2009 to August, 2012.

22. Both, the issues are decided in affirmative and in favour of the plaintiff.

Decision on issue no.4:- The plaintiff is entitled to realize an amount of

Rs.99,000/- (Rupees Ninety Nine Thousand) only from the defendant along with

further rent.

Decision on issue no.8:- The defendant is defaulter in payment of rent.

Decision on issue no.6:- Whether the plaintiff is entitled to get khas

possession of the suit premises?

Decision on issue no.7:- whether the suit premise is required bonafide

to the plaintiff?

23. Both the issues are decided together for the purpose of convenience and

as both the issues are interlinked to each other. In the present suit, the plaintiff

has also sought ejectment of the defendant on the ground of bonafide

requirement of the suit premises by the plaintiff and his family members. It is

pleaded by the plaintiff that the tenanted premise occupied by the defendant is

required by the family members of the plaintiff for starting their own business.

The sister of the plaintiff wants to start her own business of cosmetic and gift

items. The present Assam Type house being situated at C.K. Road of Pan Bazar

and it is also ideal for starting such business by the sister of the plaintiff.

Therefore, defendant is required to vacate the tenanted premises in favour of

the plaintiff as family members of the plaintiff require the same in bonafide. On

the other hand, the defendant in paragraph 5 of the written statement has

made evasive denial against the pleadings of the plaintiff regarding bonafide

requirement. In support to the claim of bonafide requirement, the plaintiff has

adduced his evidence as well as evidence of his sister, Lakshmi Devi. All the

PWs have deposed the same facts in their respective evidence-on-affidavits.

Hence, the plaintiff has proved that the tenanted premise required bonafide by

him for the purpose of his family business. So far bonafide requirement is

concerned landlord/plaintiff is the best judge of which room or house is required

by him for his personal use and tenant cannot question the business ability or

other qualification of the landlord. In view of it, the defendant is required to be

evicted from the tenanted premise on the ground of bonafide requirement of

the suit premise by the plaintiff.

Decision on issue no.6:- The plaintiff is entitled to get khas possession of

the suit premise.

Decision on issue no.7:-The suit premise is required bonafide by the

plaintiff.

Decision on issue no.9:- whether the defendant is tenant under the

plaintiff?

24. In the present suit, although the defendant has denied the relationship of

tenant and landlord along with entire pleadings of the plaintiff evasively in his

written statement, but in evidence-on-affidavit, the defendant has admitted the

relation of landlord and tenant by denying his defaulter in payment of rent as

well as bonafide requirement of the suit premise of the plaintiff. As per section

58 of the Indian

Evidence Act, the admitted facts need not be proved.

25. The issue is decided in affirmative and in favour of the plaintiff.

Decision:-The defendant is tenant under the plaintiff.

Decision on issue no.5:- Whether the plaintiff is entitled to relief(s) as

prayed for?

26. The present suit is instituted by the plaintiff on the ground of defaulter and

bonafide requirement of the suit house. The plaintiff has succeeded to prove

that the defendant is defaulter in payment of rent since September, 2009 and

on the other hand the defendant has failed to discharge his burden to prove

that he is not a defaulter. The plaintiff is entitled to ejectment of the defendant

on the count of non-payment of rent. Furthermore, the plaintiff has proved that

the tenanted premise is required bonafide by him for the purpose of family

business. In view of it, plaintiff is entitled to recovery of possession as well as

arrear rent etc. from the defendant and the defendant is liable to be evicted

from the tenanted premise.

27. Hence, the issue is decided in affirmative and in favour of the plaintiff.

Decision:- The plaintiff is entitled to relief(s) as prayed for.

H.ORDER

28. The suit is decreed on contest with cost. The plaintiff is entitled to a decree

as prayed by him. The plaintiff is entitled to following reliefs:-

a) Ejectment of the defendant, his men agent etc. from the tenanted premise

mentioned in the schedule of the plaint.

b) For realization of Rs. 99,000/- being arrear house rent from the defendant for

the period of September, 2009 to August, 2012.

c) For further rent at the rate of Rs.2, 750/- per month from the month of

September,2012 till the defendant is ejected from the schedule premise.

d) If the rent is deposited in the court the plaintiff may collect the same, but that

does not mean that the deposits are in accordance with law, and it will not

amount to waiver.

29. Prepare decree accordingly.

30. Given under my hand and seal on this day of 1 st day of June, 2016 at

Guwahati.

Sri Lakhinandan Pegu

Munsiff No.1, Kamrup (M), Guwahati

Appendix

Plaintiff’s Witness:

P.W.1:- Sri Nipen Nath

P.W.2:- Smti Lakshmi Devi

P.W.3:-Sri Pradeep Dutta

Defendant’s Witness:

D.W.1:- Sri Rakesh Das

D.W.2:- Sri Bibhas Chakraborty

Plaintiffs Exhibits:

Exhibit-1- Certified copy of the sale-deed no.4519/1997

Exhibit-2- The copy of jamabandi of Mouza-Ulubari Sahar, Guwahati 4th part

patta no.315.

Exhibit-3- The copy of Revenue paying receipts.

Exhibit-4(1) and Exhibit-4(2)- The Bill cum Notice of Demand by GMC.

Exhibit-5(1) and Exhibit-5(2)- The GMC tax paying receipt.

Exhibit-6- The copy of Tenancy Agreement dated 05/10/2004.

Exhibit-7- The counter-folio of the rent paying receipt for the month of August,

2009 dated 07/08/2009.

Defendants’ Exhibits:

Exhibit-I (I) to Exhibit-I (5)- Money receipts against the house-rent issued

by the plaintiff.

Exhibit-II- The money received in respect of the house-rent for the period of 7

(Seven) months issued by P.W.2.

Exhibit-III (1) to Exhibit-III (31) - The copies of treasury challan from the

month of December,2011 to April,2015.

Sri Lakhinandan Pegu

Munsiff No.1

Kamrup (M), Guwahati