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Judgment
B.P. Katakey, J.—The Opposite parties-Plaintiffs instituted Title Suit No. 97 of 1993 in the Court of the Assistant District Judge No. 1, Silchar against the present revision Petitioners as Defendants for a decree for eviction from the suit house on the ground of defaulter and also for a decree for arrear rents. The case of the Plaintiffs/opposite parties is that the present Petitioners/Defendants took the suit house on rent as tenant initially for a period of 5 years on 10.4.82 at a monthly rent of Rs. 400/- and thereafter again took 3 rooms on lease together with one katcha room on monthly rent of Rs. 900/- p.m. for a period of 5 years on 1.6.87. Further case of the opposite parties is that a fresh lease agreement was executed between the Plaintiffs and the Defendants in respect of the house with effect from 1.6.92 at a monthly rent of Rs. 1,500/-. As the Defendants have failed to pay the monthly rent for the period from 1.6.96, they became defaulter and therefore liable to be evicted.
The Revision Petitioners/Defendants contested the claim of the Plaintiffs/Opposite parties by filing the written statement stating interalia that the suit is barred under the provisions of the Assam Urban Areas Rent Control Act and the rules framed thereunder and other laws such as Transfer of Property Act, Code of Civil Procedure. Regarding the allegation of defaulter in making the payment of monthly rent it has been specifically pleaded in the written statement that the monthly rent was Rs. 900/- and as the Plaintiffs refused to accept the rent for the month of June, 1992, Defendant No. 1 has deposited the rent in the Court for the month of June, 1992 in Misc. (R.C.) case No. 71/92 as provided under Assam Urban Areas Rent Control Act, 1972. The Defendants in the written statement has admitted the Plaintiff to be the landlord in respect of the suit houses and pleaded that the rent was never enhanced to Rs. 1,500/- p.m. Further case of the Defendants is that in view of landlord''s refusal to accept the rent they continued to deposit the rent in the Court under the provisions of the Assam Urban Areas Rent Control Act, 1972 (hereinafter referred to as 1972 Act).
The Plaintiffs in support of their case have examined 2 witnesses and exhibited 4 documents. The Defendants Revision Petitioners did not examine any witness in support of their pleadings in the written statement.
Learned trial Court on the basis of the pleadings, framed the following issues:
Is there any cause of action for this suit?
Is the suit barred by law of limitation?
Whether there is any relationship of tenant and Landlord between the Plaintiffs and Defendants?
Whether the Defendants are defaulters?
As the rent is fixed by the Plaintiffs at Rs. 1,500/- per month with effect from June, 1992?
To what relief or reliefs the Plaintiff is entitled to?
The trial Court upon consideration of the evidences on record dismissed the suit filed by the opposite parties on the ground that notice as required u/s 106 Transfer of Property Act for the purpose of eviction of a tenant either under the provisions of Assam Non-Agricultural Urban Areas Tenancy Act or the Assam Temporary Settled Areas Tenancy Act, has not been issued, by holding that the suit house is not within the Silchar Municipality area i.e. urban areas so as to attract the provisions of 1972 Act.
Being aggrieved the Defendants preferred Title Appeal No. 5 of 2000 before the learned District Judge, Cachar at Silchar who vide judgment dated 10.9.02 and decree dated 11.2.02 decreed the suit of the Defendants by holding that the suit house is within the Silchar Municipality area and the Revision Petitioners/Defendants defaulted in making payment of the monthly rent payable to the Plaintiffs, therefore are not entitled to protection u/s 5(4) of the 1972 Act. The learned appellate Court has also recorded the specific findings that the Defendants/Revision Petitioners in the written statement having claimed protection under Provisions of the 1972 Act, can not turn around and say that the houses in question do not fall within the Urban areas. Learned appellate Court has allowed the appeal filed by the Plaintiffs Opposite parties and decreed the suit as stated above. Hence, the Defendants have filed the present revision before this Court for setting aside the said judgment and decree passed by the learned lower appellate Court.
I have heard Ms. P. Chakravarty, learned Counsel for the Revision Petitioners. None appears for the Opposite parties.
Ms. Chakravarty, learned Counsel for the revision Petitioners submits that the lower appellate Court has acted illegally and with material irregularity in recording the findings that the houses in question are within the Urban Areas thereby comes under the provisions of 1972 Act. According to the revision Petitioners the burden lies on the Plaintiffs/Opposite parties to prove that the houses in question are within the Urban areas which according to Ms. Chakravarty, the Plaintiffs/Opposite parties have failed to discharge, therefore, the learned lower appellate Court ought to have affirmed the judgment and decree passed by the learned trial Court and dismissed the appeal filed by the Opposite parties. Ms. Chakravarty, learned Counsel has further submitted that the Revision Petitioners/Defendants are not defaulter as they have deposited the rent in the Court, the landlord on being refused to accept the same and therefore they are entitled to get the protection as allowed under the law.
I have perused the judgment and decree passed by the learned Court below as well as the record of title suit No. 97 of 1993 as well as the title appeal No. 5 of 2000. It is evident from the statement in the plaint that the Plaintiffs have claimed that the houses in question are within the Urban areas. The Defendants Revision Petitioners are tenant in respect of the suit houses and they have failed to pay the monthly rent payable to the landlord with effect from 1.6.92. Plaintiff Opposite parties in support of their claim has exhibited the lease deed dated 1.6.1987, entered into between the Plaintiff No. 2 and the Defendant No. 1. It is found from the said lease that the rent was fixed at Rs. 900/- p.m. and that the tenancy was a monthly tenancy. The monthly rent is payable on the 1st day of the next month of the English Calendar month.
The Defendants/revision Petitioners in the written statement have pleaded that the houses are not within the urban areas and as such provisions of 1972 Act is not applicable and that they are not defaulters for the reason that they have deposited the rent in the Court on being refused to accept the same by the landlord. The revision Petitioners did not adduce any evidence to substantiate the plea taken by them in the written statement. On the other hand, the Plaintiff by adducing oral as well as documentary evidence has discharged the burden that the houses in question are within the urban areas that the Defendants Revision Petitioners are tenant under the Plaintiff/Opposite parties and they are defaulter as they have failed to pay rent with effect from 1.6.92 to February, 1993. The Opposite parties have proved the fact that the houses in question are within the urban areas by producing the Municipal records. Moreover, the Revision Petitioners having claimed protection under 1972 Act, they are estopped from raising the plea that the houses are not within the urban area, so as to attract the provisions of 1972 Act. That being the position, it is a settled law that no notice u/s 106 of the Transfer of Property Act is required before filing the suit for eviction under the 1972 Act.
The Defendants on the other hand in the written statement claimed protection u/s 5(4) of 1972 Act claiming that they are not defaulter since they have deposited the rent in the Court in time on being refused to accept the same by the landlord. The Defendants having taken the plea, are estopped from saying that the houses in question are not within Urban Areas.
Section 5 of the 1972 Act gives certain protection to the tenant on fulfilment of conditions contained therein. Section 5(4) gives protection to the tenant, if they deposit the rent in Court payable to the landlord within a fortnight of its becoming due, on being refused by the landlord to accept the same. The burden lies on the tenant to prove that the rent was offered, the landlord has refused to accept the rent and on such refusal he has deposited the rent in Court by depositing all the requisite including the process fee and written up notices. Unless the said burden is discharged by the tenant the said protection is not available to the tenant under the 1972 Act.
In the instant case, the Revision Petitioners who are tenants, have miserably failed to discharge the burden to prove that they are not defaulter and they have deposited the rent in time in Court on being refused by the landlord to accept the same. The Defendants in fact did not adduce any evidence, oral or documentary, to substantiate their plea in the written statement that they were not defaulters. They also neither produce the necessary challan showing the deposit of rent in Court in time nor called for the records of the proceeding from the Court showing deposit of rent in Court.
In view of the discussion made above, I do not find any merit in the Revision petition and hence the revision petition is dismissed.
Considering the fact that the Revision Petitioners are doing business in the said houses, since 1972, I consider it fit and proper to allow the Revision Petitioners/Defendants 10(ten) months time to vacate the suit houses. The Revision Petitioners shall vacate the suit houses after expiry of 10 months from today. Considering the facts and circumstances of the case, I do not make any order as to costs.
Send downs the record to the Court below.