Harish Ch. Ram Kanai Bhuiya and Others vs Dr. Naresh Ch. Ghose and Another

B.L. Hansaria, J.—The second appeal Sled by the Plaintiffs has been treated as revision in view of the decision of this Court in I.P.A 11/76 which has held that no second appeal lies in these matters.

The approach to this Court by the Plaintiffs is because of the dismissal of their eviction suit which had, however, been decreed by the learned trial Court, The eviction was prayed for on the usual ground of bone fide requirement and their tenant being a defaulter. Though the learned trial Court accepted both these pleas, the learned appellate Court below reversed the finding as to the bona fide requirement, but has upheld the one relating to the Defendants being defaulters. None-the-less, the learned Assistant District Judge has dismissed the suit because in the notice of termination which bad been issued by the landlord mention was made only of bonafide requirement. It has therefore been held that no cause of action survived for the suit as the plea of bono fide requirement has been disbelieved.

it is submitted by Shri Acharyya that as a notice of termination is not even a legal requirement in a case governed by rent control statute as stated in V. Dhanapal Chettiar Vs. Yesodai Ammal, the averments in notice could not have been used to non-suit the Plaintiff. It is also submitted that as for determining a tenancy u/s 111(h) of the Transfer of Property Act no ground is required to be mentioned and a landlord cannot be denied the decree of eviction because a particular ground does not find place in the notice.

The force of the submission cannot be denied, particularly because in a case of the present nature no notice as visualised by Clause (h) of Section 111 of the Transfer of Property Act is required in view of the aforesaid decision of the Supreme Court. The impugned judgment cannot, therefore be sustained on the ground which had appealed to the learned Assistant District Judge. Shri Senapati appearing for Respondents, however, contends that the finding relating to the tenant being a defaulter merits reversal at the hand of this Court. He also contend that benefit of Section 114 of the T.P. Act should be made available to he tenant as the default was only for one month, namely, Palgan 1374 which month had ended on 15.3.68 whereas the rent for the same was deposited by 6.4.68, and as such the delay was only marginal as law permits deposit of rent "within a fortnight of its becoming due".

Let it first be seen whether the Defendants were defaulters or not. On this aspect Sari Senapati seeks to rely on a decision of this Court in Chiranjan Paul v. Sunil Choudhuri 1933 (1) GLR 268 wherein it has been held that rent would become due within the meaning of Section 5(4) of the Assam Urban Areas Rent Control Act on the last day upto which the rout could have been paid as per the agreement between the parties. In the present case, not much is known from either side about the agreement relating to the date of payment of rent. The Plaintiff had merely stated that the rent was to be paid according to the Bengali month. There is no denial about this. The question is by which date the rent for the month was to be paid. The plaint is silent on this aspect. Of course, the written statement also does not throw any light. placed in this predicament, the court as no guiding-star except the reasonableness of the matter, Even if one week''s time is allowed to a tenant to pay rent, after its becoming due, the tenants in the present case would not be a defaulter is they had deposited the rent by 6.4.68 which would be within a fortnight, if a grace of one week is given from 15.3.68, which I am inclined to give following the ratio of Chiranjan Paul. Let it also be said that it was the Appellant who was seeking eviction. It was his burden to inform the Court about the agreement relating to the mode of payment of rent. The default being only fop one month as held by the learned Assistant District Judge, the same being for the month of Falgun 1374, and as the rent for the same had been deposited by 6.4.68. I would hold that the Defendants were not defaulters as the deposit was within a fortnight of its becoming due, if it is assumed, which has to be in the facts and circumstances of the case, that the tenants could have paid rent within a week of its becoming due.

The position which thus emerges is that though the Appellants could not have been non-suited on the ground which had appealed to the learned Assistant District Judge, he cannot also win because the tenants were not defaulters, and because there is a finding of fact that the Plaintiffs could not prove the bona fide requirement. As to the bonafide aspect Shri Acharyya submits that the finding is amenable to interference even sitting in revision as the requirement of Bangshi Badan Traders for use of the site as a Petrol pump has to be treated as the requirement of the Plaintiff firm Harish Ch. Ram Kanai Bhuiya. This, however, did not find acceptance with the learned Courts below because, Bangshi Badan Traders was only one of the partners of the Plaintiffs-firm. The result was that the requirement for the petrol pump get confined to one of the partners of the Plaintiff- firm It is because of this it has been held that this requirement would not be said to be that of all the partners of the Plaintiff firm, which was taken as a separate legal entity and a juristic person, as it has to be I do not, therefore think that this finding of the Court below can be interfered in this proceeding.

As I have agreed with Shri Senapati on his first submission, it is not necessary to express any opinion whether the provision of Section 114 of T.P Act would apply to the case of the present nature. It seems in Phukan Chandra v. Madhab Chandra AIR 1980 Gau 68, my learned brother Lahiri, J. had felt like accepting the same though his Lordship did not express any final opinion on the point. It may nonetheless be stated that Section 114 applies where eviction is sought following forfeiture of the tenancy whereas the present is not a case of forfeiture.

The result is that the impugned judgment and decree are affirmed (by which the suit was dismissed) but for different reasons,

The appeal stands dismissed.