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Judgment
J.N. Sarma, J.—This revision has been filed by the Defendant-Appellant. A suit for ejectment was filed on 2 grounds:
(i) Default and bonafide requirement.
At the first the learned Munsiff, decided the question of default against the Plaintiff but came to the findings that the suit house was required bonafide by the Landlord. There was an appeal. The learned Assistant District Judge came to the finding that the finding on bonafide requirement is not a correct finding and accordingly the suit was dismissed. This Court allowed the Revision and remanded the same to consider the matter of defaulter as indicated by this Court. Thereafter the Appellate Court decided that aspect of the matter and came to the findings that the Defendant-Appellant is a defaulter in the payment of rent and having arrived at the finding the learned Appellate Court decreed the suit.
I have heard Shri B.R. Dey, who places reliance on the following decision:
(i) 1996 (2) GLT 456 (Nabajyoti Mahania, Petitioner v. Smti. Prabini Mazumdar, Respondent), wherein paragraph-8 it has been stated as fellows:
But a common thread, that is noticeably running through the wharf and weft rent control laws and legislation through-out the country is the element of ''willfulness'' in committing a default in payment of rent, as can be called out from several judgment of the Supreme court on the point. Whether it is exact and mathematical punctuality in the matter of payment of rent, that is, required of a tenant to avoid the penal consequences flowing from Section 5(c) of the Assam Urban Areas Rent Control Act, 1972? It is essentially a question of interpretion of law and not appreciation of evidence which prompts me to write this order which otherwise, could well have been covered in one word "Admit".
The observation of the learned Single Judge made in the case cited cannot be deemed to be a judgment in the eye of law inasmuch as the observations were made not for the final decision of the case but only for consideration as to whether the revision merits admission or not.
Judgment is defined by Section 2(9) of the CPC is the statement given by the Judge on the ground of a decree or order. Order is defined by Section 2(14) of the CPC as formal expression of any decision of a Civil Court which is not a decree. The following tests should be applied in considering whether a particular order amounts to a judgment or not, mainly:
i) Whether the order in question puts an end to the proceedings so far as the Court dealing with it is concerned in which order was sought to be made.
ii) The order must involve determination of some right or liability affecting the merits.
iii) An adjudication or a decision which is not anything more than steps towards obtaining the final adjudication on the merits of the disputes in the proceeding is not a judgment.
iv) Whether the decision involves an adjudication, the question of limitation or jurisdiction of the Court in certain cases, such decision would amount to judgment (See Nurul Hoda and Others Vs. Amir Hasan and Another,
The word judgment in Article 133 of the Constitution means a final determination of the right or liability in controversy before the court (See State of U.P. v. Bijoy Anand 1962 SC 946 applying these tests also it will be clear that the aforesaid order of admission of the Civil Revision cited at the bar by the learned Counsel for the Petitioner is not a judgment or order which will be binding as a precedent. So, in that view of the matter, the question of following judgment in deciding the case does not arise.
The next case is the question of default as provided in Assam Urban Areas Rent Control Act. The ground of ejectment on the ground of default is Section 5(1)(e) of the aforesaid Act which says that the tenant is liable to be ejected if the tenant has not paid the rent lawfully due from him in respect of the rent within fortnight of its following due. The question of default came up for consideration before the Full Bench of this Court in AIR 1969 Gau 66 (Kalikuma Sen v. Makhan Lal). The Full Bench pointed out that an order or decree for the recovery of possession may be made or executed if the tenant has not paid the rent to the full extent allowable under the Act and perform the condition of the tenancy. It was further pointed out by the Full Bench that the Scheme of the Act is to balance the interest of the Landlord as well as of the tenant for whose benefits mainly, the Act has been passed. Something can not be added which is not there in the statute. There is no burden on landlord to prove that the default made in payment was willful.
The dictionary meaning of word default means neglect, omission, or to do something. Default is purely a relative term which is like negligence. It means nothing more or nothing less than not doing what is reasonable under the circumstances, not doing something which was ought to the done having regards to the relations which one occupies towards other persons interested in the transactions. "Default would seem to embrace other failure by the Defendant to perform his contract unless prevented by superior force for which he has no control, such as stress of weather. It does not unnecessarily imply and obliguily on any breach of contractual obligation. It simply means nonpayment, failure or omission to pay." (See Jalum Singh Kartary v. Secretary, State for India ILR Cal 51 (PC)
There is a gulf of difference between default and willful default. Default simply means not doing something required by duly or law, failure to pay the amount, the word default means one who has failed or neglected to do his duly also failure to pay what is due and his failure to pay.
The legislature in order to protect the interest of tenant made provisions for deposit of rent in the court and if there is any difficulty in making the payment to the landlord he can deposit the rent in the court by explaining the whole circumstances and the question whether a person is defaulter or not that may be decided, determined by the Court when the suit for ejectment is filed by taking into account all the circumstances and the background of the case. So, the question whether the default is willful or not is to be decided by the Court and the burden is squarely on the tenant and not on the landlord because the tenant is seeking protection under that particular clause and it is he who must establish his right to get the protection. That burden cannot be shifted to the landlord.
Therefore I do not want to enter into the correctness of this decision as it is merely observation. This case does not help the Petitioner. The judgment of the learned Single Judge goes against the tenor of the Assam Urban Areas Rent Control Act, 1972 and the case reported in AIR 1969 Gau 66 a full Bench judgment is binding on me.
Next case relied on is 1985 (2) S.C.C.383. But the learned Advocate did not produce the decision before me. Accordingly there is no merit in this case and it is dismissed with costs althroughout.