United Commercial Bank and Others vs Rekhab Chand Sohanlal

S. Haque, J.—This appeal directed against the judgment and decree dated 12-7-1984 and 3-8-1984 respectively passed by the Assistant District Judge, Tezpur in Title Suit No. 36 of 1978, decreeing the suit for eviction of the Defendant.

The Respondent-Plaintiff is the owner of Rekhab Chand Building at Tezpur town. The Defendant, the United Commercial Bank, is a tenant in a portion of that building under the Plaintiff at a monthly rent of Rs. 3,000/- payable on or before the 7th day of every month for the month immediately preceding. As per terms of the lease the landlord would be lawfully entitled to re-enter the premises and lease would be determined in case of default of rent even for a period of one month. The allegation of the landlord-Plaintiff was that the Defendant failed to pay the rent for the month of January, February and March, 1978 within the fixed time and as such became a defaulter within Clause 5(1)(e) of the Assam Urban Areas Rent Control Act, 1972. Thereupon, the Plaintiff issued notices dated 26th and 28th July, 1978 to the Defendant asking to vacate the premises on or before 31-8-197S and terminated the tenancy with a effect from 1-9-1978. The Defendant did not comply to the notices and hence the Plaintiff instituted the suit for eviction of the Defendant and to recover arrear rent with interest and mesne profit.

The Defendant contested the suit by filing a written statement. The allegation of default in the payment of rent has been denied. It was stated in the written statement that the usual agreed monthly rent of Rs. 3,000/- for the month of January was paid by Cheque on 1-2-1978 and similarly the rent for the months of February and March, 1978 was paid by Cheque in the first weak of March and April, 1978 respectively as per terms of the Lease Deed. That the Plaintiff with an ulterior ill motive returned the cheque after a lapse of considerable time and having no other alternative, the Defendant deposited the rents in Court as per the provision of the Assam Urban Areas Rent Control Act and since then the Defendant has been depositing the rent of subsequent months in Court with notice to the Plaintiff. The Defendant claimed that they were not liable to be evicted as they were not defaulters.

The trial Court framed 11 issues for decision of the suit. But the issues No. 9 and 11 were the main issues in the suit. They are:

(A) Whether the Defendants are defaulters within Clause (e) of Section 5(1) of the Assam Urban Areas Rent Control Act?

(B) Whether the Plaintiff is entitled to a decree for evicting the Defendants and to recover arrear rents and mesne profits?

Learned Counsel for the parties argued only on these two points in this appeal.

Admittedly, exhibit 2 was the Lease Deed under which the Defendants became tenant under the Plaintiff from 1st July, 1976 in respect of the suit premises at a monthly rent of Rs. 3,000/- only payable on or before the 7th day of each and every month for the month immediately preceding. It was also agreed under Clause (4)(a) of the Lease Deed that the landlord would be lawfully entitled to re-enter the premises and the lease would be determined in case of default and rent remaining in arrear for a period of one month. Admittedly the tenancy under the Lease Deed, exhibit 2 was governed by the Assam Urban Areas Rent Control Act, 1972 (hereinafter called ''The Act'').

A tenant becomes a defaulter as per the provision of Section 5(1)(e) of the Act where the tenant has not paid the rent lawfully due from him in respect of the house within a fortnight of its falling due. A landlord is lawfully entitled to recover possession of the rented premises by evicting the tenant under the proviso of Sub-section (1) of Section 5 of the Act on the ground that the tenant is a defaulter. A defaulter is liable to be evicted. However, a recourse is provided under the law to a tenant to avoid from becoming a defaulter when the landlord refuses to accept the rent offered to him. Sub-section (4) of Section 5 of the Act lays down that where the landlord refuses to accept the lawful rent offered by his tenant, the tenant may, within a fortnight of its becoming due, deposit in Court the amount of such rent with notice upon the landlord, then such deposit shall not make the Defendant a defaulter u/s 5(1)(e) of the Act. These provisions will be kept in view because the suit was instituted only on the ground of default of rent.

It was proved by the evidence that the Defendant tendered the agreed and lawful rent of Rs. 3000/- for the month of January, 1978 by a Cheque dated 1-2-1978, ''Exhibit ''Kha'' was that Cheque. The Plaintiff returned that Cheque with his letter dated 2-2-1978. Similarly, the rent for the month of February, 1978 was tendered to the Plaintiff by a Cheque dated 6-3-1978 for Rs. 3,000/- which was also returned by the Plaintiff with his letter dated 20-3-1978. Again the rent for the month of March, 1978 for Rs. 3000/- was tendered on the Plaintiff by Cheque dated 1-4-1978 which was also returned by the Plaintiff with his letter dated 22-4-1978. It was proved that the Defendant offered the agreed and lawful rent to the Plaintiff for the month of January, February and March, 1978 within time and the Plaintiff refused to accept the same and returned the Cheques by his letters exhibits 19, 20 and 21 respectively. It was proved by evidence that the usual mode of payment of rent was by Caeque. Both the Plaintiff and the Defendant reside in the same building and their correspondences were done through a Peon Book. Therefore, the trial Court was justified to presume that the refused Cheques were received back by the Defendant on the day they were returned with letters exhibits 19, 20 and 21.

The Defendant had remedy u/s 5(4) of the Act to protect himself from becoming a defaulter by depositing the lawful rent for the month of January, 1978 within a fortnight of its becoming due when it was refused by the landlord on 2-2-1978. The rent for January, 1978 had become due on 7-2-1978 as per the agreement exhibit 2 between the parties, and so, the Defendant could deposit that rent in the Court on or before 22-2-1978 to avail the safe-guard extended under the provision of Section 5(4) of the Act. But the Defendant did not avail the same. Similarly, the Defendant failed to deposit the rent for the month of February, 1978 after refusal of the rent by the land-lord on 20-3-1978. Taking a very liberal view that the period of 3 days (20th March 1978 to 22nd March, 1978) to be a short period for arranging deposit in Court after refusal, and calculating the period of fortnight prescribed from 20th March, the Defendant could have deposit the rent for February, 1978 within 4th day of April, 1978 to avail the safe-guard under the provision of Section 5(4) of the Act; but it was not done.

The Defendant deposited the rent for the month of January, February, March and April, 1978 at a time on 8-5-1978. Therefore, the Defendant was out and out a defaulter for non-payment of lawful rent due for the months of January and February, 1978. Once a defaulter, always a defaulter. The faule in respect of payment of lawful rent due for the month of January, 1978 was itself sufficient for granting decree for eviction.

It has been proved by evidence in record that the lawful rents for the months of January and February, 1978 had become due on 7-2-1978 and on 7-3-1978 respectively, but the Defendant deposited those rents in the Court only on 8.5.1978 and such deposit would not cover to safe-guard the Defendants under the provision of Section 5(4) of the Act to protect the Defendant from becoming a defaulter and to save him from the liability of eviction by a decree under the provision of the proviso of Sub-section (1)(e) of Section 5 of the Assam Urban Areas Rent Control Act, 1972. Once a defaulter under the Act, makes a tenant always a defaulter. A decree for eviction could be lawfully passed against the Defendant who became a defaulter even for the month of January, 1978. It was proved from evidence on record that the Defendant was a defaulter for 2 consecutive months i.e. January and February, 1978.

Payment of lawful rent by deposit in Court beyond the prescribed limit given under the provision of Sub-section (4) of Section 5 of the Assam Urban Areas Rent Control Act, 1972, is no payment in the eye of law. Even withdrawal of such deposited rent by the landlord, in due course, has no consequence to effect the question of default clause which has already occurred. The question of default is to be judged from the action of the tenant and not dependable on landlord''s exercise of right to withdraw the deposit from Court. A tenant does not recover from the mischief of statuory default merely because the landlord withdraws the rent deposited in Court beyond prescribed period. However there was no instance of withdrawal of the deposited rent by the landlord in the instant case. A statuory default or neglect on the part of the tenant to pay or deposit rent, even for a month, whatever may be its cause, the landlord acquires a lega1 right under the provision of Sub-section (1) of Section 5 of the Assam Urban Areas Rent Control Act, 1972 to obtain a decree for eviction. But a safeguarding and protective provision is extended under Sub-section (4) of Section 5 of the Act to a tenant and he can comply that condition to defeat landlord''s right for eviction on ground of default clause. But, if the tenant fails to fulfill the condition of the safe guarding provision, he loses the claim for protection from eviction and in that event, a decree for eviction will have to pass against him. In such a situation the Court cannot exercise discretion in favour of a tenant who fails to fulfill the safeguarding provision.

Legally valid notices exhibit 22 and exhibit-23 dated 26th and 28th July, 1978 respectively had been duly served on the Defendants asking them to vacate the suit premises, and the Defendants received those in time and replied by letter exhibit 24 dated 12-8-78. However, it may be mentioned here that it is not obligatory to make the foundation of an eviction suit under Rent Act on the basis of determination of the lease by issue of notice in accordance with Section 106 of the Transfer of Property Act as held by the Hon''ble Supreme Court in the case reported in V. Dhanapal Chettiar Vs. Yesodai Ammal, It was also held therein that the jural relationship of the landlord and the tenant continues even during the pendency of the suit and it comes to an end only on the passing of a decree for eviction by competent Court.

In view of the foregoing findings, it is held that the Defendant were defaulters and the Plaintiffs were entitled to a decree rejection of the Defendants and to get khas possession of the suit premises. Principles of the law enunciated in the decision by the Hon''ble Supreme Court in Ganpat Ladha Vs. Sashikant Vishnu Shinde, and Kali Kumar Sen v. Mikhanlal Biswas reported in AIR 1969 Gau 66 have been relied upon in deciding this case. Both the main issues must be decided in favour of the Plaintiff-Respondent and those are so decided. The trial Court had rightly decreed the suit, leaving nothing to interfere.

There it no merit in this appeal. Accordingly, this appeal is dismissed with cost. The decree passed in the suit with other monetary relief''s in favour of Plaintiff-Respondent are affirmed.

Appeal dismissed.