Decided on May 31,1985

Abdul Jolil Appellant
Girija Sankar Das And Ors. Respondents

Referred Judgements :-



B.L. Hansaria, J. - (1.)THIS suit for eviction was filed on usual twin ground of the premises being needed bona fide, and the Defendant being a defaulter. The learned trial Court accepted the case of the Plaintiffs on both the counts, but the learned appellate Court has set aside the finding relating to the premises being bona fide required by the Plaintiffs. The decree for eviction has however been maintained by holding the Appellant a defaulter. Though the Defendant approached this Court in its appellate jurisdiction, the appeal is being treated as revision in view of the judgment of this Court in LPA 11/76, which has held that in such matters second appeal does not lie. As the Respondents have not appeared despite service of notice on them personally, the matter has been heard with the assistance of the learned Counsel for the Appellant alone.
(2.)THE allegation relating to default is for the months of Magh 1377 BS to Agrahan, 1378 BS. According to the Plaintiffs, who had purchased the premises from the previous jote right owner Jatindra Mohan on 12.3.71, the Defendant was in arrear for the two months of Magh and Falgun, 1377 at the time of purchase, and subsequently did not pay rent till Agraban, 1378. The case of the Defendant on this score was that not knowing about the purchase of the premises by the Plaintiffs, he offered rent to Jatindra Mohan, and on his refusal he started depositing the same in Court. Further, according to him there was an understanding with Jatindra Mohan that the rent would be paid not monthly, but in statement as per his convenience. A perusal of the impugned judgment shows that though the Defendant proved deposit of rent for the months of Magh and Falgun, 1377 on 15.3.71, the learned Asst. District Judge did not regard the same in accordance with law, inasmuch the rent had not been paid within 15 days of its becoming due the last date of which was 27.2.71 as per the learned court below. Shri Laskar contends that there were sufficient materials on record to support the contention of the Defendant that he was paying rent in instalments in pursuance of the agreement with Jatindra Mohan. My attention is invited to Exts. A to A(3) which have not bean referred at all by the learned Asst. District Judge, though these were noted by the trial Court. These document do show that Jatindra Mohan was realising rent for two months at a time. As such, the rent for the months of Magh and Falgun could be, said to have become due not on the expiry of Magh, but on the last date of Falgun which fell on 13.3.71. In this (sic) reference can be made to a decision of this Court in Chiranjan Paul v. Sunil Kumar Choudhury :, (1983) 1 GLR. 268 wherein it has been held that terms of agreement between the parties relating to mode of payment of rent is relevant for deciding the question as to when rent "becomes due" within the meaning of Section 5(1)(b) and Section 5(4) of the Assam Urban Areas Rent Control Act. From the materials of record of this case it is clear that the arrangement was that at least for 2 months rent was to be paid at a time. As the Defendant had deposited rent for the month of Magh along with Falgun on 15.3.71, the sane cannot be regarded to be beyond time as visualised by Section 5 of the aforesaid Act. As finding of the learned Court below regarding the Appellant being a defaulter based on the fact of deposit of rent for the month of Magh, 1377 BS on 15.3.71 which, according to the learned Judge was not within 15 days of becoming due, the impugned judgment cannot be sustained as it has been rendered without considering the agreement between the parties relating to mode of payment of rent, and as already stated, the parties did agree to pay and receive rent of two months at a time, because of which deposit of rent for the month of Magh, 1377 on 15.3.71 would be within time, as Falgun had ended on 13.3.71.
Accordingly, the petition is allowed and the impugned judgment and decree are set aside. The result is that the suit stands dismissed.


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