KALI KUMAR SEN AND ANR. Vs. MAKHAN LAL BISWAS AND ANR.
HIGH COURT OF GAUHATI
Kali Kumar Sen And Anr.
Makhan Lal Biswas And Anr.
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S.K. Dutta, C.J. -
(1.) THIS is a second appeal. The Plaintiffs' case is as follows. The suit holding is a part of a two storied building at Tulapatty in Silchar town. The Plaintiffs are the owners of the building. Defendant No. 1 was a monthly tenant of the suit holding at Rs. 15/ - per month according to the Bengali calendar. But subsequently he sub -let a part of the holding to Defendant No. 2 at a monthly rent of Rs. 15/ -. He also defaulted payment of rent and failed to pay the rent for the months of Baisakh and Jaistha, 1366 B.S. to the Plaintiffs. Moreover, after obtaining Settlement of the suit holding ho arranged another house in the town for the purpose of his residence and used to stay there. On the other hand, the suit holding was required for the Plaintiffs own use and occupation., The Plaintiffs, therefore, served a notice upon the Defendants terminating their tenancy and directing thorn to vacate the suit holding on the expiry of the month of Ashar 1366 B.S. But the Defendant did not comply and hence the suit.
(2.) DEFENDANT No. 1 along has contested the Suit. He denies almost all the allegations made by the Plaintiffs. The suit was dismissed by the trial Court as well as the fist appellate Court, holding inter alia, that the suit notice was bad. Thereafter this Court on second appeal set aside the finding of the Courts below regarding the notice and sent back the suit for ascertaining whether the Defendant was a defaulter within the meaning of the Assam Urban Areas Rent Control Act 1955 (hereinafter called the Act), and whether he was evitable under Section 6(1)(f) of the Act and whether the landlords required the holding for their bona fide needs. The trial court answered, the questions in the negative and gave findings in favour of Defendant No. 1 and sent the case to this Court with the said findings. The appeal came Up, before Goswami, J. and at his request it was referred to a Full Bench. The suit was instituted on among other grounds the ground of default, the allegation being that the rent due for Baisakh and Jaistha were deposited in Court in Ashar. The question whether the Defendants can be treated as defaulters is the only question that we have to consider, the other two findings being findings of facts.
(3.) MR . Ghose, appearing on behalf of the Defendants, submits that under the Act the Defendants cannot be treated as defaulters. It is necessary to refer to the relevant provisions of the Act. The Assam Urban Areas Rent Control Act, 1955 was repealed by the Assam Urban Areas Rent Control Act of 1961. In the Act of 1955 the relevant Sub -sections of Section 6 read as follows:
6. Bar against passing and execution of decree and 'orders for Section (1) No order or decree for the recovery of possession of any house shall be made or executed by any Court so long as the tenant pays rent to the full extent allowable under this Act and performs the conditions of the tenancy;
Provided that nothing in this Sub -section shall apply in a suit or proceedings for eviction of the tenant from the house:
(a) where the tenant has done any act contrary to the provisions of Clause (m), Clause (o) or Clause (p) of Section 108 of the Transfer of Property Act, 1882 (Act IV of 1882), or to the spirit of the aforesaid clauses in areas where the Act does not apply, or
(b) where the tenant has been guilty of conduct winch is a nuisance or an annoyance to the occupiers of the adjoining or neighboring houses
(c) or where the house is bona fide required by the landlord either for purposes of repairs or re -building, or for his own occupation or for the occupation of any person for whose benefit the house is held, or where the landlord can show any other cause which may be deemed satisfactory by the Court, or
(d) where the tenant sub -lets the house or any part thereof or otherwise transfers his interests in the house or any part thereof without permission in writing from the landlord, or
(e) where the tenant has not paid the rent lawfully due from him in respect of the house; or
(f) where the tenant has built, acquired, or been allotted a suitable residence.
(2) The fact that the interest of the landlord in the house has been transferred shall not, of itself, be deemed to be a satisfactory cause within the meaning of the proviso to Sub -section (1), provided that the tenant is ready and willing to pay rent to the full extent allowable under this Act.
(3). . .
(4) Where the landlord refuses to accept the lawful rent offered by besetment, the tenant may, within a fortnight of its becoming due, deposit in Court the amount of such, rent together with process -fees for service of notice upon the landlord, and on receiving such deposit, the Court shall cause a notice of the receipts of such deposit to be served on the landlord, and the amount of the deposit may thereafter be withdrawn by the landlord on application made by him to the Court in that behalf. A tenant who has made such deposit shall not be treated as defaulter under Clause (e) of the proviso to Sub -section (1) of this Section.;
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