T.S. Misra, C.J.
1. This revision filed by the plaintiff arises in the following circumstances:
The plaintiff is the owner of the premises in question. The defendant was a tenant thereof at a monthly rental of Rs. 100/-, the tenancy commencing from the 15th day of every English calendar month and ending on the 14th day of the next month. The plaintiff alleged that the defendant was very irregular in payment of rent of the said premises. He also made some unauthorised constructions by enclosing the front Verandah of the said premises and by making separate room therein. , The plaintiff also alleged that he bona fide required the said premises for his own use and occupation. He therefore served a notice of eviction dt. 7th Sept. 1964 on the defendant requiring him to vacate the said premises on the expiry of 14th Oct. 1964. That notice was served on the defendant on 17th Sept. 1964 but he did not comply with the same. Hence the suit for eviction was filed. The plaintiff alleged that the defendant had defaulted in making payment of rent due for the period 15th Jan. 1964 to 14th Oct. 1964 amounting to Rs. 900/- only. The plaintiff, therefore, claimed eviction of the defendant from the said premises as also a decree for arrears of rent and mesne profits.
2. The suit was resisted by the defendant denying the various allegations. He alleged that when he came to occupy the premises it was in a bad shape. It was hence agreed between him and the plaintiff that he would be at liberty to suitably fill the land and make construction for his use at his own cost and make necessary improvements in the house. He accordingly made various improvements in the house and sunk a tube well. He, therefore, contended that it was wrong to say that he had made unauthorised constructions. He also denied that the plaintiff bona fide required the said premises for his own occupation in as much as the plaintiff has a residential house as well as other houses at Panitola. The plaintiff is a priest by profession and he has 'Thakurbari' at Panitola. He has a small stationery shop at Panitola Bazar. The defendant also denied that he was a defaulter within the meaning of Section 5 of the Assam Urban Areas Rent Control Act (for short, Assam Act No. II of 1962). The plaintiff used to collect rent very often in lump sum according to his convenience, However, either in the month of March or April, 1964 the plaintiff with a view to make illegal gain demanded enhancement of rent from Rs. 100/- to Rs. 200/- per month and stopped collecting rent. The defendant
therefore sent a sum of Rs. 300/- to the plaintiff
by money order on account of rent from 15th
Jan. 1964, but the plaintiff refused to accept
the same. Then he deposited the said rent in
the Court of Munsiff, Dibrugarh and stated all
the relevant facts in his notice dt. 27th June,
1964 informing him that the rent had been
deposited in the Court. Thereafter the
defendant sent rent for one month more by
money order but that too was refused. The
defendant, therefore, deposited the same in
the Court as before and since then the rent
had been deposited in the Court with due
notice to the plaintiff. Both the parties adduced
evidence in the case. On the facts and
circumstances of the case and the evidence
adduced it was held by the trial Court that the
defendant was not a defaulter as alleged and
was therefore not liable to be evicted on that
ground. It was also held that the defendant
had not made any unauthorised constructions
in the said house and that the plaintiff did not
bona fide require the suit premises for his
personal use. The suit was, therefore, dismissed
by the trial Court. The plaintiff preferred an
appeal from the said decision. The appellate
Court below concurring with the trial Court
dismissed the appeal. The plaintiff feeling
aggrieved filed a second appeal in this Court;
subsequently he got the said appeal converted
into the instant revision.
3. The sole point urged before me on behalf of the plaintiff-revisionist was that both the Courts below had erred in holding that the defendant-respondent was not a defaulter within the meaning of Section 5(e) of the Assam Act No. II of 1962, which reads as under :
'5(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) to (d).....
(e) where the tenant has not paid the rent
lawfully due from him in respect of the house
within a fortnight of its falling due.'
4. It is a common ground that on the facts of the present case the Assam Act II of 1962 is applicable, the material portion of Section 5 whereof is quoted hereinabove. The Assam Act No. II
of 1962 imposes certain restrictions on the eviction of a tenant from the premises occupied by him. The provisions of Sub-section (1) of Section 5 mandates that no 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 the Act arid performs the conditions of his tenancy. The proviso to Sub-section (1) however, stipulates that nothing in Sub-section (1) shall apply to a suit or proceeding for eviction of the tenant from the house, if any of the conditions mentioned in Clauses (a) to (f) exists. Clause (e) provides that 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 decree for his eviction may be passed. Under the provisions of Section 108 of the T. P. Act, a tenant is bound to pay or tender at the proper time and place the premium or rent to his lessor. If he pays or tenders the amount and the landlord refuses to accept the same, the tenant shall be deemed to have discharged his obligations under the general law. However, under the Assam Act the tenant is required to deposit the rent in Court within the time prescribed therein. Sub-sec. (4) of Section 5 provides 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 together with process-fees for service , of notice upon the landlord. A tenant who has made such deposit shall not be treated as a, defaulter under Clause (e) of the proviso to Sub-section (1) of Section 5 of the Assam Act No. II of 1962. Where the tenant has not paid the rent due from him within a fortnight of its falling due. he becomes a defaulter under Clause (e) of the proviso to Sub-section (1) of Section 5. But, however, if he tenders the rent to the landlord but the latter refuses to accept the same, the tenant may deposit it within a fortnight of its becoming due in the appropriate Court together with the process fee for service of notice upon the landlord and if he makes such deposit in the Court he shall nol be treated as a defaulter. So a tenant to save himself from eviction from the tenanted premises has to pay or tender rent to the landlord within a fortnight of its falling due. In a suit where eviction is sought for on the ground that the tenant is a defaulter in payment of rent within the meaning of Clause (e) of the proviso to Sub-section (1) of Section 5 of the Assam Act, the basic question to be enquired into is as to what is the date when the rent had fallen due in the particular case. The next question to be enquired into is whether the tenant had paid or
tendered the rent to the landlord within a fortnight of the date of its falling due. If he is found to have not paid the rent within the prescribed period, he shall be treated as a defaulter. However, if it is found that within the prescribed period he had deposited the rent in Court under Sub-section (4) of Section 5, he-shall not be treated as a defaulter and no decree for his eviction shall in that event be made. The facts of the instant case may now be considered in the light of these principles.
5. The plaintiff had alleged in para 5 of the plaint that the defendant had defaulted to pay rent due for the period 15th Jan. 1964 to 14th Oct. 1964 amounting to Rs. 900/- only. However, in para 4 of the plaint it has been alleged that the tenancy of the defendant was terminated by a notice dt. 7th Sept. 1964, which was served on the defendant on the 17th Sept. 1964 and the defendant was required to vacate the premises on the expiry of 14th Oct. 1964, In para 9 of his written statement the defendant had denied that he had defaulted to pay rent due for the period 15th Jan. 1964 to 14th Oct. 1964. He has specifically pleaded as follows :
'It is submitted that the defendant is not a
defaulter in payment of rent. He has been
paying rent to the plaintiff with exemplary
regularity. The plaintiff used to collect rent
from the defendant, very often in a lump,
according to his convenience. The defendant
was paying rent to the plaintiff @ Rs. 100/- per
month from the very beginning without making
any deduction thereof. Sometime in the month
of March or April, 1964, the plaintiff with a
view to make more gain', demanded
enhancement of rent from Rs. 100/- per month
to Rs. 200/-. per month, and then he purposely
stopped collection of rent. The defendant
having come to know of his ill motive, sent a
sum of Rs. 300/- to the plaintiff by Money
Order on account of rent for the months from
15-1-1964. but the plaintiff refused to accept
the same. The postal authorities returned the
said Money Order to the defendant as 'refused'
and then he deposited the same in Court before
the Munsiff and Rent Control Officer,
Dibrugarh, with due notice to the plaintiff. He
then sent a notice dt. 27-6-1964 to the plaintiff,
under registered post with A/I), through his
lawyer Sri I. Sarma, Advocate, stating all facts
therein and informing him about the making of
deposit of the rent in Court. The defendant
thereafter sent rent for one month more at the
same stipulated rate, to the plaintiff, by Money
Order, but this too was refused by the plaintiff. The defendant deposked that money in court as before and since then rent for all months have been deposited in Court in advance with notice to the plaintiff up-to-date. Under the circumstances the defendant is not a defaulter of rent as alleged. This is known to the plaintiff and he has purposely suppressed this fact, to make a ground for ejectment.'
6. The defendant had occupied the premises in question in Dec. 1946. He is said to have made certain improvements therein. It was not the case of the plaintiff that the defendant had defaulted in making payment of rent at any time prior to 14th Jan. 1964. It was submitted on behalf of the defendant that he had never defaulted in making payment of rent and that the plaintiff used to collect rent from him in a lump sum according to his convenience, whenever he visited the premises in question. Since the plaintiff did not collect rent, it was remitted to him by money order but he refused to accept the same, hence it was deposited in the Court. The defendant had remitted the sum of Rs. 300/- on 9th May, 1964 being the rent for the months of February, March and April. He again sent a sum of Rs. 100/- to the plaintiff towards the rent for May, 1964 on 25th May, 1964, but the plaintiff refused the money orders. The original defendant had deposed before the Court that it was agreed between the parties that the plaintiff would collect rent by visiting Dibrugarh and that it had become the practice that the plaintiff used to collect rent sometimes for one month and sometimes for two to three months according to his convenience and sometimes in advance. The plaintiff P. W. 3, had admitted in his cross-examination that he collected rent from the defendant by going to Dibrugarh sometimes for one month and sometimes for two or three months without raising any objection for nonpayment of rent for two to three months even. The trial Court, therefore, held that there was no specified period as to payment of monthly rent of the premises of the plaintiff and hence from the practice as to the acceptance of rent it could not be held that the defendant was a defaulter.
7. The appellate Court below found that the plaintiff used to visit the defendant's place as priest and generally used to collect rent himself by going to Dibrugarh from Panitola. From the statement of the defendant it was found that the plaintiff had not visited the
defendant's place for two to three months in the early part of 1964 and it appeared to the defendant that the plaintiff was evading to collect rent only with a view to put the defendant in trouble. He sent the rent for three months from 15th Jan. 1964 by money order to the plaintiff but the same was refused. Thereafter he deposited the rent in Court. It was found by the appellate Court that the party had cordial relations from before and the plaintiff used to visit and receive rent sometimes for one month and sometimes for two to three months at a time. This was admitted even by the plaintiff, P. W. 3 himself. Since the parties had confidence in each other, the defendant never imagined in the early part of 1964 that the plaintiff would play a trick with him but the plaintiff discontinued his practice of collecting rent in the manner stated hereinabove. Considering all the facts and surrounding circumstances of the case, the appellate Court, therefore, concurred with the trial Court that the defendant Was not a defaulter in payment of rent.
8. It has thus been found by the Courts below that the settled practice between the parties had been that the plaintiff would visit the place of the defendant according to his convenience and would collect the rent from him. The plaintiff sometimes collected rent in advance and sometimes for one month and sometimes for two to three months in lump sum. That practice had been in vogue for the last 18 years. Technically the rent would fall due on the expiry of the last day of the month of tenancy, but the question as to when the rent would fall due would also depend upon other factors as well. The lessor and the lessee may specifically agree as to when and in what manner the rent would be paid or recovered. The lessor may agree with the lessee that he would at his convenience visit the place of the lessee and collect the rent from him. The mode and the date of payment of rent may vary from case to case. The lessor may adopt a practice of visiting the place of the lessee and collect the rent according to his convenience. In all such cases the tenant may set up the plea that according to Clause (e) of the proviso to Sub-section (1) of Section 5, the rent would fall due on the date the lessor visits the place of the lessee and demands payment of rent and in such a case if the tenant fails to pay the amount of rent or fails to deposit the rent in Court within a fortnight he would become a defaulter within the meaning of Clause (e) of the proviso to Sub-section (1) of Section 5 of the
Assam Act No. II of 1962. In the present case it was found as a fact that it was a practice between the parties that the landlord would visit the premises in question at Dibrugarh to collect rent from the tenant. He sometimes collected rent in advance and sometimes for one month and sometimes even for two to three months in a lump sum. It was also found as a fact that when the landlord did not visit the defendant's place in the early part of 1964, the defendant sensed some mischief and therefore he remitted the rent by money order which the landlord refused to accept On these findings of fact it was held that the defendant was not a defaulter. In my view the findings reached by the Courts below on these questions of fact are based on evidence and they are neither perverse nor illegal nor are such which ho reasonable person could arrive at. The defendant, on the facts and circumstances of the case, was rightly held to be not a defaulter within the meaning of Clause (e) of the proviso to Sub-section (1)of Section 5of the Assam Act No. II of 1962.
9. No other point was urged.
10. In the result, the revision petition is dismissed. However, on the facts and circumstances of the case, the parties shall bear their own costs.