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Phukan Chandra Bayan Vs. Madhav Chandra and ors. - Court Judgment

LegalCrystal Citation
Subject;Tenancy
CourtGuwahati High Court
Decided On
Case NumberSecond Appeal No. 127 of 1974 now converted as Civil Revn. 89 of 1980
Judge
ActsAssam Urban Areas Rent Control Act, 1972 - Sections 5; Transfer of Property Act, 1882 - Sections 114
AppellantPhukan Chandra Bayan
RespondentMadhav Chandra and ors.
Appellant AdvocateB. Sarma and B.R. Das, Advs.
Respondent AdvocateN.N. Goswami, P.N. Goswami and L.M. Kshetry, Advs.
DispositionPetition dismissed
Excerpt:
.....power of the court' contained in section 114 of the t. however, if a poor tenant cannot offer the rent to his landlord 'within a fortnight of its falling due',on account of sudden illness or accident or being suddenly called upon to go out on urgent duty to places, say, kashmir or rajasthan or is forced to attend near and dear one suffering from illness or disease, and thereby fails to offer rent due to such unforeseen or accidental circumstances, should he be thrown out on the street or under the sky under such circumstances? sarma is strong, substantial and requires scrutiny in an appropriate case. on appeal by the landlord the appellate court held that there was a failed service of notice. 6. the only point that has been urged before me is that the learned judge failed to consider..........within a fortnight of its becoming due, to deposit in court such rent together with costs. when a tenant so deposits, he cannot be treated as a defaulter as contemplated under section 5 (1) proviso (e) of the rent act. it is undoubtedly true that it is provided in the rent act that when a tenant offers the rent and his landlord refuses to accept the same, the tenant to avoid being treated as a defaulter, must deposit that rent in the manner provided under section 5 (4) of the rent act. however, if a poor tenant cannot offer the rent tohis landlord 'within a fortnight of its falling due', on account of sudden illness or accident or being suddenly called upon to go out on urgent duty to places, say, kashmir or rajasthan or is forced to attend near and dear one suffering from illness or.....
Judgment:

K. Lahiri, J.

1. The learned counsel for the petitioner has exercised his forensic abilities to establish that the wholesome provisions contained in Section 114 of the T. P. Act, 1882, empowering the court, in lieu of making a decree for ejectment in case of forfeiture for non-payment of rent, to grant relief to the lessee against such forfeiture if the tenant pays or tenders to the lessor the rent in arrear together with interest thereon, is equally applicable in a suit to eject a tenant governed by the Assam Urban Areas Rent Control Act. The learned counsel advanced the argument bearing in mind the authoritative pronouncement of the Supreme Court in V. Dhanapal Chettiar v. Yesodai Ammal, AIR 1979 SC 1745, and the decision of this Court in L. P. A. 11 of 1976 disposed on 30-10-79, Ramesh Chandra Basak v. Deo Narain Prasad. It has been contended that the question posed has not been finally determined in any of the cases. The learned counsel submits that the Rent Control Act is a social legislation meant for the protection of the tenants as well as the landlords. Some of the provisions of the T. P. Act dealing with the rights and obligations of the landlords and the tenants have been abrogated wholly or partially by express words or necessary

Implications by 'the Rent Act'. However, there is nothing in 'the State Act' to show that the power of the Court to grant relief under Section 114, T. P. Act has been taken away. An extreme argument has been urged that the right of the lessee to the relief provided in Section 114 has not been taken away by the State Act either expressly by necessary intend-ment. The learned counsel for the opposite party-landlord submits that the provisions of Section 5(1) Proviso (e) have clearly taken away 'the right of a lessee' as well as 'the power of the Court' contained in Section 114 of the T. P. Act. The learned counsel submits that the provisions have been made in the Rent Act to deposit the rent when the landlord refuses to accept the lawful rent offered by his tenant, vide Section 5 (4) of the Rent Act.

2. It is true that in the event of refusal of the landlord to accept the lawful rent offered, the tenant is obliged, within a fortnight of its becoming due, to deposit in court such rent together with costs. When a tenant so deposits, he cannot be treated as a defaulter as contemplated under Section 5 (1) Proviso (e) of the Rent Act. It is undoubtedly true that it is provided in the Rent Act that when a tenant offers the rent and his landlord refuses to accept the same, the tenant to avoid being treated as a defaulter, must deposit that rent in the manner provided under Section 5 (4) of the Rent Act. However, if a poor tenant cannot offer the rent to

his landlord 'within a fortnight of its falling due', on account of sudden illness or accident or being suddenly called upon to go out on urgent duty to places, say, Kashmir or Rajasthan or is forced to attend near and dear one suffering from illness or disease, and thereby fails to offer rent due to such unforeseen or accidental circumstances, should he be thrown out on the street or under the sky under such circumstances? Is it reasonable that the law-maker enacted the Rent Law oblivious of the need for such basic relief to such tenants? It is true that ordinarily a tenant is obliged to offer rent when it becomes due, and, on refusal of the landlord to accept it, he is obliged to deposit it in Court in the manner prescribed under Section 5 (4) of the Rent Act. Nevertheless, if due to circumstances beyond his control or due to act of God or other compelling reasons he cannot offer the rent, though otherwise

vigilant, should he be thrown out in open and under the sky for such unintentional omissions? It is hard to believe that the law is so cruel and heartless, unless we hold that the relief against forfeiture for non-payment of rent has been abrogated to all intents and purposes by the Rent Act.

3. What I notice in the Rent Act is that when the landlord refuses to accept lawful rent, the tenant is bound to deposit in court and, cannot take any other course as it is the command of the law -- the tenant in default is prohibited to ask for relief under Section 114, T. P. Act in such eventuality, To this extent the provision of Section 114 stands abrogated by necessary implication. However, if a tenant fails to offer rent accidentally or due to circumstances beyond his control, within the stipulated time and naturally, cannot deposit in Court under Section 5 (4) of the Act there is no provision in the Rent Act which permits him to deposit the arrear rent into Court. Therefore, the question is whether he is disentitled to claim relief pro-vided under Section 114 of the T. P. Act. Further, Section 114 is an enabling provision which empowers the Court to exercise its discretion in suitable cases to grant relief, to do real and substantial justice for which the Court system exists. The power of the Court to grant relief to such tenants has not been taken away either expressly or by necessary intendment. I am inclined to accept the view that the contention made by Mr. Sarma is strong, substantial and requires scrutiny in an appropriate case. I was about' to accept the view in favour of such tenants, as the Rent Act is a social legislation made primarily for granting relief to the tenants. However, I propose not to express a final opinion on the point as I feel that this revision may be disposed of on some other points, which necessitates statement of facts leading up to this revision.

4. The plaintiff-landlord sued the defendant-tenant for ejectment on the grounds that, (i) the tenant was a defaulter, and, (ii) the house was bona fide required by him. The learned Munsif dismissed the suit for want of valid service of notice under Section 106 of the T. P. Act. On appeal by the landlord the Appellate Court held that there was a failed service of notice. The appellate Court held, on perusal of the entire evidence, that the defendant was a defaulter. It held that the defendant was a defaulter since

16-12-70. He made no efforts to pay the arrear rent to his landlord nor did he deposit it into the Court. However, as late as on 22-8-72, long after the institution of the suit the defendant filed an application in Court stating that he had deposited Rs. 700 towards part-payment of the rent with a prayer to permit him to deposit the balance in instalments (vide Ext. B). It may be stated that the tenant did not deposit the entire rent in arrear, the interest and cost of the suit. Nor did he express his readiness to deposit the interest and costs or to give such security as the Court thought sufficient-There was no explanation as to why he did not pay rent to his landlord from 16-12-70 to 21-8-72. Therefore, we have nothing before us that the tenant had any ground, not to speak of compelling reason, for his default to offer payment of rent to his landlord. The learned Judge considered the document and held the petitioner to be a defaulter as contemplated under the Act, allowed the appeal and passed a decree for ejectment. The learned Judge rejected the other contentions raised on behalf of the tenant. The learned Judge decreed the suit for ejectment and arrear of rent and allowed the appeal with costs throughout.

5. The counsel for the petitioner does not contest the correctness of the findings of the learned Judge as to due service of notice and that too very rightly. It has been held in V. Dhanapal Chettiar (AIR 1979 SC 1745) (supra) and Ramesh Chandra Basak (supra) that no notice of ejectment under Section 106, T. P. Act is necessary to eject a tenant under the Rent Act.

6. The only point that has been urged before me is that the learned Judge failed to consider the effect of the provisions of Section 114 of the T. P. Act and grant relief to the tenant, thereunder. I would observe that no such prayer was ever made by the petitioner before the Court and as such the Court was not obliged to grant him the relief. That apart, the petitioner did not fulfil the condition precedent of Section 114 of the T. P. Act. Assuming that the provisions of Section 114 are attracted in a suit for ejectment covered by the Rent Act, I hold that the petitioner was not entitled to get any relief thereunder. There was an inordinate delay to deposit the rent and the petitioner was not entitled to the discretionary relief. The expression 'the Court may' in Section 114, T, P. Act shows the nature of the power as discretionary. As

such, the discretion should not be exercised in favour of contumacious tenant. The petitioner did not fulfil the required conditions precedent of Section 114, T. P. Act; did not pay or tender the entire rent in arrear nor did he deposit the interest and full costs of the suit. There is no application before this Court as well tendering full rent with interest and full costs. Further, there is no material to show that there was any express term in the lease that on breach of covenant to pay rent on a specified time, the lessor had the right to re-enter. The inordinate delay, the conduct of the petitioner, the difficulties which the landlord has undergone must be weighed against the tenant. All these factors are definitely and pointedly against the tenant and in favour of the landlord. Under these circumstances, I am constrained to hold, the petitioner was not entitled to any relief enshrined in favour of the tenant under Section 114 of the T. P. Act.

7. No other point has been urged before me by the learned counsel for the petitioner. In the result, the application stands dismissed with costs.


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