KASHI DEV Vs. SAFIQUR RAHMAN LASKAR

JUDGEMENT

(1.) This is an application under Section 115 C.P.C. directed against the judgment and order dated 12.4.99 passed by the learned Civil Judge (Sr. Divn.) Hailakandi in T.A. No. 9/98 dismissing the appeal preferred against the judgment and decree dated 14.5.98 passed by the learned Civil Judge (Jr. Division No. 1), Hailakandi in Title Suit No. 39 of 1996 decreeing the above suit for eviction of the petitioners from the suit house premises.

(2.) I have heard Mr. N. Dhar, learned counsel for the petitioners and Mr. H.R.A. Choudhury, learned counsel appearing for the Opp. Party. I have also considered the records of the case.

(3.) The plaintiffs case in brief is that he along with his brother is owner of the suit house which was divided into four equal rooms. The defendants took lease on 1.3.71 two rooms of the suit house on monthly rent. Lastly on 1.1.1991 new settlement was executed in between the parties for another five years upto 31.12.1995 and rent was enhanced to Rs.350/- p.m. thereafter, during last part of November 1995 the plaintiff asked the defendant through his son J.P. Sarda to vacate the suit room as the plaintiff requires the suit house. But the defendants instead of vacating the suit rooms approached the plaintiff for a fresh lease for a period of another one" year and proposed to pay rent @ Rs.600/- per month. The plaintiff did not accept the said proposal. Then the defendants stopped the payment of rents and became defaulter. The defendants contested the suit filed by the plaintiff by filing written statement denying that he is a defaulter and that the suit house was not required for the bonafide requirements of the plaintiff and that on refusal to accept the rent, the defendants deposited the rent to the Corrt. The learned Civil Judge (Junior Division) by judgment and order dated 14.5.98 passed in title Suit No. 38 of 1996 decreed the suit that the defendants are liable to be evicted from the suit land and the plaintiff is entitled to recover arrear rents from 1.1.96 to 30.6.97 @ Rs.350/- per month and the plaintiff is also entitled to realise 15% interest on the decreetal amount till realisation. On appeal the learned Civil Judge (Senior Division) by his judgment and order dated 12.4.99 passed in T.A. No. 9 of 1998 dismissed the appeal. As regards the question as to whether the defendants were defaulter, the learned appellate Court referred to the evidence of PW 1 Md. Safiqur Rahman Laskar that after the expiry of the lease on 31.12.95, the defendant was asked to vacate the suit premises as per agreement, but he neither vacated the suit premises nor paid any rent thereafter. The defendant Bijoy Prakash Sarda deposed that after December 1995 he paid the rent to the plaintiff on cash and the rent for the month of January and February 1996 was adjusted as per request of the plaintiff. Two documents Exts. A and B were produced to show the payment of money to the said firm to be adjusted against the account of the plaintiff. However, the learned appellate Court found there was no endorsement on the receipt for which it cannot be held that the money was paid to the said firm with the consent of the plaintiff. Regarding payment of rent to the plaintiff, no document had been exhibited and proved by the defendant. The defendant also did not call for the rent Deposit Misc. cases in connection with this suit to prove their payment. The defendants did not call the said non judicial cases and has not complied with the provision of Section 5(4) of the Assam Urban Areas Rent Control Act, 1972. There is also no evidence that there was refusal on the part of the landlord to accept the rent. I am not inclined to interfere with such concurrent findings of the court below inasmuch as it cannot be said to be a case of no evidence. As regards bonafide requirements, 1 have gone through the evidence of PW 1, the landlord. The landlord, PW 1 categorically said that the suit house was bonafide required for his son to start business there. Mr. Dhar, learned counsel for the petitioner, however, has pointed out to the statements of PW 1 that he made contradictory statements (i) that he required the suit house for his son to start business, (ii) that he required the suit house for himself to start business as he is retiring soon and (iii) that he requires the suit house for renovation so that he can get enhanced rent. Be that as it may, Mr. Choudhury, learned counsel for the opp. party submits that since in the instant case a part of the house has been in occupation of the plaintiff landlord, the defendant tenant has no right to question and in this regard Mr. Choudhury has placed reliance to a decision of the Apex Court in S.R. Babu - Vs- T.K. Basudevan and others AIR 2001 SC 2881 wherein it has been held :