SURUJMAL JAIN Vs. KANAKLATA BARUA

JUDGEMENT

(1.) THIS appeal is by the defendant. The plaintiff's case is that two rooms were let out to the defendant one on the ground floor and the other on the upper storey at a rental of Rs. 300/ - per month on the 2nd February, 1950. Rs. 2,000/ - were paid as advance to the plaintiff and defendant agreed to pay Rs. 1,400/ - within one month from the date of the agreement to the plaintiff. On the date of the agreement the possession of the room on the ground floor was given to the defendant and it was agreed that the room in the upper storey would be completed within two months from that time by the advance given by the defendant and thereafter made over to the defendant. For two months during which the upper storey room was being constructed the defendant was to pay Rs. 100/ - from per month. The advance was not made by the defendant and thus the completion of the room was delayed. After the room was completed, the defendant was asked to take possession of that room on payment of Rs. 1,400/ - as advance rent but the defendant did not make the said payment in spite of repeated demand and take possession of the room. The defendant had also agreed to pay Rs. 3,600/ - as advance towards rent for the year 1956 by the 1st January of that year. That was also not paid by the defendant. After, payment of Rs. 2,000/ - the defendant has not paid anything. The defendant has also caused some damages to the property. On these facts a notice was served by the plaintiff terminating the tenancy and demanding payment of Rs. 2,600/ - as arrear rent Rs. 3,600/ - as advance for the year 1956 and Rs. 1,000/ - as damages. As the defendant did not comply with the notice the present suit has been brought for recovery of possession of the room in suit by ejecting the defendant, for Rs. 2,900/ - as arrears of rent and compensation of Rs. 300/ - per month from date of institution of the suit till restoration of possession.

(2.) THE defendant contended that there was no agreement for payment or advance of Rs.1,400/ -. The defendant did not get possession of the upper storey room, the kitchen, sanitary lavatory and the back courtyard as agreed between the parties. He has further, denied that he has damaged the property. According to him the fair rent for the room in the ground floor is only Rs. 50/ - per month and on this calculation he has already paid up the rent for 40 months by way of adjustment against the sum of Rs. 2,000/ - paid in advance.

(3.) THE order of the Court below is challenged on the ground that according to the provisions of the Assam Urban Areas Rent Control Act, 1955 the defendant was not in default and thus was not liable to be ejected. He has been paying rent according to the fair rent payable in respect of the room in defendant's occupation. It is then urged that the Court below had no right to decree compensation for the subsequent periods after the decree of the Court below. Lastly it is urged that in any case the decree for ejectment being for arrears of rent, the defendant should have been allowed opportunity to pay up the arrears.