MOHAN KUMAR AGARWALA Vs. PURUSHOTTAM RAISWASIA

JUDGEMENT

(1.) Heard Mr. B.K. Jain, learned counsel for the petitioner.

(2.) This is an application under Order 115 of the CPC challenging the Judgment dated 10.2.87 passed by the Assistant District Judge, Dibrugarh in title appeal No. 49/86 dismissing the appeal on contest affirming the Judgment and decree passed by the Sadar Munsiff No. 1 in title suit No. 89/87.

(3.) It appears that the plaintiff filed a suit against the defendant for eviction of the defendants on the three grounds. Firstly the plaintiff alleged that the defendant was a defaulter in making payment of rent, secondly the said premises was bonafide required by the plaintiff, thirdly the rent was never tendered to the plaintiff before the same was deposited in the Civil Court. The trial court raised 8 issue. Issue No. 4 wast are the defendants tenants under the plaintif in respect of the suit premises as claimed by the plaintiff and are the defendants defaulters? The first portion of the aforesaid issue was answered in favour of the plaintiff and it held that the plaintiff became owner of the suit premises and so the defendant was a tenant under him. However, on the ground of defaulter and tendering of rent the trial court court held that the defendant was not a defaulter. Going though the Judgment of the trial court I find that there is no finding by the trial Judge that rent was tendered to the plaintiff at any time. There is only a finding that the rent was deposited with the Civil Court. As against this Judgment, the plaintiff went before the appellate Court. The Appellate Court upheld the findings of the court below and dismissed the appeal. The appellate court also did not make any finding regarding the tendering of the rent to the plaintiff. In the premises I hold that the defendant at no stage tendered the rent to the plaintiff. Under Sub-section (4) of Section 5 it is mandatory that the tenant should offer rent to the landlord at first and on failure of the landlord to accept such lawful rent the same could be deposited in the court. In the instant case there is no such finding that the plaintiff refused to accept the rent offered by the tenant and as such the tenant was forced to pay the rent in the Civil Court. In the absence of such finding the deposit of rent in the court is not legal or valid. The defendant will be a defaulter if he fails to tender rent within the stipulated time as provided under the Act. In the instant case I hold that the defendant was a defaulter.