PABITRA NARAYAN CHOUDHURY Vs. SUNIL KUMAR JAIN

JUDGEMENT

(1.) This application under Section 115 of the Code of Civil Procedure read with Article 227 of the Constitution of India has been preferred by plaintiff of Title Suit No.53/2006 challenging the judgment and decree passed by the learned First Appellate Court.

(2.) The present petitioner as plaintiff instituted Title Suit No.53/2006 in the court of learned Civil Judge (Junior Division) No.1, Nalbari stating that the suit premises described in the schedule to the plaint originally belonged to his father Late Karuna Narayan Choudhury. The defendant No.1 became a tenant under his father with respect to the suit premises at a monthly rental of Rs.1500/ -. After death of his father all the ancestral properties were vested amongst the legal heirs and thereupon the suit premises has fallen in his share. He has been collecting rent from the defendant No.1 but the defendant failed to make payment of rent since June, 2006 till date. Moreover, he does not have any other residential accommodation at Nalbari. The suit premises has become dilapidated and so it has become necessary to be reconstructed/renovated for his own use and occupation. With these statement of facts, the plaintiff prayed that the suit be decreed for realization of Rs.36,000/ - towards arrear rent and for recovery of khas possession by evicting the defendant No.1 from the suit premises.

(3.) On being summoned the defendant No.1 appeared and contested the proceeding. In paragraph 11 of the written statement he stated that he became a tenant with respect to the suit premises under the father of the plaintiff and the proforma defendants. Earlier the original landlord used to collect rent himself but after the death of original landlord rent was being collected by one of his sons, namely, Prasanta Narayan Choudhury. According to him, monthly rent was Rs.1000/ - and the same was being collected by proforma defendant No.4 (Prasanta Narayan Choudhury) till the month of May, 2006. He did not issue any receipt against the collection. The averment made in paragraph 6 of the plaint that the plaintiff does not have a house of his own at Nalbari Town was denied by the defendant No.1 in paragraph 15 of his written statement. It was further claimed that proforma defendant No.4 collected rent for the month of May, 2006 in the month of June, 2006 but in the month of June, 2006 the defendant No.1 received a pleader's notice dated 05.06.2006 from the plaintiff. According to him, he offered rent for the month of June, 2006 to proforma defendant No.4 who used to collect the rent earlier whereupon he asked the defendant No.1 to pay rent for the month of June, 2006 to the plaintiff in view of service of pleader's notice. The defendant No.1 thereafter offered rent for the month of June, 2006 to the plaintiff in the first week of July, 2006 but he refused to accept the same. Thereafter, he sent the same rent by money order on 07.07.2006. As the plaintiff refused to accept the rent he was compelled to deposit the same in court as per provision of Assam Urban Areas Rent Control Act, 1972 vide Misc. (N.J.) Case No.8/2006. According to him, he is neither a defaulter nor any arrear of rent is due to him and as such he cannot be evicted from the tenanted premises. With these averments, he prayed that the suit of the plaintiff be dismissed with cost.