NITYANANDA DUTTA Vs. MD. ANISUL HAQUE AND ANOTHER

JUDGEMENT

(1.) The defendant No. 2, Sri Nityananda Dutta, in Title Suit No. 13/2003 filed by Md. Anisul Haque, the opposite party/landlord, in the Court of the learned Civil Judge (Jr. Division) at Jorhat (now Munsiff), praying for his ejectment along with two other persons, namely Sri Rohini Dutta and Sri Ramen Dutta, from the suit house on the ground of default in payment of the monthly rent and also for the violation of the terms and conditions of the tenancy, has challenged the judgment and decree dated 2.7.2005 passed by the learned. Civil Judge (Sr. Division), Jorhat (now Civil Judge) in Title Appeal No. 4/2005, whereby and whereunder the suit of the plaintiff/opposite party No. 1 herein, was decreed by setting aside the judgment and decree dated 18.10.2004 passed, by the learned Civil Judge (Jr. Division). No. 1, Jorhat (now Munsiff) in the said suit.

(2.) The opposite party No. 1 herein as plaintiff, instituted Title Suit No. 13/2003 under the provisions of the Assam. Urban Areas Rent Control Act, 1972 (in short, The Act") in the Court of the learned Civil Judge (Jr. Division), No. 1 at Jorhat praying for eviction of Sri Rohini Dutta (proforma opposite party No. 2). Sri Nityananda Dutta (the petitioner herein) and Sri Ramen Dutta, (whose name has been struck off from the list of proforma opposite party vide order dated 24.5.2006 passed by this Court on the prayer of the petitioner) from the suit house, on the ground of defaulter and violation of the terms of tenancy and also claiming arrear rent from 1.4.2000 to 31.3.2003 contending inter alia that the eastern part of the Assam Type House bearing Municipal Golding No. 156 originally belonged to the paternal uncle of the opposite party No. 1 was let out to Prema Kanta Dutta, the predecessor-in-interest of the petitioner and the proforma opposite parties at monthly rent of Rs. 70.00 with effect from 16.11.1967 and after the death of Prema Kanta Dutta the petitioner and the proforma opposite parties became the tenants under the opposite party No. 1 /plaintiff, who got the suit house by right of inheritance. It has further been contended in the plaint that though the father of the defendants was regular in payment of monthly rent to the plaintiff and obtained receipt thereof, the defendants paid rent up to 31.3.2000 but thereafter, from 1.4.2000 onwards default in payment of rent in respect of the suit house on some pretext or other and though the plaintiff demanded the defendants to pay the arrear rent with effect from 1.4.2000 or to vacate the suit house, they in spite of the assurance given by them that it would be cleared within Dec., 2001, failed to pay the rent and instead started altering and changing the interior and exterior of the suit house without the permission of the plaintiffs in the month of Sept., 2002. It is the further case of the plaintiffs that when he objected to such action he was threatened with dire consequences and also threatened not to demand the rent. The plaintiff, therefore, demanded the defendants to vacate the suit house immediately within 30.1.2002 and to hand over the vacant possession.

(3.) Amongst the three defendants only the defendant No. 2 (petitioner herein) contested the suit by filing written statement admitting that his father Prem Kanta Dutta was inducted as tenant in respect of the suit house by the original owner Inamul Haque Choudhury at the monthly rent of Rs. 70./-. The defendant also admitted that he is tenant under the plaintiff in respect of the suit house wherein he is running the grocery business in the name and style as M/s Kalpana Store. The defendant, however, in the written statement has contended that there was no agreement between the original landlord and his predecessor-in-interest stipulating any particular date when the rent is to be paid and such rent was paid according to the convenience of the original landlord and some times he accepted rent for six months, 18 months. 20 months together. It has further been contended that the plaintiff used to collect rent for the suit house sometimes on the interval of two years, sometimes 3 years as per his convenience and even when the defendant offered, monthly rent to the plaintiff he did not like to receive the same, on the plea that the monthly rent is a very paltry amount. According to the defendant, no time and date was fixed for payment of the rent and whenever the rent, is collected/paid to the tenant for one/two/three years together, the plaintiff used to issue month wise receipts. It is the further case of the defendant in the written statement that the rent for the period from June. 1998 to March, 2000 was paid by the account payee cheque on 4.3.2000 but the receipts for the period from Feb., 1997 to March, 2003 were issued by the plaintiffs putting different back dates and delivered at a time to the defendants. The defendant in the written statement has further pleaded that the plaintiff never demanded house rent during the period from 1.4.2000 up to the date of filing of the suit though it is the practice of the plaintiff to demand and collect the rent for a longer period at a time at his convenience. The defendant has further pleaded in the written statement that during the period from 1.4.2000 to the date of filing of the suit he rendered the rent to the plaintiff many times but the plaintiff without showing any signs of refusal only asked the defendant to let the rent accumulated to a good sum and he would then collect the same according to his convenience. The defendant has further contended that as the plaintiff deferred receipt of the rent, from 1.4.2000 in spite of tendering the same by him, he deposited the rent in Court for the period from 1.4.2000 to 30.4.2003 in the Court vide N.J. Case No. 169/2003. It has therefore, been contended that the defendant is not a defaulter in respect of payment of rent. The defendant also denied making any change to the suit house.