KAILASH CHAND SHARMA Vs. PURSOTTAM LAL SHARMA

JUDGEMENT

(1.) Heard Mr. BK Jain, learned counsel for the petitioner and Mr. RL Yadav, learned counsel appearing for the respondent.

(2.) The present petitioner is the defendant in Title Suit No. 183/1984 in the court of the then learned Civil Judge (Jr. Div.) No. 3, Guwahati. In the suit which is filed by the respondent as the plaintiff sought for the decree of ejectment of the defendant/ petitioner from the tenanted premises on the grounds of defaulter and bona-fide requirement. The defendant/ petitioner filed his written statement thereby denying the fact of defaulter in paying the monthly rent for the Month of March, 1981. The bona-fide requirement was also stoutly denied by the defendant/ petitioner. On the basis of the said pleadings the learned trial court framed the following issues:-

(3.) The plaintiff/ respondent adduced evidence himself as PW 1 and on the other hand, the defendant/ petitioner also adduced his only evidence as DW 1. The learned trial court decided issue no. 2 against the defendant/ petitioner. It considered the various exhibits, more specifically, the rent receipts for the period commencing from May, 1963 to December, 1975 and examining the said exhibits the learned trial court came to the finding that Exhibits 40 to 64 are the rent receipts showing that the rent were collected on the first day of each succeeding month. It is the finding of the trial court that Exhibits 2 to 39 are the receipts and there were no fixed date for collecting the rent. The defendant took the plea that as there was no practice by the landlord collecting the rent on the first day of each succeeding month and he used to collect as per his convenience so there was no accepted mode of collecting the rent nor the same fell due on the first day of each succeeding month. The said plea was rejected and accordingly the learned trial court held that as the tenancy was monthly the rent fell due on the first day of each succeeding month. Regarding the tender of rent to the landlord it is the stand of the defendant/ petitioner that till February, 1981 the landlord collected the rent but for the month of March, 1981, the defendant/ petitioner deposited the rent in the court as the landlord refused to accept the rent for the month of March, 1981 and since then the defendant/ petitioner has been depositing the rent in the court on refusal by the landlord to accept the rent. It was also observed that there was no independent witness to corroborate the oral testimony of DW 1 that he went to the plaintiff/ respondent to offer the rent for the month of March, 1981 in the first week of April, 1981. The learned trial court observed that though the defendant/ petitioner stated in the written statement and in the evidence that he deposited the rent in the court but no such NJ case records were called for. The learned trial court took note that as the defendant/ petitioner in his cross examination stated that he went to the plaintiff to offer the rent for the month of December, 2006 on 06.01.2007 but as the plaintiff refused he deposited the same in the court. It came to the conclusion that the rent fell due on 01.01.2007 and finally held that the defendant/ petitioner failed to prove that he actually offered the rent on the date of its falling due and after such refusal by the landlord deposited the same in the court.