P.G. Agarwal, J.
1. Heard Mr. S. Ali, learned counsel for the petitioners and Mr. N. Chakraborty, learned counsel for the respondents.
2. This revision is directed against the judgment and decree dated 18.8.1998 passed by the District Judge, Kamrup, Guwahati in Title Appeal No. 24/94 dismissing the appeal and upholding the judgment and decree dated 28.4.1994 passed in Title Suit No. 20/87 (T.S. 22/83) by the Civil Judge (Senior Divn) No. 2, Guwahati.
3. The respondent plaintiff instituted T.S. No. 20/87 before the Civil Judge (Senior Division) No. 2, Guwahati praying for a decree for eviction and arrear rent in respect of the suit premises which is a Assam Type House having Holding No. 5 of War No. 19 of the Gauhati Municipal Corporation situated in Dewan Patty Road, Fancy Bazar, Guwahati, hereinafter referred as the suit premises.
4. The case of the plaintiffs is that they are the legal heirs of Lal Mohan Paul and the suit premises belonged to them. It was rented out to the defendant No. 1 at a monthly rent of Rs. 595 on execution of a tenancy agreement on 1.10.1978. The tenant paid rent regularly till November, 1979 and from December, 1979 the defendant failed to pay rent and as such ho is a defaulter. The plaintiff also required the suit promises on the ground of bonafide requirement.
5. The suit was contested by the petitioner defendant by filing written statement denying the allegation of the plaintiffs and stating interalia that they are occupying the suit premises since long. The defendant also stated that they never agreed to pay rent at the rate of Rs. 595. It was also averred that the rent was paid till March, 1981 and receipts were granted by the landlord. The rents for the months of April to July, 1981 had been paid in cash but no receipts were issued by the landlord. The rent for the month of August, 1981 was also tendered but it was not accepted by the landlord whereupon the defendant started paying rent in court. The trial court framed as many as 7 issues and on conclusion of the trial held that the defendant tenant is a defaulter and the suit premises was required bonafide by the plaintiff and accordingly decreed the suit. Feeling aggrieved, Title Appeal No. 24/1994 was filed by the petitioner defendant before the District Judge, Kamrup, Guwahati who also dismissed the appeal vide the impugned judgment dated 18.8.1998.
6. The main plank of submission of the learned counsel for the petitioner is that the trial court as well as the appellate court did not consider the oral and documentary evidence adduced by the defendant and proceeded with the matter after considering the evidence of the plaintiff side only. The learned counsel has, therefore, prayed that the matter be referred back to the appellate court for the consideration of the question as to what was the due date for payment of rent and what is the effect of the various documentary evidence led by the defendant. In support of the submission, the learned counsel has referred to the observations of this court in the case reported in AIR 1971 Assam and Nagaland 65 and the decision of the Apex Court in the case of Sawarni (Smt) v. Inder Kaur (Smt) and Ors., reported in (1996) 6 SCC 223.
7. The title suit filed by the petitioner was in respect of the suit premises situated in Dewan Patty Road, Fancy Bazar, Guwahati and there was a reference that the defendant was a tenant in respect of Athgaon property also. The defendant in this case, has filed documents to show payment of rent in respect of Athgaon property. Admittedly, the court was not concerned with the payment of rent or non payment of rent of the Athgaon property and hence, non consideration of the documentary evidence in respect of Athgaon property was irrelevant and the trial court was to consider whether the defendant was tenant in respect of the suit premises at Dewan Patty Road, Fancy Bazar, Guwahati or not. There is no dispute at the Bar that the petitioner defendant was a tenant in respect of the suit premises.
8. The petitioner has challenged the lease agreement (Ext. 2) dated 1.10.1978. Ext. 2(1), 2(2) and 2(3) are the signatures of the defendant Hiralal Shah. The signatures are not in dispute. However, it is stated that the defendant Hiralal gave his signature on the belief that the plaintiff would use the document for Income tax purposes and the father of the present defendant has put his signature in blank paper. However, the court below did not accept the plea raised by the defendant as a businessman is not supposed to put his signature in blank stamp paper. The matter did not end at Ext. 2 only. There is specific evidence to show that the defendant put his signature on the rent receipts which were prepared and the landlord obtained a signature of the tenant. Ext. 3, 4, 5 and 6 are the four rent receipts in respect of the suit premises for the months of August, September, October and November, 1979 and all these four receipts bear the date of receipt which are 7.9.1979, 5.10.1979, 9.11.1979 and 11.12.1979. The signature of Hiralal Shah alongwith the date is seen in Ext. 3 and 4 and his signature alongwith the date is seen on the back side of Ext. 5 and 6. We are unable to accept the plea that the defendant Hiralal Shah has put his signature in the receipts in order to help the landlord for income tax matter.
9. The trial court recorded a definite finding that the suit premises was rented out vide Ext. 2 at a monthly rent of Rs. 595 and the tenant was a defaulter since December, 1978 and the monthly rent was Rs. 595 and not Rs. 151 as claimed by the tenant. The said finding were accepted by the appellate court also and the suit stands decreed.
10. The learned counsel for the petitioner has referred to the observations of this court in the case of Hayat Ali v. Hussammat Lal Banu and Ors., reported in 1999(2) GLT 492. The matter was decided in the facts of the said case only and no ratio of law was laid down. Hence, the above decision is not relevant for our purpose.
11. The next submission of the learned counsel for the petitioner is that both the courts below did not come to a finding as to what was the due date of payment of rent. In this case, we find that the tenant had challenged the rent agreement and the amount of rent and the trial court in view of the materials and evidence on record, held against the defendant. So far the payment of rent is concerned, we find that the plaintiff specific case is that the defendant did not pay any rent at the rate of Rs. 595 P.M. since December, 1978. Although the trial court did not enter into the question of due date at all, we find that the defendant did not come up with specific plea that rent since December, 1990, was paid by them. The learned counsel has referred to the observations of this court in the case of Upendra Chandra Deb Roy v. Smt. Subhashini Deb Roy and Ors., reported in 1989 (2) GLR 7 which was followed in the case of Tushar Kanti Dey v. Sulata Choudhury and Ors., reported in 2002 (1) GLT 51. The question of determination of due date is only relevant when there is a dispute as to when rent was paid or there is allegation of delayed payment of any rent.
12. In the instant case, the defendant has not produced any document to show that they did pay or deposited any rent since December, 1978 at the rate of Rs. 595. The defendant in t he written statement has stated that rent till March, 1981 was paid by them for which receipts were granted to them; but no such receipts were produced showing payment of rent to the plaintiff at Rs. 595 for the suit premises. It is further submitted that although rent for the month of April to July was paid in kind hut no receipt was granted. The tenant being a businessman, they are to maintain accounts and being an income tax assessee, they could have produced records to show that rent was duly paid by them for the above period. But surprisingly enough they did not produce any record to show that they did pay any rent at the rate of Rs. 595 since December, 1978. Thus, this is a case of non-payment of rent by the tenant and hence, non consideration of the due date is irrelevant,
13. As regards the plea of bonafide requirement, issue No. 3 was framed and the trial court held as follows :-
'Issue No. 3. -- The plaintiffs averred both in plaint and evidence that they have no other house for running their business. Plaintiffs are running their business in the rented house. It is also found from the evidence of the D.Ws that the plaintiffs are running their business in the rented house. So, the suit house is required by the plaintiff for their own use and occupation. So, I found that the plaintiffs have bonafide requirement for the suit house. Hence, the issue is decided in favour of the plaintiff and against the defendants.'
14. It seems that the appellate court failed to notice the above finding when it observed that in the instant case although there is no finding as to bonafide requirement on the part of the landlord to occupy the suit house, but there is a clear finding as to defaulter on the part of the tenant in making payment the defendants are liable to be evicted by the decree of the Court.
15. From what has been stated above, we find that no case is made out for any interference or remitting the matter back to the trial court or the appellant court. There is no merit in this civil revision and the civil revision is accordingly dismissed. The stay order granted on 28.10.1998 stands vacated.