Amitava Roy, J.
1 .The petitioners -defendants/tenants challenge the judgment and order dated 12.1.2005 passed by the learned Civil Judge (Senior Division), Nagaon in Title Appeal No. 21/2003 affirming the judgment and decree dated 3.3.2003 passed by the learned Civil Judge (Junior Division No. 1), Nagaon in Title Suit No. 2/2000 thereby decreeing the suit for their ejectment from the premises involved.
2. I have heard Mr. B.K. Gowami, Senior Advocate assisted by Ms. T. Goswami, Advocate for the petitioners and Mr. A.K. Goswami, Senior Advocate assisted by Mr. A.K. Sharma, Advocate for the respondents. The pleaded versions of the parties ought to be noticed before evaluating the competing arguments.
3. The predecessor in interest of the respondent Nos. 1 to 4 i.e. Hemanta Kumar Barman (since deceased) and other respondents instituted the aforementioned suit against the petitioners as defendants praying for a decree inter alia for their ejectment from the suit premises described therein and for arrear rent of Rs. 16,710/-together with interest @ per annum. According to them, the petitioners were tenants under them at an yearly rent fixed at Rs. 5570/- being from 1st August to 31st July of every English calendar year. They stated that the tenancy commenced from 1.8.82 between Kumud Barman their predecessor in interest and Siranjilal Bajaj, father of the petitioner No. 1/defendant No. 1. On the death of Kumud Barman, the properties including the suit premises developed on them, whereafter Siranjilal Bajaj attorned to them as their landlord. On the death of Siranjilal Bajaj the petitioner No. 1/defendant No. 1 constituted a partnership along with his brother Joy Krishan Bajaj and sister in law Mrs. Usha Bajaj and carried on the business of grocery in the suit house. The petitioner No. 1/defendant No. 1 requested the plaintiffs verbally to allow him to occupy the suit premises on the previous terms of lease which was acceded to. The respondents plaintiffs alleged default in payment of rent since 1.8.89 inspite of repeated demands and that with lapse of time payment of the rent in arrear had become barred by limitation. They maintained that the young children of their family were unemployed. Besides Smti Promila Barman widow of Pradip Barman (son of Kumud Barman) was unemployed. Hemanta Kumar Barman (since deceased original plaintiff No. 1) was also going to be retired shortly and that the rooms were necessary to accommodate them. They asserted that the suit house was required to make adequate arrangement for the occupation of the family by reconstructing and renovating the same. The reliefs as referred to above were prayed for on the ground of default in payment of rent and bonafide requirement.
4. The petitioners defendants in their written statement questioned the maintainability of the suit on the ground of misjoinder and nonjoinder of necessary parties, want of material facts and non disclosure of any specific cause of action. They, however admitted to be the tenants under the plaintiffs in respect of the suit premises. They denied the allegations of default and the bonafide need of the suit premises and averred that the tenancy between the predecessor in interest of the parties had in fact been initiated in the year 1952 with an yearly rent of Rs. 1600/-. According to them, the suit premises originally was comprised of a reinforced building with two rooms one each in the ground floor and the first floor together with C.I. sheet godown and cook shed. The yearly rent of Rs. 1600/- was enhanced from time to time and on 18.11.1982 a registered deed of lease was executed for a period of 7 years commencing from 1.8.82 wherein the rent for the first two years with effect from 31.7.84 was to be paid @ Rs. 7000/- per year and for the next 5 years @ Rs. 9000/- annually. According to the petitioners defendants the rent was to be paid in the month of August each year and that the enhanced rent of Rs. 9000/- was payable for causing repairs to the backside godown included in the suit premises. They alleged that the plaintiffs were in the habit of refusing rent in conformity with the agreement for which they had to deposit the rent for the period from 1.8.82 to 31.7.83 in Court. They, however admitted that the landlord accepted the rent for the period from 1.8.83 to 31.7.84. The backside godown was however not repaired as promised and the petitioners defendants deposited the rent for the period 1.8.84 to 31.7.85 in Court @ Rs. 7000/-. On 4.1.1986 the son of Pradip Barman (since deceased) along with others trespassed into the suit premises and demolished the godown and the cook shed and also destroyed the goods in stock as a result whereof an area of 2522 Sq. feet originally in their occupation got reduced to 1560 sq. feet. In the circumstances, the predecessor in interest of the petitioners-defendants instituted Title Suit No. 23/1986 in the court of the Asstt. District Judge, Nagaon (now Civil Judge, Senior Division) for fixation of fair rent which was eventually decreed and the rent was fixed at Rs. 5570/- as yearly rent instead of Rs. 9000/-. In Title Appeal No. 3/1991 the decree was affirmed. The petitioners thereafter offered the rent at that rate and the respondents plaintiffs having refused to concept the same, they deposited it in the Court. During the pendency of the aforesaid suit, both Kumud Ch. Barman and Chiranjilal Bajaj expired.
5. On the basis of the pleadings of the parties, the learned trial court framed several issues on which issue Nos. 6 and 7 which are of relevance are set forth here-inbelow.
Issue No. 6: Whether, defendant/defendants are defaulters of rent?
Issue No. 6 : Whether, the suit house was required by the plaintiffs for their personal use and occupation?
6. On a consideration of the pleadings of the parties and the evidence on record the learned trial Court decided the issue of default in favour of the respondents plaintiffs on the ground that the petitioners defendants had failed to prove the offer of rent to them before depositing the same in Court as required under Section 5(4) of the Assam Urban Areas Rent Control Act, 1972 (hereinafter referred to as the 'Act') it was held that the evidence of the witnesses for the respondents plaintiffs amply established that the suit house was in bonafide need of the respondents plaintiffs and therefore also decided said issue in favour of the landlord.
7. Being aggrieved, the petitioners defendants carried the matter in appeal. By the impugned judgment and order the decision of the learned trial court on the above two issues was affirmed. On the issue of default, the learned court below observed that the petitioners defendants having deposited the rent in Court. It was their duty to prove the circumstances under which they were compelled to do so. On an assessment of the evidence on record, it concluded that they had failed to prove the offer of rent to the landlord before depositing the same in Court and that therefore the same was not in compliance with the requirements of the Act. The plea raised in the appeal for adjustment of the excess amount of Rs. 18,886/- deposited by way of rent from 1986 to 1996 @ Rs. 9000/- per year in the face of fixation of fair rent @ Rs. 5570/- was negated, in absence of any evidence that the said amount had been paid by way of advance adjustable in future. The decision of the learned trial court on the issue of default was therefore sustained. On a survey of the evidence adduced on behalf of the respondents plaintiffs on the aspect of bonafide requirement, the learned Court below held that the petitioners defendants could not successfully challenge the credibility thereof and therefore decided the said issue also in favour of the landlord.
8. The learned Senior counsel for the petitioners defendants has urged that the findings of the learned Court below being against the weight of the evidence on record are per se perverse vitiating the impugned judgment and order. Referring to the plaint and the evidence of PWs 1 and 2, he contended that there being a variation in pleadings and proof, the learned Court below ought to have dismissed the respondents plaintiffs' suit on that count alone. Mr. Goswami in this connection pointed out that though in the plaint, the default was apparently from 1.8.89, in evidence it was mentioned to be from 1984. Drawing the attention of this Court to the evidence of the above witnesses of the respondents plaintiffs and that of DW 1 (petitioner No. 1/defendant No. 1), the learned senior counsel maintained that the factum of offer of rent before deposit in court had been amply established thereby and therefore the finding to the contrary is ex facie unsustainable in law. According to him, in any view of the matter, in face of the excess amount in deposit, the same was adjustable against the rent if due following reduction of the agreed rent of Rs. 9000/- to that of Rs. 5570/- in Title suit No. 23/86 and therefore, the finding of default is absurd. He maintained that the learned court below arrived at its conclusions on the aspect of default without considering at all the evidence on record regarding offer of rent and refusal of the landlord before depositing the same in court.
The learned Senior counsel urged that as in course of the suit and the appeal, Pratima Barman widow of late Pradip Barman had been employed for gain and plaintiff Hemanta Barman had expired, the bonafide need for the premise which allegedly existed at the initiation of the suit did not subsist thereafter and therefore, the learned court below had acted illegally in exercise of its jurisdiction in deciding the related issue in favour of the respondents plaintiffs. The written arguments submitted on behalf of the petitioners defendants highlighting the relevant portions of the evidence and the assertions based thereon demolishing the case of the landlord not having been noticed at all, the impugned judgment and order is vitiated by non consideration of the relevant recorded facts and is thus liable to be interfered with in the interest of justice, he urged. Mr. Goswami relied on the following decisions of the Apex Court--
(1) : [1979]3SCR1107 , Metalware and Co. etc., Appellants v. Bansilal Sarma and Ors. Respondents;
(ii) : [1985]2SCR102 , Variety Emporium, appellants v. V.R.N. Mohd. Ibrahim Naina, Respondents;
(iii) : [1994]1SCR377 , Kranti Swaroop Machine Tools Pvt. Ltd. Appellants v. Kanti Bai Asawa (Smt.) and Ors. Respondents.
9. In reply, the learned Senior counsel for the respondents plaintiffs contended that the determination made by the learned Court below vis a vis the issues of default and the bonafide requirement being based on an exhaustive analysis of the pleadings and the evidence on record, this Court in exercise of its revisional jurisdiction would not interfere therewith. It having been clearly pleaded in the plaint that the petitioners defendants were defaulters of rent and that a portion of rent in arrears had been rendered time barred, no inconsistency between the pleadings and the proof as alleged exists. According to him, in absence of any evidence whatsoever of offer of rent to the landlord before the deposit thereof in court prior to the fixation of fair rent in Title suit No. 23/86, the same (deposit) was not est in law and therefore, the claim of adjustment of any excess amount is fallacious. Moreover, no factual foundation of such a plea having been laid in the written statement, the same is at this belated stage not entertainable in law. As the evidence of the parties taken as a whole does not establish in any manner that the rent deposited in court after the decision in Title suit No. 23/86 has been preceded by offer to and refusal thereof by the respondents plaintiffs, one of the pre essentials of Section 5(4) of the Act being unfulfilled, the learned court below rightly held the petitioners defendants to be defaulter in payment of rent. The learned Senior counsel asserted that as the suit premises was bonafide required to accommodate the educated unemployed children of the family, the employment of Pranita Barman and death of Hemanta Kumar Barman was inconsequential and as the need survived at the time of disposal of the appeal as well, the decision on the issue of bonafide requirement on the basis of the evidence on record is unassailable in law.
10. The rival submissions have been carefully analyzed. Perversity in the findings for non consideration of recorded facts being the principal challenge to the impugned judgment and order, I have considered it discreet to make a survey of the evidence bearing on the above two issues.
11. PW 1, Dilip Kumar Borah (Plaintiff No. 2) had deposed that initially the tenancy was for a period of seven years with the yearly rent of Rs. 2000/- for the first two years and Rs. 9000/- for the remaining five years. The Court, however, fixed the fair rent thereafter at Rs. 5570/-only. The year of tenancy commenced from 1st August. The said witness testified that the defendants failed to pay rent from the year 1984. Though notice of deposit of rent was on one or two occasions served on the landlord, it was not, so for all the years. He admitted to have received the notice of deposit of rent @ Rs. 5570/-. He denied the suggestion that before such deposit, the petitioners defendants had offered rent to the landlord and that they having refused to accept the same, it was deposited in court. He further deposed that his brother had retired and that no provision for his son had been made and that therefore the suit house was necessary therefore. He also stated that his sister in law was without any employment for whom one room was essential.
12. PW 2, Hemanta Barman (since deceased) stated that the rent was Rs. 5570/-per year and that the year of tenancy was from 1st August to 31st July. He deposed that the petitioners defendants neither offered rent to them nor paid the same. He also stated that they had defaulted to pay rent from the year 1984 and that on one or two occasions they had received the notices of deposit thereof in court. According to him, before such deposit, the rent was not offered to them. He denied the suggestion that the rent had to be deposited in court as inspite of offer thereof being made to them, it was refused. In cross examination, this witness stated that from the pendency of Title suit No. 23/86, the petitioners defendants had paid rent to the landlord owner and that they did not deposit the same in court. He also stated that after fixation of fair rent, the petitioners defendants offered rent to the plaintiff Pradip Barman who accepted the same. He testified that his graduate son is unemployed and though his sister in law had joined the service, she was without any pay. According to him, if the suit house is available, his son can be engaged in a business. The witness further deposed that a part of the suit premises had been demolished for renovation and that if the suit house is available, necessary construction works would be made. He, however admitted that Pratima Barman had been appointed on compassionate ground.
13. DW 1, Deoki Nandan Bajaj admitted that the initial rent for the suit house was Rs. 7000/- before Rs. 9000/-. He stated that after fixation of fair rent, he offered the rent to Pradip Barman, but he did not accept the same. Therefore, the rent had to be deposited in court. He admitted that neither Pradip Barman nor Hemanta Barman had come to collect rent from him and that he alone had visited their house for the purpose. He admitted that the sons of Hemanta Barman are graduates, but was not sure whether they were employed. He also expressed ignorance about the employment of the widow of Pradip Barman. He also could not state as to whether the other sons were engaged for gain.
14. DW 2 and DW 9 are the official witnesses who proved the rent deposit receipts for various periods.
15. By the judgment and order dated 24.9.1992 passed in Title Appeal No. 3/ 1991, the verdict in Title suit No. 23/86 was affirmed and the rent for the suit premises was fixed at Rs. 5570/- with effect from 5.1.1986.
16. In the face of the evidence as noticed hereinabove, the assertion of divergence of the pleadings from the proof is not convincing. The respondents plaintiffs while specifying the date of default in the suit to be 1.8.89 in the plaint, pleaded that the petitioners defendants were heavy defaulters in payment of rent and that a portion of the arrear rent had already become barred by limitation. The testimony of the plaintiffs' witnesses about the default from the year 1984 provided only the background of the suit and does not per se destroy the substratum of the case of the respondents plaintiffs. Having regard to the date from which the respondents plaintiffs have pleaded the default for the purpose of the suit, no inconsistency between the pleadings and the proof as contended is discernible.
17. Noticeably, there is no trace of any evidence of offer of rent to the landlord before deposit thereof in court for the period upto the fixation of fair rent. The evidence discloses that by the various rent cases, the first in order being MNJ 291/86 deposits have been made. Ext 'Jha' for the period 1.8.86 to 31.7.87 for which Rs. 9000/- had been deposited clearly demonstrates that the rent for all these years could not be paid to the landlord. In absence of any whisper with regard to prior offer at rent for the said period and refusal thereof by the landlord, the related deposits are non est in law being in derogation of Section 5(4) of the Act. The argument of adjustment of the excess amount of Rs. 18,886/- deposited during the period 86-87 and 1990-91 is thus clearly untenable.
18. In Kranti Swaroop Machine Tools Pvt. Ltd. (Supra), the first respondent landlady and another, owners of the suit premises filed an eviction petition for ejectment of the appellants tenants for having committed willful default in payment of rent as well as taxes due to the Municipal Corporation in respect of the premises involved. The Rent Controller allowed the application. In the tenant's appeal, the verdict was reversed. Challenge thereto made by the landlord failed before the High Court. It was urged before the Apex Court inter alia that the parties were governed by a contract wherein the tenant had deposited a sum of Rs. 10,000/- agreed to be adjusted at the termination of the tenancy towards the rent, light bills and damages as might be found due. The tenants were obliged to pay the municipal taxes within a month of such intimation by the landlord. It was contended on behalf of the appellant tenant that no such intimation had been made. It was urged that if the rent included the municipal tax as agreed by the parties, the object of depositing a sum of Rs. 10,000/- with the landlady ought to have been examined by the High Court. Though under Section 7(2)(a) of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960, the landlady was forbidden to receive any premium or other like sums in excess of the agreed rent, eviction on the ground of willful negligence could not have been ordered, even on the absence of a request requiring the landladies to make adjustment against the amount advanced. The Apex Court noticing Clause 3 of the contract pertaining to the deposit held that though the same did not permit adjustment, there was an obligation to adjust therefrom, otherwise the very purpose of the deposit would be rendered nugatory. It ruled that a request by the tenants to the landladies for doing so was not essential. In coming to the said conclusion, the Apex Court referred to its earlier decision in Modern Hotel v. K. Radhakirishnaiah : [1989]2SCR725 and in Mohd. Salimuddin v. Misri Lal : [1988]1SCR414 where similar deposits had been made by way of advance rent to the landlord. The Apex Court had declared therein that advance rent though not permissible under the respective rent legislations, the tenant could not be construed to be a defaulter, in view of the deposit by following the doctrine of pari delicto. In the result, the appellants/tenants were held to be not in defalt in view of deposit of Rs. 10,000/- which the Apex Court held ought to have been adjusted even without a specific request from them in that regard.
19. This Court in Smti. Reba Dey (Civ. Rev. 204/2000) was also seized with the situation where an amount of Rs. 15,000/-lay in deposit with the plaintiff landlord in the name of the defendant tenant and the tenant contended that as after necessary adjustment, the amount was in excess of the amount due on account of rent, he could not have been branded as defaulter. This Court drawing sustenance from Kranti Swaroop Machines Pvt. Ltd. and Anr. (supra) upheld the said plea and returned a finding in favour of the tenant and against the default.
20. Evidently, in the decided cases as above the deposits lying with the landlord were an yield of the consensus between the parties though the same was not permissible under the rent statutes. Nevertheless, the deposits were made upon agreements between the parties outlining the mode of adjustment thereof. In my view, the facts as obtained in those cases are clearly distinguishable from those in the one in hand. The deposits of rent made from 1986-87 to 1990-91 being not preceded by any offer thereof to the landlord and refusal by latter are not inconformity with the imperatives of Section 5(4) of the Act and therefore are invalid and ineffectual. The same cannot thus be equated with an amount lying in deposit with the landlord following the concurrence of the parties with regard thereto and the mode of utilization thereof. The plea of adjustment being unsustainable in the above factual premise therefore fails.
21. The evidence of PW1, PW2 and DW 1 read as a whole does not prove the offer of rent by the petitioners defendants to the respondents plaintiffs after the fixation of fair rent before depositing in court. True, it is that PW 2 in his cross examination had admitted that during the pendency of Title suit No. 23/86, the petitioners defendants had paid rent to them and that after fixation of fair rent, the tenants had offered the rent to Pradip Barman who had accepted the same. This statement of PW2 read with the testimony of PW 1 together with their denial of the suggestion that the rent had been offered to them before deposit, in my considered opinion cannot be of any decisive relevance. Admittedly, the petitioners defendants had deposited the rent in court from 1986. Had the landlord accepted the rent during the pendency of Title suit No. 23/86, there would have been no occasion therefor at least till 24.9.92, the date of disposal of Title Appeal No. 3/ 1991. Moreover, the consistent stand of the petitioners defendants as reflected in the testimony of DW 1 is that the respondents plaintiffs having refused to accept the rent after being offered, the same was deposited in Court. The stray statement of PW 2 regarding offer to and acceptance of rent by Pradip Barman after fixation of fair rent cannot thus be determinative of the factum of offer. Had the rent been accepted, there would have been no necessity for the petitioners defendants to deposit the same in court. Evaluating the evidence of the witnesses on the touchtone of preponderance of probability, the ultimate conclusion of the learned court below on default for want of offer prior to deposit thereof in court thus cannot be dismissed as perverse or in defiance of logic. No interference therewith is therefore called for.
The evidence of PWl and PW2 on the facet of bonaftde requirement consistently project the need for the suit premises to settle the educated unemployed children of the family apart from Pratima Barman, widow of Pradip Barman. DW1 in his evidence has not been able to undermine the credibility of the claim, having expressed ignorance about the placement of the educated sons of the plaintiffs. Admittedly, however, in between Pratima Barman has found employment. Hemanta Barman has expired. The above notwithstanding the need for the suit premises for accommodating the grown up educated children cannot be said to have been rendered non existent. The emphasis throughout having been to accommodate the educated unemployed children of the family, the employment of Pratima Barman and demise of Hemanta Barman cannot be construed to be mutilative of the need for the premises as on date. The evidence of PW2 that a portion of the suit premises has been demolished for repairs also militates against the petitioners defendants' assertion that reconstruction and renovation of the suit premises is not warranted. Rather, the said exercise was contemplated to meet the growing demand for accommodation.
22. The decision of the Apex Court in Metalware and Co. etc. 9 (supra) about the significance of the state or condition of the building while determing the bonafide requirement of the landlord is of no assistance to the petitioners defendants in the existing fact situation. In view of the determination that the respondents plaintiffs genuine need for the suit premises, subsists as on date, the decision of the Apex Court in M/s Variety Emporium (supra) as well does not further the case of the petitioners defendants. The employment of Pramila Barman and the death of Hemanta Barman in the prevailing facts and circumstances have not rendered the landlords' requirement of the suit house non existent and therefore the findings of the learned court below on this issue as well cannot be denounced as unsustainable in law. No error of law or perversity in the appreciation of the materials on record is discernible to invalidate the impugned decision.
23. In the above view of the matter, the 'revision petition lacks merit and is accordingly dismissed. Stay order passed earlier stands vacated. No costs.