Bata India Ltd. and ors. Vs. United Publishers and anr. - Court Judgment

Excerpt:
- - 2 as well as the plaintiff no. the opposite parties/plaintiffs in the plaint has further stated that the defendants were never regular and punctual in making monthly rent and they defaulted in making payment, of the monthly rent in the months of april, may and june 1985 and, therefore, they are defaulter under the provisions of assam urban area rent control act, 1972 (herein referred to as, the 1972 act'). they have failed to pay the monthly rent which is payable on the first day of the month. 2 can only maintain a suit for eviction of the defendants and the suit is bad for joinder of other plaintiffs. though the revision petitioners/defendants were not defaulters in respect of the rents payable, for the months of april, may and june 1995, which was payable quarterly but they are..... b.p. katakey, j.1. the opposite parties along with one sri bhagwan das, as plaintiffs, filed title suit no. 127 of 1985 in the court of the learned assistant district judge no. 1, guwahati against the revision petitioners, as defendants, praying for a decree for ejectment from the suit premises on the ground of defaulter and bona fide requirement and also for arrear rents. the case of the opposite parties/plaintiff in the plaint is that the opposite party no. 1 is a registered partnership firm of which the opposite party no. 2/plaintiff no. 2 as well as the plaintiff no. 3 are the partners. the revision petitioner/defendant who were original tenants under smti. gigi agarwallani in respect of the suit premises attorn to the plaintiffs as the landlord, after the plaintiff no. 2 purchased.....

Judgment:

B.P. Katakey, J.

1. The opposite parties along with one Sri Bhagwan Das, as plaintiffs, filed Title Suit No. 127 of 1985 in the Court of the learned Assistant District Judge No. 1, Guwahati against the revision petitioners, as defendants, praying for a decree for ejectment from the suit premises on the ground of defaulter and bona fide requirement and also for arrear rents. The case of the opposite parties/plaintiff in the plaint is that the opposite party No. 1 is a registered partnership firm of which the opposite party No. 2/plaintiff No. 2 as well as the plaintiff No. 3 are the partners. The revision petitioner/defendant who were original tenants under Smti. Gigi Agarwallani in respect of the suit premises attorn to the plaintiffs as the landlord, after the plaintiff No. 2 purchased the said plot of land along with the suit house as a proprietor of plaintiff No. 1 firm. Though there was no written agreement executed between the plaintiffs and the defendants, they continued to pay the monthly rents in the name of plaintiff No. 1 in respect of the tenanted premises. The plaintiffs with a view to reconstruct the building requested the defendants to vacate the suit premises and the defendants thereafter agreed to pay the monthly rent at Rs. 1000 till they shift to the new premises. Since the defendants did not vacate the suit premises, the plaintiffs repeatedly requested them to vacate the same, which is required for reconstruction and though the defendants assured them that they will vacate the suit premises, they did not do so even after expiry of the original lease. Meanwhile the monthly rent in respect of the tenanted premises was enhanced to Rs. 1500. The further case of the plaintiffs in the plaint is that their own business was expending and needed more accommodations for the purpose of their business, there being insufficient space to keep the required quantity of stock of books, which the plaintiffs dealing with, and consequently their business has suffered to a great extent. Moreover, according to the plaintiffs they require the said suit premises urgently for the purpose of reconstructing the house and for their own use and occupation apart from their business purposes also for their own residence as the plaintiff Nos. 2 and 3 with their family are living in a rented house by paying high rent to their landlord. The opposite parties/plaintiffs in the plaint has further stated that the defendants were never regular and punctual in making monthly rent and they defaulted in making payment, of the monthly rent in the months of April, May and June 1985 and, therefore, they are defaulter under the provisions of Assam Urban Area Rent Control Act, 1972 (herein referred to as, 'the 1972 Act'). They have failed to pay the monthly rent which is payable on the first day of the month. Hence, the plaintiffs have filed the suit for ejectment of the defendants on the ground of bona fide requirement and also on the ground of defaulter.

2. The revision petitioners/defendants contested the suit by filing written statement stating, inter alia, that the suit filed by the plaintiffs are not maintainable as the plaintiffs are not the joint owners of the suit premises but the plaintiff No. 2 is the absolute owner of the suit premises and, therefore, the plaintiff No. 2 can only maintain a suit for eviction of the defendants and the suit is bad for joinder of other plaintiffs. It has further been stated in the written statement that the defendants were tenants under the original owner Bidya Prakash Agarwalla at a monthly rent of Rs. 700 issued by the original owner Bidya Prakash Agarwalla, they started paying rent to the plaintiff No. 2, for the convenience of the owner of the suit premises, i.e., plaintiff No. 2. The defendants in the written statement has also admitted that the plaintiff No. 2 as landlord and not plaintiff Nos. 1 and 3 as their landlord. According to the defendants, as the plaintiff No. 2 refused to accept the enhanced rent of Rs. 1,500 per month, which is payable quarterly, they deposited the said rent in the court as required under the provisions of the 1972 Act and, therefore, they are not defaulter within the meaning of the said Act. The defendants in the written statement has also denied that the suit premises is required by the plaintiffs for their own uses and occupation.

3. The learned Trial Court, namely, the learned Civil Judge (Jr. Division). No. 4 at Guwahati, on receipt of the records on transfer, vide judgment dated 16.6.2000 decreed the suit of the opposite parties/plaintiffs by holding that the suit is maintainable even after the death of plaintiff No. 3 as the plaintiff No. 2 is one of the co-owners of the suit premises. Though the revision petitioners/defendants were not defaulters in respect of the rents payable, for the months of April, May and June 1995, which was payable quarterly but they are defaulters in respect of the rents payable for the subsequent months as the defendants have failed to prove that they deposited the rents for the subsequent periods in court as required under the said Act. It was further held by the learned trial court that the plaintiff No. 2 requires the suit premises for his own use and occupation.

4. The revision petitioners being aggrieved by the said judgment and decree passed by the learned trial court filed Title Appeal No. 45/2000 in the court of the learned Civil Judge (Sr. Division) No. 2, Guwahati under Section 8 of the 1972 Act and the learned appellate court vide judgment dated 29.6.2000 dismissed the appeal by affirming the judgment and decree passed by the learned trial court and by holding that the defendants/revision petitioners were defaulters even in respect of the payment of rent for the months of April, May and June 1985, as the same was deposited in the court without first tendering the same to the landlord and upon refusal to accept the same. The learned appellate court has further held that on the death of one of the partners, namely, plaintiff No. 3, the suit can be continued without impleading the legal representatives of the deceased plaintiff No. 3, in view of the provisions contained in Order 30, Rule 4 of the C.P.C. The learned appellate court has further held that the revision petitioners/defendants having pleaded in the written statement that the plaintiff No. 2 is the landlord, being the owner of the suit premises, the suit filed by the plaintiff No. 2 for ejectment of the defendants is maintainable. Hence, the present revision petition has been filed by the revision petitioners who are the defendants/tenants.

5. I have heard Mr. B.R. Dey, the learned senior counsel assisted by Ms. D. Choudhury for the revision petitioners, and also Mr. S.S. Sharma, the learned senior counsel assisted by Mr. R.K. Bhotra for the opposite parties.

6. Mr. Dey, learned senior counsel for the revision petitioners, has raised the following points while challenging the judgment and decree passed by the learned courts below decreeing the suit in favour of the plaintiffs for ejectment of the defendants and for payment of arrear rents.

(i) The plaintiff No. 1 being a partnership firm, of which the plaintiff Nos. 2 and 3 were the partners, the said partnership firm stands automatically dissolved on the death of the plaintiff No. 3 and, therefore, the suit of the plaintiffs in the name of plaintiff No. 1 is not maintainable and hence the decree passed by the learned courts below for eviction is liable to be set aside being nullity.

(ii) Though the tenancy was a monthly tenancy, the rent was payable quarterly and the rent for the months of April, May and June 1985 as well as the subsequent months having been deposited in court, on being refused to accept the same by the landlord, the revision petitioners/defendants are entitled to protection under Section 5(4) of the 1972 Act and they cannot be held to be defaulter under the said Act and hence are not evictable on the ground of defaulter.

(iii) The opposite parties/plaintiffs have failed to prove the bona fide requirement of the suit premises for their own use and occupation as have failed to produce and exhibit the approved plan and permission from the competent authority for the purpose of reconstruction of the suit premises and, therefore, no decree for ejectment on the ground of bona fide requirement can be passed. Moreover, due to automatic dissolution of the plaintiff No. 1 firm on the death of plaintiff No. 3, bona fide requirement of the plaintiff No. 1 firm ceased to exist. .

POINT No. (i)

7. Mr. Dey, learned senior counsel for the revision petitioners in support of his contention in Point No. (i) has submitted that the plaintiff No. 1 being a partnership firm consisting of two partners, namely, the plaintiff Nos. 2 and 3 and the suit having been filed in the name of the plaintiff No. 1, describing him as the landlord, the same is not maintainable in view of the fact that the plaintiff No. 1 firm stands automatically dissolved on the death of the plaintiff No. 3.

8. Mr. Dey has further submitted that on the death of the plaintiff No. 3, his name was struck off from the list of plaintiffs and his legal heirs were not brought on record and, therefore, no decree can be passed in favour of the plaintiff Nos. 1 and 2, I in the suit. In support of his contention Mr. Dey, learned senior counsel, has placed reliance on Section 42(c) of the Indian Partnership Act, 1932 and has submitted that a firm is dissolved by the death of a partner and, therefore, no decree can be passed in favour of the Plaintiff No. 1 and as the Plaintiff No. 1 was described as landlord, the suit is not maintainable on dissolution on the Plaintiff No. 1 firm. Referring to a decision of t he Apex Court in Commissioner of Income-tax, Madhya Pradesh, Nagpur and Bhandra, Nagpur v. Seth Govindram Sugar Mills, reported in : [1965]57ITR510(SC) , Mr. Dey has submitted that Section 42(c) of the Partnership Act can appropriately he applied to a partnership where there was more than two partners and if one of them dies, the firm is dissolved, but if there is a contract to the contrary, surviving partner will continue the firm. According to Mr. Dey, in the present case the Plaintiff No. 1 firm consisted of two partners, namely, Plaintiff Nos. 2 and 3 and upon the death of plaintiff No. 3 the firm automatically stands dissolved and, therefore, no decree for eviction can be passed in favour of the plaintiff No. 1 and also in favour of the plaintiff No. 3 who has since been dead. The decree passed by the learned court below against the non-existent firm as well as the dead person is, therefore, a nullity.

9. Mr. S.S. Sharma, the learned senior, counsel for the opposite parties submits that the suit filed by the plaintiffs shall continue to be maintainable even after, the death of one of its partners, namely, the Plaintiff No. 3 and even if, the legal heirs and representatives of the said Plaintiff No. 3 is not brought on record. Mr. Sharma in support of his contention has placed reliance on the provisions of Rule 4, of Order 30, of the CPC and submitted that, once a suit is filed in the name of a firm consisting two or more persons, and if any of such persons dies during the pendency of the suit, it is not necessary to join the legal representative of the deceased as a party to the suit, and the suit survives and, therefore, the suit even after the death of the partner is maintainable. Mr. Sharma, the learned senior counsel has further submitted that the decision of the Apex Court in Commissioner of Income-tax, Madhya Pradesh, Nagpur and Bhandra, Nagpur (supra) is not applicable in the instant case as the said decision was rendered by the Apex Court in the matter relating to the Income-tax. The question before the Apex Court was whether on the death of one of the partners the partnership firm stood dissolved by virtue of Section 42(c) of the Partnership Act. There was no occasion to consider the provisions of Rule 4, of Order 30, of the CPC by the Apex Court in the said decision and, therefore, the decision rendered by the Apex court relied upon by the revision petitioners is not applicable in the instant case.

10. The further submission of Mr. Sharma is that the defendants in the written statement has specifically admitted that the plaintiff No. 2 is the real owner in respect of the suit premises and they have taken a stand that the suit filed by the plaintiff No. 2 only maintainable and the same is bad for joinder of the other plaintiffs, namely, plaintiff Nos. 1 and 3. According to Mr. Sharma, the defendants/revision petitioners in the written statement has also specifically admitted that the plaintiff No. 2 is the land lord in respect of the suit premises and, therefore, he is the person entitled to receive the rent and the rent which was paid to the plaintiff No. 1 was paid on behalf of plaintiff No. 2 only. That being the position the defendants cannot now say that the suit filed by the plaintiffs is not maintainable in view of their specific stand in the written statement to the effect that plaintiff No. 2 is the landlord in respect of the suit premises. Mr. Sharma the learned counsel for the opposite parties, therefore, submits that the defendants having admitted that the plaintiff No. 2 is the landlord, the decree can be passed in favour of the plaintiff No. 2 even if it is assumed that the plaintiff No. 1 firm stood dissolved on the death of plaintiff No. 3. According to Mr. Sharma, the stand of the defendants being that they are not defaulters because of their deposit of the rents in court in the name of the plaintiff No. 1 firm, the defendants now cannot turn around and say that the plaintiff No. 1 firm is dissolved on the death of the plaintiff No. 3. According to them they continued to deposit the monthly rents in court in the name of the plaintiff No. 1 firm even after the death of plaintiff No. 3.

11. The present opposite parties along with Bhagwan Das as plaintiff No. 3 instituted the Title Suit No. 127/85 against the present revision petitioners as defendants for ejectment from the suit premises on the ground of defaulter as well as the bona fide requirement under the provisions of 1972 Act. In the said suit the plaintiff No. 1 was described as registered partnership firm of which the plaintiff Nos. 2 and 3 were the partners. It has further been stated in the plaint that the plaintiff No. 2 purchased the suit premises from Smt. Gigi Agarwallani, and Shri Bidya Prakash Agarwalla in the year 1972 by registered deed of sale, as the proprietor of the plaintiff No. 1 firm and subsequently the said property' was given to the plaintiff No. 1, a registered partnership firm. It is an admitted fact that the plaintiff No. 3 who was one of the partners of plaintiff No. 1 firm died during pendency of the suit and his name was struck off from the list of the plaintiffs vide order passed by the learned Trial Court and his legal heirs and representatives were not brought on record. The question is to be decided in the present case is, whether the suit filed by the plaintiffs in the name of plaintiff No. 1 still survives on the death of the plaintiff No. 3, the partnership firm being consisted of two partners.

12. Section 45(1) of the Partnership Act provides that a firm is dissolved by the death of a partner. In Commissioner of Income-tax (supra) the Apex Court has held that if a partnership firm is consisted of two partners on the death of one partner, the firm automatically comes to an end. Therefore, on the death of the plaintiff No. 3, the plaintiff No. 1 firm stood automatically dissolved. But in the instant case, the suit was filed not only in the name of the plaintiff No. 1 firm but also in the names of the plaintiff Nos. 2 and 3, who were the partners of the said plaintiff No. 1 firm. Rule 4 of Order 30, of the C.P.C. provides that, where two or more persons may sue or be sued in the name of a firm and any of such persons dies, whether before the institution or during the pendency of any suit, it shall not be necessary to join, the legal representative of the deceased as a party to the suit. However, the legal representative of the deceased person may apply to the court to make them a party to the suit or to enforce any claim against the survivor or survivors. In the instant case, the suit was filed in the names of three parties, namely, the partnership firm and two of the partners.

13. Rule 1 of Order 30, of the C.P.C. provides that any two or more persons claiming or being liable as partners, and carrying on business in India may sue or be sued in the name of the firm of which such persons were partners at the time of the accruing of the cause of action. Rule 4 of Order 30, provides that the right to sue in the name of a firm survives even, after the death of one of the partners whether before the institution or during the pendency of the suit and where the suit is brought in the name of the firm, it is not necessary to join the legal representative of a deceased partner. Therefore, even on the death of the plaintiff No. 3, the suit in the name of other two plaintiffs still maintainable.

14. Another aspect of the matter is that the revision petitioners/ defendants in para 2 and para 10 of the written statement has specifically stated that the plaintiff No. 2 is the absolute owner in respect of the suit premises as he has purchased the suit premises from the original landlord in his individual capacity and, therefore, the suit can only be filed by the plaintiff No. 2. It has further been pleaded that the rent was regularly paid to the plaintiff No. 2 and thereafter to the plaintiff No. 1 for convenience of the plaintiff No. 2. The revision petitioners/defendants have also pleaded in the written statement that they attorned the plaintiff No. 2 as the landlord after he purchased the suit premises from the earlier landlord and the suit is bad for joinder of other plaintiffs, namely, the plaintiff No. 1 and plaintiff No. 3.

15. Clause (c) of Section 2, of the 1972 Act, definitions 'Landlord' which reads as follows:

'(c) 'Landlord' means any person who is, for the time being receiving or entitled to receive rent in respect of any house whether on his own account or on account, or on behalf, or for the benefit of any other person, or as a trustee, guardian or receiver for any other person and includes in respect of his own sub-tenant, a tenant who has sub-let any house and includes every person not being a tenant who from time to time derives titled under a landlord.'

16. From the said definition of the 'Landlord' under the 1972 Act, it is evidently clear that the 'Landlord' means any person who is entitled to receive the rent and also any person who is for the time being receiving rent. In the instant case, the revision petitioners/defendants have admitted that the plaintiff No. 2 is the landlord, and have also further stated in their written statement that subsequently they paid the rent to the plaintiff No. 1 firm for convenience of the plaintiff No. 2 and continued to deposit the rent in court in the name of plaintiff No. 1 even after the death of plaintiff No. 3. That being the position both the plaintiff Nos. 1 and 2 are 'Landlord' within the meaning of Clause (c) of Section 2 of the 1972 Act. Under the provisions of the 1972 Act, 'Landlord' can maintain a suit for eviction of the tenants on any of the grounds enumerated under proviso to Sub-section (1) of Section 5 of the 1972 Act. That being the position the suit filed in the name of the plaintiff No. 1 as well as the plaintiff No. 2 is maintainable even after the death of the plaintiff No. 3.

17. The next question to be decided whether the decree passed by the learned court below is liable to be set aside on the ground that the decree was drawn in favour of the deceased plaintiff No. 3 even though his name was struck off from the list of the plaintiffs after his death.

18. Mr. Dey, learned senior counsel for the revision petitioners/ defendants submits that since the decree was drawn in favour of a dead person the entire decree is a nullity as no decree can be passed in favour of or agairist the dead person.

19. Mr. Sharma, learned counsel for the opposite parties/plaintiffs submits that the name of the plaintiff No. 3 was struck off by the learned trial court from the list of the plaintiffs after his death. The judgment was passed by the learned court below deciding the issues in favour of the surviving plaintiffs. The decree, being the formal expression of adjudication, has to be in conformity with the judgment passed by the learned court below. The decree is to be drawn in terms of the judgment passed by the court and cannot be drawn contrary to the same. According to Mr. Sharma, even if the decree is drawn in favour of a dead person by mistake, the name of such dead person having been struck off from the list of the plaintiffs by the court and no judgment having been passed deciding the right of such dead person by the court, the same can be rectified, as no decree can be drawn which is contrary to the judgment passed. The drawing of the decree being an administrative function, the same can be rectified under the law.

20. Sub-section (2) of Section 2 of the C.P.C. defines a decree which reads as follows:

'(2) 'decree' means the formal expression of an adjudication which, so far as regards the court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within Section 144, but shall not include -

(a) any adjudication from which an appeal, lies as an appeal from an order, or.

(b) any order of dismissal for default

Explanation. - A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final.'

21. The decree being the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determining the rights of the parties with regard to the matters in controversy in the suit, the same has to be drawn in terms of the judgment of the Court. In the instant case, the name of the plaintiff No. 3 was struck off by the learned trial court after his death and no right of plaintiff No. 3 was determined by the leaned court below and, therefore, no judgment was passed in favour of the plaintiff No. 3. That being the position, no decree can be drawn in favour of the plaintiff No. 3, and if such decree is drawn, in favour of or against the dead person, the same can be rectified under Section 152 of the Code of Civil Procedure. In the present case, There being no judgment passed deciding the right of plaintiff No. 3, whose name was struck of after his death, even if any decree is drawn in favour of the plaintiff No. 3, the same can be amended under the provisions of the C.P.C. and, therefore, drawing of a decree in the, name of the plaintiff No. 3 shall not make the judgment passed and the decree drawn in favour of the plaintiff Nos. 1 and 2 a nullity.

POINT No. (ii)

22. Advancing the argument on Point No. (ii) Mr. Dey the learned senior counsel for the revision petitioner, submits that though the tenancy was a monthly tenancy was agreed upon, between the plaintiff No. 2 and defendants that the monthly rent is to be paid quarterly, i.e., for 3 months at a time. According to Mr. Dey, there was no written agreement to that effect but it is evident from Exhibit Ka dated 14.11.1981 that the plaintiff No. 1 accepted the rent on quarterly basis, i.e., 3 months at a time which the defendants continued to pay. The further argument of the learned counsel is that as the rent payable for the months of April, May and June 1985 refused to be accepted by the plaintiffs on being tendered, the same was deposited in the court as required under the 1972 Act by filing N. J. case No. 257/85 on 13.5.1985 and depositing the same in the Treasury on 14.5.1985, which were exhibited as Exhibits C and D and, therefore, the defendants are not defaulters within the meaning of the 1972 Act. Mr. Dey, the learned counsel has further submitted that as the defendants continued to deposit the rent for the subsequent months in the court in the name of the plaintiff No. 1 for the subsequent periods, on being refused by him when tendered the defendants, are not defaulters and, therefore, no decree can be passed against them for eviction on the ground of defaulters. The learned trial court, according to the revision petitioners, though held the revision petitioners as not defaulter for the months of April to June 1985, since they have deposited the rent in the court, the learned trial court committed illegality in holding that the defendants were defaulter for the subsequent periods as they have deposited the rent by filing N.J. cases, and to prove the same, the defendants filed applications to call for the records of N.J. cases. In support of that submission the learned counsel has place reliance on the order whereby the learned Court on the basis of the application filed by the defendants, called for the said N.J cases and, therefore, the finding recorded by the leaned trial court that the defendants have not taken any steps for calling the said cases, is a perverse finding and, therefore, the decree passed by the, leaned trial court by holding that the defendants are defaulters, for their failure to call for the records of N.J. cases cannot sustain in law, Mr. Dey, however, submitted that the lower appellate court has found the defendants as defaulters in respect of the months of April, May and June 1985 by holding that the defendants have failed to prove that the rent was tendered to the plaintiffs and on their refusal to accept the same, the deposit was made in the court, which is a condition precedent for a valid discharge of the burden of the tenants for payment of rent so as to get the protection under Sub-section (4) of Section 5 of the 1972 Act. According to the revision petitioners the said finding of the lower appellate court also cannot be sustained as there is ample evidence on record to show that the rent was offered to the plaintiff No. 1 and on being refused to accept the same, was deposited in court. The further submission of the revisiting petitioners is that the relationship between the plaintiffs and the defendants being strained, it can be safely presumed that the rent was offered by the defendants to the plaintiffs but they, have refused to accept the same and, therefore, the defendant are entitled to protection under Sub-section (4) of Section 5 of the 1972 Act.

23. Mr. Dey, learned senior counsel for the revision petitioners in support of his contention has placed reliance on the decision of the Apex Court in S.P. Deshmukh v. Shah Nihal Chartd Waghajibhai Gujarati, reported in : AIR1977SC1985 , Dr. Brahmanand v. Smt. Kaushalya Devi and Anr., reported in : [1977]3SCR485 and in Nathi Devi v. Radha Devi Gupta, reported in VII (2004) SLT 615.

24. Mr. Sharma, learned senior counsel for the opposite parties/plaintiffs has submitted that the tenancy being a monthly tenancy, tenant is bound to pay the rent to the landlord monthly and there being no agreement for payment of the rent on quarterly basis, the tenants are bound to pay the rent to the plaintiffs on the first day of the next succeeding months. The defendants under the provisions of the 1972 Act is bound at least to offer the rent on monthly basis, i.e., on first day of the next succeeding months and in the event of refusal to accept the rent by the plaintiff, the defendants are required to deposit the same in court within fortnight of its falling due, i.e., within a fortnight of the first day of the next succeeding months so as to get the protection in Sub-section (4) of Section 5 of the 1972 Act. According to Mr. Sharma, in the instant case, the defendants deposited the rent for the month of April, May and June 1985 in the court together on 13.5.1985 though the rent was payable monthly. The defendants at the most can deposit the rent for the month of April which is due on the first day of May in the Court by 15th May but cannot deposit the rent for the months of May and June 1985 in advance as the same has to be first tendered to the landlord and if the landlord refuse to accept the same, then only the defendants can deposit the rent in the court. The conduct of the defendants in depositing the rent for the months of May and June 1985 along with the rent payable for the month of April 1985 in court amply shows that the rent for the months of May and June 1985 were never tendered to the plaintiff as the rents of whose months fell due only on first day of June and July 1985 respectively, and, therefore, there is no question of tendering the rent for the said months. Hence, according to Mr. Sharma, the defendants are admittedly defaulters, as the deposit made by them in court cannot be termed as legal deposit so as to get the protection under Section 5(4) of the 1972 Act. Mr. Sharma further submitted that to get protection under Section 5(4) of the 1972 Act, the tenant must first offer the rent to the landlord on the due date, and in the event, the landlord refuses to accept the same, the same has to be deposited in court within 15 days from the date when it fell due. In the instant case, the defendants having failed to prove that the rent was first tendered to the plaintiffs and that the plaintiff refused to accept the same and then they deposited the rent in the court, the learned courts below have rightly held the defendants as defaulters.

25. Mr. Sharma has also submitted that the court take into consideration the subsequent events for the purpose of determining, whether the defendants are defaulters, i.e., whether the defendants have paid the rent to the plaintiff or deposited the same in the court in time as required under the 1972 Act, and in the instant case, they have failed to prove that they deposited the rent in court in time and before making such deposits, the rent was offered to the plaintiffs and they refused to accept the same. Therefore, according to the learned counsel, both the learned courts below have rightly held the revision petitioners as defaulters.

26. Mr. Sharma in support of his contention has placed reliance on the decision of the Apex Court in S.P. Deshmukh v. (supra), in Ganpat Ladha v. Sashikant Vishnu Shinde, reported in : [1978]3SCR198 , in Variety Emporium v. V.R.M. Mohd. Ibrahim Naina, reported in : [1985]2SCR102 , in Maiku v. Vilayat Hussain through LRs, reported in : [1986]2SCR461 , in Ram Sewak v. Munna Lal, reported in : [1988]2SCR416 , in Ranteswarlal Chundhury v. Ram Niranjan Mour, reported in (1995) Supp. 3 SCC 44, in Kuldeep Singh v. Ganpat Lal and Anr., reported in : AIR1996SC729 , and of this Court in Sri Jogesh Chandra De v. Sri Monoram Saikai and Anr., reported in (1988)2 GLR 225, in Abdul Matin Choudhury and Ors. v. Nilyananda Dutta Banik, reported in 1997 (II) GLT 590, and Rodia Talkies Equipment Co. v. Debadas Ghosh and Ors. reported in 2001 (2) GLT 471.

27. Clause (c) of the proviso to Sub-section (1) of Section 5 of the 1972 Act imposes a duty on the tenant to pay the rent to the landlord lawfully due from him in respect of the house, within a fortnight of its becoming due. Sub-section (4) of Section 5 of 1972 Act provides that when the landlord refuses to accept the lawful rent offered by the tenant, the tenant may within fortnight of its becoming due, deposit the rent in court together with the process fee for service of notice upon the landlord. For better appreciation, Sub-section (4) of Section 5 is quoted below:

'(4) Where the landlord refuses to accept the lawful rent offered by his tenant, the tenant may within a fortnight of its becoming due, deposit in court the amount of such rent together with process fees for service of notice upon the landlord, and on receiving such deposit, the court shall cause a notice of the receipt of such deposit to be served on the landlord and the amount of the deposit may thereafter be withdrawn by the landlord on application made by him to the court in that behalf. The tenant who has made such deposit shall not be treated as a defaulter under Clause (e) of the proviso to Sub-section (1) of this section.'

28. Section 5 of the 1972 Act imposes a bar against passing and execution of decree and orders for ejectment of a tenant provided the tenant fulfils the conditions precedent for getting such protection. One of the protection from eviction available to the tenant is that he has to pay the rent to the landlord within fortnight of its falling due and in the event of the landlord's refusal to accept on being tendered, the same is required to be deposited in court with in a fortnight together with process fees and written up notices for service of notice upon the landlord. Therefore, to be a valid deposit in court it must be proved that the rent was first offered to the landlord within a fortnight of its falling due and the landlord having refused to accept the same deposited the said rent in court within a fortnight of its becoming due together with the process fees and written up notices for service of notice upon the landlord. Unless all the aforesaid conditions precedent for a valid deposit in court are proved the deposit made by the tenant in court cannot be held to be a valid deposit within the meaning of said Section 5(4) of the 1972 Act.

29. In the instant case, it is evident from the Ext. Ka communication dated 14.11.1981 issued by the plaintiff No. 1 that though the tenancy was a monthly tenancy, the plaintiffs used to accept the rent for 3 months at a time. The contents of the Ext. Ka also reveals that the defendants used to pay the monthly rent on quarterly basis in advance. In the absence of any written agreement of tenancy, the conduct of the parties shall determine whether the rent is payable on quarterly basis and on which date. Even, in case, of a monthly tenancy, the payment of monthly rent can be changed by the contract between the landlord and the tenant. In the instant case, as already stated Ext. Ka makes it evidently clear that though the defendants are the monthly tenants, the rent is payable for 3 months at a time in advance. The defendants, therefore, have deposited the rent in court 3 months at a time, i.e., for the months from April to June 1985 on 13.5.85.

30. This court is to decide now whether the defendants before making the deposit in court tendered rent to the plaintiffs and whether the plaintiffs have refused to accept the same and whether the defendants could prove the conditions precedent for making such deposit in court as required under Sub-section (4) of Section 5 of the 1972 Act.

31. Both the learned courts below have held that the defendants have failed to prove that the rent was tendered to the plaintiffs and the same being refused by the plaintiffs to accept, the defendants deposited the same in court. Since the revision petitioners/defendants have challenged the said findings of the learned courts below on the ground of perversity, I have gone through the evidence of the sole witness examined on behalf of the defendants. The witness in his deposition has stated that as the landlord refused to accept the rent from the month of April 1985 the same was deposited in the court. The said witness has also deposed during the cross-examination that the rent was always paid to the landlord by cheque and the rent for the month of April 1985 onward was also offered to the landlord by cheque and as the landlord refused to accept the cheque, the defendants/tenants have to deposit the same in court. It has further stated that they have not filed the cheque, by which the rents were offered to the landlord, in the Court to prove that rents were first offered.

32. In Dr. Brahmanand v. Smt. Kaushalya Devi and Anr. (supra) the Apex Court while considering the provision of Section 7C of U.P. (Temporary) Control of Rent and Eviction Act has held that the Court deposit is permissible only when the condition is complied with. The Apex Court has further held that if the landlord refuses to accept the rent paid to him, a deposit is permissible and such tender of rent need not be by physical tender, person to person, but it can be by money order, or through messenger or by sending a notice to the landlord asking him to nominate a bank into which the rents may be regularly paid to the credit of the landlord and if the landlord refuses, then a court deposit will be the remedy. It has further been held by the Apex Court that in the absence of special and adequate grounds, the tenant cannot drive the landlord to collect his rent every time through the court with all the attendant inconvenience and expense.

33. Thought Mr. Dey has placed reliance on the said judgment passed by the Apex Court, the same has in fact supports the contention of the opposite parties. The next decision on which Mr. Dey has placed reliance is in S.P. Deshmukh v. Shah Nihal Chand Waghajibhai Gujarati (supra) the Apex Court has held that the High Court cannot in exercise of the jurisdiction under Article 227 of the Constitution of India interfere with the concurrent findings of Rent Controller and Collector that the tenant was not habitual defaulter in the matter of payment of rent. It has further been held by the Apex Court in the said judgment that normally a monthly tenant is under an obligation to pay the rent from month to month but this obligation is subject to a contract to the contrary which need not be a formal document but can be spelt out from the conduct of the parties, spread over a fairly long period of time. In the instant case, it is evident from Ext. 'Ka' that though the tenancy is a monthly tenancy, the rent is payable by the tenant to the landlord on quarterly basis and in advance and, therefore, as the already held, the conduct of the parties, has changed the obligation of the tenant to pay the rent monthly.

34. In Nathi Devi v. Radha Devi Gupta (supra) on which the learned counsel for the revision petitioners has placed reliance, the Apex Court upon consideration of the provisions of Section 14D of the Delhi Rent Control Act, 1958 has held that the widow's right to recover immediately possession of premises is subject to the fulfilment of the condition that the landlady is widow and premises are required by her for her residence and the same must be one let out by her or by her husband.

35. The question before this court in the instant case being not the question whether the landlord is entitled to recover possession of the tenanted premises on the grounds mentioned in Section 5(A) and/or Section 5(AA) of the 1972 Act and the plaintiffs case being that the defendants are defaulters and the suit premises is bona fide required by the plaintiffs for their own use and occupation, the said decision of the Apex Court is not applicable in the instant case.

36. The Apex Court in Ganpat Ladha v. Sashikant Vishnu Shinde (supra) while considering the provisions of Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 has held that the tenant can protect himself against the eviction subject to fulfilment of the conditions set out in Section 12(3)(B) and defeat the landlord's claim for eviction. If, however, he does not fulfil those conditions, he cannot claim the protection under the said provision of law and a decree for eviction would have to go against him. The Apex Court in Maiku v. Vilayat Hussain through L.Rs. (supra) has taken a similar view by holding that the tenant must prove before the Court the factum of refusal by landlord, when he sought to make payment so as to get the protection from eviction. The Apex Court in Ram Sewak v. Munna Lal (supra) has also held that unless the defendants prove that the rent was tendered to the landlord and upon refusal by the landlord to accept the same he makes the deposit in court, the said deposit cannot be treated as valid deposit and in that case the tenants shall not get the protection under Section 7C of the U.P. (Temporary) Control of Rent and Eviction Act, 1947. The Apex Court while considering the provisions of the, 1972 Act in Rameswarlal Choudhury v. Ram Niranjan Mour (supra) has held that the tenant deposit the rent without first tendering the rent to the landlord, the same shall not be the valid deposit within the meaning of Section 5(4) of the 1972 Act. In Kuldeep Singh v. Ganpat Lal and Another (supra), the Apex Court while considering the provisions of Rajasthan Premises (Control of Rent & Eviction) Act, 1950 has held that the deposit in court can be made only after resort to the methods of remittance by postal money order and deposit in bank account of the landlord as required under the provisions of the said Act, and if the tenant deposits the rent in court without fulfilling the said conditions, the tenant is not entitled to the benefit of legal fiction and as such the protection.

37. The 1972 Act contains a similar provision which requires that the tenant, before depositing the rent in court to tender it to the landlord and if the landlord refuses to accept it then only the tenant can deposit the same in the court within the time allowed, together with process fee and written up notices under the said provisions. Unless such conditions are fulfilled the deposit of rent in court shall not be the valid deposit in the eye of law.

38. A Single Bench of this court in Sri Jogesh Chandra Dey v. Sri Monoram Saikia and Anr. (supra) and has held that that unless the tenant first tender the rent to the landlord before depositing the same in the court, any deposit made in the court shall not be in conformity with the Section 5(4) of the 1972 Act and as such Shall not be a valid deposit and therefore, not entitle to get the protection against eviction.

39. In another decision of this court in Abdul Matin Choudhury and Ors. v. Nilyananda Dutta Banik (supra) the similar view has been taken. In the said decision this court has further held that to make the deposit of rent in court by the tenant a valid deposit within the meaning of Section 5(4) of the 1972 Act, the rent must be deposited in court together with the process fees for service of notice on landlord and also with the written up notice. The said position is also reiterated by this court in Radio Talkies Equipment Co. v. Debadas Ghosh and Ors. (supra). This court has further held that even if the rent is withdrawn by the landlord from the court that shall not constitute wiping out of default and the mischief of statutory default does not come to an end because of such withdrawal.

40. It is evident from the deposition of the witness that the defendants used to pay the rent to the landlord always by cheque and the rent due for the months of April, May and June 1985 and also the rents for the subsequent months were offered to the landlord by cheques but the defendants have failed to produce those cheques before the court to prove that the rent was offered to the landlord and the landlord having refused to accept the same, deposited the same in court. Therefore, the defendants have failed to prove that the rent was first offered to the landlord so as to make then deposit in court a valid deposit within the meaning of Sub-section (4) of Section 5 the said Act. Moreover, the defendants have failed to prove that the rents from the month of April 1985 onwards were deposited in court together with the process fee for service of notice upon the landlord. The witness for the defendants was completely silent on that point and, therefore, the defendants have failed to prove that the rent from the month of July 1985 onwards was also deposited in court, together with the process fee and written up notices for service of notice upon the landlord, which is one of the conditions precedent for making the deposit in court a valid deposit within the meaning of Section 5(4) of the said Act. Hence, the defendants wore rightly held to be the defaulters by the learned courts below.

POINT No. (iii)

41. Mr. Dey in support of his contention in Point No. (iii) regarding bona fide requirement, has submitted that since the plaintiff No. 1 firm stood automatically dissolved in view of the death of one of the partners, namely, plaintiff No. 3, the bona fide requirement of the plaintiff No. 1 firm also no longer exists and the bona fide requirement of the said plaintiffs cannot, therefore, be the bona fide requirement of other surviving plaintiffs, i.e., plaintiff No. 2. The further contention of Mr. Dey is that the plaintiffs have miserably failed to prove that the suit house is bona fide required by them for their use and occupation as they failed to produce the approved plan for reconstruction. The further contention of Mr. Dey is that the court while passing decree for ejectment on the ground of bona fide requirement is also required to see comparative hardship of the tenants vis-a-vis the landlord and should not pass a decree for ejectment to give the benefits to greedy and unscrupulous landlord.

42. Mr. Dey, learned senior counsel in support of his contention has relied upon the decisions of the Apex Court in Shantilal Thakordas and Ors. v. Chimanlal Maganlal Telwnla, reported in : [1977]1SCR341 , in Dr. Saroj Kumur Das v. Arjun Prasad Jogani, reported in : [1987]3SCR1164 , in Nilesh Nandkumar Shah v. Sikandar Aziz Patel, reported in : [2002]SUPP1SCR652 .

43. Mr. Sharma, learned senior counsel on behalf of the opposite parties, on the other hand, submits that the suit filed by the plaintiffs No. 2 in the name of plaintiff No. 1 firm being maintainable even after the death of the other partner, in view of the provisions of Rule 4, Order 30, of the C.P.C., the bona fide requirement of the plaintiff No. 2 shall continue. In any, case, the opposite party No. 2 being, the plaintiff No. 2 in the suit, he has specifically pleaded and proved that the suit premises is bona fide required for his own use and occupation and, the learned courts below have rightly decreed the suit on the ground of bona fide requirement also. According to Mr. Sharma, the plaintiff could prove that the suit premises is genuinely in need of the landlord for his and his family's own use and occupation and also for business purpose. The learned courts below have rightly decreed the suit and this court in exercise of the revisional power under Section 115 of the CPC cannot appreciate or reappreciate the evidence to come to different finding merely because it takes a different view of the fact. The revisional court can only interfere with the finding of the learned courts below, on the point of bona fide requirement, when it finds that the conclusion arrived at is wholly unreasonable and not according to law. In the present case, according to Mr. Sharma the finding recorded by the learned courts below were not unreasonable and were according to law and, therefore, the revisional court cannot interfere with the findings so recorded.

44. The further submission of Mr. Sharma is that the question of comparative hardship of the tenant vis-a-vis the landlord will arise only when the landlord, has suitable accommodation and the burden of proving that the landlord has suitable accommodation is heavily lies on the tenant. Moreover, the landlord being the best judge for his residential or business purposes he has got complete freedom to choose which accommodation is suitable for him for his residential or business purpose and, therefore, even if, there are alternative accommodations, that may not, itself be the ground for refusing a decree for ejectment on the ground of bona fide requirement. According to Mr. Sharma, in the instant case, the defendants-revision petitioners have led no evidence about the plaintiffs having any alternative accommodation and, therefore, the question of judging the comparative hardship of the landlord and tenant does not arise at all this case.

45. Mr. Sharma, the learned senior counsel in support of his contention has placed reliance in Prativa Devi (Smt.) v. T.V. Krishnan, reported in : (1996)5SCC353 , in Dattatray Laxman Kamble v. Adul Rasul Moulali Kotkunde and another, reported in : [1999]2SCR912 , in Shiv Sarup Gupta v. Dr. Mahesh Chand Gupta, reported in : [1999]3SCR1260 and in Ragavendra Kumar v. Firm Prem Machinery & Co., reported in : [2000]1SCR77 .

46. The Apex Court in Shantilal Thakordas and Ors. v. Chimanlal Maganlal Telwala (supra) by taking into account the provisions of Section 14(1)(e) of the Delhi Rent Control Act, 1958 has held that an action for eviction of the tenant in respect of the landlord for himself and members of his family is maintainable and on the death of the landlord right to sue survives to the members of family of the deceased landlord's and, therefore, competent to continue the suit for eviction for their use and occupation as well as the other members of the families. However, keeping in view the fact of the said case, the Apex Court has held that in view of the Constitution of a new partnership and the plaintiff No. 3 therein having admitted in the new partnership, his requirement cannot be taken as the requirement of other plaintiff. The Apex Court has refused to allow the appeal by holding that when after the death of the landlord a new firm is constituted, the requirement of such deceased landlord cannot be said to be requirement of the partners of the new firm.

47. In Prabhakaran Nair and Ors. v. State of Tamil Nadu and Ors. (supra) the provisions of Sections 14(1)(b), 16(2) and 30(ii), the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 was challenged on the ground that these are discriminatory and unreasonable, which deals with the power of recovery of possession by landlord for repairs or reconstructions and exemption of certain buildings from the provisions of the said Act. The Apex court has held that the said provisions of the Act are not arbitrary, discriminatory and/or unreasonable. Though the reliance has been placed by the learned senior counsel for the revision petitioners on the said decision, I do not find that the decision in any way supports the contention of the revision petitioners that the suit premises, if bona fide required by the landlord for their own use and occupation, no decree can be passed by the court. The Apex Court in Nilesh Nandkumar Shah v. Sikandar Aziz Patel (supra) while observing that the purpose of rent control legislation is to protect the tenant from unjust eviction at the hands of greedy or unscrupulous landlord, has held that in cases governed by the rent control legislation, if a ground for eviction in respect of the tenancy premises is made out, the decree shall be for eviction from the entire tenancy premises unless the law permits passing of a partial decree of eviction.

48. The Apex court in Dattatraya, Laxman Kamble v. Abdul Rasul Moulali Kotkunde (supra), in Shiv Sarup Gupta v. Dr. Mahesh Chand Gupta (supra) in Smt. Prativa Devi v. T.V. Krishnan (supra) and in Ragavendra Kumar v. Firm Prem Machinery & Co. (supra), has held that if the landlord can prove that its needs to occupy the tenanted premises is natural, real, sincere and honest, the said need is bona fide and, therefore, a decree for eviction on the ground of bona fide requirement can be passed. The Apex Court has further held that the landlord is the best judge of his requirement for residential or business purposes and he has got complete freedom in the matter. Therefore, the need of the landlord must be genuine, natural, real, sincere and honest so as to become the bona fide need of the landlord.

49. In this case the plaintiffs in the plaint have pleaded that the suit premises is bona fide required for the own use and occupation for the purpose of residential and business by reconstructing the same. It has further been pleaded in the plaint that apart from the business purposes the suit premises is required for their own residence, i.e., of the plaintiff Nos. 2 and 3, as their family members were forced to live in a rented house by paying very high rent. The revision petitioners/defendants in the written statement have denied that the suit premises is bona fide required for use and occupation of the plaintiffs.

50. This court in exercise of its revisional power under Section 115 of the CPC can interfere with the finding recorded by the learned courts below on the point of bona fide requirement, if such finding is not in accordance with law or wholly unreasonable. The landlord for the purpose of proving his bona fide requirement must be able to prove that his need is natural, real, sincere and honest and they must adduce evidence to prove such requirement.

51. In the instant case, the plaintiffs' case is that they require, the suit premises for their own use and occupation for residential as well as business purposes as the plaintiff No. 2 is residing in a rented premise. It is an admitted fact that in the suit premises the revision petitioners are doing business and unless it is reconstructed, the same cannot be used for residential purposes. Therefore, it is the case of the plaintiffs that they require the suit premises so that they can reconstruct the same so as to make it suitable for their residential as well as business purposes. Hence, the plaintiffs have to prove by adducing evidence and by producing the approved plans that they have taken steps for reconstruction of the building. Both the courts below have failed to look into this aspect of the, matter, which in my opinion is most important and relevant. Unless the plaintiffs prove that they have drawn the plan for, such reconstruction and the competent authority approved such plan, the plaintiffs suit for eviction on the ground of bona fide requirement cannot be decreed. The plaintiffs/opposite parties having failed to prove the said requirement, the court cannot held that the requirement of the plaintiff is real, sincere and honest so as to make it bona fide and, therefore, the finding, recorded by the learned courts below to the effect that the suit premises is bona fide required by the landlord is not according to law and wholly unreasonable being perverse. Hence the finding recorded by the learned courts below cannot be sustained.

52. This court has recorded the finding that the plaintiff are defaulter within the meaning of 1972 Act and, therefore, in spite of the finding that the plaintiffs/opposite parties have failed to prove their bona fide requirement, the decree of eviction passed by the learned courts below has to be sustained and the revision petition filed by the revision petitioners has to be dismissed. Accordingly, I dismiss the revision petition by upholding the judgment and decree passed by the learned courts below for eviction of the revision petitioners on the ground of defaulter.