CRP 320/2010 BEFORE THE HON’BLE MR JUSTICE B.P. KATAKEY JUDGMENT AND ORDER (ORAL) The petitioners, who are the defendants in Title Suit No.209/200 7, by the present petition has challenged the judgment and decree dated 20th May , 2010 passed by the learned Civil Judge, No.2, Kamrup at Guwahati in Title Appe al No.94/2009 dismissing the appeal preferred by them by upholding the judgment and decree dated 15th September, 2009 passed by the learned Munsiff, No.2, Kamru p at Guwahati in Title Suit No.209/2007, whereby and whereunder the suit of the respondents/plaintiffs for eviction from the rented premises has been passed. [2] The respondents herein as plaintiffs, instituted a suit in the C ourt of the learned Munsiff, Kamrup at Guwahati for ejectment of the present pet itioners from a RCC house bearing Municipal Holding No.48A of Ward No.30B of Gau hati Municipal Corporation, contending inter alia that pursuant to the written a greement dated 1st January, 2007, the monthly tenancy in respect of the said hou se was created by the plaintiffs in favour of the defendants with the stipulatio n that the monthly rent of Rs.2600/- would be paid within 7th day of each month as per English calendar but despite such written agreement, the defendants faile d to pay the monthly rent from the month of January, 2007 itself and as such, th ey are defaulters. The plea of bonafide requirement was also taken by the plain tiffs contending that the suit house is required for their own use and occupatio n. The said suit was eventually transferred to the Court of the learned Munsiff No.2, Kamrup at Guwahati, which was registered and numbered as Title Suit No.20 9/2007. [3] The defendants on receipt of the summons, entered appearance and filed their written statement denying the claim of the plaintiffs in the suit a nd contending inter alia that though an agreement dated 1st January, 2007 was ex ecuted between the parties creating the tenancy in respect of the suit house, su ch agreement was in continuation with the earlier agreement and such tenancy was newly created after expiry of the earlier tenancy. It has been contended that though in the agreement there was a stipulation for payment of the rent for each month within 7th day of that month, the normal practice is that the plaintiffs used to came for collection of the rent and in the event the rent is not collect ed in the month, on the last part of the month it is paid by the defendants to t he plaintiffs. It has further been pleaded in the written statement that the re nt has always been paid by cheques and the rents for the months of January to Ap ril, 2007 were also accordingly paid by cheques to the plaintiffs but subsequent ly they came to know that those cheques were not presented by the plaintiffs for collection and, therefore, on 15th May, 2007, they issued a notice to the plain tiffs to issue the rent receipts for the months of January to April, 2007 and al so to accept the cheque towards the rent for the month of May, 2007, which was e nclosed to the said notice. It is also the case of the defendants that from the month of June, 2007, he deposited the rent in Court, as required under the prov isions of the Assam Urban Areas Rent Control Act, 1972 (in short, 1972 Act ). [4] On the basis of the pleadings of the parties, the following issu es were framed by the learned Court below for consideration and decision:- (1) Whether the suit is maintainable? (2) Whether there is cause of action for the suit? (3) Whether the defendants are defaulter in payment of rents? (4) Whether the suit premises is bonafide required by the plaintiffs ? (5) Whether the plaintiffs are entitled to get the reliefs claimed i n the suit? [5] The plaintiffs in support of the contention have examined 1 (one ) witness, namely the plaintiff No.1 himself. The defendants examined 2 (two) w itnesses, namely the defendant No.2 and another person, who is an employee of th e defendants. The plaintiffs in course of the deposition have also proved the ag reement executed between the parties creating the tenancy dated 1st January, 200 7 as Exhibit-1. [6] The learned Trial Court upon appreciation of the evidences on re cord, as adduced by the parties, decreed the suit of the plaintiffs by holding t hat the plaintiffs could prove that the rent for the months of January, 2007 onw ards have not been paid by the defendants and though the defendants took the ple a that such rent were paid by cheques, they have failed to prove the same. The suit was also decreed by the learned Trial Court on the ground of bonafide requi rement. [7] Being aggrieved, the petitioners/defendants filed title appeal b efore the learned Appellate Court, which was registered and numbered as Title Ap peal No.94/2009 in the Court of the learned Civil Judge, Kamrup at Guwahati. Th e learned Appellate Court, upon hearing the learned counsel for the parties and on appreciation of the evidences on record, dismissed the appeal by upholding th e judgment and decree passed by the learned Trial Court for ejectment of the pet itioners/defendants. The learned Appellate Court, however, has decided the issue relating to the bonafide requirement against the plaintiffs and in favour of th e defendants, by reversing the finding recorded by the learned Trial Court in th at regard. Hence, the present revision petition by the defendants before this C ourt. [8] I have heard Mr. N. Choudhury, the learned counsel for the petit ioners/defendants and Mr. R.J. Bordoloi, the learned counsel appearing for the r espondents/plaintiffs. [9] It has been submitted by Mr. Choudhury, the learned counsel for the petitioners/defendants that since the defendants by adducing evidence of DW- 2 could prove that the cheques towards rent for the months of January to April, 2007 were handed over to the defendants, they cannot be termed as defaulter with in the meaning of the 1972 Act, even though the plaintiffs did not present those cheques for encashment. According to the learned counsel, despite receipt of t he cheques by the defendants, they did not issue any written receipt for which t hey had to issue the registered letter dated 15th May, 2007 (Exhibit-’C’) enclos ing their with the cheque towards the rent for the month of May, 2007. Accordin g to Mr. Choudhury, though the defendants received the registered letter and ret ained the cheque towards the rent for the month of May, 2007, no receipts were i ssued, for which the plaintiffs from the month of June, 2007 deposited the rent in Court, as required under Section 5 (4) of the 1972 Act. Mr. Choudhury, there fore, submits that the petitioners/defendants cannot be termed as defaulter with in the meaning of the said Act and as such, the judgment and decree passed by th e learned Court below needs to be interfered with. [10] Mr. Bordoloi, the learned counsel appearing for the respondents/ plaintiffs, on the other hand, supporting the judgment and decree passed by the learned Court below has submitted that though the defendants in their written st atement has taken the plea of issuance of the cheques towards the rent for the m onths of January to April, 2007 and May, 2007, they except examining the DW-2 di d not adduce any documentary evidence to demonstrate that in fact such cheques w ere issued. According to the learned counsel, the defendants being a firm must have maintained the accounts, which could have been proved to demonstrate the is suance of such cheques to the plaintiffs, which they did not do. The defendants even did not prove the counter foils of the cheques, which are retained by the defendants. The learned counsel, therefore, submits that the story put forward by the defendants in that regard is, therefore, not acceptable. Mr. Bordoloi fu rther submits that the contention of the defendants that they paid the rent paya ble for the month of June, 2007 in the Court is also not believable as they coul d not substantiate the same either by calling for the records of the NJ Cases fr om the Court where such deposits were made or by producing any copy of the chall ans showing such deposits. [11] I have considered the submissions of the learned counsel for the parties. The judgments and decrees passed by the learned Courts below have als o been perused. [12] It appears from the impugned judgments and decrees passed by the learned Courts below that both the learned Courts below have recorded the findi ng of fact that the petitioners/ defendants are the defaulters as they did not p ay the rent payable from the months of January to May, 2007. The plea of the de fendants relating to the deposit of the rent in the Court from the month of June , 2007 has also not been accepted by the learned Courts below, as they did not t ake any steps to call for the records of the NJ Cases from the Court where such deposits were allegedly made. They have also not produced the copies of the cha llans showing such deposits. [13] The petitioners/defendants though had claimed that the cheques t owards the rent for the months of January to April, 2007 and May, 2007 were hand ed over to the plaintiffs through the DW-2 and sending by registered posts, resp ectively, the defendants except the oral evidence did not prove any documentary evidence, like the counter foils of such cheques and also the accounts maintaine d by the defendant No.1, which is a firm. In the absence of any such proof, th e bare statement of DW-2 relating to handing over of the cheques has not rightly been accepted by the learned Courts below. It also appears that though the def endants claimed that they deposited the rent from the month of June, 2007 onward s, in the Court, they could not even prove making of such deposit by proving the challans showing such deposits or by proving the records of such relevant NJ Ca ses. No steps have been taken by the defendants to call for those NJ Cases. [14] Section 5 of the 1972 Act gives a protection to the tenant from eviction provided he comply with the terms of tenancy and pay the rent lawfully due within the time allowed. Under sub-Section (4) of Section 5 of the said Act , if the landlord refuses to accept the lawful rent offered by his tenant, the t enant may, within a fortnight of its becoming due, deposit in Court the amount o f such rent together with process fees for service of notice upon the landlord. When the allegation of the non payment of rent is made by the landlord, the bur den is on the tenant to demonstrate that the rent lawfully due has either been p aid to the landlord or deposited in the Court, as required under Section 5(4) of the 1972 Act, on being refused to accept the same by the landlord. [15] As noticed above, the defendants have failed to prove that the r ents for the months from April to May, 2007 have been paid or offered to the pla intiffs/landlord. The deposit of rent from the month of June, 2007 onwards in t he Court, as pleaded by the defendants, has also not been proved. [16] That being the position, I am of the view that there is no illeg ality or infirmity in the impugned judgment passed by the learned Appellate Cour t requiring exercise of the revisional power under Section 115 of the CPC. [17] At this stage, Mr. Choudhury, the learned counsel for the petiti oners/defendants submits that since the petitioners are doing the business in th e suit premises, they may be allowed at least 1 (one) year time to vacate the su it premises. Mr. Bordoloi in his usual fairness has submitted that the responde nts/plaintiffs have no objection if such time is granted to the petitioners/ def endants. [18] Hence, the petitioners/defendants are allowed 1 (one) year time from today, i.e. upto 30th September, 2011 to vacate the suit premises, subject to furnishing an undertaking by the petitioners/defendants before the learned Tr ial Court, within 1 (one) week from today, that on or before 1st October, 2011, they will hand over the vacant possession of the suit premises to the respondent s/plaintiffs and also subject to the condition that for this period up to 30th S eptember, 2011, the petitioners/ defendants shall pay a sum of Rs.2600/- per mon th, which shall be deposited in the bank account of the respondents/plaintiffs t o be furnished by them, for the use and occupation of the suit premises. The pa yment of such amount, however, will not create any new tenancy. [19] It is needless to say that in the event of failure in furnishing such undertaking within the aforesaid period of time and payment of the amount as aforesaid, the respondents/ plaintiffs would be free to put the decree into e xecution. [20] The revision petition is accordingly dismissed with the aforesai d observations/directions. No cost. [21] Registry is directed to send down the records forthwith.