CRP 395/2010 BEFORE THE HON’BLE MR. JUSTICE AMITAVA ROY The challenge is to the judgment and order dated 20.08.2010 passed by the learne d Civil Judge No.3, Kamrup, Guwahati in Title Appeal No.83/2009, substantially affirming the judgment and decree dated 11.08.2009 passed by the learned Munsi ff No.2, Kamrup, Guwahati in Title Suit No.187/96 (previously registered as Tit le Suit No.179/1984 in the Court of the learned Asstt. District Judge No.1, Kamr up). By the decision impugned in the present petition, the aforementioned suit of the opposite party has been decreed against the petitioners for their evictio n from the suit premises. I have heard Mr. G.P. Bhowmik, learned counsel for the petitioners and Mr. P.C. Deka, Senior Advocate assisted by Mr. N. Deka, Advocate for the opposite party. The thumbnail facts necessary for the disposal of the instant revision petition have to be outlined at the outset. The petitioners admittedly are tenants in re spect of the suit premises. The opposite party instituted the aforementioned su it seeking a decree for their eviction therefrom contending that they were defau lters in payment of rent for the months of August, September, October and Novemb er,1984. According to the opposite party, the petitioner No.1 took the suit pre mises on rent at a monthly rent of Rs.1301/- payable in advance in the first wee k of each month of the English Calendar. The partner of the petitioner No.1 use d to pay rent on its behalf in the above manner. The opposite party pleaded tha t in the last week of October, 1984, the defendants caused a notice through thei r advocate to be served on her, alleging that though rent for the month of Augus t,1984 had been paid, no rent receipt therefor had been issued. Dismissing such allegation to be false, a reply to the said notice was made. According to the opposite party, the suit premises was also necessary for widening the main road to the building in view of the proposed construction of a hotel and a restaurant in the area. The petitioners entered appearance and filed their written statement contending, in short, that they had been regularly paying rent to the opposite party till A ugust,1984. They pleaded absence of any specific mode of payment of rent and as serted that the opposite party used to collect and receive rent from them as per her desire and convenience. The petitioners however admitted that generally th ey used to pay the rent in the first week of the succeeding month as per the Eng lish Calendar month, but the opposite party used to issue the rent receipt at he r discretion. They averred, in categorical terms that rent till the month of Ju ly,1984 was paid. The opposite party however failed to issue the rent receipt fo r the month of August,1984 on the pretext that the rent receipt was not availabl e. Though, the petitioners insisted for such receipt, the opposite party avoide d to issue the same. They contended further that thereafter, they offered rent for the month of September,1994 to the opposite party on 06.10.1984 and in doing so, demanded again the receipt for the rent for August,1984. According to them , the opposite party though was ready to receive rent she insisted to issue the rent receipt subsequently. In these circumstances, the petitioners sensing some foul play in the matter, issued a notice dated 24.10.1984 requiring the opposit e party to issue rent receipts for the months of August & September,1984. The n otice was not responded to by the opposite party, whereafter, being without any alternative, petitioners started depositing the monthly rent in the Court from t he month of September,1984. The petitioners also questioned the tenability of t he opposite party’s plea of bonafide requirement of the tenant premises. On the basis of the pleadings of the parties, the following issues were framed. 1) Is there any cause of action for the suit ? 2) Whether the suit is maintainable in its present form ? 3) Whether the defendants are the monthly tenant of the plaintiff ? 4) Whether the defendants defaulted to pay rent as stated in the plaint ? Both sides adduced oral and documentary evidence. The learned trial Court on a consideration of the pleadings of the parties and the evidence on record decreed the suit on the ground of default in payment of rent. As the appeal preferred by the present petitioners met with the same fate, they are before this Court se eking redress. Mr. Bhowmik has emphatically argued that it being evident from the facts and cir cumstances of the case that having regard to the strained relationship between t he parties, it was not feasible to physically offer the rent of the tenanted pre mises to the opposite party in each month before the deposit made by the petitio ners, U/s.5(4) of the Assam Urban Areas Rent Control Act, 1972 (for short herein after referred to as the Act), the learned Courts below erred in law and in fac ts in holding that such deposits were non est in law. According to Mr. Bhowmik, the challans of deposit of rent for the concerned months issued in favour of th e petitioners, per se are the proof of the compliance of all the requisites pres cribed by Section 5(4) of the Act and in that view of the matter, the findings o f the learned Courts below to the contrary ought to be interfered with in the in terest of justice. In support of his contentions, Mr. Bhowmik has placed reliance on the decision o f the Apex Court in Dr. Brahmanand v. Smt. Kaushalya Devi and another, AIR 1977 SC 1198 and of this Court in Muhit Kumar Deb Roy & Others v. Gaurangalal Roy, ( 1986) 1 GLR 442. Mr. Deka, in reply, has urged that it being the exclusive burden of the tenant in order to avail the protection U/s.5(4) of the Act to prove and establish conv incingly that the essential prerequisites of valid deposit U/s.5(4) thereof hav e been complied with, the learned Courts below were perfectly justified in the facts and circumstances of the case in holding that the petitioners are default ers in law. As admittedly, the petitioners had not offered the rent for the mon th of October and November,1984 in particular before making the deposit thereof in Court, in the face of such a condition precedent to that effect contained in Section 5(4) of the Act, such deposits are not cognizable in law. The learned S enior Counsel has further urged that the petitioners having failed to prove by a dducing necessary evidence that the steps accompanying the deposit of rent as re quired U/s.5(4) of the Act had, in fact been taken by proving the concerned N.J. Cases, the finding of the learned Courts below of non-compliance thereof by th em cannot be faulted with. To reinforce his arguments, Mr. Deka has relied on t he decision of the Apex Court in Kuldeepp Singh v. Ganpat Lal and Another, (1996 ) 1 SCC 243 and of this Court in Bansal Traders & Ors,(M/S) v. Nandalal Gattani, 2006(3) GLT 715. The pleadings available on record alongwith the judgments of the learned Courts below have been scrutinized. The arguments advanced have also been duly consid ered. Noticeably, though, the eviction of the petitioners were sought for from t he suit premises on the ground of default as well as bonafide requirement, the l earned Courts below declined to sustain the plea of the opposite party on the la tter. The pleadings of the parties and the evidence on record bring out the fol lowing salient features of the debate: (1) The petitioners are the tenants in respect of the suit premises under the op posite party. The rent was payable within the first month of the succeeding mon th. (2) The rent was duly paid by the petitioners up to the month of July, 1984 agai nst receipts therefor. (3) Though, according to the petitioners rent for the month of August,1984 was p aid without receipt, the opposite party has denied the receipt thereof. (4) Deposit of rent under the Act is claimed to have been made by the petitioner s in Court from the month of September,1984. (5) The suit was filed alleging that the petitioners/tenants at the time of its institution were defaulter in payment of rent for the months of August, Septembe r, October and November, 1984. (6) Admittedly, the petitioners have not offered rent to the opposite party befo re depositing the rent for month of October and November, 1984 in Court. The learned trial Court, though had held the petitioners to be defaulter in paym ent of rent from the month of August,1984, the learned lower appellate Court hav ing regard to the evidence on record and more particularly the failure on the pa rt of the opposite party in person to take the witness box returned a finding th at the petitioners had paid the rent for the month of August,1994. It however h eld in absence of the proof of the concerned N.J. Cases that the deposit of rent was not in conformity with the requirements U/s.5(4) of the Act and thus conclu ded the petitioners to be defaulter in payment of rent from the month of Septemb er,1984 and decreed the suit with this modification. On a perusal of the reasonings recorded by the learned lower appellate Court in support of its acceptance of payment of rent by the petitioners for the month of August,1984, this Court sees no reason to repudiate the same being in defianc e of logic or against the weight of the materials on record. Be that as it may, such payment of rent only for the month of August,1984 per se would not offer a protective cover to the petitioners in case the allegation of default in payment of rent for the subsequent months as mentioned in the claim stands proved. Admittedly, the petitioners-tenants did not physically offer the rent to the opp osite party-landlord before making the claimed deposits thereof in court U/s.5(4 ) of the Act. This assumes formidable significance in view of the opening line U/s.5 (4) thereof, which for ready reference is extracted hereinbelow: 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 o f such deposit to be served on the landlord, and the amount of the deposit may t hereafter be withdrawn by the landlord on application made by him to the Court i n that behalf. A tenant who has made such deposit shall not be treated as a def aulter under clause (e) of the proviso to sub-section (1) of this section. A bare reading of the aforementioned extract would reveal the following prescrip tions as the conditions precedent for a valid deposit of rent, so as to relieve a tenant from being a defaulter under clause (e) of Section 5(1) of the Act. (1) The lawful rent has to be offered by the tenant to the landlord and the lat ter has to refuse acceptance thereof. (2) The tenant within a fortnight of the rent becoming due has to deposit the sa me in Court together with the process fees for service of notice on the landlord . (3) The Court on receipt of such deposit would cause notice thereof to be served on the landlord. (4) The amount in deposit may thereafter be withdrawn by the landlord on applica tion made by him to the Court. It is thus obligatory that the deposit made U/s.5(4) of the Act to be valid, t he tenant has to at the first instance offer the lawful rent to the landlord and that it is only on the refusal thereof by the latter that he/she can make depos it of such rent becoming due alongwith the deposit within a fortnight of its fal ling due. He needs to submit necessary process fee for service of notice upon t he landlord to intimate him thereof. It is no longer res integra that the prere quisites of Section 5(4) of the Act are mandatory in nature so much so, that any departure therefrom would render the deposit invalid. This view finds support from the decision of the Apex Court in Kuldeepp Singh v. Ganpat Lal and Another (Supra) and of this Court in Bansal Traders & Ors,(M/S ) v. Nandalal Gattani (Supra). The Apex Court in Dr. Brahmanand v. Smt. Kaushal ya Devi and another (Supra) while dwelling on the necessity of a prior offer of rent by the tenant to the landlord as a condition precedent for a valid deposit had observed that when the relationship between the tenant and the landlord is e xtremely strained, it would be a wholly ritualisatic as the physical tender of p ayment of the rent in such circumstances would be impracticable. Their Lordship s however added that in the absence of special and adequate grounds, the tenant also has no right to drive the landlord to collect the lawful rent every time th rough Court. Apart from the fact that the above observation in the estimate of this Court doe s not lay down any principle of law of general application to the effect that te nder of rent by the tenant to the landlord ought not to precede the deposit ther eof in court, the contextual facts of the case amongst others reveal a backgroun d of criminal litigation instituted by the tenant against the landlord as well a s other proceedings in Courts of law. Apart therefrom, in the teeth of the uneq uivocal mandate of Section 5(4) of the Act as referred to hereinabove, this Cour t does not feel persuaded to accept the plea raised on behalf of the petitioners . The decision of this Court in Muhit Kumar Deb Roy & Others (Supra) is disting uishable on facts. There rent was deposited in advance. Though, it has been endeavoured on the part of the petitioners to impress upon t his Court that inspite of repeated attempts to cause production of the relevant N.J. Cases, neither the Courts below nor the Office did adequately respond to th e steps taken, in the comprehension of this Court even left at that state, the p etitioners by no means could have been said to be helpless and remediless in law . If this realization, notwithstanding they had chosen not to seek remedy in th e higher forum, it is they who are to be blamed. The opposite party by no means can be held responsible for such default on their part. The fact remains that d ue to nonproduction of the said N.J. Cases, the submission of the process fee fo r service of notice upon the landlord has remained unproved. This is again a fa tal deficiency vis-à-vis the deposit said to have been made by the petitioners U /s.5(4) of the Act. In the above view of the matter, no patent illegality or want of jurisdiction or error in the exercise of jurisdiction by the learned courts below is decipherab le. The challenge, therefore, fails. The petition is rejected. No costs. The Office would remit the lower Court records forthwith.