RSA 79/2011 BEFORE HON’BLE MR. JUSTICE AMITAVA ROY The subject matter of assailment in the instant appeal under Section 100 of the Civil Procedure Code (for short, hereinafter referred to as ’the Code’) is the judgment and order dated 29.4.2010 passed by the learned Civil Judge No.2 , Kamrup, Guwahati in Title Appeal No. 26/09 affirming the decision rendered by the learned Munsiff No.2, Kamrup in Title Suit No. 516/07. Thereby the suit of the present respondent was decreed. I have heard Mr CK Sarma Baruah, learned senior counsel for the appellan ts assisted by Mr B Sarma, Advocate and Mr K R Surana, learned counsel for the r espondent. The respondent was a tenant under the appellants in respect of rooms des cribed in Schedule-A and Schedule-B to the plaint of the aforementioned suit ins tituted by it praying for a decree inter alia for restoration of its possession over the Schedule-B room and also for permanent injunction restraining the appel lants from interfering with its possession in respect of the entire suit premise s comprised of the rooms under both the Schedules. Whereas the Schedule-A room m easured 600 Sq. ft., the one under Schedule-B was of an area of 340 Sq. ft. The respondent came into occupation of the two rooms at a combined rent of Rs. 4598 /- and the tenancy commenced from the month of March, 1992. The rent was thereaf ter enhanced from time to time and in terms of the latest arrangement was raised to Rs. 7000/-. According to the respondent/ plaintiff, a sum of Rs. 12000/- by way of security deposit also lay with the appellant/ landlord. While the tenancy subsisted, on 14.7.2007, the appellants served a notice on the respondent askin g the latter to vacate the Schedule-B room so as to facilitate repair works. Acc ordingly, on 19.9.2007, the respondent handed over vacant possession of the said room to the appellants. It was thereafter that on 1.10.2007 the appellant No.2 informed the respondent in writing about the termination of the tenancy in respe ct of the Schedule-B room on and from 15.10.2007. As inspite of repeated request s the possession of the said room was not restored to the respondent by the appe llants, the former instituted the suit seeking the aforementioned reliefs. As th e suit was not contested, it was decreed ex-parte by the learned Trial Court on 16.6.2008 and the reliefs prayed for in the suit were granted. Being aggrieved, the appellants preferred an appeal and by the impugned judgment and order the sa me i.e. Title Appeal No. 26/09 was dismissed. Mr Baruah has urged that having regard to the admitted relationship of l andlord and tenant between the parties at the time when the tenancy in respect o f the Schedule-B room was terminated, the comprehension of illegal dis-possessio n of the respondent therefrom is visibly fallacious. According to Mr Baruah, the respondent/tenant having vacated the said room so as to enable the appellants t o effect necessary repairs thereat, its complaint of being illegally dispossesse d therefrom is misconceived. The learned senior counsel has urged with reference to the Assam Urban Areas Rent Control Act, 1972 (for short, hereinafter referre d to as ’the Act’) governing the parties that the respondent/ plaintiff having f ailed to prove that at all relevant times it had discharged its burden as a tena nt thereunder, it could not have instituted the suit for enforcement of its righ ts as such and thus, the impugned judgment and order is liable to be interfered with. Mr Surana, on the other hand, has argued that as the respondent inspite of vacating the room described in Schedule-B to the plaint had been uninterrupte dly paying rent for the entire suit premises, the termination of the tenancy in respect of the Schedule-B room is patently illegal and that the findings of the learned Courts below being sustainable in law and on facts are unassailable. On being queried by this Court by this Court, Mr Surana submitted on instructions t hat the rent vis-à-vis the Schedule-B room had been deposited in Court as contem plated by the Act. Having regard to the admitted relationship between the parties, it canno t be gainsaid that the respondent/ plaintiff in order to claim protection under the Act has to unavoidably discharge its obligation in the capacity of a tenant as contemplated thereby. It appears from the narration in the judgment and order under appeal that the appellants vide their letter dated 1.10.2007 addressed to the respondent/ tenant had terminated the tenancy in respect of the Schedule-B room. Earlier by their letter dated 30.8.2007 whereby the respondent was request ed to vacate this room, they had agreed to the remission of the rent vis-à-vis t he same from September, 2007. Though Mr Surana has insisted that the respondent had been paying rent for the entire premises including the Schedule-B room and, that too, by deposit in Court, he has not been able to draw the attention of thi s Court to any evidence in support thereof. A plain reading of the judgment and order of the learned Trial Court also discloses that no such evidence had been a dduced in course of the trial though the same had proceeded ex-parte against the appellants. In view of the mandatory pre-requisite for a valid deposit under Se ction 5(4) of the Act, in absence of any evidence to that effect, it would be im permissible to infer that the respondent/ plaintiff in the facts and circumstanc es of the case had been lawfully paying rent for the Schedule-B room as contempl ated under Section 5 of the Act. In this view of the matter, the plea taken on behalf of the appellants that the respondent in order to claim protection as a t enant has to essentially discharge its burden in that capacity as ordained by th e Act cannot be lightly brushed aside. This aspect of the matter was not addres sed to by the learned Courts below while rendering the impugned judgment and ord er. In this view of the matter, the appeal has to succeed. The judgment and order da ted 29.4.2010 rendered in Title Appeal No. 26/08 being unsustainable in law and on facts is interfered with. By the analogy of reasoning the judgment and order rendered by the learned Trial Court also stands annulled. No costs.