CRP 400/2007 BEFORE THE HON’BLE MR JUSTICE B D AGARWAL IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MEGHALAYA, MANIPUR, MIZORAM, TRIPURA AND ARU NACHAL PRADESH) CRP No.400 of 2007 Sri Mrinal Kanti Paul Choudhury, S/o Late Mukunda Kr. Paul Choudhury, Resident of Rahman Patty, PO & PS- Silchar, Dist-Cachar, Assam. &.DEFENDANT/Petitio ner -Versus- 1. Sri Saradindu Paul, 2. Sri Purnendu Paul, 3. Sri Dibyojoti Paul, S/o Late Bhabendra Kumar Paul Resident of Rahmanpatty, Silchar Town, PO & PS- Silchar, Dist-Cachar. 4. Smti Madhuri Paul, W/o Sri Malay Paul, Resident of Shymaprasad Road, Silchar Town, PO & PS- Silchar, Dist-Cachar. 5. Smti Purabi Paul, W/o Sri Sanesh Paul, Resident of Lala Town, PS - Lala, PO- Lala Bazar, Dist-Hailakandi. &..PLAINTIFFS/OPPOSITE PARTIES 6. Monoj Paul Choudhury, 7. Mihir Paul Choudhury, 8. Mohit Paul Choudhury, 9. Manna Paul Choudhury, 10.Monojit Paul Choudhury, 11.Mriganka Paul Choudhury, 12.Mohitosh Paul Choudhury, Sons of Late Mukunda Kr. Paul Choudhury of Rahman Patty, Silchar, PO & PS- Silchar, Dist-Cachar. 13.Smti Ajanta Paul Choudhury, W/o Late Sankar Paul, D/o Late Mukunda Kr. Paul Choudhury of Padmanagar, Bilpar Lane-2, Silchar, PO & PS- Silchar, Dist-Cachar, Assam. 14.Smti Shipu Paul, W/o Sri Dilip Paul, of Kamala Road, Silchar Town, PO & PS- Silchar, Dist-Cachar, Assam. &..PROFORMA/OPPOSITE PARTIES B E F O R E HON’BLE MRS. JUSTICE ANIMA HAZARIKA Advocates for petitioner : Mr. P Roy, Mr. I Alam, Mrs. R Dutta. Advocates for opposite parties : Mr. IH Laskar, Mr. PK Deka, Ms. S Acharyya Date of hearing & judgment : 13.08.2010. JUDGMENT & ORDER (ORAL) The legality and validity of the judgment and order dated 3.7.2007 passe d by the learned Additional District Judge, Cachar, Silchar in Title Appeal No.1 1 of 2006 affirming the Judgment and Decree dated 22.2.2006 passed by the learn ed Civil Judge (Senior Division) No. 2, Silchar, Cachar in Title Suit No. 101 of 1996 has been assailed invoking power under section 115 of the Code of Civil P rocedure (’Code’ for short) read with Article 227 of the Constitution of India whereby and whereunder the decree sought for khas possession of the suit premise s described in the Schedule of plaint by evicting the defendant alongwith arrear rent amounting to Rs.26,000/- was passed by the learned Trial Court holding tha t the defendant is a defaulter within the meaning of section 5 of the Assam Urba n Areas Rent Control Act, 1972 ( ’Act 1972’ for short) against which an appeal was taken on the file of the learned appellate court resulting in dismissal of t he same and hence the revision petition as indicated above. 2. Heard Mr. P Roy, learned counsel appearing for the petitioner. Also hear d Mr. PK Deka, learned counsel appearing for the opposite parties. 3. The necessary facts are summarized hereinbelow in order to determine the lis between the parties. Opposite parties herein as plaintiffs have brought a suit being Title Suit No. 1 01/1996 in the Court of the Assistant District Judge No. 2 Cachar, Silchar again st the defendants seeking a decree for khas possession of the defendant premises described in the schedule of the plaint by evicting the defendant petitioner he rein and for recovery of arrear rent of Rs.26,000/- on the ground of default an d for bonafide requirement. 4. The defendant on receipt of the summons has entered appearance and conte sted the case by filing written statement contending inter alia that there is no cause of action, the suit is not maintainable and bad for non-joinder of necess ary parties denying the grounds of default as pleaded in the plaint including th e bonafide requirement. The real facts as averred in the written statement is th at the father of the plaintiffs, who was original landlord used to take money si nce 1980 for repairing and construction of the suit house and on failure to retu rn the money has let out the suit premises in the year 1984 to the original defe ndant, father of the petitioner herein and subsequently, the predecessor of the plaintiff and his wife took Rs.57,000/- and Rs.29,000/- respectively in order to sold out the suit premises whereby the defendant constructed underground tank, installed water pipe line, motor, repaired roof of the defendant premises with t he consent of the predecessor of the plaintiff and thereby prayed for dismissal of the suit. 5. On the pleadings of the parties, the learned Trial Court framed the foll owing issues viz., - (i) Is there any cause of action? (ii) Is suit is maintainable in its present form and manner? (iii) Is the suit bad for non joinder of necessary parties? (iv) Is there any agreement to tenency as alleged by the plaintiffs between t he plaintiffs and the defendants or with their predecessors? (v) Is the plaintiffs are entitled to get a decree for arrear rent as alleg ed ? (vi) Is the plaintiffs are entitled to get a decree for khas possession and f or ejectment of the defendants? (vii) Is the plaintiffs are entitled to get any other relief? Additional issues were framed at the time of argument- (viii) Whether the defendants are defaulters in payment of rent? (ix) Whether the suit property is bonafide required by the plaintiffs? (x) Whether the suit property has been damaged by the defendants and whether the construction was made without permission of the plaintiffs? 6. During trial, the plaintiffs examined one witness and exhibited one docu ment, the defendants have also examined one witness and exhibited some documents . Learned trial Court answered issue No. 1 in the affirmative holding that ther e is a cause of action for the suit. Issue Nos. 2, 4, 5, 6, 8, 9 and 10 were dec ided in the affirmative whereas the issue No. 3 was decided in the negative. The learned trial court while deciding the issue No. 8 has categorically came to th e conclusion that the defendants are defaulters since they failed to deposit the rent as agreed upon and the rent was not paid for the period January, February and March, 1996. The defendants in fact deposited the rent since April, 1996 in the court. But rent deposit case being Misc. Case No. 612/96 was failed due to n ot taking of steps as required under the provisions of Section 5 of the Act, 197 2. The learned trial court has further held that the suit premises is bonafide r equired by the plaintiffs and the construction made by the defendants is contra ry to the provision of Section 108 of the Transfer of Property Act and hence, de creed the suit. 7. The defendants/petitioner herein took up the matter on appeal and the le arned appellate court dismissed the appeal and hence, the revision petition. 8. Mr P. Roy, learned counsel appearing for the petitioner would contend th at the suit is not maintainable under the provisions of the Act, 1972, Transfer of Property Act and Wakf Act which is jurisdictional error committed by the lear ned courts below and hence, required interference under the revisional jurisdict ion. Mr Roy has further contended that there was no relation between the landlor d and defendant in the instant case and hence, this Court would exercise revisio nal jurisdiction to cure the material illegality committed by both the courts be low. 9. Refuting the contentions raised by the leaned counsel representing the p etitioner, Mr PK Deka, learned counsel appearing for the opposite parties suppor ted the judgment and decree passed by both the courts below and contended that t he power of revision is confined to jurisdiction alone and there is no jurisdict ional error committed by both the courts below and hence, prayed for dismissal o f the revision petition. 10. In support of his contentions, Mr Deka has cited the following decisions : 1. 2004 (Suppl.) GLT 126 Santosh Devi Agarwalla Vs. Mahabir Prasad Agarwal. 2. 2005 (1) GLT 532 Parul Bala Devnath and Others Vs. Uma Tara Roy. 3. 2005 (Suppl.) GLT 540 Prashanta Kumar Dev Vs. Gauri Sankar Pal and Other s. 4. 2005 (4) GLT 562 Girin Pathak Vs. Ghanashyam Das. 5. 2006 (3) GLT 715 Bansal Traders and Others Vs. Nandalal Gattani. 6. 2009 (3) GLT 241 Biswajit Saha Vs. Shah Md. Farid and Others. The decisions cited and reported relates to compliance of section 5(4) of the Ac t, 1972 in regard to deposit of rent which has been held to be mandatory. 11. In the case in hand, it is an admitted position that the petitioner/defe ndant had not tendered rent for the period from January, 1996 to March, 1996 for the suit premises and as such they are found to be a defaulter. More so, Exhibi t-1, which has been admitted by DW-1 to be the certified copy of rent deposit ca se No.612/96 was filed for not taking of steps on the rent deposit case. Even de positing rent after March, 1996 will not save them being defaulter, inasmuch as, it is an admitted fact that once a defaulter is always a defaulter. 12. From the above discussion, I hold that the revision petitioner is defaul ter as he did not comply with the mandatory provisions of Section 5(4) of the Ac t 1972 and therefore, cannot get any protection under the aforesaid Act. In the case in hand, the landlords have fully discharged their obligation of making out of the case of their entitlement to evict the tenant petitioner under Section 5 (4) of the Act. But the petitioner tenant has failed to discharge the onus as t o deposit of rent as per provision of Section 5(4) of the Act 1972. The trial Co urt as well as the appellate court rightly arrived at the finding of the fact as discussed hereinabove. No case is made out for interference by this Court in ex ercise of power under Section 115 of the Code. 13. The revision is dismissed. The judgment and decree passed by the courts below are affirmed. The petitioner-tenant is allowed 4 (four) months time from t oday to remain in possession of the suit premises and he will hand over the vaca nt possession to the plaintiffs-landlords alongwith all arrear rent before expir y of the aforesaid four months, failure of which the plaintiffs are entitled to put the decree in execution. The parties are left with as indicated above. Inter im order, passed on 28.11.07, stands vacated. The Registry is directed to transm it the lower court record forthwith. 14. No costs. JUDGE Mdb