GAUHATI HIGH COURT

UMANGKHINI vs LUNA CRP 61/21 30/05/21 [ DEVASHI JJ

_*• Section 115 CPC Assam Urban Areas Rent Control Act, Section 5(4) Eviction Petitioner after entering into lease agreement, started business in tenanted premises – Alleged that petitioner after few weeks tenancy, petitioner started liquor selling business Alleged that rent was not paid to respondent as per agreed terms and conditions Petitioner contends that monthly rent in respect to suit premises was being regularly paid to respondent mostly through court – It is no longer res-integra that it is burden of tenant to prove that tenant is not defaulter in payment of rent – Tenant has to prove that upon refusal of respondent to accept rent, tenant has deposited rent in court – There has been no evidence adduced by petitioner to prove same Directing petitioner to vacate suit premises within 6 months Petition dismissed. [Paras]
12. I have heard the learned counsels for the parties and given my anxious consideration to the matter. It appears from the records that the plaintiff has specifically stated in her plaint that from October, 2015 onwards till the date of filing of the suit, rent was not paid to the plaintiff as per the agreed terms and conditions. In the written statement, the stand of the defendant was that the monthly rent in respect to the suit premises was being regularly paid to the plaintiff mostly through the court under Section 5 (4) of the Act of 1972 whenever the plaintiff refused to accept it in respect to the suit premises. It is no longer res-integra that it is the burden of the tenant to prove that the tenant is not a defaulter in payment of rent. Further to that, it is also well established that in order to make the deposit in terms with Section 5 (4) of the Act of 1972, the tenant has to prove that upon refusal of the landlord to accept the rent, the tenant has deposited the rent in the court in the manner stipulated under Section 5 (4) of Act of 1972. As there has been no evidence adduced by the defendant to prove the same that the mandate of Section 5 (4) of the Act of 1972 has been duly complied with, this court is in agreement with the concurrent finding of the facts arrived at by both the courts below and being a revisional court exercising jurisdiction under Section 115 of the Code of Civil Procedure, the concurrent finding of facts arrived at by both the courts below do not show any error in jurisdiction by the courts below in arriving at the decision for which the instant application stands dismissed thereby affirming the judgment and decree dated 06.09.2021 passed by the Court of the Civil Judge, Sivasagar in Title Suit No. 08/2020.

13. Taking into consideration that the defendant has been carrying on her business of a Dhaba since long and Mr. A. R. Shome, the learned counsel appearing for the petitioner/defendant submits that if the defendant is immediately evicted from the suit premises, serious irretrievable injury would be caused to her as it would be very difficult to immediately find an alternative location to carry out of the business, this Court deems it just and reasonable to grant the defendant 6 (six) months of time to vacate the suit premises provided the defendant submits an undertaking before the trial court within 15.06.2022 to the effect that the defendant shall vacate the suit premises within a period of 6 (six) months from the date of the instant judgement, i.e., on or before 30.11.2022. Failure to submit the undertaking within the said period, the plaintiff shall be entitled to initiate execution application for evicting the defendant.
14. It is clarified that during this period of 6 (six) months, ending 30.11.2022, the defendant shall continue to make payment of the amount of rent to which the plaintiff is entitled to per month in the form of compensation to the plaintiff.
15. It is further observed that granting of extension of the period of 6 (six) months subject to filing the undertaking as aforesaid and the payment of compensation during this period of 6 (six) months shall not create any right or interest in favour of the defendant in respect to the suit premises. It is also clarified that during this period, the defendant shall remain in possession of the suit premises as the custodian of the plaintiff and shall not do any act or acts which may affect the rights of the plaintiff over the suit premises in any manner whatsoever.

 

clock here for read the judgment

display_pdf – 2023-03-02T172628.099

Adv Vaibhav Tomar ( All rights reserved)