RFA/2/2003 of Jas Bahadur Rai Vs Ashok Pradhan and Another on 3 November 2003

JUDGMENT

R.K.PATRA. C..

The plaintiff has filed this appeal challenging the decreedated 22nd October, 2002 passed by the Learned District LJudge(South and West) Namchi, in Civil Suit No.2 of 2002 refusing hisprayer for eviction of the respondents.

2. Briefly stated, the case of the appellant is that he is theowner of a four-storied r.c.c. building situated at Namchi-KitamRoad, Namchi Bazar, Namchi. In September, 2000 he inducted the rT`\,-.- respondent No.1 as a tenant in respect of two rooms with attachedbathroom in the rirst floor of the building (hereinafter referred to asthe suit premises) on a monthly rental of Rs.2000/-. Therespondent No.1 however let out the same to the respondent No.2without the knowledge and consent of the appellant. Therespondent No.2 is running business of restaurant under the nameand style of `Sip and Bite' in the suit premises. At the time ofletting out the suit premises, the appellant received a sum ofRs.4000/-as advance from the respondent No.1 to be adjustedtowards rent of the initial two months. The respondents, however,did not pay the monthly rent since November 2000 despiterepeated requests made by the appellant for payment. As thedefault of payment of rent was willful, the appellant issued a legalnotice calling upon the respondents to deliver vacant possession ofthe suit premises as well as payment of arrears, but there was nofruitful result. In the circumstances, the appellant commenced thesuit seeking for decree of eviction and recovery of possession ofthe suit premises and for realization of arrears of rent.

3. The respondent No.1 remained exparte. Respondent No.2filed written statement stating inter alia, that she is in fact thetenant of the suit premises. She claimed that she was notnegligent in paying the monthly rent. She went to the residence ofthe appellant several times to offer the house rent, but the latterrefused to accept the same.

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4. In order to prove his case, the plaintiff examined himself asPW-1. Respondent No.2 got herself examined as DW-1. Besidesthis, she got two witnesses examined in support of her case.

5. The learned District LJudge on perusal of the evidence,recorded the following findings :-

(1) Appellant has accepted respondent No.2 as histenant.tenant.

(2) As the appellant did not accept the rent offered bythe respondent No.2, the latter cannot be regardedas a defaulter.the respondent No.2, the latter cannot be regardedas a defaulter.

(3) Admittedly, respondent No.2 is in arrears of houserent with effect from November 2000 till February2002. The arrear comes to Rs.32,000/- and therespondent No.2 shall pay the same on instalmentbasis @ Rs.2000/-per month.rent with effect from November 2000 till February2002. The arrear comes to Rs.32,000/- and therespondent No.2 shall pay the same on instalmentbasis @ Rs.2000/-per month.

6. There is now no dispute at the bar that respondent No.2 is

the tenant in respect of the suit premises. Therefore, we will nowproceed to consider whether the above findings recorded by theLearned District Judge are correct. There is no dispute that thetenancy between the parties started from September 2000 on amonthly rent of Rs.2000/- (Rupees two thousand). The specificcase of the appellant is that from November 2000, the respondentNo.2 failed to pay the rent. The respondent No.2's case is that shewent to the residence of the appellant on several occasions to paythe rent but he refused to accept the same. It may be noted thatthe appellant in his evidence denied to have refused acceptance ofrent offered by the respondent No.2 but he indirectly admitted bysaying that she might have come to his house to deposit the house _i--.L+

rent. Against this vague type of evidence, respondent No.2 asDW-1 deposed that she went to tender rent to the appellant aboutfour times, but he refused to accept it. She further stated that inone occasion she went with DW-2 and on another occasion withDW-2 and DW-3 to the house of the appellant to tender the houserent but he even did not meet them. This evidence of respondentNo.2 practically remained unchallenged in tne cross-examination.The above version of the respondent No.2 is fully corroborated byDWs No.2 and 3.

The relationship between the appellant and the respondentNo.2 is one of contract. Although there is no document in writingevidencing tenancy, the lease of the suit premises being not foragricultural and manufacturing purposes, it has to be held to be amonthly one. Therefore she is required to pay the rent everymonth. There is however no evidence as to by what date of thesucceeding month the monthly rental has to be paid.

From the analysis of evidence made above, it is evident thatthe respondent No.2 went to the appellant to offer the house rentbut he declined to accept it on some pretext. For all the reasons,I am inclined to agree with the learned District Judge, that therespondent is not a defaulter in the matter of payment of rent.

7. With regard to mode of payment of the arrears, the learnedDistrict LJudge is not justified in permitting the respondent No.2 topay the same on monthly installment basis. I hereby modify thatpart of the judgment and decree and direct the respondent No.2 to deposit the entire arrears of Rs.32,000/- (Rupees thirty twothousand) from November 2000 till February 2002 in this Court(subject to adjustment of amount paid, if any, in the meantime)within two months hence.

8. With the aforementioned modification of the decree, theappeal is dismissed. There shall be no order as to costs.

R.EELChiof Jhastice03.11.ZOOS

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HIGH COURT OF SIKIMGANGTOK

DECREE IN APPEAL(Under ORDER 41 Rule 35 of C.P.C.)

The Regular First Appeal No. 2 of 2003 against the Judgment and decree dated22nd October,2002 of the Cout of District Judge, (South & West) Namchi in Civil SuitNo. 2 of 2002.

Jas Bahadur Rai,Son of late D.M. Rai,R.0. Tharpu Busty,Post Office & Police Station Namchi,South District, SikkimI......... Appellant.

Versus

1. Ashok pradhan,R.O. Namchi Bazar,Post Office and Police Station Namchi,South Sikkim.

2. Smt. GeetaRai,Proprietor of `Sip & Bite' Restaurant,situated at Namchi-Kitam Road,Post Office and Police Station Namchi,South Sikkim.

............... Respondents

This appeal coming up for hearing on 22nd day of September, 2003 beforeHon'ble Justice R.K. Patra, Chief Justice of this Court in presence of Shri A.K.Upadhayaya, Advocate for the appellant, Shri N.Rai, Advocate for the Respondent No. 2.

On hearing, the Hon'ble Court has directed that the respondent NO. 2 shalldeposit the entire arrears of Rs. 32,000/- (Rupees thirty two thousand) from November2000 till February 2002 in this court (subject to adjustment of the amount paid, if any, inthe meantime) within two months hence. The appeal is dismissed without costs.

Given under my hand and seal of the Court on this the 3rd day of November, 2003 at Gangtok.

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Prepared by:.,`,I-t¥:2ReaderHigh Court of SikkinGangtok.

RegistrarHigh Court of SikkimGangtok.