RFA/1/2003 of Jas Bahadur Rai Vs Geeta Rai on 3 November 2003

JUDGMENT

R.K. PATRA. CJ

The plaintiff is in appeal which is directed against the decree dated 8-11-2002passed by the learned District Judge(S&W), Namchi in Civil Suit No.9/2002 refusinghis prayer of eviction of the respondent.

2. The appellant's case isthat he is the owner ofa four storied r.c.c. buildinglocated at Namchi-Kitam Road, Namchi Bazar, Namchi. In September, 2000,heinducted the respondent as a tenant in respect of an apartment comprising twobed rooms, one kitchen with attached bath room-cum-toilet in the first floor of thebuilding (herein after referred to as the suit premises) on a monthly rental ofRs.2000/I. Besides the house rent the respondent is liable to pay water charges ofRs.30/-per month and the electricity charges as per the consumption. At the time ofinduction, the respondent paid a sum of Rs.6000/-(Rupees six thousand) as advanceand subsequently she paid Rs.10000/-(Rupees ten thousand) towards arrears of rent.From the month of May, 2001, she has not paid the rental although she is required to pay the same every month. Despite the appellant's repeated demand for payment,she did not comply. In view of the wilful default, the appellant issued a legal noticecalling upon her to deliver vacant possession of the suit premises as well as paymentof arrears but it yielded no results. Finding no other alternative he commenced thesuit seeking for decree of eviction and recovery of possession of the suit premisesand for arrears of rent.

The respondent in her written statement without disputing the essentialaverments in the plaint asserted that she never neglected to pay the monthly rent.She made several visits to the house of the appellant to tender the amount but herefused to accept the same on one plea or the other. The arrears have accumulatedbecause of the refusal of the appellant to accept the rent.

3. On behalfofthe appellant, he himself was examined as pw-1. In support ofhis case he examined another tenant as PW-2. The respondent in support of her case,besides examining herself as DW-1, examined two witnesses as DW-2 and DW-3.The learned District Judge on perusal of the evidence, recorded the followingfindings:-

(i) Rent was not payable every month.

(ii) As the appellant himself refused to accept the rent tendered bythe respondent the latter cannot be regarded as a willfuldefaulter and therefore the appellant is not entitled for decreeof eviction and recovery of possession of the suit premises.the respondent the latter cannot be regarded as a willfuldefaulter and therefore the appellant is not entitled for decreeof eviction and recovery of possession of the suit premises.

(iii) The appellant is, however, entitled for decree for arrears ofrent amounting to Rs.24,000/-(Rupees twenty four thousand)at the rate of Rs.2000/- (Rupees two thousand) from May,2001 till filing of the suit.rent amounting to Rs.24,000/-(Rupees twenty four thousand)at the rate of Rs.2000/- (Rupees two thousand) from May,2001 till filing of the suit.

4. The relationship between the appellant and the respondent as landlord andtenant is not in dispute. There is also no dispute that the respondent was inducted astenant on monthly rental of Rs.2000/- (Rupees two thousand) in the month ofSeptember, 2000 and she has been continuing as such till date. Before she was inducted, the respondent paid a sum of Rs.6000/-(Rupees six thousand) as advanceand subsequently, another lump sum of Rs.10000/-(Rupees ten thousand) towardsarrears of rent. The specific case of the appellant is that from May, 2001, therespondent failed to pay the rent. The respondent's case is that the appellant used tocollect the rent as and when he needed the same and she had been paying as per hisdemand. She specifically denied to have made default in payment of rent. She statedin her evidence that she had gone to his house with house rent and when she tenderedthe same, the appellant refused to accept it. She went to the house of the appellant topay the house rent second time but the appellant refused to meet her on the plea that hewas ill. For the third time she went to his house with her brother, DW-2 to tender therent but the appellant refused to meet them and his daughter-in-law told them that rentwas to be paid to him personally. The appellant in his cross-examination admittedthat he received a sum of Rs.6000/-(Rupees six thousand) from the respondent at thetime when she was inducted as a tenant. Subsequently, she paid Rs.]0000/-(Rupeesten thousand) to him. He in his evidence candidly stated that the respondent had cometo his house to tender the rent but at that time he was ill. He further stated that it mightbe true that the respondent had come to his house along with some other person todeposit the rent to him but as he was ill, no female member was allowed to enter intohis room. The relationship between the appellant and the respondent is one of contract.Although there is no document in writing evidencing tenancy, the lease of the suitpremises being not for agricultural and manufacturing purposes, it has to be held to bea monthly one. The evidence on record also established that the respondent is amonthly tenant. Therefore, he is required to pay the rent every month. There is noevidence as to by what date of the succeeding month the monthly rental has to be paid.

From the analysis of evidence made above it may be seen that the appellanthad been receiving the rental on lump sum basis. The appellant in his evidencefrankly admitted that the respondent went to him to offer the arrears but he declined to

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accept it on some pretext. The conduct of the appellant and the practice followed bythe parties indicate that the appellant is not very much insistent that the monthly rentalshould be paid by the respondent by a particular date of every month. For all thesereasons, I am inclined to agree with the learned District Judge, that the respondent isnot a defaulter, far less a willful defaulter.

5. With regard to mode of payment of the arrears, the leaned District Judge is notjustified in permitting the respondent to pay the same on monthly instalment basis. Ihereby modify that part of the judgment and decree and direct the respondent todeposit the entire arrears from May, 2001 till date in this Court (subject to adjustmentof amount paid, if any, in the meantime) within two months hence.

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

Chief Justice03-11-2003.