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Ram Narayan Prasad v. Benu Kumar Mukhia - (High Court of Sikkim) (22 May 2017)

Eviction can be claimed on ground of default in payment of rent



Instant appeal is against judgment passed in eviction wherein suit filed by Respondent herein/Plaintiff was decreed holding that, Plaintiff was entitled to a decree for recovery of possession of suit premises from Appellant herein/Defendant. Also a decree for arrears of rent of suit premises to tune of Rs. 2,88,000/- was granted. Issues involved in present case is whether notice was served on Defendant before filing of instant suit for eviction and that whether Defendant defaulted in making payment of rent.

Letting and sub-letting of premises controlling rents in State of Sikkim is regulated by Notification No. 6326-600. H & W-B dated 14th April, 1949, (Rules of 1949) which is saved under Article 371F of Constitution of India. Said notification still governs tenancy in entire State of Sikkim except premises situated in Gangtok, which is regulated under Gangtok Rent Control and Eviction Act 1 of 1956. As per Rules of 1949, landlords can charge rent for premises either for residential or business purposes on basis of rents prevailing in locality in year 1939, plus an increase upto 50 per cent so long as scarcity of housing accommodation lasts. Landlords cannot eject tenants so long as scarcity of housing accommodation lasts, but when whole or part of premises are required for their personal occupation or for thorough overhauling the premises or on failure by tenants to pay rent for four months, landlords may be permitted to evict tenant on due application to Chief Court.

Premises situate in Sikkim are regulated by Rules of 1949, which does not provide for issuance of notice in manner prescribed under Transfer of Property Act. In such view of matter, notice simpliciter satisfy requirement of notice as prescribed under Rules of 1949 read with agreement dated 21st November 1982, executed between parties. On application of well-settled principles to facts of case, it has come on record as averred in plaint that, notice dated 11th June, 2007 was served on Defendant by speed post duly received on 14th June, 2007, as is evident from Exhibit-15. There is no specific denial of receipt of notice. Thus, requirement of issue of notice is satisfied.

Words "lena dena", mentioned in some places, means making payment after adjustment of dues, if any, from landlord. Even after some dues were payable by landlord, Defendant cannot run away from responsibility of making payment regularly. Agreement provides for payment of rent by Defendant (tenant). Thus, it is not obligation of landlord to collect rent but it is for Defendant-tenant to pay rent regularly. Evidences clearly establish fact that, Defendant was in default of payment of rent since December, 2006. Again on 13th November, 2010, an undertaking was given to vacate upper floor of premises, which was not again complied with. Indisputably, an attempt was made by Defendant to make payment after filing of suit on 10th December, 2012, which was never accepted by Plaintiff landlord.

Plaintiff has claimed rent only from December 2009, as according to Plaintiff, his claim for arrear prior to December 2009 was barred by limitation. Trial Court has held accordingly, however, eviction can be claimed on ground of default in payment of rent since December 2006, as held by Supreme Court in Bhimsen Gupta vs. Bishwanath Prasad Gupta. Trial Judge has rightly held that, remedy of eviction on ground of default in payment of arrears is not barred by limitation while not granting arrears of rent prior to December, 2009. There is no infirmity or illegality in judgment and decree sought to be impugned in present appeal.

Relevant : Bhimsen Gupta vs. Bishwanath Prasad GuptaMANU/SC/0107/2004 : AIR 2004 SC 1770


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