Sunil Aich vs Parag Sharma
2022 Latest Caselaw 3045 Gua

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GAHC010137362022




                              THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                                Case No. : CRP(IO)/155/2022

             SUNIL AICH
             SON OF LATE SURESH AICH,
             RESIDENT OF NAZIRAJAN,
             P.O.- CHOTO- HAIBOR,
             MOUZA- PAKHIMORIA,
             P.S. SADAR,
             DISTRICT- NAGAON, ASSAM.
             PIN- 782001.

             VERSUS

             PARAG SHARMA
             SON OF LATE TILOK CHANDRA SHARMA,
             RESIDENT OF JYOTI NAGAR (PANIGAON), NAGAON TOWN,
             MOUZA- TOWN,
             P.O. AND P.S. NAGAON,
             DISTRICT- NAGAON, ASSAM.
             PIN- 782001.

Advocate for the Petitioner   : MR. P K ROYCHOUDHURY

Advocate for the Respondent :


                                   BEFORE
                  HONOURABLE MR. JUSTICE PARTHIVJYOTI SAIKIA

                                         ORDER

17.08.2022

Heard Mr. P K Roychoudhury, learned counsel representing the petitioner.

This is an application under Article 227 of the Constitution of India whereby the Page No.# 2/3

order dated 24.05.2022 passed by the Munsiff No. 1, Nagaon, in MNG Case No. 152/2022 is under challenge.

The small question involved in this petition as to whether a hearing is necessary whenever a person goes to the court to deposit house rent under Section 5 of the Assam Urban Rent Control Act, 1972.

Mr. Choudhury has relied upon a decision of this court that was delivered in Samiran Paul vs. Anubha Banik and others, reported in 2007 4 GLT 484. Paragraphs 10 and 11 of the said judgment are quoted as under:

"10. The word 'proceeding' generally means a prescribed course of action for enforcing a legal right. To constitute a 'proceeding' within the meaning of 141 of the Code, there must be adjudication of a dispute or capable of adjudicating a dispute between the parties, by a Court, other than a suit or an appeal. The meaning of the word 'proceeding' would depend on the scope of the enactment wherein the expression is used with reference to a particular context where it occurs.

11. Sub-section 4 of Section 5 of the Act provides for depositing the rent by the tenant in Court subject to fulfillment of conditions namely, there must be refusal by the landlord to accept the lawful rent on being offered by the tenant, such deposit must be within a fortnight of its becoming due and together with the process fee for service of notice upon the landlord. From the language of Sub-section 4 of Section 5 of the said Act, it is evident that the Court in which such deposit made is not required to decide any question and also not required to decide any dispute between the landlord and the tenant. The dispute whether the tenant is a defaulter within the meaning of the Act, and as such is evictable can only be decided in a suit instituted in the Civil Court within the meaning of the Act. Though the 'Court' means the Court of the ordinary civil jurisdiction competent to pass a decree for ejectment of tenant, in the application filed under Sub-section 4 of Section 5 of the Code, it is not deciding any dispute between the landlord and tenant and is not adjudicating any lis. Hence, the application filed under Subsection 4 of Section 5 cannot be treated as a 'proceeding' within the meaning of Section 141 of the Code to apply the provisions of the Code to such application. Viewed from another angle, if the provisions of the Code is applied even to an Page No.# 3/3

application filed under Subsection 4 of Section 5 of the Act depositing the rent in Court, such Court, as soon as such application is filed has to issue notice before making such deposit of rent, to the landlord to file objection, then frame the issue, then take evidence and decide whether the deposit is valid or not within the meaning of Sub- section 4 of Section 5 of the Act. As discussed above, the said provision does not confer any power on the Court to decide such question and Court is simply to take deposit leaving the question relating to the legality and validity of such deposit to be decided in the suit instituted either by the landlord or by the tenants. If the provisions of the Code are applied, it will defeat the purposes for which subsection 4 of Section 5 has been enacted, as by applying the provisions of the Code a shrewd landlord may delay deposit of the rent by the tenant, thereby making him defaulter within the meaning of the Act."

Reverting to the case in hand, deposit of rent under Section 5 is a non-

judicial act. This is an enabling provision for deposit of rent and, therefore, no hearing is necessary for such a proceeding. The court has to simply accept the rent without any proceeding of hearing.

With the aforesaid observation, the impugned order dated 24.05.2022 passed by the Munsiff No. 1, Nagaon, in MNG Case No. 152/2022 is set aside and the revision petition also stands disposed of accordingly.

JUDGE

Comparing Assistant