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Ajay Bafna vs Smt. Kamla Bai Bhattad 36 … on 26 November, 2018

1

AFR

HIGH COURT OF CHHATTISGARH, BILASPUR

First Appeal No. 322 of 2018

Judgment reserved on : 31.10.2018
Judgment delivered on : 26.11.2018

1. Ajay Bafna, S/o. Late Fulchand Bafna, Aged About 40 Years, R/o. Malviya
Nagar, Durg, District Durg, Chhattisgarh.
2. Hukumchand Bafna, S/o. Punamchand Bafna, Aged About 73 Years (Now
76 Years), R/o. P.C. Bafna Company, Infront Of Samta Sari Stores,
Ganjpara, Durg, Tahsil District Durg, Chhattisgarh.
—- Appellants
Versus

1. Smt. Kamla Bai Bhattad, Wd/o. Late Khushalchand Bhattad, Aged About
84 Years, R/o. Ganjpara, Durg, Tahsil District Durg, Chhattisgarh.
2. Sanjay Bafna, S/o. Late Fulchand Bafna, Aged About 45 Years, R/o.
Malviya Nagar, Durg, Tahsil District Durg, Chhattisgarh.
—- Respondents
—————————————————————————————————
For Appellant s : Mr. T.K.Jha, Advocate

For Respondent No.1 : Mr. Ashish Surana, Advocate

—————————————————————————————————

Hon’ble Shri Justice Goutam Bhaduri

C.A.V. Judgment

26.11.2018

1. The instant appeal is against the judgment and decree dated

08.05.2018 passed by the Court of Fourth Additional District

Judge, Durg, in Civil Suit No.006446-A/2012 whereby the decree

of ejectment and arrears of rent has been passed.

2. During the course of admission, this fact was not put to dispute

that respondent No.1/plaintiff has attained the age of 92 years.

Considering the age of the respondent/ plaintiff, the appeal is

finally heard with the consent of the parties.

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3. Brief facts, in this case, are that, a suit was filed by Smt. Kamla

Bai Bhattad against (i) Smt. Sundar Bai W/o. Late Fulchand Bafna

(ii) Sanjay Bafna, S/o. Late Fulchand Bafna (iii) Ajay Bafna, S/o.

Late Fulchand Bafna (iv) Hukumchand Bafna. During the course

of trial, Smt. Sundar Bai died as such Sanjay Bafna, Ajay Bafna

Hukumchand Bafna remained as defendants.

4. According to the plaintiff, the plaintiff owns a superstructure which

is comprised over Plot No.18/1 Plot No.9 recorded in Nazul

sheet No.3/B admeasuring 6960 sq.ft. at Ganjpara, Durg. The

plaintiff Kamla Bai Bhattad pleaded that alongwith her, son of her

sister namely Ravindra @ Ravi resides who looks after the plaintiff

and her properties. The defendant Smt. Sundar Bai was wife of

Fulchand Bafna and defendant No.1 2 Sanjay Bafna Ajay

Bafna were sons. The defendant No.3, Hukumchand Bafna, was

relative of Fulchand Bafna and was working as associates

alongwith Fulchand Bafna with his company. The plaintiff stated

that the suit property, which comprised of five rooms was obtained

by Fulchand Bafna to open his office in the year 1960 and the rent

was paid and increased according to the mutual settlement and

the last rent was payable of Rs.1700/- per month. The plaintiff

stated that during the lifetime of original tenant Fulchand Bafna,

the tenant agreed that in case of need, if expressed by the

landlord, the vacant possession of the property would be handed

over to the plaintiff landlord. After death of Fulchand Bafna in the

year 2009, the defendants were in occupation of the suit property

being the legal heirs of late Fulchand Bafna. It was stated that

after death of Fulchand Bafna, status of legal heirs was that of

tress passer and the defendants have not paid any rent to the

landlord after 2009, therefore, on 19.11.2011 a registered notice
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was served to the defendants to get the premises vacated and

arrears of rent for 26 months from October, 2009 to Dec. 2011 was

called for. Despite that, neither the vacant possession was given

nor the suit property was vacated.

5. The plaintiff further pleaded that Ravindra Kumar @ Ravi for

whom the premises was needed is distributor of Dinshaw Ice-

cream and he was required to open Godown Office inside the

city for which the company was pressurising Ravindra Kumar.

Therefore, the plaintiff wanted to vacate the suit premises for his

legal heir/ dependent to open the Office Godown. Further

pleaded that except the suit premises, the plaintiff do not have any

other premises available which is suitable to open the business.

Further pleaded that Ravindra Kumar @ Ravi for whom the

premises was needed is carrying on the Godown on rent at

Rs.9000/- and he was asked to vacate the Godown by the said

landlord, as such, the plaintiff was in need of the suit premises for

his legal heir/ dependent. Further stated that rent of the premises

was Rs.1700/- per month, which was due from October, 2009 and

for 26 months rent of Rs.44,200/- was due and after receipt of the

notice, the defendant had tendered the amount of Rs.40,000/-

which the plaintiff received, however, the entire amount of rent

was not paid and 4,200/- remained as arrears. It was stated that

despite several requests and reminders, the defendants failed to

vacate the premises, as such, Ravindra Kumar @ Ravi for whom

the premises was needed, if the agency is withdrawn on the

ground that he has no premises in the city, he would be rendered

jobless. Therefore, the vacant premises for the bonafide need and

the arrears of rent was prayed for.

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6. The defendants/ appellants contended that Ravindra @ Ravi is not

the family member of the plaintiff. It was also stated that he is not

dependent on the plaintiff and neither he is the dependent nor

legal heir of the plaintiff. It was stated that the plaintiff has

suppressed the fact that she is the owner of the firm Mangni Ram

Khushal Chand Battad and had sold the part of the property after

filing the suit for ejectment, therefore, need actually do not exist.

Further pleaded that Ravindra Kumar @ Ravi for whom the

premises was asked for is son of sister of the plaintiff, therefore,

for his need, the premises cannot be asked to be vacated. It was

stated that the plaintiff has failed to prove the fact that in which

capacity Ravindra Kumar @ Ravi looking after the premises of the

plaintiff and the rent was increased from time to time and actually

yearly rent was fixed at Rs.20,000/-. Further stated that the

defendants are in possession of the suit property being the legal

heir of Fulchand Bafna and after death of Fulchand Bafna, the

plaintiff agreed to continue the tenancy, as such, they were in

occupation of the suit property as tenant thereof. Further stated

that when the notice was served to vacate the premises, it was

duly replied and by such notice tenancy was not terminated.

Further contended that the payment of rent was yearly and the

entire rent was paid without any dues and lastly on 14.12.2011 an

amount of Rs.40,000/- was paid, therefore, having accepted the

rent, the occupation of the defendants/appellants cannot be said

to be that of a tress passer or illegal. On such ground, dismissal of

the suit was pleaded.

7. Learned Court below on the basis of the pleading of the parties

framed five issues and held that the plaintiff is entitled to receive

Rs.7600/- as arrears of rent and further held that plaintiff is entitled
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to Rs.1700/- per month as damages till the possession is

delivered. The Court further held that the plaintiff is entitled to get

the premises vacated for the bonafide use of Office Godown

thereby decreed the suit in favour of the plaintiff. Being aggrieved

by such judgment decree, the instant appeal.

8. Learned counsel for the appellants would submit that there is no

dispute about the fact that relation of landlord and tenancy exists

in between the parties. It is further stated that the bonafide need

was projected for son of the sister of the plaintiff and the son of the

sister would not be covered under the definition of family under the

C.G. Accommodation Act, 1961. Reliance was placed on AIR

1991 MP 90 and submits the definition of ‘members of the family’

would not include the son of the sister. Further it is stated that as

per the defendant statement, there cannot be any arrears as the

plaintiff has refused to accept the rent when tendered and

Rs.40,000/- when was sent it was accepted and the tender of the

rent was made before the notice sent by the plaintiff was received.

It is stated that the original tenant was Fulchand Bafna and the

LRs were Sanjay Bafna Ajay Bafna whereas Hukumchand

Bafna was running the office of Fulchand Bafna, therefore, the

status of the defendants/ appellants cannot be stated to be that of

tress passer.

9. Per contra, learned counsel for the respondent No.1/plaintiff

submits that admittedly the arrears of rent was Rs.44,200/- as

after death of Fulchand Bafna the legal heirs stopped payment of

rent, therefore, the notice when was served and an amount of

Rs.40,000/- was tendered wherein Rs.4,200/- still remain unpaid.

It is further stated that the decree for arrears of Rs.7600/- is rightly
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passed as from the date of suit till recovery, damages of Rs.1700/-

per month has been awarded for use of premises. It is stated that

the suit was filed on 13.03.2012, therefore, on the date of the suit,

the arrears have to be considered. It is stated that if any suit is

filed then the defendant is obliged to follow the provisions of

Section 13(1) of the C.G. Accommodation Control Act, 1961 and it

is stated that the facts would show that even after filing of the suit

though the defendant was obliged to deposit the rent in the Court

within the stipulated time, the same was not deposited. He

referred to the statement of PW-1 DW-1 and would submit that

the evidence is on record to show that son of the sister of the

plaintiff was completely dependent as has been shown as

common parlance as “waris”, therefore, the definition of the ‘family

members’ cannot be narrowed down. It is stated that the order is

well merited which do not call for any interference.

10. Heard learned counsel for the parties at length, perused the

documents and record.

11. The plaintiff Smt. Kamla Devi Bhattad stated that she is the owner

of the Plot No.18/1, Sheet No.3/B, Plot No.9 admeasuring 6960

sq.ft. wherein superstructure exists. It is stated that Ravindra

Kumar @ Ravi is the son of her sister and he has been given to

look after and manage the entire immovable property. She further

stated that Ravindra Kumar resides with her for 42-45 years at

Durg and after her marriage, her wife children are also residing

alongwith her, therefore, she has declared Ravindra Kumar as her

waris i.e. legal heir. It is further stated that the suit property was

leased out to late Fulchand Bafna in the year 1960. She further

stated that after death of Fulchand Bafna, the defendants were in
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possession. The defendant Hukumchand Bafna in his statement

has stated that the office of Bafna Company is in the house of

the plaintiff Kamla Bai and after death of Fulchand Bafna in 2009,

Bafna Company were running their business and they were

liable to pay the rent.

12. The suit was filed for bonafide need of Ravindra Kumar @ Ravi by

plaintiff Kamla Bai Battad. She stated that she is aged 90 years

and Ravindra Kumar @ Ravi is son of her sister and Ravindra was

carrying on the distributorship of Dinshaw Ice-cream at Durg. She

further stated that in order to open the Godown Office inside the

city, Dinshaw Company has asked Ravi to open the Office

Godown, therefore, the suit premises was required for Office

Godown for Ravindra Kumar @ Ravi. The DW-1 at para 28

admitted this fact that plaintiff is widow and is issue-less. He

further admitted the fact that her age at the time of statement was

recorded as 90-92 years. He further admitted the fact that the son

of sister of the plaintiff resides with the plaintiff i.e. Ravindra Kumar

and also admitted the fact he carries on his business. He further

admitted the fact that Ravindra Kumar @ Ravi, son of sister, looks

after the plaintiff for 30-32 years. The averments of the plaintiff that

Ravindra Kumar @ Ravi was declared waris i.e. legal heir has not

been rebutted by any evidence, instead the defendants admitted

the fact that the plaintiff is completely dependent and is looked

after by Ravindra Kumar @ Ravi for whom the need was

projected.

13. Section 2(e) of the Chhattisgarh Accommodation Control Act, 1961

(for short “the Act of 1961”) defines the member of the family,

which reads as under :

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“2(e) “member of the family” in case of any person means
the spouse, son, unmarried daughter, father, grandfather,
mother, grandmother, brother, unmarried sister, paternal
uncle, paternal uncle’s wife or widow, or brother’s son or
unmarried daughter living jointly with, or any other relation
dependent on him;

14. Reliance as placed by appellant in AIR 1991 MP 90, that sister’s

son can not be taken to be the member of the family. After going

through the said case law, the ratio would show that sister’s son

was not included as member of family was arrived at different

context and background. The ratio to arrive at such decision supra

was arrived at by definition of family along-with the fact the

dependency on plaintiff was not denied in such case. By

considering the definition coupled with the fact in that case it was

held that sister’s son was not dependent on the plaintiff and he

cannot be included as member of the family. Whereas, in the

instant case, the categorical evidence is on record that the plaintiff

is completely dependent on Ravindra Kumar @ Ravi apart from it

she do not have any issue. She resides with her sister’s son who

also looks after the properties. The age of the plaintiff i.e. 90-92

years will also have significance, therefore, if she makes a

statement, which also admitted by the defendants that she is

dependent and looks after by Ravindra @ Ravi her sister’s son,

the definition of member of the family cannot be given narrow

meaning in such case.

15. As has been held in case of K.V. Muthu v. Angamuthu Ammal

reported in AIR 1997 SC 628, the definition of son is a flexible

term and may not be limited to the direct descendant. Its true

meaning, will depend upon the context in which it is used. Even

illegitimate son may be treated as legitimate, as reference of
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Section 16 of Hindu Marriage Act finds place. Likewise, a “foster

child” need not be the real legitimate child of the person who

brings him up. He is essentially the child of another person but is

nursed, reared and brought up by another person as his own son.

16. The definition as appears in Section 2(e) of the Act of 1961, the

member of the family may not be treated to be conclusive if it was

otherwise required by the context. This implies that a definition,

like any other word in a statute, has to be read in the light of the

context and scheme of the Act as also the object for which the Act

was made by the legislature.

17. The Supreme Court by interpreting their definition in K.V. Muthu

(supra) has laid down as under :

“11. While interpreting a definition, it has to be borne in
mind that the interpretation placed on it should not only be
not repugnant to the context, It should also be such as
would aid the achievement of the purpose which is sought
to be served by the Act. A construction which would defeat
or was likely to defeat the purpose of the Act has to be
ignored and not accepted.

12. Where the definition or expression, as in the instant
case, is preceded by the words “unless the context
otherwise requires”, the said definition set out in the
Section is to be applied and given effect to but this rule,
which is the normal rule may be departed from if there be
something in the context to show that the definition could
not be applied.”

18. Section 2 of the Act of 1961 opens with the word that “in this Act,

unless the context otherwise requires, therefore, applying the

principles and ratio laid down in AIR 1980 SC 214, it was held that

a definition clause does not necessarily in any statute apply in all

possible contexts in which the word which is defined may be found
10

therein. The opening clause of Section 2 of the principal Act itself

suggests that any expression defined in that section should be

given the meaning assigned to it therein unless the context

otherwise requires.

19. The Supreme Court has held in K.V. Kuthu (supra) that “family”

signifies the collective body of persons living in one house or

under one head or manager or one domestic government. In its

restricted sense, “family’ would include only parents and their

children. It may include even grand-children and all the persons of

the same blood living together. In its broader sense, it may include

persons who are not connected by blood depending upon the

context in which the word is used. There is a consensus among

the High Courts in India that the word “family” is a word of great

flexibility and is capable of different meanings.

20. Furthermore, the definition of Section 2(e) of the Act of 1961 also

takes within the sweep the word any other relation dependent on

him. In the context of this fact, the plaintiff when contended that

she is living together with Ravindra Kumar @ Ravi, she has no

issue and both are dependent on each other as are being looked.

Furthermore, the pleading and evidence remains unrebutted that

for benefit of each other the plaintiff Kamla Bai Bafna had held the

property for Ravindra Kumar and likewise Ravindra Kumar looks

after the property. Therefore, in view of the aforesaid evidence,

the definition of the family cannot be given narrow meaning as it

would defeat the very purpose and object of the Act itself.

21. The Supreme Court further while explaining the word “Foster Son”

has held and referred to the Oxford Dictionary that “Foster Son” is

defined as “one brought up as a son though not a son by birth.”

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The word “Foster” in the same dictionary, is indicated to mean, to

supply with food; to nourish, feed, support; to bring up with

parental care; to nurse, tend with care to grow. The definition

therefore indicate that a “Foster Child” need not be the real

legitimate child of the person who brings him up. He is essentially

the child of another person but is nursed, reared and brought up

by another person as his own son. It was further held that a child

is brought up from the infancy as the own son by that person who

loves that child as his own, nourishes and brings him up, looks

after his education in the school, college or university and bears all

the expenses, such child has to be treated as the son of that

person particularly if that person holds the child out as his own.

Care, therefore, in rearing up the child need not always be

parental. It can be even that of a “Foster Father”. In such a

situation, the son so brought up would be the “Foster Son” of that

person and since the devotion with which he was brought up, the

love and care which he received from that person were like those

which that person would have given to his real son, the “Foster

Son” would certainly be a member of the family.

22. Therefore, in the light of the aforesaid principles and the evidence

on record, Ravindra Kumar @ Ravi who is son of sister of the

plaintiff can be definitely be adopted to be the member of the

family of the plaintiff so as to include within the definition of

Section 2(e) of the Act of 1961 and further under Section 12(1)(f)

of the Act of 1961 since for his benefit only the property is held by

plaintiff.

23. With respect of the bonafide need the plaintiff Smt. Kamla Bai had

stated that Ravindra Kumar @ Ravi carries on the business of
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distributorship of Dinshaw Ice-cream for which he needs the

Godown Office inside the city, therefore, need of the suit

premises was projected. This fact was also admitted by the

defendant that the Ravindra Kumar @ Ravi is carrying business of

distributorship of whole sale Ice-cream at Durg. The plaintiff stated

that she do not have any other premises available with her within

the Durg city to open the business and there is no evidence to

rebut the same. On the alternate, DW-1 has stated that Ravindra

Kumar @ Ravi is carrying on his business and has taken a

Godown on rent from another person.

24. Another statement of one Arun Kumar Sahu, PW-2, who is worker

in the Dinshaw Dairy Foods Pvt. Ltd. stated that distribution of the

Ice-cream was being carried through Ravindra Kumar @ Ravi. He

further stated that the distribution are carried out from the Godown

at Chikhli Naka, Damdha Road, Durg, for which the rent is

Rs.20,500/- and Dinshaw Dairy Food has asked the distribution

agency to open a Godown in the city, as against this Ravindra

Kumar @ Ravi has asked for some time. Therefore, if the

evidence of the witness are read together, it would show that the

plaintiff was able to prove that the suit premises was required

under Section 12(i)(f) of the Act of 1961 to start the business and

plaintiff did not have any alternative accommodation to start the

business.

25. The plaintiff further contended that except the suit premises, the

plaintiff do not have any other premises in her occupation whereas

the defendant has enough immovable properties at the city at

Durg. Though in the cross-examination, she was confronted that in

the ground floor of the premises three part has been given on rent
13

one part was given to Fulchand Bafna and in one part Jagdish

Sharma was residing and in one part Ajay Sankhla is running his

office. The said averments and the evidence even are accepted, it

will not lead to non-suit the plaintiff. It is a settled principles that

the plaintiff is the sole abiter to chose his/her premises, he/she

cannot be compelled to go for a particular premises to get it

vacated. The defendants have also not able to prove any fact that

the plaintiff has any alternative suitable accommodation to start

the business for which the need was projected.

26. It has been held by Hon’ble the Supreme Court in decisions

reported in (2008) 8 SCC 497 in case of Deep Chandra Juneja v.

Lajwanti Kathuria (Smt) (Dead) Through L.Rs. and 2010 AIR

SCW 1265 in case of Uday Shankar Upadhyay v. Naveen

Maheshwari, that the landlord is the best judge of his requirement

and the Courts have no concern to dictate the landlord so to how

and in what manner he/she should live or which floor/shop he

should use for his business. It is for the landlord to decide. Further

as has been held by Hon’ble the Supreme Court in case of Mohd.

Ayub Another v. Mukesh Chand reported in (2012) 2 SCC

155, the Court cannot direct the landlord to do a particular

business against his will. Further, in case of Anil Bajaj Anr. v.

Vinod Ahuja reported in 2014 (6) SCALE 572 the High Court held

that it is perfectly open to the landlord to choose a more suitable

premises for carrying on the business by her son and that the

respondent cannot be dictated by the appellant as to from which

shop her son should start the business from. Therefore the need

as projected as was upheld by the Court below cannot be faulted.
14

27. Now coming with the finding of arrears of rent, the suit was filed on

13.03.2012. The plaintiff in her statement has admitted the fact

that a notice Ex.P-3 was served. Perusal of Ex.P-3 would show

that arrears of rent from October 2009 at the rate of Rs.1700/- per

month amounting to Rs.44,200/- for 26 months was claimed.

Thereafter, in the cross-examination, the plaintiff at para 17

admitted the fact that she has received a cheque of Rs.40,000/-.

Consequently, it leads to show an amount of Rs.4200/- was still

remaining till 31.12.2011. The suit was filed on 13.03.2012. The

finding of the Court that after the filing of the suit, the defendant

has not deposited any rent before the Court appears to be correct

from records.

28. As has been held in case of Ashok Kumar Mishra Another v.

Goverdhan Bhai (Dead Through Legal Representatives)

Another reported in (2018) 12 SCC 533, the tenant must during

pendency of the suit/appeal make payment of rent within one

month of service of writ of summons or notice of appeal. Further

held that if Court determines time-frame then tenant has to pay

within such time-frame or else pay rent by 15 th of every month till

date of decision in the suit/appeal/proceedings as the case may

be but when the tenant turned out to be defaulter, courts do not

have power to condone defaults in payment of rent.

29. Section 13 of the Act of 1961 for the purpose would be relevant,

which reads as under :

13. When tenant can get benefit of protection against
eviction. – [(1) On a suit or any other proceeding being
instituted by a landlord on any of the grounds referred to in
Section 12 or in any appeal or any other proceeding by a
tenant against any decree or order for his eviction, the
15

tenant shall, within one month of the service of writ of
summons or notice of appeal or of any other proceeding,
or within one month of institution of appeal or any other
proceeding by the tenant, as the case may be, or within
such further time as the Court may on an application
made to it allow in this behalf, deposit in the Court or pay
to the landlord, an amount calculated at the rate of rent at
which it was paid, for the period for which the tenant may
have made default including the period subsequent
thereto up to the end of the month previous to that in
which the deposit or payment is made; and shall thereafter
continue to deposit or pay, month by month by the 15th of
each succeeding month a sum equivalent to the rent at
that rate till the decision of the suit, appeal or proceeding,
as the case may be.

30. The Supreme Court in Ashok Kumar Mishra (supra) at para 9, 13

14 has held as under, which would be relevant in this case.

“9. It is obvious from the aforesaid provisions that the
tenant must during the pendency of the suit/appeal make
payment of rent within one month of the service of writ of
summons or notice of appeal or within such further time
such Court may allow in this behalf. Further, he must
thereafter, continue to deposit or pay rent by 15 th of each
succeeding month till the decision of the suit, appeal or
proceedings, as the case may be.

13. We are of the view that on a plain reading, this
provision protects a tenant from eviction if a tenant makes
deposit/payment as required by Section 13(1) or 13(2) of
the Act. In other words, if the tenant has complied with the
provisions of Sections 13(1) and 13(2) in the matter of
making payment, he is protected from eviction. It must be
remembered that the provisions of Section 13 of the Act
shied a tenant from eviction if the tenant regularly pay rent
after the suit is filed.

14. Accordingly, it provides a locus poenitentiae to the
tenant. Section 13(5) of the Act reiterates the protection by
16

stating that if the tenant makes payment post-suit in
accordance with the provisions of Section 13(1) and 13(2)
of the Act, he shall not be liable for eviction. This section
does not confer the power on the court to condone the
defaults in payment of rent after the suit is filed. It is,
therefore, not possible for us to accept this contention. In
the circumstances, the impugned judgment of the High
Court is set aside.”

31. Since the fact would suggest that after filing of the suit, the plaintiff

has not deposited any arrears as required under Section 13,

therefore, the protection under Section 13(5) of the Act of 1961

would not be available to the plaintiff and any subsequent

payment would not allow the default to be condoned.

Consequently, the arrears of rent as has been arrived at also

cannot be faulted.

32. In a result, after over all appreciation of facts and close scrutiny of

evidence, I am of the opinion that the judgment decree of

eviction by the trial Court do not require any interference by this

Court. The appeal has no merit and accordingly it is dismissed.

33. The cost of the suit and that of the appeal shall also be borne by

the appellants. Decree be drawn accordingly. The judgment and

decree of the trial Court is affirmed apart from the fact that the

appellants shall be liable to pay the cost.

Sd/-

(Goutam Bhaduri)
Judge
Ashok

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