Md. Shamsul Hoque Vs. A. M. A. Anwar Hossain and another 2017 (1) LNJ 217

Case No: Civil Revision No. 3022 of 1998

Judge: Mahmudul Hoque. J.

Court: High Court Division,

Advocate: S.M. Shakhawat Hossain, Mr. Shaheed Alam,

Citation: 2017 (1) LNJ 217

Case Year: 2016

Appellant: Md. Shamsul Hoque

Respondent: A. M. A. Anwar Hossain and anothe

Subject: Civil Law

Delivery Date: 2017-04-12

HIGH COURT DIVISION

(CIVIL REVISIONAL  JURISDICTION)

Mahmudul Hoque, J

 

Judgment on

31.05.2016

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Md. Shamsul Hoque

. . . Plaintiff-Petitioner

-Versus-

A. M. A. Anwar Hossain and another

...Defendant-Opposite parties

Premises Rent Control Act (III of 1991)

Section 10

The opposite parties paid rent to the petitioner double of his entitlement. Moreover, the petitioner by receiving the arrear rents from the opposite parties upto the month of January, 1995 has expressly waived the plea of defaulter as observed in the case of Monir Hossain Vs. Md. Yousuf reported in 66 DLR (AD) 100 (para-10). It is true that acceptance of salami, advance more than one month and security by the Landlord from the tenant is prohibited under Section 10 of Premises Rent Control Act but in the present case, though the petitioner received an amount of Tk.4,80,000/- as security from the opposite parties  there is no scope under the law to adjust the same with the monthly rent payable by the opposite parties.          . . . (20)

Premises Rent Control Act (III of 1991)

Sections 10 and 18(5)

In the present case, the opposite parties do not come within the definition of defaulter. For the excess amount received by the petitioner from the opposite parties, they cannot be said to be defaulter under Section 18(5) of the Premises Rent Control Act so long the money in the hands of the petitioner Landlord are adjusted with the arrears of rent.  In the present case, I find that the amount received by the petitioner in excess of his entitlement i.e. beyond Tk.700/- per month was not paid to the petitioner by the opposite parties in consideration of the grant, renewal or continuance of the tenancy and hence Section 10 of the Premises Rent Control Act is not attracted. Thus, it is clear that in this case though the trial court wrongly held that the petitioner can adjust arrear rent from the security money, nonetheless the trial court rightly held that the opposite parties are not defaulter under the facts and circumstances of the case and evidences both oral and documentary on record. With regard to the bonafide requirement as alleged in the plaint by the petitioner this Court finds that the petitioner utterly failed to prove bonafide requirement by adducing and producing any evidences.   . . . (23 to 25)

Monir Hossain Vs. Md. Yousuf, 66 DLR (AD) 100; Rezaul Ahsan (Md) Vs. Salamat Miah Estate & others, 13 MLR (AD)110; Mustaque Hossain Vs. Shajahan Miah, 57 DLR (AD) 60; Mymensingh Arya Dharma Gnan Prodaini Sava Vs. Rabindra Narayan Paul, 56 DLR (HC) 47 and GSH Jamal Vs. Surraiya Jabeen and others, 63 DLR 493 ref.

Mr. S.M. Shakhawat Hossain, Advocate

.... For the Petitioner

Mr. Shaheed Alam, Advocate

....For the Opposite Parties

JUDGMENT

Mahmudul Hoque, J. This Rule was issued calling upon the opposite party nos. 1& 2 to show cause as to why the judgment and decree dated 31.03.1998 passed by the Senior Assistant Judge, Sadar, Mymensingh in S.C.C. Suit No. 4 of 1997 should not be set aside and /or such other or further order or orders passed as to this Court may seem fit and proper.

2.            Facts relevant for disposal of the Rule, in brief, are that the petitioner as plaintiff instituted S.C.C. Suit No. 04 of 1997 in the Court of Senior Assistant Judge, Sadar, Mymensingh, against the opposite parties as defendants for a decree of ejectment stating inter alia, that the opposite parties took monthly lease of the suit premises namely, "Al Madina Hotel" at a monthly rent of Tk.1400/- to be paid by 15th day of the next month under an agreement dated 01.06.1990. The opposite parties as per Clause 5 of the said agreement paid an amount of Tk.4,80,000/- to the petitioner owner in cash in advance as security for the use of the premises. Subsequently, the opposite party no.2 obtained a loan of Tk.1,40,000/- from the petitioner by an undertaking dated 11.06.1990 clearly stipulating that the opposite parties would refund Tk.45,000/- by 31.12.1990 and it was agreed that the petitioner would complete construction of three rooms in the first floor as per terms of the agreement. The petitioner could not complete the construction as agreed because of the fact that the opposite parties did not make repayment of the amount as per undertaking. Not only that, the opposite parties did not pay rents for the premises for 30 months from the month of July, 1992 to December 1994. As a result of which, the petitioner decided to terminate the tenancy and asked the opposite parties to vacate the premises. The opposite parties somehow managed the petitioner from evicting them on a fresh agreement on payment of enhanced rent of Tk.2001/- per month and accordingly paid the rent at the said rate for the month of January 1995 on signing counter foil of a rent receipt. Thereafter, the opposite parties defaulted in payment of rents from February 1995 to June, 1995.

3.            Apart from this, the opposite parties also in violation of the terms of the agreement and without any intimation to the petitioner sublet the premises to one Nazrul Islam on receipt of Tk. 50,000/- as advance at a monthly rent of Tk.6,000/- who has been running the business in the suit premises. Further case of the petitioner are that the suit premises has now become dilapidated and it requires repair and renovation and also the suit premises is required for his own use as he is now unemployed. For the reason of default in payment of monthly rent by the opposite parties and for repair of the premises and for bonafide requirement of the same the petitioner had to terminate the tenancy by serving a notice dated 01.07.1995 under Section 106 of the Transfer of Property Act. As per demand of the petitioner, the opposite parties have failed to hand over the vacant possession of the premises to the petitioner. Hence, the instant suit.

4.            The opposite parties contested the suit by filing written statement denying all the material allegations made in the plaint contending, inter-alia, that the opposite parties obtained the suit premises along with another premises to be constructed by the petitioner at a monthly rent of Tk.1400/-. But the petitioner failed to fulfill Clause 4 of the agreement and did not construct the first floor of the suit premises. The opposite parties continued to pay the rent @ Tk.1400/- without getting possession of first floor of the suit premises. For the said failure of the petitioner the opposite parties could not materialize their hotel business for which the premises was obtained on monthly rent. The opposite parties repeatedly demanded construction of first floor and delivery of the same to them but the petitioner with an ulterior motive refrained from constructing first floor of the suit premises.

5.            It is also stated that the rent for two premises shall be Tk.1400/- and after four years the said rent may be enhanced @ Tk.100/-. The petitioner while receiving rent for the month of January 1995 obtained signature of the opposite party no.1 on an unwritten counter foil of rent receipt. Subsequently, the petitioner  showed the same claiming that the rent of the suit premise has been amicably enhanced to Taka 2001/- from Taka 1400/- in violation of Clause 3 of the Tenancy Agreement. The opposite party no.1 had never agreed to pay rent @ Tk.2001/- per month and it is the petitioner who with an ulterior motive fraudulently created the counter foil without knowledge of the opposite party no.1. It is also stated that while the petitioner receiving the rent for the month of January 1995 from the opposite party no.1, he received a further amount of Taka 10,000/- for his urgent family expenses with an assurance that the petitioner will adjust the said amount against the monthly rent and shall issue rent receipts up to July, 1995 by adjusting Tk.8,400/- and will refund Tk.1600/-.

6.            The opposite party no.1 on good faith trusted the petitioner and in the month of July asked for rent receipts from him. The petitioner though promised to the opposite party no.1 that he will give rent receipts later on but after two or three days the opposite party no. 1 to his utter surprise received a notice to quit from the petitioner instead of receiving rent receipts. The opposite parties could understand that they have become victims of fraud. In the said notice the petitioner falsely alleged that the opposite parties did not pay rents for the month of February 1995 to July, 1995 and also falsely stated that the opposite parties sublet the suit premises to one Nazrul Islam. In fact, the opposite parties did not sublet the premises to anybody but they have been using the premises for their business.

7.            In the course of hearing, the petitioner and the opposite parties have examined two witnesses each including the petitioner and the opposite party no.1 and produced documents in support of their respective cases. The trial court upon contested hearing dismissed the suit by the impugned judgment and decree dated 31st March, 1998. At this stage, the plaintiff-petitioner moved this Court by filing this application under Section 25 of the S.C.C. Act and obtained the present Rule.

8.            Mr. S.M. Shakhawat Hossain, the learned Advocate appearing for the petitioner submits that in the instant case the only question to be determined as to whether the tenants are defaulter as defined under Section 18(5) of Premises Rent Control Act. In this respect he submits that the opposite parties were inducted in the suit premises under a monthly tenancy agreement which provides that the tenant shall pay monthly rent within 15 days of the next month. But the opposite parties did not pay monthly rent regularly and they failed to pay rents from the month of July, 1992 to December 1994 for 30 months making themselves worst type of defaulter. While the petitioner was taking step for eviction of the opposite parties they somehow managed to overcome the eviction and agreed to enhance the monthly rent at Tk. 2001/-. On that agreement the opposite parties paid rent for the month of January, 1995 @ Tk. 2001/- and accordingly, the petitioner issued receipt to the opposite party no.1. Thereafter, from February, 1995 to June 1995 the opposite paries did not pay monthly rent to the petitioner and as such, it is clear from the facts and circumstances of the case and evidences that the opposite parties have become defaulters and defaulters are not entitled to retain possession of the premises rented to them.

9.            He further submits that Section 10 of the Premises Rent Control Act, prohibits acceptance of rent more than one month, any salami or security from the tenant and as such, the security so far received by the petitioner from the opposite parties cannot be adjusted against the monthly rent due. He also argued that the trial court while dismissing the suit wrongly observed that the opposite parties paid an amount of Tk. 4,80,000/- to the petitioner as security which is still at the hand of the petitioner and until the said security money are adjusted against the monthly rent of the opposite parties they cannot be termed as defaulter which is against the spirit of law and contrary to the provision as contained in Section 10 of the Premises Rent Control Act. It is also argued that though the tenancy agreement has stipulation in its Clause 5 that the petitioner shall construct first floor of the suit premises to be let out to the opposite party, it could not be done due to failure of the opposite parties to repay the loan obtained from the petitioner. Moreover, the opposite parties by accepting such failure of the petitioner had been  making payment of monthly rent @ Tk.1400/- to the petitioner and as such, non-compliance of term of the agreement by the petitioner cannot in any way entitle the opposite parties to retain the possession of the premises without making regular payment of monthly rent.

10.        He also submits that the opposite party no.1 in his cross-examination unequivocally admitted that he signed the counter foil of the rent receipt for the month of January 1995. It means that enhancement of rent at Tk. 2001/- was made with the consent of the opposite parties and as such, the opposite parties cannot deny the fact of such enhancement. Since the opposite parties are defaulters they are liable to be evicted from the suit premises according to law. The trial court while deciding the suit most unfortunately overlooked this pertinent question giving emphasis on the deposit of security money by the opposite parties.

11.        Mr. Shaheed Alam, the learned Advocate appearing for the opposite parties submits that as per Clause 3 of the agreement  the rent of the premises is enhanceable after 4 years at the rate of Tk.100/- only, as such, enhancement of rent at Tk.2001/- is absolutely false, unbelievable and contrary to the terms and conditions of the agreement. He further submits that the petitioner by Clause 5 of the tenancy agreement was under an obligation to construct first floor of the premises  and deliver the same to the opposite parties within 6 months from the  date of agreement but the petitioner did not construct the first floor rather receiving the monthly rent for the said floor also in violation of the terms of the agreement.

12.        It is also argued that the petitioner on his own volition admitted that the opposite parties paid rent up to January 1995 but most unfortunately suppressed the fact that the petitioner received an amount of Tk.10,000/- from the opposite parties on the assurance that he will issue rent receipts for six months against the aforesaid amount of Tk.10,000/-. When the opposite parties demanded rent receipts for the months of February 1995 to July 1995 the petitioner instead of giving rent receipts, most unfortunately issued a notice to quit upon the opposite parties treating them defaulter and filed the suit for eviction. He further argued that as per tenancy agreement the petitioner having failed to construct first floor of the premises and deliver possession of the same to the opposite parties is not entitled to get monthly rent for the non-delivered premises @ Tk.700/- but till today the petitioner is receiving rent from the opposite party @ Tk.1400/- without making delivery of the 1st floor to them in violation of the terms of the agreement.

13.        Mr. Alam further argued that if it is considered that the opposite parties did not make payment of rent for the month of February 1995 to June 1995 in that event also the opposite parties cannot be termed as defaulter because of the fact that the opposite parties from the date of execution of the agreement have been making payment of rent @ Tk.1400/- for both the premises one of which still not constructed and delivered to them. Therefore, the petitioner is entitled to get rent @ Tk.700/- from the opposite parties for the ground floor only. Since the petitioner received rent in excess of his entitlement, from the said excess amount @ Tk.700/- are liable to be adjusted with the rent due if there be any and after such adjustment a handsome amount will still remain in the hands of the petitioner, and as such, the plea of defaulter by the petitioner is not at all tenable in law.

14.        Heard the learned Advocate for the parties, gone through the revisional application, impugned judgment and decree, evidences both oral and documentary contained in the lower court records.

15.        In this case, the plaintiff deposed as P.W.1. In his deposition he admitted the agreement of tenancy in its entirety and admitted that he received rents for 30 months at a time from the opposite parties without granting any receipts. It is also admitted that the rent was fixed at Tk.1400/- including the rent for the first floor to be constructed and delivered to the opposite partiers but he did not construct first floor as per agreement. It is also admitted that the opposite parties after refusal to accept the rent by the petitioner has been depositing the same with the Rent Controller by filing HRC case. He further deposed that they paid Tk. 4,80,000/- to him as security. P.W.2 Mr. Jamal Uddin deposed in respect of enhancement of the rent at Tk.2001/- and payment of the same by the opposite party no.1. In his deposition he stated that he saw that the petitioner was giving a rent receipt to the opposite party no.1 for the month of February, 1995 but he did not see any payment of money by the opposite party no.1 to the petitioner. The opposite party no.1 deposed as D.W.1. In his deposition amongst other he stated that the petitioner while receiving rent for the month of January, 1995, in addition to monthly rent he received an amount of Tk.10,000/- for his urgent need with a promise and assurance that the said amount will be adjusted against monthly rent and he will give rent receipts for the month of February, 1995 to July 1995, but the petitioner did not issue rent receipt but taken step for eviction of the opposite parties. It is also stated that no sublet was given to anybody as alleged by the petitioner and claimed that the petitioner utterly failed to keep his commitment as per terms of the contract. He also deposed that the rent fixed at Tk.1400/- for both the ground floor and the first floor of the premises but the petitioner though promised to construct the first floor of the premises and deliver the same to the opposite parties but till today he did not comply with the terms and conditions of the agreement. In his cross-examination nothing has come out contrary to the examination-in-chief. D.W.2 Nuruzzaman deposed in respect of payment of Tk.10,000/- to the petitioner in his presence. From the evidences adduced by the witnesses it is established that the opposite parties entered into the suit premises under an agreement and the said agreement stipulates some terms and conditions. For proper understanding of the case, Clauses 3, 4 and 5 of the agreement dated 01.06.1990 may be looked into which run thus:

"3z i¡s¡ ®eJu¡l a¡¢lM qC­a flha£Ñ BVQ¢õn j¡p AbÑ¡v Q¡¢l hvpl L¡m fkÑ¿¹ ®Q±Ÿna V¡L¡ q¡­lC j¡¢pL i¡s¡ Q¢m­a b¡¢L­h Hhw Q¡¢l hvpl A­¿¹ B¢j 1j fr i¡s¡ hª¢Ü L¢l­a Q¡¢q­m fТa Q¡l hvpl A­¿¹ j¡¢pL i¡s¡ HLna V¡L¡l ®hn£ hª¢Ü L¢l­a f¡¢lh e¡ z

4z B¢j 1j fr BN¡j£ 31/12/1990 a¡¢l­Ml j­dÉ Bj¡l ¢eS Ml­Q, i¡s¡¢Vu¡ 38 ew ®q¡¢ôw Hl Efl ¢ejÑ¡e¡d£e ®c¡a¡m¡ Ol¢V (k¡q¡l HL a¡m¡ ¢ejÑ¡e pÇfæ qCu¡ ¢Nu¡­R) ¢eQ a¡m¡l pjf¢lj¡­e ®c¡a¡m¡ Ol ¢ejÑ¡e pÇfæ L¢lu¡ ¢ch¡l SeÉ A‰£L¡l¡hÜ l¢qm¡j Bfe¡l¡ 2u frNe Efl J ¢e­Ql a¡m¡u HLC p­‰ Abh¡ fªbLi¡­h hÉhp¡ f¢lQ¡me¡ L¢l­a f¡¢l­he z E­õM b¡­L ®k, ®c¡a¡m¡ ¢ejÑ¡­el flJ ¢ÙÛlL«a j¡¢pL i¡s¡ ®Q±Ÿna V¡L¡C hq¡m b¡¢L­h z B¢j 1j fr aà¡hc ®L¡e A¢a¢lš² i¡s¡ c¡h£ L¢l­a f¡¢lh e¡z

5z i¡s¡¢Vu¡ ®c¡L¡e Ol hÉhq¡­ll S¡j¡ea ül¦f Bfe¡l 2u frN­el ¢eLV qC­a B¢j 1j fr 4,80,000/- (Q¡l mr B¢n q¡S¡l) V¡L¡ ANË£j NËqe L¢lm¡j z i¢ho­a Bfe¡l¡ 2u frNe i¡s¡¢Vu¡ ®c¡L¡e Nªq R¡¢su¡ Q¢mu¡ k¡C­a Q¡¢q­m Hhw B¢j 1j fr k¢c Efk¤š² h¡S¡l j§­mÉ ( k¡q¡ ®L¡e AhÙÛ¡­aC S¡j¡e­al V¡L¡l Q¡C­a Lj qC­h e¡ ) f¤exqÙÛ¡¿¹l NËqe L¢l­a Q¡C a­h Bfe¡l¡ 2u frNe i¡s¡¢Vu¡ ®c¡L¡eNªq B¢j 1j f­rl hl¡h­l qÙ¹¡¿¹l L¢l­he z B¢j 1j fr a¡q¡­a Af¡lNa¡ fÐL¡n L¢l­m Bfe¡l¡ 2u frNe a«a£u ®L¡e hÉ¢š²l ¢eLV Efk¤š² h¡S¡l j§­mÉ i¡s¡¢Vu¡ ®c¡L¡eNª­ql i¡s¡¢Vu¡ üaÅ qÙ¹¡¿¹l L¢l­a f¡¢l­he z Cq¡­a B¢j 1j f­rl ®L¡e Bf¢š b¡¢L­h e¡z a­h aªa£u f­r ¢eLV i¡s¡¢Vu¡ ®c¡L¡e qÙ¹¡¿¹l L¢l­m ®j¡V j§­mÉl naLl¡ h¡l (12%) V¡L¡ B¢j 1j fr­L fÐc¡e L¢l­he Hhw h¡L£ naLl¡ BV¡¢n (88%) V¡L¡ Bfe¡l¡ 2u frNe f¡C­hez"

16.        Clause 3 of the agreement provides that the rent is enhanceable after 4 years @ Tk.100/-.   Clause 4 of the agreement provides that the petitioner shall construct first floor of the suit premises and the rent for both the premises shall be @ Tk.1400/-. Clause 5 contains  that the petitioner received Tk.4,80,000/- from the opposite party as security  with the right to transfer the suit premises to any 3rd person with an intimation to the petitioner provided that 12% of the amount so far received from the 3rd party should be given to the petitioner.

17.        In the present case, the petitioner as per tenancy agreement failed to construct first floor and deliver the same to the opposite party but receiving the rents  for both the floor @ Tk.1400/-. The petitioner has made the opposite party defaulter for non-payment of rent for the months of January 1995 to June 1995. As per agreement the petitioner having failed to construct first floor and make delivery of the same to the opposite parties is only entitled to get monthly rent for the premises delivered to the opposite party i.e. half of the rent of Tk.1400/- but the petitioner in spite of his failure to construct the first floor and deliver the same to the opposite party has been receiving monthly rent @ Tk.1400/- against one premises. Therefore, the petitioner received monthly rent double from the opposite parties.

18.        From Exhibit-2 dated 11.06.1990, it appears that by the said document the opposite party no.2 obtained a loan of Tk. 1,40,000/- from the petitioner out of which the opposite party no.2 on different dates made  repayment of a substantial amount to the petitioner. In the said document there is no stipulation that the petitioner shall construct first floor if the opposite party made repayment of Tk.45,000/- by 31st December, 1990. Therefore, the plea so far taken by the petitioner to the effect that he could not construct the first floor due to failure of opposite parties to repay Tk.45,000/- within 31st December, 1990 is absolutely contrary to the exhibit-2. The petitioner’s Advocate put stress on counter foil of rent receipt (Exhibit-3) by which he tried to impress upon the court that the rent for the suit premises was enhanced from Tk.1400/- to 2101/- by amicable agreement between the parties and the opposite parties made payment of rent @ Tk.2101/- for the month of January, 1995. On the other hand, the learned Advocate for the opposite parties submits that the petitioner with an ulterior motive had written Tk.2001/- in the counter foil after obtaining signature of the opposite party no.1 without their knowledge. 

19.        From the facts and circumstances of the case, it is in this Court's view that where the petitioner failed to construct first floor of the premises and deliver the same to the opposite parties and receiving the rents double, there was no earthly reason for enhancement of the rent by the opposite parties at Tk.2001/- from Tk.1400/- in place of Tk.1500/- as contained in Clause 3 of the agreement. The petitioner’s counsel referring to the case of Monir Hossain Vs. Md. Yousuf reported in 66 DLR (AD) 100 submits that the opposite parties became defaulter by failing to comply with the mandatory provision of law and the terms and conditions of the agreement in respect of payment of monthly rents. As discussed above, this Court finds that the contention of the learned Counsel for the petitioner is in the facts and circumstances of the case, not acceptable. Because, the opposite parties paid rent to the petitioner double of his entitlement. Moreover, the petitioner by receiving the arrear rents from the opposite parties upto the month of January, 1995 has expressly waived the plea of defaulter as observed in the case of Monir Hossain Vs. Md. Yousuf reported in 66 DLR (AD) 100 (para-10). It is true that acceptance of salami, advance more than one month and security by the Landlord from the tenant is prohibited under Section 10 of Premises Rent Control Act but in the present case, though the petitioner received an amount of Tk.4,80,000/- as security from the opposite parties  there is no scope under the law to adjust the same with the monthly rent payable by the opposite parties.

20.        From a perusal of the impugned judgment and decree this Court finds that the court below wrongly observed that the security deposit may be adjusted with the monthly rent and until the security money is adjusted, the opposite parties cannot be termed as defaulter. In the cases of Monir Hossain Vs. Md. Yousuf reported in 66 DLR(AD) 100, Rezaul Ahsan (Md) Vs. Salamat Miah Estate & others reported in 13 MLR(AD)110, Mustaque Hossain Vs. Shajahan Miah reported in 57 DLR(AD) 60, Mymensingh Arya Dharma Gnan Prodaini Sava Vs. Rabindra Narayan Paul reported in 56 DLR(HC) 47, GSH Jamal Vs. Surraiya Jabeen and others reported in 63 DLR 493 it has been held that the acceptance of salami, advance or security being prohibited under Section 10 of the Premises Rent Control Act, there is no scope to adjust the said amount with the monthly rent as per provision of law and as such, finding of the trial court to that extent is not correct and sustainable in law, other findings  and observations made by the   trial court in its judgment  are found to be sound and valid in law.

21.        For better understanding relevant portion of the judgment of the trial court is reproduced below:

"h¡c£f­rl fÐcÑne£ "1" ab¡ ¢hh¡c£ f­rl fÐcnÑe£ "L" ¢m¢Ma Q¤¢š²e¡j¡ j­a h¡c£ 1995 p­el S¡e¤u¡l£­a 100/- V¡L¡l ®hn£ i¡s¡ l¢nc L¢l­a f¡­l e¡z h¡c£l fÊcnÑe£-3 i¡s¡l l¢nc¢V fÐj¡­el SeÉ h¡c£ f­r ¢f,X¢hÔC-2, ®j¡x S¡j¡m E¢Ÿe p¡rÉ fÐc¡e L­lz a­h ®p Sh¡eh¾c£­aC h­m ®k h¡c£ n¡jp¤m qL 1ew ¢hh¡c£­L 2001/- V¡L¡l l¢nc ®cu, ¢hh¡c£ l¢n­c ü¡rl ®cu ¢L¿º ®p V¡L¡ ¢c­a ®c­M e¡Cz ®Sl¡­a J ®p h­m ®k ®p h¢m­a f¡­l e¡ l¢nc hC h¡c£l f­L­VC ¢Rm ¢Le¡ z HC ü¡r£ Eš² l¢n­cl ®L¡e ü¡r£ J e­qz L¡­SC HC ü¡r£l ü¡rÉ à¡l¡ Eš² l¢nc fÐj¡e qu e¡ z h¡c£l BlS£l hš²hÉ HC ®k, ¢hh¡c£ 1994 p­el ¢X­pðl j¡p fkÑ¿¹ 30 j¡­pl i¡s¡ h¡L£ ®g¢m­m a¡q¡­L E­µRc L¢l­a Q¡¢q­m ¢hh¡c£ A­eL q¡­a f¡­u d¢lu¡ i¡s¡ hª¢Ü L¢lu¡ ¢c­h h­m ¢L¿º h¡c£fr HC i¡s¡ hª¢Ül Bm¡f B­m¡Qe¡ pÇf¢LÑa ®L¡e ü¡r£ q¡¢Sl L¢l­a f¡­l e¡Cz ac¤f¢l ®kM¡­e ¢m¢Ma Q¤¢š² e¡j¡ fÐcnÑe£ "1" ®j¡a¡­hL j¡¢pL 100/- V¡L¡l ®hn£ i¡s¡ hª¢Ü L¢l­a f¡­l e¡ ®pM¡­e 1400/- V¡L¡ qC­a 2001/- V¡L¡ j¡¢pL i¡s¡ hª¢Ü pwœ²¡¿¹ ea¥e ®L¡e Q¤¢š² e¡ L¢lu¡ h¡c£ ®Lhm j¡œ HL¢V l¢n­c 2001/- V¡L¡ ¢m¢Mu¡ a¡q¡l c¡h£ fÐj¡e L¢l­a f¡­l e¡Cz ü¡rÉ BC­el 91 J 92 d¡l¡ ®j¡a¡­hL ¢m¢Ma fÐj¡­el ¢hfl£­a ®j±¢ML ü¡rÉ NËqe ®k¡NÉ e­qz L¡­SC ¢f,X¡¢hÔE-2 fÐcš ü¡rÉ H­r­œ Nªq£a qC­h e¡ z ac¤f¢l h¡c£l p¢qa Q¤¢š² ®j¡a¡­hL 30/12/1990 a¡¢l­Ml j­dÉ h¡c£l ¢eS Ml­Q i¡s¡¢Vu¡ 38ew ®q¡m¢Xw Hl Efl ¢ej¡Ñe¡d£e ®c¡a¡m¡ Ol¢Vl ¢ejÑ¡e pÇfæ L¢lu¡ ®cJu¡l Lb¡ ¢Rm Hhw ®c¡a¡m¡ ¢ejÑ¡­el flJ j¡¢pL i¡s¡ 1400/- V¡L¡C hq¡m b¡L¡l Lb¡ ¢Rm k¡q¡ Q¤¢š²fœ fÐcnÑe£ "1" Hl 4ew n­aÑ ¢hnc i¡­h E­õM Ll¡ qCu¡­Rz h¡c£l ü£L«a j­aC h¡c£ 30/12/1990 a¡¢l­Ml j­dÉ Hje ¢L a¡q¡l f­lJ BS fkÑ¿¹ J ®c¡a¡m¡ ¢ejÑ¡e L¢lu¡ ®cu e¡ Hhw 1400/- V¡L¡ ¢qp¡­hC 1994 p­el ¢X­pðl fkÑ¿¹ i¡s¡ NËqe L¢lu¡­R, AhnÉ h¡c£ H­r­œ 1992 p­el S¤m¡C qC­a 1994 p­el ¢X­pðl fkÑ¿¹ 30 j¡­pl i¡s¡ h¡L£ b¡L¡­a HL­œ NËq­el Lb¡ h­m z ¢L¿º h¡c£ a¡q¡l ®Sl¡­a ü£L¡l L­l ®k I h­Lu¡ i¡s¡ HL­œ mC­mJ h¡c£ ®L¡e l¢nc ®cu e¡Cz k¡q¡C qEL 30/12/1990 a¡¢l­Ml j­dÉ ®c¡a¡m¡ ¢ejÑ¡e pÇfæ L¢lu¡ ®cJu¡l ¢m¢Ma Q¤¢š² b¡L¡u ØføaxC fÐj¡¢ea qu ­k, Eš² a¡¢l­Ml f­l ®c¡a¡m¡ ¢ejÑ¡e e¡ Ll¡u Hhw h¡c£ 1400/- V¡L¡ ¢qp¡­h i¡s¡ ®eJu¡­a fÐL«af­r ¢à…e i¡s¡ Bc¡u L¢lu¡­Rz H­r­œ ®p Bh¡lJ 2001/- V¡L¡ ®a j¡¢pL i¡s¡ hª¢Ül c¡h£ L¢lu¡­R J a¡q¡­a ¢hh¡c£ pÇja qCu¡­R Cq¡ ¢hnÄ¡p ®k¡NÉ e­qz h¡c£ k¢c J HL¢V plea NËqe L¢lu¡­R ®k, 2ew ¢hh¡c£ 11/06/1990 a¡¢l­Ml HL¢V Q¤¢š²f­œl jÉdÉ­j a¡q¡l ¢eLV qC­a 1,40,000/- V¡L¡ LSÑ ®eu J 30/12/1990 a¡¢l­Ml j­dÉ h¡c£­L Lb¡ja 45,000/- V¡L¡ ®gla e¡ ®cJu¡­a ®p ®c¡a¡m¡ L¢lu¡ ¢c­a f¡­l e¡C z ¢L¿º Q¤¢š²fœ fÐcnÑe£-1 h¡ 2ew ¢hh¡c£l V¡L¡ LSÑ ®eJu¡l H¢NË­j¾V fÐcnÑe£ 2 ®L¡b¡J Hl¦f Lb¡ ®mM¡ e¡C ®k, ¢hh¡c£­cl ¢eLV qC­a Nªq£a 4,80,000/- V¡L¡l S¡j¡e­al V¡L¡ qC­a Abh¡ 2ew ¢hh¡c£l ®eJu¡ LSÑ qC­a f¢l­n¡dL«a 45,000/- V¡L¡ qC­a h¡c£ ®c¡a¡m¡ ¢ejÑ¡e L¢l­hz L¡­SC fÐcnÑe£ 1 J 2 Hl ¢m¢Ma hš²­hÉl h¡¢q­l h¡c£l ®j±¢ML ü¡r£ H­r­œJ NËqe­k¡NÉ e­q z hlw fÐcnÑe£ 1 Hl naÑ ®j¡a¡­hL h¡c£l ¢eS Ml­Q ®c¡a¡m¡ ¢ejÑ¡e Ll¡l Lb¡z h¡c£l A¢i¡­k¡N j­a ¢hh¡c£ 1992 p­el S¤m¡C j¡p qC­a 1994 p­el ¢X­pðl fkÑ¿¹ 30 j¡­pl i¡s¡ h¡L£ ®g¢m­m ®p defaulter qCu¡­R  Hhw 1995 p­el S¡e¤u¡l£ j¡­pl i¡s¡ 2001/- V¡L¡ fÐc¡e Ll¡l f­l Bl ®L¡e i¡s¡ f¢l­n¡d e¡ Ll¡­a J defaulter  qCu¡­Rz H­r­œ ¢hh¡c£l hš²hÉ HC ®k, 1995 p­el S¡e¤u¡l£ j¡­pl i¡s¡ ®eJu¡l f­l h¡c£ ¢hh¡c£l ¢eLV qC­a BlJ 10,000/- V¡L¡ i¡s¡ A¢NËj ®euJ a¡q¡ qC­a 1995 p­el S¤m¡C j¡p fkÑ¿¹ i¡s¡ 8,400/- V¡L¡ ®n¡d L¢lu¡ h¡L£ 1600/- V¡L¡ ®glv ¢cu¡ i¡s¡l l¢nc ¢c­a pÇja qu z ¢L¿º f­l l¢nc e¡ ¢cu¡ a¡q¡­L E¢Lm ®e¡¢Vn ®cuz h¡c£ ¢hh¡c£l HC hš²hÉ­L Aü£L¡l L­lz ¢hh¡c£ f­r ¢X,X¢hÔC-2, ®j¡x e¤l¦‹¡j¡e a¡q¡l Sh¡e h¾c£­a h­m ®k 23/02/1995 a¡¢l­M h¡c£ ¢hh¡c£l ¢eLV ®b­L Eš² 10,000/- V¡L¡ ®eu ®Sl¡­a J ®p a¡q¡l I hš²­hÉl Efl AVm b¡­Lz"

22.        In addition to above observations, the trial court also observed that the petitioner having failed to construct first floor of the premises and delivered the same to the opposites parties he is entitled to receive Tk.700/- per month from the opposite parties but the petitioner received double the rent from them. If the excess amount received from the opposite parties are adjusted against the monthly rent the opposite parties will be entitled to get refund of a handsome amount from the petitioner. The amount received in excess by the petitioner is not an advance rent or salami or security as provided in Section 10 of the Premises Rent Control Act and as such, the adjustment of the same with the arrear rent is not prohibited under any law of the land, particularly under section 10 of the Premises Rent Control Act. Therefore, the cases cited by the petitioner's counsel regarding defaulter and adjustment of security deposit are different from the facts and circumstances of the case at hand and as such, in the present case, the opposite parties  do not come within the definition of defaulter. For the excess amount received by the petitioner from the opposite parties, they cannot be said to be defaulter under Section 18(5) of the Premises Rent Control Act so long the money in the hands of the petitioner Landlord are adjusted with the arrears of rent.  In the present case, I find that the amount received by the petitioner in excess of his entitlement i.e. beyond Tk.700/- per month was not paid to the petitioner by the opposite parties in consideration of the grant, renewal or continuance of the tenancy and hence Section 10 of the Premises Rent Control Act is not attracted. 

23.        Thus, it is clear that in this case though the trial court wrongly held that the petitioner can adjust arrear rent from the security money, nonetheless the trial court rightly held that the opposite parties are not defaulter under the facts and circumstances of the case and evidences both oral and documentary on record.

24.        With regard to the bonafide requirement as alleged in the plaint by the petitioner this Court finds that the petitioner utterly failed to prove bonafide requirement by adducing and producing any evidences. From the evidences, I find that the petitioner adduced no evidences in support of his claim of bonafide requirement. The trial court rightly observed that the bonafide requirement has not been proved from the evidence on record.

25.        For the foregoing reasons, this Court finds no merit in the Rule as well as in the submissions of the learned counsel for the petitioner.

26.        In the result, the Rule is discharged; however, there will be no order as to costs. 

27.        Communicate a copy of this judgment to the Court concerned.

         Send down the lower court records at once.

Ed.