JUDGMENT KAZI EBADUL HQUE, J.- This Rule at the instance of the platintiff-petitioner is against judgment and decree dated 19.11.91 passed by the Assistant Judge, 3rd Court, Dhaka in Small Cause Court Suit No.3 of 1991 dismissing the suit for ejectment.
2. Petitioner as plaintiff filed the aforesaid Small Cause Court, Suit against the defendant opposite party for her ejectment from the suit premises on the ground that she is a defaulter in payment of rent since June, 1990 and, as such, plaintiff terminated the monthly tenancy of the defendant in the suit premises by a notice dated112.2.91 and claimed that the suit premises is also bona fide required by the plaintiff for his own use had occupation.
3. Defendant contested the suit denying material allegations and asserting that she paid rent amicably upto May, 1990 and offered rent for the month of June 1990 which having been refused by the plaintiff she has been depositing the rent with the House Rent Controller. Further case of the defendant is that the suit premise is not bonafide required by the plaintiff and in terms of the agreement with-the plaintiff for the suit premises he is not entitled to terminate the monthly tenancy in spite of default of payment of rent as she paid salami of Taka 17,000.00 at the time of entering into the suit premises.
4. Mr. SR Karmakar, learned Advocate appearing on behalf of the petitioner, after placing the impugned judgment and other materials on record, submitted that Court below acted illegally in relying on the decision in the case of Shamefacedness vs. Mohd. Hassart and others reported in 31 DLR (AD) 155 as the facts of that case is distinguishable from the facts of the present case as has been noticed by the Appellate Division in the case of Mosammat Rahima Khatun vs. Abdur Rashid Bhuiyan and another reported In 19844 BCR 520 (AD).
5. It appears from the impugned judgment that the notice under section 106 of the Transfer of Property Act was duly served upon the defendant and she has been found apparently to be a defaulter as she did not pay rent from June, 1990 to March, 1991 to the plaintiff. But on consideration of the aforesaid decision reported in 31 DLR (AD) 155 Court below held that Taka 17,0. 00 by way of salami being in deposit with the plaintiff after adjustment of unpaid rent of Taka 4,000.00 for ten months, the sum of Taka 13,000.00 remained unadjusted with the plaintiff and, as such, the defendant was not a defaulter. Further Court below also found that plaintiff failed to prove his bonafide requirement for the suit premises.
6. In the case reported in 31 DLR (AD) 155 an ampunt of Taka 19,200.00 was paid by the tenant to the landlord as advance to be adjusted against the rent and for that reason by adjusting the arrear rents from the said unadjusted advance it was held that the tenant was not a defaulter. On the other hand, in the case reported in 1984 BCR 520 (AD) a sum of Taka 1,000.00 was paid by the tenant to the landlord by way of security deposit and there was no stipulation for adjustment of the same against the due rents. So, considering the provisions of section 14 of the Premises Rent Control Ordinance it was held in that case that in the absence of any order for adjustment under the aforesaid section 14 the same Could not be adjusted in a suit for ejectment. I, therefore, find force in the submission of the learned Advocate for the petitioner that Court below was not justified in observing that the sum of Taka 4,000.00 on account of rent for ten months would be adjusted and Taka 13,000.00 would remain in deposit with the plaintiff out of salami amount of Taka 17,000.00 paid by the defendant.
7. In this connection Mr. Miah Abdul Gafur, learned Advocate for the opposite party, has referred to the assertion made in Para 5 (a) of the counter affidavit wherein it has been stated that defendant opposite party deposited monthly rents upto June, 1994 with the House Rent Controller and he produced Chalan depositing rents by the defendant with the House Rent Controller from June 1990 to June, 1994. So, there is no question of adjusting the arrear rent as the defendant has already deposited all rents with the House Rent Controller and the plaintiff can withdraw the same from the House Rent Controller, But it does not mean that deposit of rent for several months together with the House Rent Controller after default in payment of rent will condone such default. So, Court below was not justified in holding that the defendant was not a defaulter in payment of rent.
8. Now coming to the terms of the agreement between the parties dated 25.5.83 Ext. Kha relied on by the Court below to hold that plaintiff's claim has no satisfactory basis, may be observed that Court below failed to properly appreciate the terms of the said agreement. Admittedly plaintiff received the sum of Taka 17,000.00 as salami from the defendant under the said agreement.
Clause 3 of the said agreement provides that if the defendant fails to properly appreciate the terms of the said agreement. Admittedly plaintiff received the sum of Taka 17,0. 00 as1 salami from the defendant under the said agreement. Clause 3 of the said agreement provides that if the defendant fails to pay rent continuously for 4 months the plaintiff would be entitled to recover the same by legal action against her, whereas Clause 4 provides that the defendant will be entitled to sub let the rented premises without any objection from the plaintiff and Clause 5 provides that defendant will be entitled to transfer his possession of the plaintiff who will admit such transferee as a monthly tenant without any objection and Clause 6 provides that the landlord will not be entitled to terminate the monthly tenancy on any ground whatsoever. From the above provisions it is clear that by agreement between the parties monthly tenancy of the defendant has been made transferable and non-ejectable.
9. Nowadays a practice has developed in the cities and towns that the tenants voluntarily pay salami to the landlords on condition of making the monthly tenancy transferable and non- ejectable. This practice has developed due to paucity of commercial and, at times, residential accommodation in the urban areas for hire. This practice of payment of salami on condition of making the monthly tenancy transferable and non-ejectable undoubtedly is an illegal practice prohibited under the provision of section 10 of the Premises Rent Control Act \-991-. Though the tenant is entitled to pray for refund of the salami paid by him from the landlord within 6 months of such payment under section 14 and the landlord is liable to pay fine for receiving salami under section 23 of the said Act due to widespread prevalence of such practice of voluntary payment of salami in the urban areas on condition of making the tenant hardly goes to the House Rent Controller for refund of salami or for punishing the landlord. It is because of the fact that an interest has been created in favour of the tenant in the tenanted premises by way of allowing him to transfer his possession and or to sub let whole or part of the premises to a third party and also his non-ejectability from the suit premises on any account.
10. Under section 18 of the Premises Rent Control Act 1991 as soon as a monthly tenant becomes a defaulter or the landlord bona fide requires rented premises the landlord is entitled to eject such a tenant. Though the defendant opposite party failed to pay rent for ten months within the due date and became technically a defaulter aforesaid practice recognised in the agreement Ext. 'Kha' between the parties can be taken notice of by the Court as a principle of promissory estoppel debarring the landlord plaintiff to go beyond the terms of his agreement to the peril of the tenant defendant. Therefore, I find no illegality on the part of the learned Small Cause Court Judge in refusing decree for ejectment in favour of the plaintiff petitioner.
In the result, the Rule is discharged without any order as to costs.