Harin Chandra Das v. Pradip Chowdhury and Ors. — 1995 DIGILAW 201 (GAU)

This revision petition has arisen against the judgment and decree dated .1989 in Title Appeal Nb.29 of 1986 passed by the learned Assistant District Judge, Barpeta allowing the appeal filed by the plaintiff/opposite party against the judgment and decree dated 18.4 3J6 parsed by the teamed Munsiff, Barpeta hi TS No.38 of 1977 reversing the order of dismissal of the suit filed by the plaintiff/opposite party. 2. The Opposite party predecessor-in-interest as plaintiff filed the above mentioned title suit in the Court of Munsiff, Barpeta against the revision petitioner for a decree of ejectment from the suit premises described in the schedule to the plaint and also for a decree of Rs.150/- as arrear rent and for Rs.1,275/- as compensation for unauthorised use of rented premises. 3. The petitioner defendants were tenant under the plaintiff in respect of a commercial premises, described in the schedule to the plaint, at a monthly rent of Rs. 100/- per month under an oral agreement. As per such oral agreement the petitioner/defendants were running their business from said commercial premises by regularly paying the agreed rate of rent for the said premises. That the defendants were asked to vacate the said premises in order to enable the unemployed son of the plaintiff/opposite party to do business by expanding and renovating the old premises let out to the defendant. The defendant promised to vacate the premises but as he failed to vacate the same, the plaintiff sent a registered Lawyer's notice on 3.6.76 asking to vacate the premises and the defendants replied the said notice on 2.7.76 and it is alleged in the plaint that the defendant/revision petitioner are doing their business from the house in question without any agreement and without payment of arrear rent. Plaintiff/opposite parties' main contention was that the house was needed for running the business of the plaintiff and that the house needs to be demolished and to construct a new house thereon. As the defendant/revision petitioner failed to do so, the suit was filed. Plaintiff/opposite parties prayed for delivering of vacant possession after evicting the defendants from the suit premises and also claim arrear rents with damage at the rate of Rs.5/- per day for unauthorised occupation of the suit premises from 1.7.76 till 15.3.77 qualified at Rs. 1,275/- for 255 days. As the defendant/revision petitioner failed to do so, the suit was filed. Plaintiff/opposite parties prayed for delivering of vacant possession after evicting the defendants from the suit premises and also claim arrear rents with damage at the rate of Rs.5/- per day for unauthorised occupation of the suit premises from 1.7.76 till 15.3.77 qualified at Rs. 1,275/- for 255 days. The stand of the defendant was that the house in question was taken on lease by the father of the defendants (since deceased); that defendant and his brother at a monthly rent of Rs.5.00 per month and as per oral agreement claimed continuation of running the shop as long as they wished. It is also alleged by the defendant that after the death of their father the plaintiff created difficulties in order to raise rate of rent. The answering defendants accordingly enhanced the rate of rent from Rs.5/- to Rs. 151- per month and subsequently it was raised to Rs.25/- per month on the condition of allowing the defendant to fill up the low lying land to the North East of their shop with permission to construct a house at the sits and accordingly defendants filled up the said part of the area spending Rs.2,000/-. After that again the rent was enhanced to Rs.50/- on the condition that the defendants be allowed to conctruct a Gumti on the front side of the 'veranda' at their cost, which was permitted by the plaintiff. Again the rent was enhanced to Rs.75/- per month and plaintiff gave consent to obtain electric connection to the suit premises with a meter box in the name of the defendant/revision petitioner. And also plaintiff permitted to repair and improve the suit premises and to construct an asbestos roofed kitchen, a latrine and an RCC well at the defendants' cost. It is claimed by the defendants that in view of their huge investments on the suit premises the plaintiff assured him that they would allowed to stay in the said premises as long as they liked and on the basis of such assurances the defendants carried out the repairing, improvement of the suit premisses and its contiguous areas and obtained electric connection with the full consent and knowledge of the plaintiff by investing Rs.7,427/-. The revision petitioner has alleged that by using earlier tactics defendant got rent enhanced to Rs. 100/- per month. The revision petitioner has alleged that by using earlier tactics defendant got rent enhanced to Rs. 100/- per month. The plaintiff/opposite party took an advance Rs.4,000/- from the defendant as loan to be adjusted with future rent that would be accrued month by month. This loan was taken on 1st December, 1974 and thereafter the defendants constructed a godown in January, 1975 at a cost of Rs.4,275/- and this godown was used by the defendants till end of 1975. However, sometimes in January, 1976 the plaintiff with the permission of the defendants started using said godown as a cook set and agreed to pay Rs.50/- per month for the same. But thereafter the plaintiff occupied the house and in spice of revision petitioner's request the godown has been kept in me possession of the plaintiff and no rent was paid as earlier agreed upon. Revision petitioner's contention is that the defendant were never defaulted for the payment of rent and there is no arrear of rent and as a part of verbal agreement the amount already spent by the revision petitioner and the loan of Rs. 4,000/- has been adjusted towards the payment of rent. 4. As may as 7 issues were framed. The learned trial Court dismissed the suit and on appeal by the plaintiff the first appellate Court set aside the judgment of the trial Court and decided the suit as stated above. 5. The point for consideration before this Court is issue No. 3 and 7 which relate to default and bonafide requirement respectively. The learned lower appellate Court in deciding issue No.3 came to the conclusion that in case of the claim of exemption of house rent until the full adjustment of the amount claimed to be spent by the defendants in the improvement of the suit premises or for the amount of Rs.4,000/- advanced to the plaintiff and also the claim compensation, the onus is on the defendants to prove that they actually spent the money under necessity and under proper legal procedure and they have kept a correct account. 5. As the judgment of the tower appellate Court is a judgment of reversal an independent examination of the materials on record is necessary. 5. As the judgment of the tower appellate Court is a judgment of reversal an independent examination of the materials on record is necessary. As it is seen attempt has been made by the defence witnesses to establish that the defendants improved the suit premises by spending money with the consent of the plaintiff and these PWs are claimed to be labourers engaged on by the defendants. From the evidence of the plaintiff as PW 1, it is seen that the plaintiff did not give permission to the defendants verbally. Admittedly mere is no written agreement. It is also the evidence of the plaintiff that the defendant got connection of electricity on their own expenses, but all wiring and incidental work was done by him and he himself constructed the godown which was in the possession and white washing and construction of the well was done by him. And no money for the improvement of the house in question was spent except electrical wiring of the house in question and mere was no verbal or written agreement made between them. Regarding the keeping accounts of rent the plaintiff stated that the defendants had kept one book and whenever the plaintiff takes the rent from him he used to put his signature on the book after getting the rent. Further he used to keep his own book of account regarding rent. Ext 2 is the said account book produced by the plaintiff. In the cross-examination also the plaintiff corroborated his evidence in chief. 6. The learned lower appellate Court while examining the Ext. 'Unga' the account book exhibited by the defendants/revision petitioner and receipt in connection with the expenditure incurred by the defendants rightly came to the conclusion that the Ext. 'Unga' cannot be an account book in the eye of law. The book must be a book of account and must be regularly checked in the course of business. This account book has been disbelieved by the first appellate Court and I subscribe to the view that the account book Ext. 'Unga' maintained by the defendants is not a book of account in the eye of law and therefore the onus is on the defendants to prove it which he failed and the attempt to prove that they actually spent money under necessity and under legal procedure is not proved on the materials available on record. 'Unga' maintained by the defendants is not a book of account in the eye of law and therefore the onus is on the defendants to prove it which he failed and the attempt to prove that they actually spent money under necessity and under legal procedure is not proved on the materials available on record. Further the learned lower appellate Court was of the view that in case the tenants refuse to pay the amount till the expenses incurred by him were adjusted he would be defaulter in the eye of law. In the case reported in AIR 1993 SC 1498 (Bhoja alias Bhoja Ram Gupta vs. Rameswar Agarwal & others) wherein it was held that in absence of agreement automatic adjustment of rent is not sustainabie. As discussed above in absence of any agreement mere verbal evidence of some witnesses is not sufficient to prove that the defendants have improved the suit premises when the plaintiff categorically denied of such verbal agreement. In absence of any reliable evidence, regarding verbal agreement and adjustment of rent cannot be accepted in positive evidence. The categorical stand of the petitioner is that as the money spent by the petitioner was not adjusted, he need not pay rent. On appreciation of materials on record I hold that the defendants defaulted regular rent for which he is liable to be evicted as prayed for by the plaintiff/opposite party. I subscribe the view of the learned lower appellate Court and accordingly issue No.3 is affirmed. Finding of the issue No.3 by the learned lower appellate Court is in conformity with the materials on record and therefore I am not inclined to take a different view in the findings of the lower appellate Court. 7. The next point for consideration is the issue of bonafide requirements of the plaintiff/landlord. In the plaint the plaintiff stated that he wanted the suit premises for the business purpose of his growing unemployed son. In the plaint as well as in the deposition the plaintiff categorically stated the requirement of the suit house on bonafide requirements. In a series of decision the settled position of law is mat one family may have more than one business and one landlord may select any business for expansion of his business or to add income to his family. In a series of decision the settled position of law is mat one family may have more than one business and one landlord may select any business for expansion of his business or to add income to his family. It is certainly the prerogative of the landlord to expand business and for that requirement he can claim back the suit premises. Therefore bonafide requirement of the suit premises for the business expansion of his son separately from the existing one is cogent. It can not be said that the suit room is situated away from the present room occupied by the plaintiff and therefore the expansion of business is not feasible. A room in question may be contiguous or not, it is for the landlord to make feasible use of the suit room for expansion of his business. A family may promote or engage any business in a room in the building though it may not be contiguous to the existing room occupied by them. Further the Court cannot question the plan programme and nature of the business proposed to be expanded by the landlord. In view of that matter I affirm the decision of the learned lower appellate Court fhat the plaintiff is entitled to a decree on the ground of bonafide requirements. Accordingly in the result the judgment and decree dated 19.9 89 passed by the learned lower appellate Court is upheld and affirmed. Transmit the case record to the trial Court to proceed with under the provision of law expeditiously as the suit for ejectment started long time back ie 1977. In the result the revision petitioners is directed to pay Rs. 1,000/- as costs to the opposite party/plaintiff.