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2002 DIGILAW 440 (GAU)

Pratima Palit and Anr. v. Kirendra Chandra Dey and Anr.

2002-10-10

N.SURJAMANI SINGH

body2002
N.S. Singh, J.- The judgment and decree dated 1.7.2002 passed by the learned Civil Judge (Senior Division), Karimganj, in Title Appeal No. 44 of 1997 affirming the judgment and decree dated 20.9.1997, passed by learned Civil Judge (Junior Division) No. 1, Karimganj, in Title Suit No. 166 of 1994, decreeing the suit of the plaintiff, are the subject-matters under challenge in this revision petition. 2. Upon hearing Mr B.R. Dey, learned counsel for the petitioners, and also on persual of the available materials on record, I am of the view that this petition can be disposed of at the motion stage considering the simple nature of the case and simple questions of law involved in the case and, accordingly, this revision petition is disposed of with the following orders. 3. The plaintiff (opposite party No. 1 herein filed a suit being TS No. 166/1994 before the trial Court by invoking the provisions of law laid down under the Assam Urban Areas Rent Control Act, 1972, (for short, "the Act, 1972) for eviction of the defendants (petitioners herein) from the suit premises and for recovery of Rs. 17007- towards arrear rents for the period from Falguna, 1400 BS to Jaistha, 1401 BS by contending, inter alia, that the defendant No. 1, Smt Pratima Palit, petitioner No. 1 herein, took the suit house/ premises on monthly rent from plaintiff-opposite party No. 1, and the defendant No. 1 started her business of selling of electrical goods and lubricants business in the suit premises under the name and style "M/s. D.P. Enterprises", and the defendant No. 2 (petitioner No. 2 herein) being the power of attorney holder of petitioner No. 1, has been managing the said business, and the monthly rent was enhanced subsequently to the tune of Rs. 425/- per month and the defendant No. 1 paid the monthly rent upto the month of Magha, 1400 BS, but the defendant No. 1 failed to pay the rent from the month of Falguna, 1400 BS, and apart from that the petitioner/ defendant No. 2 also illegally and without the consent of the plaintiff/opp. party No. 1 sub-let a portion of the suit house on 7.8.1989 to the proforma-defendant No. 3, namely, Sri Hiranmoy Sutradhar and, accordingly, proforma defendant No. 3 started clock and watch business in the said suit premises under the name and style "M/s Time Corner". 4. party No. 1 sub-let a portion of the suit house on 7.8.1989 to the proforma-defendant No. 3, namely, Sri Hiranmoy Sutradhar and, accordingly, proforma defendant No. 3 started clock and watch business in the said suit premises under the name and style "M/s Time Corner". 4. The case of the plaintiff was contested mainly by the defendants -1 and 2 as proforma defendant No. 3 did not file his written-statement and the contesting defendants-1 and 2 (petitioners herein) admitted that the plaintiff is the land-lord and they are the tenants in respect of the suit premises and they denied the factum of sub-letting as well as the allegation regarding defaulter in payment of rent for the aforesaid periods, mentioned above, and further contended that the defendants paid the rent for the period from Falguna, 1400 BS to Baishakh, 1400 BS, and the plaintiff issued receipts to the aforesaid effect. It was also the case of the defendants-1 and 2 that rent for the month of Jaishtha, 1400 BS was deposited in the court as the plaintiff refused to accept the same. According to defendants-1 and 2, the suit premises was not required by the plaintiff, and there is no material for establishing the factum of bona fide requirement of the suit premises. The suit was decreed by the trial court below under the related judgment and decree. Being dissatisfied with the related judgment and decree, the present petitioners preferred appeal before the first appellate court, and the first appellate court also affirmed the related judgment and decree passed by the learned trial court below under the impugned judgment and decree dated 1.7.2002. Hence, the present revision petition. 5. Supporting the case of the petitioners, Mr. B.R. Dey, learned counsel, submitted that both the courts below erred in law and facts while passing the related judgments and decrees inasmuch as without proper adjustment of the Salami to the tune of Rs. 10,0007- (advance money paid by the defendant No. 1) with the monthly rents and, therefore, the defendants/petitioners cannot be evicted and they cannot be termed as defaulter within the purview of the Act, 1972, and there is no evidence on record for establishing the fact that the defendants are defaulters and the suit premises is required bona fide by the plaintiff. Supporting this submission, Mr. Supporting this submission, Mr. Dey has relied upon the decision of the Apex Court rendered in M/s Sarwan Kumar Onkarnath vs. Suvash Kumar Agarwalla (1987) 4 SCC 546 , and contended that a tenant cannot be evicted on the ground of defaulter in payment of rent even if the tenant failed to ask the land­lord to make adjustment of the advance amount. In the instant case, the defendant No. 1 made an advance of Rs 10,000/- to the plaintiff which is not yet adjusted with the arrear rents as claimed by the plaintiff in the plaint. It is also argued by Mr. Dey that though the plaintiff denied the execution of the documents marked Exts. A to E, i.e., rent receipts, both the courts below found that those rent receipts were valid one and, as such, the plea of the plaintiff for non-offering of rent before deposit of the same in the court should not be relied upon by the courts below, and the plaintiff/land-lord is an unscrupulous, Mr. B.R. Dey argued. It is also argued by the learned counsel that a local inspection was made and inspection report does not indicate about the factum of sub-letting of suit premises to the proforma defendant No. 3. This, important aspect was not properly examined by the courts below and, as such, the impugned judgments and decrees of both the courts below are liable to be set aside. According to Mr. Dey, the plaintiff has utterly failed to prove his case and there is no reliable evidence on record for establishing the fact that the defendant No. 1 is a defaulter and the suit was filed for bona fide requirement. Further, supporting the case of the petitioners, Mr. Dey also relied on a. decision of the Apex court rendered in Nilesh Nandkumar Shah vs. Sikandar Aziz Patel, reported in (2002) 6 SCC 678 , and argued that the purpose of rent control legislation and the object of the Act, 1972, is to protect the tenants from unjust evictions at the hands of greedy and unscrupulous land-lords, and in the instant case, the present plaintiff/land-lord is an unscrupulous land lord, and apart from that there is no finding pertaining to advance of Rs 10,000/- to the plaintiff by the defendant No. 1 and this aspect of the matter has completely been over-looked by the courts below. 6. 6. Now this court is to see as to whether the impugned judgments and decrees of both the courts below are tenable in the eye of law or not; and whether the impugned, judgments and decrees suffer from illegality, irregularity, impropriety or incorrectness; and whether the plaintiff/landlord is a greedy or unscrupulous landlord or not; and whether the defendant No. 1 is a defaulter and whether the suit premises was required by the land-lord or not? 7. On perusal of the available materials/evidence on record, it appears to me that the trial court below while deciding the related issue No. 3 was of the view that the proforma-defendant No. 3 took a portion of the suit premises from the defendant No. 2 and opened his watch-repairing counter under the name and style "M/s Time Corner", on being sublet by the defendant No. 2, and the said proforma defendant No. 3 did not file his written-statement. In other words, he did not resist the related pleadings of the plaintiff in this regard, and, as such, the findings of the trial court on issue No. 3 was also affirmed by the first appellate court. According to me, this is concurrent finding of fact arrived at by the both the courts below and hence this court while exercising its revisional power under Section 115, CPC, is not supposed to interfere with such finding. I am also of the view that even though there are land-lord and tenant relationship between the plaintiff and the defendant No. 1, the defendant No. 1 (petitioner No. 1 herein) has defied the terms of the lease as she had no authority or right to sub-let the portion of the suit premises to the proforma-defendant No. 3. So far the case law cited by Mr Dey, learned counsel for the petitioners, in Nilesh Nandkumar Shah vs. Sikandar Aziz Patel reported in (2002) 6 SCC 678 ,1 am of the view that this decision of the Apex court does not help the case of the petitioners for the following reasons: (i) In that case between Nilesh Nandkumar Shah vs. Sikandar Aziz Patel (supra), the Supreme Court dealt with the matter pertaining to composite tenancy or tenancy for a mixed purpose vis-a-vis single tenancy for dual purposes and distinction of the same has been pointed out by the Apex Court. In that case, the plaintiff was land-lord who filed suit for eviction of the tenant by invoking the provisions of the Bombay Rents, Hotel and Lodging House Rents Control Act, 1947, (for short, "The Act, 1947") under a related single lease-deed specifying that one of the two rooms was to be used for residence and the other one for commerce, and the trial court held that the provisions of the Act, 1947, were applicable in that case and, accordingly, the trial court decreed the suit and the said decision was upheld by the High Court also. However, the Apex Court held that since a part of the premises in question was protected by the provisions of the Transfer of Property Act, the remaining part was not protected by the Act, 1947 as no ground for eviction under the Act, 1947, was available to him and that being the position any ground for eviction under the Act, 1947, did not exist and the question arose whether the tenancy premises as a whole would receive the protection of the Act, 1947 as it was specifically provided in the lease deed that one room would be used for residence and the other one for commercial purpose and, accordingly, the case of the land-lord was turned down by holding that it is not permissible for the court to split up a contract of tenancy in eviction proceedings. In this regard further reference can be made to the decision of the Apex Court rendered in TS Subramanian (Dr) vs. Andhra Bank Ltd., reported in 1989 Supp.(2) SCC 252. The Apex Court further observed that the purpose of rent control legislation is to protect the tenants from unjust evictions at the hands of greedy or unscrupulous land-lords. Here, in the instant case, the present case is governed by the related provisions of the Act, 1972, particularly, Section 5 thereof. Therefore, the submission of Mr. B.R. Dey in this regard holds a little water. 8. It is true that the defendant deposited rent in the court for a particular period, but there is no evidence on record in respect of refusal of offer of rent made by the defendant No. 1 to the plaintiff. Therefore, the submission of Mr. B.R. Dey in this regard holds a little water. 8. It is true that the defendant deposited rent in the court for a particular period, but there is no evidence on record in respect of refusal of offer of rent made by the defendant No. 1 to the plaintiff. Keeping in view the evidence available on record, the trial court was of the view that the defendants failed to establish the factum of offering the rent to the plaintiff and the factum of refusal of the same by the plaintiff except the statement of the defendant No. 2 which is not corroborated by other evidence. It is made clear that, corroborative evidence are indispensable. The trial court below also held that rent for the month of Jaistha, 1401 BS was <jot properly deposited in the court in terms of the provisions of Section 5 of the Act, 1972. This finding was also affirmed by the first appellate court below and the same is a concurrent finding of fact which cannot be interfered with by the revisional court as the said finding is based on evidence. 9. In M/s Sarwan Kumar Onkar Nath vs Subhas Kumar Agarwalla, (1987) 4 SCC 546 , cited by Mr. B.R. Dey, learned counsel for the petitioners, the Apex Court held that a tenant could not be evicted on the ground of default in payment of rent for two months even if tenant failed to ask the land-lord to make adjustment of the advance amount in absence of any agreement requiring the tenant to inform the landlord as to when such adjustment to be made. That was a case where two months rent was paid to the land-lord in advance on the understanding that the advance amount would be liable to be adjusted towards arrears of rent. But in the present case, the advance amount of Rs. 10,0007- was made for construction of shop-houses without any understanding that the said advance amount would be adjusted with any arrear rent, and apart from that there is no such agreement in that regard between the present opposite party No. 1 plaintiff and the defendant No. 17 petitioner No. 1. In view of this position, the case between M/s Sarwan Kumar Onkar Nath vs. Subhas Kumar (supra) does not favour the case of the present petitioners. 10. In view of this position, the case between M/s Sarwan Kumar Onkar Nath vs. Subhas Kumar (supra) does not favour the case of the present petitioners. 10. According to me, the suit was rightly decreed by the trial court below as eviction of the defendants from the suit premises can be done on the sole ground of sub-letting of a portion of the suit premises/shop by the defendant No. 2, power of attorney holder of defendant No. 1 to the proforma-defendant No. 3 forgetting about the issue of defaulter or bonafide requirement. 11. This court need not go more into depth as suffice is made with the above observations to dismiss the .present revision petition and, accordingly, the same is dismissed thus affirming the related judgments and decrees passed by both the courts below in the connected title Suit No. 166/1994 and Title Appeal No. 447 1997. There shall be no order as to costs. 12. Let copy of this order be communicated to the learned courts below as well as the plaintiff-opposite party No. 1 immediately. ---------------------