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2004 DIGILAW 449 (GAU)

Mainak Bhowal v. Biswajit Gupta

2004-07-26

B.BISWAS

body2004
JUDGMENT D. Biswas, J. 1. Heard Mr. N. Choudhury, learned Counsel for the Petitioner and Mr. B. Banerjee, learned Counsel for the Respondents. 2. This revision under Section 115 read with Section 151 of the Code of Civil Procedure has been directed against the judgment and decree dated 1.10.2003 passed by the learned Civil Judge (Sr. Divn.), Jorhat in Title Appeal No. 4/99. By this judgment the learned first appellate Court affirmed the judgment and decree dated 23.3.99 passed by the learned Civil Judge (Jr. Divn.) No. 1, Jorhat in Title Suit No. 40/ 87. The learned Trial Court decreed the aforesaid suit for eviction of the Appellants and also for payment of compensation. 3. This revision petition is under Section 151 of the Code of Civil Procedure against concurrent finding of fact by the learned Courts below. The challenge is not on jurisdictional error on the part of the learned Courts below. Therefore, scrutiny of the judgments will have to be confined within the parameter of Clause (c) of Sub-section (1) of Section 115. 4. Mr. N. Choudhury, learned Counsel for the Petitioner submitted that the Courts below failed to appreciate the evidence on record in proper perspective and erroneously held that the suit premises is bonafide required by the Plaintiff (Respondent) for their own use and that the Appellant (Defendant) is a defaulter. Referring to the evidence on record, Mr. Choudhury tried to show that both the sons of the Plaintiff are in fact employed and that the Appellant cannot be treated as a defaulter as their was no fixed mode of payment of rent. 5. The Appellant in pursuance of a registered deed of lease dated 13.2.67 occupied the suit premises as a monthly tenant at a rent of Rs. 225/- for a period of two years commencing from the first day of February, 1967. A sum of Rs. 3000/- was also paid in advance on condition that it would be adjusted at the rate of Rs. 125/- per month. After adjustment of the aforesaid amount and expiry of the lease period, a fresh agreement of lease was executed on 1.6.70 for eight months for the purpose of carrying out his Studio business in the name and style of "Studio Kamal". 125/- per month. After adjustment of the aforesaid amount and expiry of the lease period, a fresh agreement of lease was executed on 1.6.70 for eight months for the purpose of carrying out his Studio business in the name and style of "Studio Kamal". After expired of the aforesaid period of eight months, the Defendant (Appellant) did not vacate the same and the Plaintiff (Respondent) filed Title Suit No. 25/71 in the Court of the Munsiff at Jorhat. The said suit was eventually dismissed by the Appellate Court on the ground that the Plaintiff could not establish the plea of bonafide requirement. Thereafter, the Plaintiff, when his minor sons attained majority, issued notice dated 29.12.86 terminating the tenancy on expiry of 31st day of January, 1987. The Defendant (Appellant) did not vacate as called for and the instant Title Suit No. 40/87 was filed for recovery of possession on the ground that the suit premises is required for business purpose of the two unemployed sons and also on the ground that the Defendant is a defaulter. In addition, the Plaintiff also took the plea that the suit premises require demolition for the purpose of new construction. 6. The Courts below, after appreciation of the evidence on record, answered the above questions in favour of the Plaintiff (Respondent). In so far the plea of bonafide requirement is concerned, it may be mentioned here that both P.W. 1 and P.W. 2 claim to be unemployed and need the suit premises for doing business of their own. The evidence on record shows that presently they are looking after the business of their father. This part of the evidence on record that they are looking after their family business does not establish the fact that both P.W. 1 and P.W. 2 are effectively and gainfully employed in the photography business of their father. They need the suit premises for the purpose of extension of the business/establishment of new business of their own. The Courts below have considered this aspect of the matter on the basis of the available evidence and rendered concurrent finding. It is not a case based on "no evidence" and, therefore, it cannot be said to be perverse on the face of it 7. The Courts below have considered this aspect of the matter on the basis of the available evidence and rendered concurrent finding. It is not a case based on "no evidence" and, therefore, it cannot be said to be perverse on the face of it 7. In paragraph 5 of the judgment in Akhileshwar Kumar and Ors., Appellants v. Mustaqim and Ors., Respondents (2003) 1 SCC 462 the Hon'ble Supreme Court did not sustain the observation of the High Court that the requirement pleaded by the Plaintiffs fell short of a need and was merely a desire. According to the Hon'ble Supreme Court, a detailed and exhaustive judgment based on evidence and relevant circumstances cannot be upset by the High Court in exercise of its revisional jurisdiction. It was further held that the genuineness of bonafide requirement cannot be doubted just because the son of the landlord is involved in the family business provisionally in order to assist his father (landlord). Therefore, the argument advanced by Mr. Choudhury that both the sons are employed in the family business cannot be a ground to reject the claim of the Respondent (Plaintiff). Therefore, this Court is not inclined to interfere with the findings of the Courts below with regard to the plea of bonafide requirement 8. With regard to the question of defaulter, there is no dispute to the fact that the Appellant (tenant) did not offer any rent to the landlord (Respondent) after 1978. However, he deposited a sum of Rs. 2475/- before the Rent Controller in between 5.2.86 and 31.12.86. The Courts below noticed that the rent was not deposited every month and the Defendant (Appellant) was in the habit of depositing rent at his pleasure and whim. 9. Mr. Choudhury, learned Counsel relying upon the decision of this Court in Tushar Kanti Dey, Petitioner v. Sulata Choudhury and Ors., Opp. Parties 2002(1) GLT 51 argued that the burden is on the Plaintiff-landlord to prove that the rent falls due on a particular date and the tenant can be treated as a defaulter only when it is proved that no rent was tendered or deposited in the Court within fifteen days of its falling due. There is no dispute that the Appellant (Defendant) is in possession of the suit premises since 1967 and that the tenancy is from month to month. The notice issued terminating the tenancy also evinces this. There is no dispute that the Appellant (Defendant) is in possession of the suit premises since 1967 and that the tenancy is from month to month. The notice issued terminating the tenancy also evinces this. In the written statement the Appellant admitted receipt of the notice of termination of the tenancy and denied the allegation that he is a defaulter. But nowhere in the written statement any plea has been taken that there was a different mode prescribed either by agreement or by conduct for payment of rent. Presumption will be that in a case of tenancy from month to month, the rent becomes due on expiry of the month of tenancy. There is no room for any doubt that the rent for the month of September and October, 1986 was deposited on 3.11.86. On the face of it, the Defendant (Appellant) appears to be a defaulter in so far the rent of September, 1986 is concerned. 10. The third question relating to reconstruction has been well dealt with by the Courts below on the basis of the evidence on record. It is an admitted fact that the footpath in front of the suit premises was raised by the authority meaning thereby that the level of the drain also stood raised necessitating raising of the suit premises. 11. In view of the discussion hereinabove, this Court is not inclined to interfere with the judgment challenged in this revision petition. Hence the revision petition is dismissed. Petition dismissed