Research › Search › Judgment

Gauhati High Court · body

2004 DIGILAW 554 (GAU)

Bipul Chandra Paul v. Sandhya Saha

2004-11-16

H.N.SARMA

body2004
JUDGMENT H.N. Sarma, J. 1. This revision petition is filed by the Defendant tenant as Petitioner assailing the judgment and decree passed by the learned Civil Judge (Senior Division), Bongaigaon in Title Appeal No. 14/2001 dismissing the appeal and upholding the judgment and decree dated 5.7.2001 passed by the learned Civil Judge (Junior Division), Bongaigaon in Title Suit No. 5/1998 passed against him decreeing the suit for ejectment from the suit house and also for arrear of house rent amounting to Rs. 4656/-. 2. Adverting to the facts of the present case it is stated that the Respondent landlord as Plaintiff filed the Title Suit No. 5/98 for ejectment of the Defendant on the ground of defaulter and bonafide requirement in respect of the suit premises as appended to ftie plaint. Alongwith the present suit another suit being Title Suit No. 12/97 was also tried and this suit was filed by the Defendant tenant praying for injunction restraining the Plaintiff landlord from dispossessing the Defendant tenant without following due procedure of law. Both the suits were tried together and the learned Civil Judge (Senior Division) partly decreed TS No. 5/98 filed the Respondent landlord and vide common judgment and decree dated 5.9.2001 disposed both the suits and held that the Plaintiff is entitled to the possession of the suit house, described in the schedule of the plaint, by evicting the Defendant and the prayer for decree of arrear of rent amounting to Rs. 4,056/- with future house rent alongwith electric consumption from January, 1998 was also allowed. This judgment and decree was challenged by the Petitioner tenant in Title Appeal No. 14/2001 filed before the learned Civil Judge (Senior Division), Bongaigaon who vide judgment and decree dated 5.7.2001 dismissed the appeal and affirmed the judgment and dcree passed by the learned trial court. 3. I have heard Mr. C.K. Sarma Baruah, learned senior counsel for the Petitioner and Mr. B.K. Goswami, learned senior counsel for the Respondent. 4. Mr. C.K. Sarma Baruah, learned Senior Counsel has contended that the learned lower appellate court acted illegally and/or with material irregularity in failing to consider the fact that no issue regarding bona fide requirement and defaulter was framed by the trial court and in absence of such issues the judgment and degree are vitiated. 4. Mr. C.K. Sarma Baruah, learned Senior Counsel has contended that the learned lower appellate court acted illegally and/or with material irregularity in failing to consider the fact that no issue regarding bona fide requirement and defaulter was framed by the trial court and in absence of such issues the judgment and degree are vitiated. It is further contended that framing of such issues are necessary inasmuch as under the provision of the Assam Urban Areas Rent Control Act, 1972 a tenant can be ejected on the ground of defaulter in payment of the rent or for bona fide requirement of the landlord for his own use and occupation. The learned Counsel led me to the judgments of both the courts below and pointed out to the issues framed by the learned trial court in order to substantiate his contention. On perusal of the record it is found that Issue No. 2 was framed by the learned trial court as follows: 2. Whether the Plaintiff is entitled to a decree for recovery of arrear rent in respect of the suit premises/house as prayed for? Similarly Issue No. 4 was also framed by the trial court as follows: 4. Whether the Plaintiff is entitled to a decree for khas possession in respect of the suit house by evicting the Defendant therefrom as prayed for? In the above background, the learned senior counsel submits that as the vital issues necessitating for the just and proper decision of the suit were not framed by the trial court and as the appellate court also failed to consider this vital defect, the impugned judgment and decree are not sustainable and liable to be set aside. 5. Mr. B.K. Goswami, learned senior Counsel on the other hand submits that there is no jurisdictional error to interfere with the impugned judgment and decree and for non- framing of the issue the impugned judgment and decree cannot be said to have been passed committing jurisdictional error and the impugned judgment would not be vitiated on this count alone. The learned Counsel led me to the Issue No. 2 and submitted that although there is no specific mention of the word defaulter in the said issue the "decree for recovery of arrear" would mean and cover the issue of defaulter also. Unless there is default in payment of rent there cannot be any arrears of rent. The learned Counsel led me to the Issue No. 2 and submitted that although there is no specific mention of the word defaulter in the said issue the "decree for recovery of arrear" would mean and cover the issue of defaulter also. Unless there is default in payment of rent there cannot be any arrears of rent. Similarly, referring to Issue No. 4 the learned senior counsel submitted that for a decree for khas possession of a tenanted premise under the Assam Urban Areas Rent Control Act, the landlord is to prove both or any of the grounds under the Act, namely the default in payment of rent by the tenant and bona fide requirement of the landlord and these grounds having been pleaded in the plaint, no prejudice or injustice has been caused to the Petitioner, and prayed for dismissal of the petition. 6. I have carefully considered the rival contentions of the parties. The suit is filed by the plaintiff Respondent praying for ejectment of the Defendant/Respondent on the ground of default in payment of the monthly rent for the month of July, 97; the rent for July and August, 99 having been deposited in the court on 11.9.97 and that too without first offering the rent to the landlord/Respondent as required Under Section 5 of the Assam Urban Areas Rent Control Act, 1972. The further ground pleaded by the Plaintiff is that the suit premises is bona fide required by the Plaintiff to settle her unemployed son by establishing a grocery shop. The learned trial court after considering the materials and evidence on record and on hearing the parties came to a finding that before depositing the rent in the court it was not offered to the Plaintiff and there being no refusal by the Plaintiff the deposit in court is not valid in law and it is violative of the provisions of Section 5(4) of the Act. The learned trial court came to a categorical finding that the Defendant is a defaulter in payment of rent. In fact, house rent for the month (other than July, 97 and August, 97), were deposited in advance before it fell due which is not contemplated under the Act. The learned trial court came to a categorical finding that the Defendant is a defaulter in payment of rent. In fact, house rent for the month (other than July, 97 and August, 97), were deposited in advance before it fell due which is not contemplated under the Act. The learned trial court upon consideration of the materials on record also came to the finding that the suit premises is bona fide required by the Plaintiff for establishment of a business by her educated unemployed son. The appellate court also concurred with the above findings of the trial court and dismissed the appeal by an elaborate judgment considering all the necessary aspects. The learned appellate court modified the decree for arrear of rent allowing the Plaintiff to withdraw the amount deposited by the Defendant in the court. The learned appellate court also reversed the finding relating to the bona fide requirement of the Plaintiff as according to him the Plaintiff failed to prove such requirement by cogent evidence. 7. Adverting to the only submission made by Mr. CK Sarma Baruah, the learned senior counsel appearing for the Petitioner regarding the illegality or error committed by the court below in not considering the framing of necessary issues, as pointed above, it is worth mentioning that when the parties knew it well that the ejectment from the suit premises was sought for on the ground of bona fide requirement of the suit premises by the landlord and for default in payment of the monthly rent, which is the pleaded case of the Plaintiff, and contested the case and led evidence to that effect, no prejudice or injustice or error of jurisdiction can be said to have been caused for such omission to frame specific issues, more particularly when the parties knew about the points they are to meet with and it would not materially effect the validity of the impugned judgment. 8. The object of framing issues in a suit is to determine the real contention of the parties and to narrow down the area of dispute and to consider just where the rival parties differ so that the suit may proceed in respect to those contentions. Issues guide the parties on what points they have to lead evidence in a case and primarily it is the duty of the court to frame issues. Issues guide the parties on what points they have to lead evidence in a case and primarily it is the duty of the court to frame issues. When the parties went on trial fully understanding the central fact that whether the Defendant is liable to be ejected from the tenanted premises on the ground of default in payment of monthly rent or bona fide requirement of the same by the landlord Plaintiff and to that effect also submitted their pleadings and even in the absence of specific issues led evidence for and against those pleas, non framing of specific issues did not lead to mistrial sufficient to vitiate the impugned judgment. In this context we may gainfully refer to the cases reported in AIR 1963 SC 884 (Kameswaramaa v. Subba Rao) AIR 1964 SC 164 (Kunju Kesavan v. MM Philip AIR 1970 SC 61 (Md Umar Saheb v. Kadalaskar (1999) 3 SCC 522 (Sardul Singh v. Pritam Singh) wherein similar view has been expressed by the Apex Court. Mr. C.K. Sarma Baruah, the learned Counsel for the Petitioner cited the decision rendered by this Court in Prasanta Kr Bose v. Md Nuruddin reported in 1995 (2) GLR 323 and referred to paragraph 12 of the said decision. But the ratio of the said case is not applicable to the facts of the case in hand. 9. Record further disclose that in the instant case the Petitioner deposited the rent not in conformity with the provisions of Section 5(4) of the Assam Urban Areas Rent Control Act inasmuch as on his own admission he did not offer the rent to the landlord Respondent prior to depositing in the court. This Court in the case reported in (1997) 2 GLT 590 (Abdul Matin Choudhury and Ors. v. Nilyananda Dutta Banik) specifically held in paragraph 9 that Section 5(4) of the Act is a mandatory one. A tenant gets jurisdiction to deposit rent in the court only on refusal of the landlord to accept the rent when tendered before him. But in the instant case same not having been done mere deposit in court could not absolve the Petitioner from the character of defaulter. Both the courts below concurrently held on the materials and evidence on record that the Petitioner is a defaulter in respect of the suit house. But in the instant case same not having been done mere deposit in court could not absolve the Petitioner from the character of defaulter. Both the courts below concurrently held on the materials and evidence on record that the Petitioner is a defaulter in respect of the suit house. A tenant can be evicted if he defaults in payment of the rent due to the landlord. Decree for eviction can also be passed if the landlord requires the tenanted premises for his bona fide requirement and in the instant case the courts below have found, which is confirmed by materials and evidence on record, that the Petitioner is a defaulter. In view of the above discussion the impugned judgment and decree cannot be said to have been passed in excess of jurisdiction, nor the learned court below acted illegally or with material irregularity in passing the same warranting interference by this Court. 10. At this stage, Mr. C.K. Sarma Baruah, learned senior Counsel for the Petitioner submitted that the Petitioner tenant has his existing business on the suit premises and he will require some time to settle somewhere else and he prays for some time for vacating the suit premises. Oppositing this prayer Mr. Goswami, learned senior counsel for the Respondent submits that the landlord is suffering a lot and the suit is pending since long. However, considering overall aspects of the matter, it is hereby ordered that the Petitioner tenant be granted six months time from today to vacate the suit premises subject to the following conditions: That, within a period of three weeks from today the Petitioner will file an undertaking, supported by affidavit, before the trial court stating- (a) That he would vacate the suit premises on the next day of the expiry of six months; if not vacated earlier. (b) That, the Petitioner will not induct any third party or part with possession of any part of the suit premises in favour of any other person in the meantime and shall deliver vacant possession to the Plaintiff landlord; (c) That, during this period the Petitioner will continue to deposit the amount equivalent to the monthly rent in the court; In the event of the Petitioner's failure to comply with any of the conditions noted above the decree shall be put to execution immediately; 11. With the aforesaid directions this revision petition is disused of. With the aforesaid directions this revision petition is disused of. No order as to costs.