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2004 DIGILAW 558 (GAU)

Mallika Dutta Roy v. Bidyut Kr. Deb

2004-11-17

H.N.SARMA

body2004
JUDGMENT H.N. Sarma, J. 1. In this revision petition, the Petitioner has challenged the legality and validity of the judgment and decree dated 30.08.99 passed by the learned Civil Judge Sr. Division No. 2, Cachar, Silchar in Title Appeal No. 6/95 reversing the judgment and decree passed by the learned Munsiff No. 2, Cachar, Silchar dated 22.12.94 in Title Suit No. 3/92 decreeing the suit of the Plaintiff for ejectment of the Defendant/Respondent. 2. Material facts, necessary for disposal of the case, briefly be stated as follows. By a deed of agreement dated 01.06.86 the Plaintiff let out the suit room to the Defendant for five years at a monthly rent of Rs. 600/- payable in advance in cash within 7th day of each English calendar month. The Defendant paid a sum of Rs. 8000/- in advance to the Plaintiff on condition that the Plaintiff will get Rs. 465/- only per month in cash as rent and will adjust the balance amount of Rs. 135/- each month from the advance amount of Rs. 8000/-. The Defendant did not pay the rent for the month of May, 1991 and onwards and thus became a defaulter. Thereafter, the Plaintiff asked the Defendant to vacate the suit premises and to hand over the possession of the same to the Plaintiff as the suit room is required bona fide by the Plaintiff for accommodation of his two sons who are unemployed and physically handicapped. However, the Defendant did not vacate the suit room therefore the Plaintiff filed an ejectment suit for ejecting the Defendant on the ground of default in payment of rent as well as bona fide requirement. 3. The Defendant contested the suit on various grounds by filing written statement, stating inter alia, that the suit is not maintainable; there is no cause of action for the suit, and that the Plaintiff with an ulterior motive tried to evict the Defendant refused to accept the rent for the month of May, 1991. It is the case of the Defendant that on refusal of the tendered rent for May, 1991 and thereafter he paid the rent in court under the provisions of Section 5(4) of the Assam Urban Areas Rent Control Act, 1972. The Defendant further denied the bona fide requirement of the suit premises by the Plaintiff. 4. It is the case of the Defendant that on refusal of the tendered rent for May, 1991 and thereafter he paid the rent in court under the provisions of Section 5(4) of the Assam Urban Areas Rent Control Act, 1972. The Defendant further denied the bona fide requirement of the suit premises by the Plaintiff. 4. The learned trial court found the core issues necessary for determination of the dispute between the parties in conformity with the statutory grounds of ejectment of a tenant as provided m the Assam Urban Areas Rent Control Act, 1972 as follows: Issue No. 2: Whether the Defendant is a defaulter in respect of the suit premises? Issue No. 3: Whether the Plaintiff has bonafide requirement of the suit premises? 5. Both the parties examined one witness each in support of their respective case and the Plaintiff exhibited as many as 15 documents whereas the Defendant exhibited Ext. A to N. The learned trial court after hearing the parties and on perusal of materials on record and on appreciation of the evidence adduced by the parties decided the issue Nos. 2 and 3 in favour of the Plaintiff and decreed the suit. 6. Aggrieved by the said judgment, the Defendant tenant preferred an appeal under Section 8 of the Assam Urban Areas Rent Control Act before the learned Civil Judge (Sr. Divn.) No. 2, Silchar registered as T.A. No. 6/95. The learned appellate court below by the judgment and decree dated 30.08.99 set aside the findings recorded by the trial court regarding bona fide requirement and so far as the finding recorded on Issue No. 2 on the point of defaulter is concerned the matter was remanded back to the trial court for disposal afresh. The learned appellate court in revising the findings of the trial court on issue No. 3 i.e. whether the Plaintiff has bonafide requirement of the suit premises held that the trial court decided the issue on the solitary evidence of P.W. 1 which remained uncorroborated as neither the two brothers of the P.W. 1 were examined nor any document was produced in support of his plea and on such consideration the findings recorded on bona fide requirement was reversed. As can be seen from the pleadings of the parties, coupled with the statement of witnesses, it is established that Rabindra Dutta Roy and Swapan Dutta Roy were physically handicapped persons and are unemployed. The learned appellate court also found that during the pendency of the suit, one room in the northern side of the suit room has been let out by the Plaintiff to another person as monthly tenant and accordingly the plea of bona fide requirement was not found to be valid. Regarding issue No. 2, i.e. whether the Defendant is a defaulter, the learned Appellate Court, inter alia, held that in deciding this issue the trial court examined the record of the Rent Deposit Misc. Cases by which the Defendant deposited the rent, and held that the notice of deposits has not been served on the Plaintiff-landlord and for review of this decision the case was remanded back to the trial court for deciding the Issue No. 2 afresh on the question as to whether provisions of Section5(4) of the Assam Urban Areas Rent Control Act, 1972 has been complied in the rent control cases available on record, after affording opportunities to the parties. 7. I have heard Mr. B.K. Goswami, learned senior counsel assisted by Ms. T. Goswami, Advocate for the Petitioner and Mr. N. M. Lahiri, learned Senior counsel assisted by Mr. N. Choudhury, Advocate appearing for the opposite party. 8. Mr. B.K. Goswami, learned Senior Counsel has raised the following two points that the impugned order passed by the learned Appellate court below is not in conformity with the law as he failed to exercise the jurisdiction vested on him under Order 41 Rule 24 Code of Civil Procedure, inasmuch as, materials and evidence were before the Court and instead of deciding the matter by himself the matter ought not to have been remanded to the trial court again. The next submission of the Senior Counsel is that instead of remanding the whole suit, part remand of the suit for re-disposal on the issue regarding default is not sustainable and if at, all any remand is necessary, the whole suit ought to have been remanded including the plea of bona fide requirement. The next submission of the Senior Counsel is that instead of remanding the whole suit, part remand of the suit for re-disposal on the issue regarding default is not sustainable and if at, all any remand is necessary, the whole suit ought to have been remanded including the plea of bona fide requirement. Further, in reversing the findings on the issue of bona fide requirement, counsel submitted, the learned Appellate court acted illegally and with material irregularity in not considering the matter in its proper perspective on the basis of proved facts. As against this, Mr. Lahiri, learned Senior Counsel has strenuously submitted that the Petitioner having not taken this plea on the point of defaulter in the revision petition or in the grounds and not having assailed the finding on default issue, cannot be allowed to urge this point at the time of hearing. 9. Mr. N.M. Lahiri, learned Senior Counsel for the opposite party further submitted that the present petition being under revisional jurisdiction no case has been made out attracting Section 115 Code of Civil Procedure in the instant case. He, however, does not seriously object for a re-decision on the issue of bonafide requirement also. Mr. Lahiri, the learned Senior Counsel ultimately fairly submitted that the matter may be remanded to the lower Appellate court and it would curtail the period of litigation, which is already 12 years old. But he strenuously submitted that in so deciding the matter the learned Appellate Court should consider all the material evidence on record including the rent deposit cases including the documents which are necessary and relevant for the purpose of a decision as to compliance of the provisions of Section 5(4) of the Assam Urban Areas Rent Control Act while deciding the issue regarding defaulter. 10. I have considered the rival submissions of the parties. The learned lower appellate court instead of remanding the matter to the trial court ought to have decided the issue himself, inasmuch as, all the materials and documents necessary for determination of the issue were available before him and Order 41 Rule 24 Code of Civil Procedure enjoins such power upon the appellate court. Failure of the learned appellate court to exercise the power under Order 41 Rule 24 amounts to failure to exercise the jurisdiction vested on him by law necessitating to revise the impugned judgment. Failure of the learned appellate court to exercise the power under Order 41 Rule 24 amounts to failure to exercise the jurisdiction vested on him by law necessitating to revise the impugned judgment. In this connection, we may refer to the judgment reported in AIR 1974 GAU 68 (Lalit Mohan Nath v. Mohan Nath and Ors.) where at paragraph 10 it is stated as follows: 10. Rules 23 and 25 of Order 41 give power to appellate court to remand a case. Rule 23 gives power to the appellate court to remand a case when the trial court has disposed of the suit on the preliminary point and on appeal the decree of trial court is reversed by the Appellate Court. This rule is not attracted in the present case. Rule 25 gives power to the Appellate Court to remand a case where a trial Court has omitted to frame or try any issue or has omitted to determine any question of fact, which appears to the Appellate Court essential to the right decision of the suit on merit; it may frame issue, if necessary, and refer the same to the trial court for trial of the same. In this connection consideration of Rule 24 is essential. Rule 24 enjoins on an appellate Court to determine a case finally where the evidence on record is sufficient to enable the appellate court to pronounce the judgment. An appellate Court cannot, obviously exercise powers simultaneously under Rules 24 and 25. When there is sufficient evidence to enable the appellate Court to pronounce judgment, it is its duty to do it under Rule 24; it cannot pass on to Rule 25 to make the disposal of the suit, as delay defeats justice. In my opinion resort to Rule 25 is illegal, if an appeal can be disposed of under Rule 24. 11. On consideration of the facts and rival contention of the parties, I am of the opinion that ends of justice will be met if the case is remanded back again to the appellate court by setting side the impugned judgment and decree for disposal of the appeal in terms of the observations made hereinabove. It is noticeable that the learned appellate court by not exercising the jurisdiction vested on him under Order 41 Rule 24 Code of Civil Procedure has failed to exercise the jurisdiction vested on him by law. It is noticeable that the learned appellate court by not exercising the jurisdiction vested on him under Order 41 Rule 24 Code of Civil Procedure has failed to exercise the jurisdiction vested on him by law. Further, in coming to the conclusion regarding the bona fide requirement, the learned Court did not consider the relevant materials and facts. In fact no reason has been assigned in setting aside the elaborate judgment rendered by the trial court. Accordingly, considering the material evidence and documents on record, the judgment decree dated 30.08.99 passed by the learned Civil Judge (Sr. Division) No. 2, Cachar, Silchar in Title Appeal No. 6/95 is set aside and the matter is remanded back to the learned Civil Judge (Sr. Division) No. 2, Silchar for disposal in accordance with law. It is made clear that in disposing the case the lower appellate court will provide necessary opportunities to the parties and also will consider all the documents, evidence and other materials and shall find out whether there has been compliance of Section 5(4) of the Assam Urban Areas Rent Control Act while deciding the issue of defaulter. Regarding bona fide requirement also, the learned appellate court will consider the matter afresh. Since the case is an old one, it is expected that the learned appellate court will complete the whole exercise expeditiously, preferably, within a period of 6 months from the date of receipt of the record. 12. Parties are directed to appear before the learned appellate court below on 20.12.2004 to obtain further instruction from the appellate court. However, in the facts and circumstances of the case, there shall be no order as to costs. 13. The office is directed to transmit the lower court records immediately.