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2005 DIGILAW 268 (GAU)

Sukumar Paul v. Prasanta Chowdhury

2005-03-31

AFTAB H.SAIKIA

body2005
JUDGMENT A.H. Saikia, J. 1. Heard Mr. A.K. Goswami, learned Senior Counsel assisted by Ms. P. Bhattacharjee, learned Counsel for the Petitioner. Also heard Mr. B.C. Das, learned Senior Counsel assisted by Mr. B.K. Purkayastha, learned Counsel appearing on behalf of the Respondent. 2. This revision petition under Section 115 read with Section 151 of the Code of Civil Procedure, 1908 (for short, 'CPC') has been directed against the judgment and order dated 31.7.2002 passed by learned Civil Judge (Sr. Division), No. 1, Cachar, Silchar in T.A. No. 20/2000 allowing the appeal by reversing the impugned judgment and order dated 7.2.2000 passed by learned Civil Judge (Sr. Division), No. 1, Cachar, Silchar in T.S. No. 147/95 by which the Petitioners' suit filed against the Defendant was decreed by holding that the Respondent was a defaulter and the Petitioner has a bonafide requirement of the suit premises. 3. By the instant suit, the Petitioner being a landlord has sought for ejectment of the Defendant who was a tenant under him from the suit premises basically on the count of defaulter and bonafide requirement of the houses by the landlord. In order to appreciate and determine the issue involved in this case, it would be necessary to note down brief facts of the case. 4. The Petitioner, landlord let out the suit premises consisting of two rooms in the ground floor and one room on the first floor on his two storied Assam Type house situated at Silchar town for a period of three years with effect from 1992 on an agreed monthly rent for Rs.750/- per month which has to be paid within the first day of the following months according to English Calendar. It was pleaded in pleadings that the Respondent/tenant did not pay the rent for the month of September, 1994 and the rent for the month of September, 1994 was deposited along with the rent for the month of October in the Court and as such, as the tenant did not pay the rent for the month of September, he became a defaulter and liable to be evicted. On the point of bonafide requirement, it was contended on behalf of the landlord that there was dearth of space for accommodation of his two school going growing sons because he had to accommodate himself in two rooms, one in the first floor and other in the ground floor with a make shift kitchen under the staircase of the suit premises. 5. Denying the allegation of the Plaintiff/landlord i.e. the Petitioner, the Respondent filed written statement contending, inter alia, that he was not a defaulter at any point of time and the rent for the month of September, 1994 was paid within the due date in terms of the provisions of the Assam Urban Areas Rent Control Act, 1972 (in short, 'the Act'). There was no bonafide requirement on the part of the landlord because seeking the suit premises for the use of his two growing sons cannot be a genuine ground in view of the fact that one room of the landlord was admittedly put under lock and key which could have been easily used by the landlord for the necessity of his sons as claimed. 6. Both the parties in support of their respective contentions adduced evidence and examined two witnesses each. The learned trial Court on careful consideration of the materials available on record including the evidence as well as upon hearing the learned Counsel for the parties found that the Respondent/tenant was a defaulter for the month of September, 1994, and the landlord was able to prove his bonafide requirement over the suit premises and, consequently, the two suits filed by the Petitioner were decreed for recovery of khas possession of the suit premises. 7. Feeling aggrieved by the aforesaid judgment and order dated 7.2.2000, the tenant/Respondent moved the appellate Court i.e. learned Civil Judge (Sr. Division), No. 1, Cachar, Silchar through T.A. No. 20/00 and the learned appellate Court vide order dated 31.7.2002 allowed the appeal holding that the Respondent was not a defaulter for the period abovementioned in paying the rent and landlord/Petitioner reasonably failed to prove his bonafide requirement. Hence, this revision petition. 8. Mr. Division), No. 1, Cachar, Silchar through T.A. No. 20/00 and the learned appellate Court vide order dated 31.7.2002 allowed the appeal holding that the Respondent was not a defaulter for the period abovementioned in paying the rent and landlord/Petitioner reasonably failed to prove his bonafide requirement. Hence, this revision petition. 8. Mr. Goswami, learned Senior Counsel assailing the impugned judgment and order of reversal has forcefully contended that learned appellate Court acted illegally and with material irregularity in arriving at a finding to the extent that Respondent was not a defaulter and bonafide requirement was not in favour of the landlord. His case is that the entire finding was based on perversity as because the learned appellate Court finding was based on no evidence. On the point of defaulter, it is argued that learned appellate Court miscalculated the date of receipt of the rent holding that it was 9.10.1994 but it was actually on 9.11.2004. It is further contended that the rent for the month of September, 1994 and October, 1994 was virtually deposited on 4.11.1994 in the Court without tendering the same to the landlord as required under Section 5(4) of the Act. 9. On close perusal of the materials available on record I do not find any such illegality in the findings of the learned appellate Court as regards such deposit and as such this Court does not agree with the submission made on behalf of the Petitioner on the point of defaulter. 10. Defending the question of bonafide requirement, it is strenuously argued that since the Petitioner was having two growing sons and his family had to stay in two rooms only, the requirement for the suit premises was absolutely genuine with pressing necessity. The learned appellate Court totally ignored that aspect and arrived at a finding which is not tenable under the law. In order to reinforce his submission, the learned Counsel has referred to the relevant portion of the judgment and order of the appellate Court as below: ...The learned Counsel for the Appellant has drawn attention to the renewal clause of Exhibit-1 wherein it is stipulated that the Plaintiff would grant tenancy under new agreement of desired by the Defendant before expiry of term as per exhibit-1 and has submitted that this clause itself bid good-bye to bonafide claim. Exhibit-D reveals that the Defendant expressed his desire for re-settlement prior to expiry of term of settlement as per Exhibit-1. The Plaintiff could reasonably foresee his future need and renewal clause apparently goes against bonafide claim. However, there may be changed circumstances. It is true that the sons who were students at the time of institution of the suit are not sufficiently grown up. 11. Mr. Goswami has submitted that the aforesaid finding itself is perverse as the same has been based on imagination and without having any support of law. According to him mere having a clause in the agreement for renewal bonafide claim of the landlord cannot be taken away. On the point of perversity, it is also contended that when in the evidence of the Defendant/Respondent it came that out of three rooms let out, one room to a tenant who was doing business on medicines; second one to a jewellery shop and third room was put under lock and key being under occupation of one tenant, namely, Mohendra Kumar Dey, the learned Court below held that the room under lock and key was under the possession of the landlord. 12. In support of his submission, Mr. Goswami has relied on the following decisions: 1. 1990 Supp SCC 766 (Smt. Sheela Chandha and Ors. v. Dr. Achharaj Ram Seghal); 2. (1996) 5 SCC 353 (Smt. Prativa Devi v. T.V. Krishnan); 3. (1998) 5 SCC 572 (Boorgu Jagadeshwaraiah and Sons v. Pushpa Trading Co.); 4. (1998) 8 SCC 119 (Sarla Ahuja v. United India Insurance Company Ltd.); and 5. (2000) 1 SCC 679 (Ragavendra Kumar v. Firm Prem Machinery and Co.) 13. In Sheela Chanda's case (supra), the Apex Court, while discussing on the point of bonafide requirement, held that the law granted a fair amount of discretion to the landlord to determine his needs when asking the vacation of tenanted premises. The only check on that was that must have the ground and the need should be bonafide. 14. In Anr. case, i.e. Prativa Devi's case (supra) it was held that landlord was the best judge of his residential accommodation for which he had a complete freedom in the matter. It was no concern of the Courts to dictate to the landlord how and in what manner he should live or to prescribe him a residential standard of his choice. 15. case, i.e. Prativa Devi's case (supra) it was held that landlord was the best judge of his residential accommodation for which he had a complete freedom in the matter. It was no concern of the Courts to dictate to the landlord how and in what manner he should live or to prescribe him a residential standard of his choice. 15. In Boorgu Jagadeshwaraiah's case (supra), it was categorically observed by the Supreme Court that availability of alternative accommodation irrespective of suitability was not enough to non-suit the landlord claiming the suit premises on bonafide requirement. 16. In Anr. case of Sarala Ahuja's case (supra) the Apex Court held as follows: 14. The crux of the ground envisaged in Clause (e) of Section 14(1) of the Act is that the requirement of the landlord for occupation of the tenanted premises must be bona fide. When a landlord asserts that he requires his building for his own occupation, the rent Controller shall not proceed on the presumption that the requirement is not bona fide. When other conditions of the clause are satisfied and when the landlord shows a prima facie case, it is open to the Rent Controller to draw a presumption that the requirement of the landlord is bona fide. It is often said by Courts that it is not for the tenant to dictate terms to the landlord as to how else he can adjust himself without getting possession of the tenanted premises. While deciding the question of bona fides of the requirement of the land, it is quite unnecessary to make an endeavour as to how else the landlord could have adjusted himself. 17. Law on bonafide requirement once again settled by the Apex Court in Anr. case of Ragavendra's case (supra), wherein it was held that the settled position of law was that the landlord was the best judge of his own requirement for residential or business purpose and he had got complete freedom in the matter. In that case, the Plaintiff/landlord wanted eviction of the tenant from the suit premises for starting his business as it was suitable and on the basis of said facts the Apex Court allowed the eviction petition holding that the landlord had the bonafide requirement. 18. Defending the impugned judgment and order, Mr. In that case, the Plaintiff/landlord wanted eviction of the tenant from the suit premises for starting his business as it was suitable and on the basis of said facts the Apex Court allowed the eviction petition holding that the landlord had the bonafide requirement. 18. Defending the impugned judgment and order, Mr. Das, learned Senior Counsel for the Respondent, confining his submission only on the issue of bonafide requirement, has argued that in deciding the issue like bonafide requirement, the Court is to satisfy not only with the subjective element but also with objective to elements. In this regard it has to see that such requirement is genuine and with pressing needs of necessity. The Court has to go through at least some materials on record to find out as to whether such genuineness and pressing needs are really in existence. If such requirement is not genuine and there is no pressing needs, the appellate Court, being the Court of facts, has the power to reverse the decree so passed in favour of the landlord by the trial Court. In the case in hand, the landlord has no such genuineness and pressing needs and the same is apparent on the face of record as well as on evidence. From the pleadings as well as from the deposition of the witnesses it can be easily gathered that the landlord has other house, particularly the room which was under lock and key, not being under occupation of any tenant. It is stated that there is nothing on record to show that the Petitioner has taken any steps for last two years for eviction of that tenant who put the room under lock and key as claimed. In such backdrop, it is contended that the landlord has no pressing needs. To substantiate his argument, he has placed reliance on the judicial precedents which are a follows: i. 1999 (6) SCC 222 (Shiv Sarup Gupta v. Dr. Mahesh Chand Gupta); ii (2003) 2 SCC 3 (Atma S. Berar v. Mukhtiar Singh); and iii (2004) 8 SCC 490 (Pratap Rai Tanwani and Anr. v. Uttam Chand and Anr. 19. Mr. Das has submitted that in Shiv Sarup Gupta's case, (supra) the Suprme Court has the occasion to discuss in details on the question of bonafide requirement of the landlord on the test of objective determination by the Court. v. Uttam Chand and Anr. 19. Mr. Das has submitted that in Shiv Sarup Gupta's case, (supra) the Suprme Court has the occasion to discuss in details on the question of bonafide requirement of the landlord on the test of objective determination by the Court. In that case, a Doctor, being the landlord sought for eviction of his tenant on the ground of bonafide need of space for his family, including growing grandchildren and a doctor son, and also for visiting patients. The High Court allowed the revision petition and ordered eviction of tenant. Approving the High Court's decision in the said case, the Supreme Court categorically ruled that a landlord had a right to retain his roots in the own locality. The landlord and family were used to living in a certain neighbourhood where they had made friends and acquaintances and developed familiarity with the neighbourhood and its environment and it cannot be object in the rent control law to compel the landlord to shift to a locality so as to permit the tenant to continue to live in the tenanted suit premises. The Apex Court held as follows: 13. Chambers 20th Century Dictionary defines bona fide to mean "in good faith:" genuine". The word "genuine" means natural not spurious real: pure: Sincere. In Law Dictionary, Mozley and Whitely define bona fide to mean "good faith, without fraud or deceit". Thus the term bona fide or genuinely refers to a state of mind. Requirement is not a mere desire. The degree of intensity contemplated by "requires" is much more higher than in mere desire. The phrase "required bona fide" is suggestive of legislative intent that a mere desire which is the outcome of whim or fancy is not taken note of by the rent control legislation. A requirement in the sense of felt need which is an outcome of a sincere, honest desire, in contradistinction with a mere pretence or pretext of evict a tenant, on the part of the land claiming to occupy the premises for himself or for any member of the family would entitle him to seek ejectment of the tenant. Looked at from this angle, any setting of the facts and circumstances protruding the need of the landlord and its bona fides would be capable of successfully withstanding the test of objective determination by the Court. Looked at from this angle, any setting of the facts and circumstances protruding the need of the landlord and its bona fides would be capable of successfully withstanding the test of objective determination by the Court. The judge of facts should place himself in the armchair of the landlord and then ask the question to himself whether in the given facts substantiated by the landlord the need to occupy the premises can be said to be natural, real, sincere, honest. If the answer be in the positive, the need is bona fide. The failure on the part of the landlord to substantiate the pleaded need, or, in a given case, positive material brought on record by the tenant enabling the Court drawing an inference that the reality was to the contrary and the landlord was merely attempting at finding out a pretence or pretext for getting rid of the tenant, would be enough to persuade the Court certainly to deny its judicial assistance to the landlord. Once the Court is satisfied of the bona fides of the need of the landlord for he premises or additional premises by applying objective standards then in the matter of choosing out of more than one accommodation available to the landlord his subjective choice shall be respected by the Court. The Court would permit the landlord to satisfy the proven need by choosing the accommodation which the landlord feels would be most suited for the purpose; the Court would not in such a case thrust its own wisdom upon the choice of the landlord by holding that not one but the other accommodation must be accepted by the landlord to satisfy his such need. In short, the concept of bona fide need or genuine requirement needs a practical approach conservative or pedantic must be guarded against. 20. In Atma S. Berar's case (supra) the Apex Court, relying on Shiv Sarup Gupta's case (Supra), being a landmark judgment on this point i.e. the concept of bonafide requirement, held as under: 11. Recently, in Shiv Sarup Gupta v. Dr. 20. In Atma S. Berar's case (supra) the Apex Court, relying on Shiv Sarup Gupta's case (Supra), being a landmark judgment on this point i.e. the concept of bonafide requirement, held as under: 11. Recently, in Shiv Sarup Gupta v. Dr. Mahesh Chand Gupta this Court in a detailed judgment, dealing with this aspect, analysed the concept of bona fide requirement and said that the requirement in the sense of felt need which is an outcome of a sincere, honest desire, in contradistinction with a mere pretence or pretext to evict a tenant refers to a state of mind prevailing with the landlord. The only way of peeping into the mind of the landlord is an exercise undertaken by the judge of facts by placing himself in the armchair of the landlord and then posing a question to himself - whether in the given facts, substantiated by the landlord, the need to occupy the premises can be said to be natural, real, sincere, honest. If the answer be in the positive, the need is bona fide. We do not think that we can usefully add anything to the exposition of law of requirement for self occupation than what has been already stated in the three precedents. 21. In Pratap Rai Tanwani's case (supra) the Supreme Court reiterated the law laid down in the earlier two cases i.e. Shiv Sarup Gupta v. Dr. Mahesh Chand Gupta reported in 1999 (6) SCC 222 and in Atma S. Berar v. Mukhtiar Singh reported in (2003) 2 SCC 3 . 22. I have given my thoughtful consideration to the rival submissions of the learned Counsel for the parties and also perused the materials available on record including the pleadings as well as the impugned judgment and order. 23. On close scrutiny of appellate Court's judgment, it appears that the Appellate Court has taken some extraneous consideration on the point of bonafide requirement as claimed by the Petitioner as already noticed hereinabove. The findings, as has already been noticed hereinabove on reference of Mr. Goswami, learned Senior Counsel for the Petitioner, abundantly show that the same itself is an outcome of non application of judicial mind. It is amazing to see how a clause being inserted in the agreement for resettlement or renewal can give good bye to the bonafide claim. Renewal clause has been inserted in an agreement by a routine manner. Goswami, learned Senior Counsel for the Petitioner, abundantly show that the same itself is an outcome of non application of judicial mind. It is amazing to see how a clause being inserted in the agreement for resettlement or renewal can give good bye to the bonafide claim. Renewal clause has been inserted in an agreement by a routine manner. Until and unless the same has been acted upon, it cannot be said to have any effect on the tenure of the tenancy. Bonafide requirement does not depend on the renewal clause inserted in the agreement itself. It also appears that the appellate Court has not considered in its proper perspective the evidence part of the parties addressed in support of their respective contention on the question of bonafide requirement. It is a clear case of the Petitioner that there is a dearth of space for being accommodated himself in two rooms along with his wife and two other growing children. That apart, it appears that the finding of the learned appellate Court to the extent that the Anr. room put under lock and key was under his possession is absolutely perverse when evidence speaks otherwise. In arriving at the findings for not having bonafide requirement of the Petitioner, it is also seen that the appellate Court has failed to discuss the evidence. The discussion on the point of bonafide requirement is only based on extraneous consideration and surmises. 24. That being the position, upon hearing the learned Counsel for the parties and having regard to the above cited cases, I am of the view that the Petitioner has made out a case for bonafide requirement. Consequently this impugned judgment and order dated 31.7.2002 passed by the learned Civil Judge (Sr. Division), No. 1, Cachar, Silchar in T.A. No. 20/2000 can not be allowed to operate and the same is hereby set aside and the judgment and order dated 7.2.2000 passed by the learned Civil Judge (Jr. Division), No. 1, Cachar, Silchar in T.S. No. 147/95 stands restored on the point of bonafide requirement. 25. In the result, this revision petition succeeds and stand allowed. Petition allowed.