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2005 DIGILAW 310 (GAU)

Kushum Lata Kala v. Kumari Parul Saha

2005-04-12

AFTAB H.SAIKIA

body2005
JUDGMENT A.M. Saikia, J. 1. This revision petition has been filed against the judgment and decree dated 7.8.2001 passed by learned Civil Judge (Sr. Divn.), Dhubri in T.A. No. 60/2000 setting aside the judgment and decree dated 11.9.2000 passed by learned Civil Judge (Jr. Divn.), Dhubri in T.S. Case No. 68/1998 by which the petitioner's suit for eviction of the respondent from the suit premises on the ground of defaulter and bona fide requirement was decreed, in favour of the petitioner. 2. Heard Mr. D. Baruah, learned counsel for the petitioner. Also heard Mr. N.M. Lahiri, learned senior counsel for the respondent. 3. The brief facts, relevant for the present adjudication, as disclosed in the pleadings of the contesting parties, may be recited as follows : The suit premises, consisting of a plot of land covered by Dag No. 206 (new) Patta No. 225 (new) including Assam Type house with two rooms, one Puja room and one latrine and bathroom situated at Dhubri, was purchased by the plaintiff/petitioner from one Birendra Nath Karmakar by executing two registered sale deeds being Nos. 1029 and 1031 of 1997. Prior to execution of the aforesaid sale, the respondent was the tenant of the vendor, Birendra Kumar Karmakar and when the petitioner became the lawful owner of the suit premises, earlier tenancy of the respondent with Birendra Kumar Nath was revoked and both the petitioner and the respondent mutually agreed to continue tenancy with effect from 15.5.1997 fixing a monthly rent of Rs. 501 per month. But the respondent become a habitual defaulter in payment of rent since the date of agreement. On the other hand, the suit premises being in a dilapidated condition and having been required for reconstruction/the petitioner approached the Municipal authority for granting the necessary permission for demolition of the suit premises and reconstruction of the same. In the meantime, the petitioner requested the respondent to vacate the suit premises but such request was never attended to. 4. A pleader notice was, therefore served upon the respondent by the petitioner on 20.10.1997. Even after the receipt of such pleader notice, the respondent neither vacate the suit premises nor had she paid any rent. Hence, the petitioner filed the instant title suit being Title Suit No. 68/1998 before the learned Civil Judge (Jr. 4. A pleader notice was, therefore served upon the respondent by the petitioner on 20.10.1997. Even after the receipt of such pleader notice, the respondent neither vacate the suit premises nor had she paid any rent. Hence, the petitioner filed the instant title suit being Title Suit No. 68/1998 before the learned Civil Judge (Jr. Divn.), No. 2 at Dhubri seeking a declaration for a decree of eviction of the defendant/respondent from the suit premises. 5. The suit was contested by the defendant by filing written statement wherein it was contended, inter alia, that though admittedly she was the tenant under the pro forma defendant and tenancy continued under the petitioner after the sale of the property, the respondent came to know about such transfer only after a year of such secret sale. According to the respondent, there were no fixed time for payment of the rent to the pro forma respondent and he used to come to realise the same from the defendant sometime once in a year and some time in one and half year. It was denied by the respondent that she ever agreed to pay Rs. 501 to the petitioner as monthly rent with effect from 15.5.1997 and as such she was never a defaulter. When the plaintiff refused to accept the rent from July 1998, the same was deposited before the court. Moreover the suit premises was in perfect condition and did not require any construction. 6. The learned Civil Judge framed as many as five issues including one additional issue as follows : Issues : (1) Whether there is any cause of action to institute the suit ? (2) Whether the suit is properly valued ? (3) Whether the suit is barred by Assam Urban Rent Control Act and Specific Relief Act? (4) Whether the tenant is a defaulter and liable to be evicted from the plaintiff's house ? (5) To what relief or reliefs the plaintiff is entitled to ? Additional issue : (1) Whether plaintiff has a bona fide requirement of the suit premises ? 7. (4) Whether the tenant is a defaulter and liable to be evicted from the plaintiff's house ? (5) To what relief or reliefs the plaintiff is entitled to ? Additional issue : (1) Whether plaintiff has a bona fide requirement of the suit premises ? 7. On consideration of the deposition of the witnesses and on close perusal of the relevant documents exhibited as exhibits and also upon hearing learned counsel for the parties on the basis of the issues framed hereinabove, the learned trial court decided the issue No. 4 and additional issue No. 1 in favour of the petitioner holding that the respondent was a defaulter and the petitioner successfully established her claim of bona fide requirement over the suit premises. Consequently, by the judgment and decree dated 11.9.2000, the learned trial court decreed the suit in favour of the plaintiff/petitioner. 8. Being aggrieved by the aforesaid judgment and decree, the respondent appealed before the learned Civil Judge (Sr. Division), Dhubri through Title Appeal No. 60/2000 and the learned appellate court vide impugned judgment and decree dated 7.8.2001, on consideration and appreciation of the material evidence on record including the relevant documents and upon hearing learned counsel for the parties, allowed the appeal preferred by the respondent reversing the judgment and decree passed by the learned trial court holding that the respondent was not a defaulter in payment of rent. The petitioner in his plaint did not at all disclose the due date and the mode of payment of the monthly rent for the suit premises to be paid by the defendant to the plaintiff which was a material and substantive defect in absence of which the issue of defaulter in payment of monthly rent could not be determined. The plaintiff/petitioner also failed to establish her case for bona fide requirement as she neither pleaded nor adduced any evidence to show that she had sufficient means or funds for construction the building after demolition of the suit premises. 9. Mr. The plaintiff/petitioner also failed to establish her case for bona fide requirement as she neither pleaded nor adduced any evidence to show that she had sufficient means or funds for construction the building after demolition of the suit premises. 9. Mr. Baruah, learned counsel for the petitioner, assailing the impugned judgment and decree, has forcefully argued that the learned appellate court committed serious error of facts in holding that the plaintiff had not pleaded anywhere in the plaint about the amount of monthly rent to be paid by the defendant to the plaintiff's earlier owner of the suit premises though it has come on the finding of the appellate court that the plaintiff received rent for the suit premises upto 1998 through the pro forma defendant and she refused to accept the rent from July 1998 the defendant has been depositing the monthly rent of Rs. 200 from the month of July 1998 in the court. The rent from the month of July 1998 was deposited in the court by Ext.-'Dha' in Misc. (N.J.) Case No. 477/98, the rent of September and October was deposited in the court by Ext.-'Da' in Misc. (N.J.) Case No. 509/98 and so on. It is also contended that had no due date and mode of payment been prescribed, the defendant/respondent ought not have deposited the rent amounting to at least Rs. 200 in court. Even such deposit of rent, though not admitted, in the court was contrary to the provision of Section 5(4) of the Assam Urban Areas Rent Control Act, 1972 (for short, 'the Act'). Such plea cannot rescue the defendant from the liability of holding her a 'defaulter'. 10. Referring to the plaint, Mr. 200 in court. Even such deposit of rent, though not admitted, in the court was contrary to the provision of Section 5(4) of the Assam Urban Areas Rent Control Act, 1972 (for short, 'the Act'). Such plea cannot rescue the defendant from the liability of holding her a 'defaulter'. 10. Referring to the plaint, Mr. Baruah has submitted that in paragraph 3 there was a categorical statement as regards the amount of rent to be paid by the respondent and due date including the mode of payment of the rent and the same reads as under : "That, the Defendant was Tenant in respect of the premises described in Schedule - 'B' which is a part of the property described in Schedule - 'A' under landlordship of pro forma-defendant as a monthly Rent according to English Calendar month payable within 7 days of every succeeding month and after the said purchase the Defendant became a Tenant under Landlordship of the plaintiff by operation of law where the Defendant mutually agreed to pay monthly rent @ Rs. 501 w.e.f. 15.5.1997 to the plaintiff." According to him, in view of the said statement the finding, as noted above of the appellate court, is absolutely perverse and the learned trial court was very much correct in holding that the respondent was a defaulter. 11. As regards bona fide requirement, Mr. Baruah has contended that the appellate court committed grave error of law in holding that the plaintiff/landlord failed to plead and adduce any evidence to show that she had sufficient means or funds for the construction of the building after demolition of the suit premises. According to him, the bona fide requirement of the petitioner, on consideration of the given facts and circumstances of the case, is genuine, honest and sincere. The learned appellate court rejected such plea by taking extraneous and irrelevant consideration. 12. Supporting the impugned judgment and order, on the other hand Mr. Lahiri, learned senior counsel for the respondent has strenuously submitted that the respondent was at no point of time a defaulter and the same is evident from the depositions of the witnesses as well as relevant documents exhibited showing the deposits of the rent in the court after refusal of the same by landlady. The specific stand is that the plaint did not disclose any due date or mode of payment of the rent. The specific stand is that the plaint did not disclose any due date or mode of payment of the rent. That being so, the learned appellate court rightly held that the respondent was not defaulter in payment of the rent. So far the question of bona fide requirement is concerned, it is vehemently argued that the petitioner failed to show the order of approval/permission of the authority concerned for such construction of the building by demolishing the suit premises and more so, the petitioner was not financially sound to construct such a building. According to him, learned appellate court rightly and correctly allowed the appeal reversing the decree of eviction of the respondent and no cogent or plausible ground has been set out by the petitioner to dislodge the impugned judgment and order by this Court exercising its revisional jurisdiction. 13. Taking the extensive submissions canvassed by the learned counsel for the rival parties into account and on close perusal of the impugned judgment and decree of the appellate court as well as the judgment and decree of the trial court, this Court has arrived at the following findings : (a) Though in paragraph-3 of the plaint, as has been already noticed above, the plaintiff stated that the respondent was a tenant to the pro forma respondent, vendor of the petitioner with regard to the suit premises, on a monthly rent according to English Calendar payable within 7 days of every succeeding month and after purchase of Schedule-'A' property by the plaintiff, the defendant became the tenant under the petitioner by operation of law wherein the respondent mutually agreed to pay a monthly rent of Rs. 501 with effect from 15.5.1997, the same could not be substantiated by the plaintiff from the evidence as well as relevant documents. It clearly appears from a close perusal of the plaint in its entirety that nowhere in the plaint, the due date as well as mode of payment of the rent payable by the respondent to the petitioner has been mentioned. There is nothing on record to show about fixing of the amount of rent of Rs. 501 with effect from 15.5.1997. It has only come on the record that the respondent was paying rent of Rs. 200 as monthly rent of the suit premises which were deposited in the court through Misc.(N.J.) cases'. There is nothing on record to show about fixing of the amount of rent of Rs. 501 with effect from 15.5.1997. It has only come on the record that the respondent was paying rent of Rs. 200 as monthly rent of the suit premises which were deposited in the court through Misc.(N.J.) cases'. That being the factual position, this Court of the firm view that no case of defaulter against the respondent was made out and accordingly this Court is in complete agreement with the finding of the appellate court on the point of the defaulter in payment of the rent. (b) As regards the point of bona fide requirement, the Court is of the view that the appellate court committed grave error of law by rejecting this plea of bona fide requirement merely on the ground of financial incapability of the petitioner. It appears that the finding of the appellate court to the effect "the plaintiff-landlord has neither pleaded nor adduced any evidence to show that she has sufficient means or funds for reconstruction of the suit premises after demolition. She has also not obtained permission for complete reconstruction of the suit premises which leads to unrebutted presumption that she has no sufficient means for complete reconstruction of the suit premises after demolition" was based on presumption and extraneous consideration. It is established that to substantiate the plea of bona fide requirement, the plaintiff must prove the genuineness, honesty and pressing needs. Once these characteristics are fulfilled, the question of financial capability has no relevance. In the instant case, on consideration of the attending facts and circumstances of the case, it appears that the petitioner, landlady, has proved her genuineness, bona fide and pressing needs for construction of the building as the suit premises was admittedly an old one and in dilapidated condition and the question of financial soundness, hence, does not arise. Landlord is the best judge of his own requirement of his rented house and he has got complete freedom in this matter once he can satisfy his sincere and honest desire of such requirement. The Supreme Court in a recent case, of G.C. Kapoor v. Nand Kumar Bhasin and Ors. Landlord is the best judge of his own requirement of his rented house and he has got complete freedom in this matter once he can satisfy his sincere and honest desire of such requirement. The Supreme Court in a recent case, of G.C. Kapoor v. Nand Kumar Bhasin and Ors. reported in AIR 2002 SC 200 while dealing with the question of bona fide requirement, categorically held that bona fide requirement must be honest is not a mere desire or wish and the question whether landlord had the financial capacity was irrelevant. In paragraphs 9, 10 and 11 it was held that : "9. It is settled position of law that bona fide requirement means that requirement must be honest and not tainted with any oblique or wish and is not a mere desire or wish. In Dettatraya Laxman Karnbl'e v. Abdul Rasul Moulali Kotkunde and Anr. [1999] 2 SCR 912 this Court while considering the bona fide need of the landlord was of the view that when a landlord says that he needs the building for his own occupation, he had to prove it but there is no warrant for presuming that his need is not bona fide. It was also held that while deciding this question, Court would look into the broad aspects and if the Court feels any doubt about bona fide requirement, it is for the landlord to clear such doubt. 10. In Reghunath G. Panhale (D) by LRs. v. CLandanlal Sundarji and Co. AIR 1999 SC 3864 this Court, inter alia, held that it was not necessary for landlord to prove that he had money to invest in the new business contemplated not that he had experience of it. It was a case for eviction on the ground of bona fide requirement of the landlord for non-residential purpose, as he wanted to start a grocery business in the suit premises to improve his livelihood. 11. Regarding financial capacity of the appellant the Courts below have held that appellant did not have financial capacity. From records we find that the appellant produced revenue records to show his ownership over agricultural land in addition to the suit premises and made a categorical statement that he would be able to raise fund from financial institutions. Both the Court below with mathematical precision considered this aspect while coming to the fact that he does not have financial capacity. Both the Court below with mathematical precision considered this aspect while coming to the fact that he does not have financial capacity. We are of the view that these are irrelevant consideration as the question of having necessary fund to start the business is not at all necessary in view of the law laid down by this Court in the above decision namely Dattatray'a Laxman Kamble (supra). That apart, as the appellant has got immovable property it would not be difficult for him to raise necessary fund and, therefore we hold that the finding on this point of the Courts below is not sustainable." Having regard to the ratio laid down in G.C. Kapoors' case (supra), this Court is of the view that the financial incapacity of the petitioner for construction of the building by demolishing the suit premises for his bona fide requirement cannot defeat the genuine, honest and pressing need of the suit premises. 14. For the reasons what has been discussed and observed above, the impugned judgment and decree of the appellate court so far the plea of bona fide requirement is concerned, is set aside and quashed and judgment and decreed rendered by the trial court on the point of bona fide requirement stands restored. 15. In the result, this revision petition stands allowed. Interim order, if any, is also vacated. Petition allowed.