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2005 DIGILAW 666 (GAU)

Bhagwan Das Ramesh Kumar v. Jagabandhu Dhar

2005-09-09

ANIMA HAZARIKA

body2005
JUDGMENT A. Hazarika, J. 1. The Landlord, a registered partnership firm is in revision under Section 115 of the Code of Civil Procedure read with Article 227 of the Constitution of India, against the impugned judgment and Order dated 18.3.2005 of the Additional District Judge, Shillong, in regular first appeal being R.F.A. (TCA) No. 4(H) of 2004. 2. The instant revision arises out of a suit for eviction filed before the trial court by the Petitioner/Plaintiff against the Respondent/Defendant. The Plaintiffs (hereinafter referred to as Petitioner) filed the suit being Title Suit No. 1(H) of 1989 on the ground of default and for bonafide requirement. The trial Court on the pleadings of the parties framed as many as five issues alongwith an additional issue. The eviction was sought from the tenanted premises, approximately measuring 150×200 sq.ft. in the basement of the Petitioner's premises. The issues framed are reproduced below: 1. Whether the suit is hit by Order 23 Rule 1 Code of Criminal Procedure and not maintainable? 2. Whether the Defendant is a defaulter in payment of monthly rent with effect from September, 1986 as alleged? 3. Whether the Plaintiff requires the premises bonafide for their own use and occupation and also for expansion of their business? 4. Whether the Defendant is liable to be ejected from the suit premises? 5. To what relief or reliefs the party are entitled to? The additional issue framed subsequently during the trial reads as follows: "Whether the Plaintiff filed the instant suit on new pleas/grounds which were absent in TS No. 14(H) 1987 and had gone beyond the authority given by the Hon'ble High Court to file a fresh suit on the same cause of action?" 3. The additional issue was necessitated to be framed, because the Petitioner filed a Title suit being No. 14(H) of 1987, against the Defendant for eviction from the suit premises which was taken on revision by the Defendant before this Court being Civil Revision No. 8(H) of 1989, against the order of the learned Assistant District Judge, Shillong, allowing the Petitioner to withdraw the suit under order 23 Rule 1 of the Code of Civil Procedure, with liberty to file a fresh suit on the same cause of action. This Court vide order dated 12.4.89 allowed the Revision Petition setting aside the order of the learned Assistant District Judge. This Court vide order dated 12.4.89 allowed the Revision Petition setting aside the order of the learned Assistant District Judge. While allowing the Revision Petition, this Court held that the partnership firm, after being registered, may institute a fresh suit on the same cause of action. Accordingly, the firm was registered as partnership firm and instituted the suit afresh being Title suit No. 1 (H) of 1989 as aforesaid. 4. The trial court, after going through the evidences on record, including the plaint and the written statement and after hearing the parties at length and the decision cited, decided the issue No. 1 in favour of the Petitioner, holding that the suit is not hit by order 23 Rule 1 of the Code of Civil Procedure and is therefore maintainable. In regard to default relating to issue No. 2, the trial court has held that, on reading of the evidences of the parties, led during the trial, it would conclusively prove that the Defendant is not a defaulter and has therefore decided the issue in the negative. 5. The issue of default being negatived by the trial court, the only important issue is issue No. 3, as to whether the premises rented out to the Defendant is bonafide required for Petitioners/Plaintiffs' own use and occupation and also for expansion of their business. The trial court has held that, the room under possession of the Defendant is bonafide required for Petitioners' occupation and for expansion of their business. The said finding has arrived at after going through the evidences on record and on the basis of a decision reported in (2000) 1 SCC 679 and (1995) 2 GLR 324. In regard to comparative hardship, the trial court has held that the requirement of the Petitioner cannot be ignored vis-a-vis the hardship of the Defendant. The additional issue as framed has been answered in the negative and decreed the suit for eviction vide judgment and decree dated 10.8.2004 and 13.8.2004 respectively. 6. An appeal has been taken to the file of learned Additional District Judge, Shillong, being RFA No. 4(H) 2004 against the judgment and decree dated 10.8.2004 and 13.8.2004 passed in Title Suit No. 1 (SH) 1989, by the learned trial court, which came up for hearing on 23.12.2004 and the learned Appellate Court after hearing the parties delivered the judgment on 18.3.2005. The learned Appellate Court has confirmed all the issues as decided by the learned trial court except the issue No. 3 i.e. bonafide requirement of the Petitioner. 7. The Appellate Court has decided the issue of bonafide requirement in the negative and reversed the finding after considering the decisions referred by both the parties viz; 1. (1992) 2 GLR 36 Jatish Chandra Paul and Ors. v. Ravi Paul and Ors. 2. AIR 1974 SC 1596 Mattulal v. Radhelal 3. AIR 1979 SC 272 Mustt Bega Begum and Ors. v. Abdul Ahad Khan (dead) by LR's and Ors. 4. (1987) 1 GLR 111 Pokarmal Radhakishan v. Mustt Radha Devi Agarwalla and Ors. 5. (1995) 2 GLR 323 (Prasanta Kumar Bose v. Md Nurruddin) 6. (2002) 8 SCC 765 Savitry Sahay v. Sachidanand Prasad 7. (2002) 5 SCC 397 Joginder Paul v. Naval Kishore Behal. 8. The Appellate Court while reversing the findings on the issue relating to bonafide requirement of tenanted premises has held that the bonafide requirement is not genuine and honest and the comparative hardship between the parties lays in favour of the Defendant tenant. In the language of the Appellate Court, the Petitioner requires the shop for starting a business in sanitary fitting for accommodation of his son's need. But it was not reflected that a sincere effort has been made to set up the said business of sanitary fittings temporarily in some other places during the pendency of the suit. Therefore, the bonafide requirement is not genuine, bonafide requirement of the shop in suit, but is a mere desire to expand their business in other fields other than textile. In regard to comparative hardship the Appellate Court has held that though the right of the landlord cannot be easily discouraged, the relative hardship of the tenant is simultaneously be duly considered and considering the pleadings of the parties and the plight of the Defendant, the Appellate court thus held that, there is no bonafide requirement and reversed the finding of the learned trial court and allowed the appeal. Hence this revision Petition before this Court. 9. Hence this revision Petition before this Court. 9. Criticising the reversal of the findings relating to the issue of bonafide requirement and the subsequent events, the learned Counsel appearing for the Petitioner has argued that, in the pleadings in the plaint coupled with the evidence on record, would show that the Petitioner has made out a case of bonafide requirement of the premises rented out to the Defendant. The tenancy was initiated in the year 1971, when the family was not expanded and on expansion of the family, more particularly three sons in the meantime have grown up and two of his sons have been married and they require the shop in question for expansion of business on sanitary fittings. In this regard the counsel relied on decision reported in (2002) 5 SCC 397 . The Supreme Court while deciding the case has laid down that the court should adopt a reasonable and balanced approach while interpreting rent control legislation and should assure equal treatment to both landlord and tenant. While deciding the case, the Apex Court dismissed the appeal holding that the son of the landlord who is a Chartered Accountant, requires the shop in order to start his profession which is bonafide and the bonafide requirement has been proved. 10. Refuting the argument advanced by the counsel of the Petitioner, the learned Counsel appearing for the Respondent argued that there is no bonafide requirement as it would reveal from the evidences on record. The learned Counsel has taken this Court to the relevant evidences, adduced by the parties, as well as the plaint and written statement and referred the decisions which are reproduced below: 1. AIR 1974 SC 1596 Mattulal v. Radhalal 2. AIR 1979 SC 272 Mustt. Bega Begum and Ors. v. Abdul Ahad Khan (dead) by LRs and Ors. 3. (1987) 1 GLR 111 Pokarmal Radhakishan v. Mustt Radha Devi Agarwall and Ors. 4. (1992) 2 GLR 36 Jatish Ch Paul v. Manjurani Paul and Ors. 5. (1995) 2 GLT 182 : (1995) 2 GLR 323 Prasanta Kr Bose v. Md. Nuruddin 6. (1989) 2 GLR 22 Jadu Gopal Poddar and Anr. v. Rajubala Roy and Ors. 7. (2000) 5 SCC 1 Vaneet Jain v. Jagjit Singh 8. (2001) 3 GLT 402 (Anil Kr. Saha v. Adhir Kr Deb 9. (2003) 2 SCC 28 Sushila v. IInd Addl. District Judge, Banda and Ors. 11. Nuruddin 6. (1989) 2 GLR 22 Jadu Gopal Poddar and Anr. v. Rajubala Roy and Ors. 7. (2000) 5 SCC 1 Vaneet Jain v. Jagjit Singh 8. (2001) 3 GLT 402 (Anil Kr. Saha v. Adhir Kr Deb 9. (2003) 2 SCC 28 Sushila v. IInd Addl. District Judge, Banda and Ors. 11. This Court has considered the decision referred to above. The decision referred to and reported inAIR 1974 SC 1956 (Supra) relates to bonafide requirement of landlord under Section 12(1)(f) of MP Accommodation Control Act. The question arose as to whether the finding arrived at by the First Appellate Court in regard to bonafide requirement is a finding of fact or of mixed law and fact. The Apex Court has held that, it is a question of fact, which cannot be agitated in Second Appeal. The Apex Court has further held that, mere assertion on the part of the landlord, that the landlord requires the tenanted premises for starting a business is not decisive. It is the court to determine the truth of the assertion and also whether it is bonafide. 12. The citation reported in AIR 1979 SC 272 relates to rejectment under J and K Houses and Shops Rent Control Act, 1966. The expression "reasonable requirement" as provided under Section 11(1)(h) of the Act came up for consideration and the Apex Court has held that there must be an element of need as opposed to a mere desire or wish. 13. The decision reported in (1987) 1 GLR 111 (supra) relates to Section 5(1)(c) of the Assam Urban Areas Rent Control Act, 1972 which dealt with bonafide requirement of the landlord. This Court has held that the bonafide requirement does not relate to landlord only, but also to such person for whose benefit the house is held. It further provides that if the landlord could show any other factor which may be deemed satisfactory by the Court, the landlord can get recovery of possession. 14. In the decision reported in (1992) 2 GLR (Supra), this Court has held that bonafide character of the requirement must be proved in order to get a decree for possession. The Court further held that before granting a decree, the Court has to consider the comparative hardship of the tenant who will be thrown out of his business etc. 15. In the decision reported in (1992) 2 GLR (Supra), this Court has held that bonafide character of the requirement must be proved in order to get a decree for possession. The Court further held that before granting a decree, the Court has to consider the comparative hardship of the tenant who will be thrown out of his business etc. 15. The decision reported in (1995) 2 GLR 323 : (1995) 2 GLT 182, would show that this Court has held that, bonafide requirement must be genuine, reasonable and conceived in good faith. The desire of landlord for possession, however honest it might otherwise be, has inevitably a subjective element in it, that desire to become "requirement" in law, must have the objective element of need. The court is therefore duty bound to take all factors and circumstances so that the protection afforded to the tenant is not rendered futile. 16. The case reported in (1989) 2 GLR (NOC)(Supra), relates to bonafide requirement under Assam Urban Areas Rent Control Act, wherein this Court has held that the landlord must give statement and particulars of the business in the plaint and must satisfy the court in order to get a decree for ejectment. 17. The case referred and reported in (2000) 5 SCC 1 (supra) came up for consideration before the Apex Court. The case relates to Haryana Urban (Control of Rent and Eviction) Act, 1973. The Apex Court while dealing with Section 15(6) of the Act has held that the power under Section 15(6) is not an appellate power and therefore it is not permissible for the High Court to reassess or reappraise the evidence to arrive at findings contrary to those of lower courts. However, the Apex Court has held that, the High Court may reapprise the evidence for the limited purpose of making certain, that conclusions of lower courts are not wholly without reason or contrary to law. The Apex Court considering the materials on record, allowed the appeal, confirming the order of the trial court and the appellate court where a decree was passed for bonafide requirement reversing the order of the High Court. 18. The case reported in (2001) 3 GLT 402 (Supra), dealt with the revisional power of the High Court, in the matter of ejectment of tenant, on the ground of default in payment of rent and nuisance. 18. The case reported in (2001) 3 GLT 402 (Supra), dealt with the revisional power of the High Court, in the matter of ejectment of tenant, on the ground of default in payment of rent and nuisance. The lower courts below came to a finding against the tenant after evaluation of evidence on record and therefore, this Court declined to interfere while exercising the power under revisional jurisdiction, by holding that High Court cannot re-appreciate evidence, unless the findings are perverse or material evidence on record are not considered. 19. The case referred and reported in (2003) 2 SCC 28 (Supra), relates to bonafide requirement of landlord under Rule 16 U.R Urban Buildings (Regulation of Letting, Rent and Eviction) Rules, 1972. The Apex Court, while allowing the appeal on the ground of bonafide requirement, has held that the factors must be balanced against each other, while dealing with comparative hardship. In the case, the tanant had two shops, whereas, the landlady has no other shop to establish her married son, who was unemployed and therefore allowed the appeal. 20. This Court considered the submissions made by the rival parties and also considered the decisions as indicated above. Admittedly, the Petitioner has another 8/9 shops, besides the shop, wherefrom the eviction has been sought. It has come into the records that there are 2/3 other shops which are bigger in area than the shop occupied by the Defendant and is more suitable for a business in sanitary fittings. It has also come to light that the Petitioner has taken recourse to disconnecting the electricity of the tenanted premises, which was restored on 15.9.88 by the learned District Judge in Misc (J) Case No. 72(H)87, which goes to show that the tenant is feeble and too weak, to resist the mighty landlord. Another factor has been brought to the notice of the court, by the counsel appearing on behalf of the Respondent, which is relevant to consider the conduct of the parties vis-a-vis the law of equity and the power of the courts in dealing with such a situation: 10.8.2004 13.8.2004 Judgment and decree passed by the court of Assistant District Judge, Shillong decreeing the suit being No. TS No.1 (H) of 1989 on the ground of bonafide requirement. 14.8.2004 A petition was filed on behalf of the Defendant/judgment debtor forstay of the operation of the judgment and decree before the learned Assistant District Judge, Shillong. 6.9.2004 Appeal filed by respondent before the Court of District Judge, Shillong challenging the jugdgment and decree 10.8.04 and 13.8.04 being RFA No. 4(H) of 2004 and an application under order 41 Rule 5 of the Code for stay of the judgment and decree under challenge being Misc 7 (H) 2004. 16.8.2004 Title Execution being TE No. 2(H) of 2004 filed by the decree holder before the Assistant District Judge, Shillong, and the learned ADJ allowed the execution without taking into consideration the petition filed on 14.8.2004 for stay of the impugned judgment and decree. 19.8.2004 Decree holder execute the decree by throwing out some of the stock, however there was no complete/full execution of the decree. 6.9.2004 Appellate Court while admitting the appeal directed to maintain status quo as on 16.8.2004. 7.9.2004 Decree holder started removing the furniture and fixture of the J.D. in violation of the order dated 6.9.2004 directing to maintain status quo. 8.9.2004 J.D. filed an affidavit before the appellate court bringing the events and conduct of the decree holder. 12.9.2004 Decree holder removed all the furniture/fixtures of the J.D. in violation of the court’s order. 13.9.2004 J.D. filed an affidavit in regard to removing the furniture and fixtures before the appellate court. The above fact is deplorable on the part of the landlord, as the Appellate Court vide judgment and order dated 18.3.2004 has directed that, if the shop in suit is already in the possession of the Respondent (the Petitioner herein), the Defendant (the Respondent herein) is entitled to recovery of possession by due process of law. 21. The Appellate Court has reversed the findings of the learned trial court, relating to the issue of bonafide requirement, which is a question of fact and there is no jurisdictional error in arriving at the said finding and this Court is not inclined to interfere withe the finding of facts arrived at by the appellate Court, in exercising of power under Section 115 read with Article 227 of the Constitution of India, more so, in view of the decision rendered by the Apex Court reported in AIR 1974 SC 1596 (Supra) and therefore this revision petition has no merit and the same is dismissed. 22. 22. In the facts and circumstances of the case the parties are directed to bear their own costs.