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2006 DIGILAW 387 (GAU)

Sanajuddin Ahmed v. Nalini Prasad Sarma

2006-04-26

H.N.SARMA

body2006
JUDGMENT H.N. Sarma, J. 1. The judgment and decree dated 29.7.2003 passed in Title Appeal No. 18/2002 by the learned Civil Judge, Senior Division, Darrang dismissing the appeal filed by the petitioner and reversing partly the judgment and decree dated 5.10.2002 in Title Suit No. 18 of 1998 passed by the learned Civil Judge, Junior Division No. 2, Darrang, Managaldoi is the subject matter of challenge in this revision petition. 2. The case of the petitioner, inter alia, is that the T.S. No. 31 of 1997 was filed by the landlord/respondent as plaintiff impleading him as sole defendant praying for passing decree against him for eviction from the suit premises and for arrear of rent. The pleaded case of the plaintiff/respondent, inter alia, is that the defendant/petitioner is monthly tenant in respect of the suit room which is a part of three storied building situated at Ward No. 3 Mongaldoi Town covered by holding No. 186 and the monthly rent is Rs.500 per month. Initially, the rent for the suit room was at the rate of Rs.70 per month with effect from 1.1.1968, which was subsequently raised to Rs.500 per month. The defendant/petitioner defaulted in making payment of monthly rent from April to July 1997 and also suit premises is bona fide required by the plaintiff to carry on the business thereon by his son. On demand, the plaintiff not having vacated the suit land, the aforesaid suit was filed for ejectment and recovery of khas possession of the suit premises and recovery of the arrear of rent amount of Rs.2,000. Summons of the suit having been served, the defendant/petitioner contested the suit by filing written statement denying the allegation made in the petition. In his written statement the defendant/petitioner pleaded, inter alia, that there are other suitable rooms in the said building to accommodate the son of the plaintiff for carrying out his business and the ground of bona fide required is not a genuine one. It is further pleaded and/or rather admitted in the written statement that the defendant defaulted in making the payment of rent for the month from April 1997 onwards and in fact he sent the rent for the month of April to May 1997 by money order No. 78 on 20.6.1997 but the plaintiff refused to accept the monthly rent so tendered. It is further pleaded that the arrear rent for the month of April to June 1997 was sent by the similar money order No. 337 on 7.7.1997 to the plaintiff but on both the occasions, the plaintiff refused to accept the said rent sent by the money order. The further pleaded case of the defendant is that at the time of oral agreement of tenancy in January 1968, he deposited an amount of Rs.5,000 as advance on the condition that if he fails to make payment of rent for any month, the same would be adjusted against from the said advance so paid. It is also asserted by the defendant is that he used to pay rent to the plaintiff for several months at a time which was also accepted by the plaintiff and is not a defaulter. On the basis of the pleadings of the parties, the following issues were framed by the learned trial court: 1. Whether there is cause of action for the suit? 2. Whether the suit is maintainable in its present form? 3. Whether the suit room is bona fide required by the plaintiff for purpose of carrying of business of his son? 4. Whether the defendant is a defaulter in payment of rent? 5. Whether the plaintiff is entitled to recover arrear of rent as claimed? 6. To what relief, if any, the plaintiff is entitled? Additional Issues 1. Whether the defendant deposited Rs.5,000 as security money to the plaintiff with an oral agreement that the unpaid rent, if any, for any period will be adjusted with the portion of the security money as alleged in the written statement? 3. During the course of trial, both the parties examined 4 witnesses and exhibited some documents. The learned trial court after consideration of the materials available on record and upon appreciation of the statement of witnesses found that the defendant is a defaulter in payment of rent for the aforesaid period. Further the learned trial court also decided the issue of bona fide requirement of the suit room against the plaintiff, vide judgment and order dated 29.7.2003. Challenging the aforesaid judgment and decree passed by the learned trial court in T.S. No. 31 of 1997 on 5.10.2002, the defendant/petitioner filed the Title Appeal No. 18 of 2002 in the court of the learned Civil Judge, Senior Division, Darrang, Mangaldoi. Challenging the aforesaid judgment and decree passed by the learned trial court in T.S. No. 31 of 1997 on 5.10.2002, the defendant/petitioner filed the Title Appeal No. 18 of 2002 in the court of the learned Civil Judge, Senior Division, Darrang, Mangaldoi. The learned appellate court after meticulous consideration, confirmed the findings of the learned trial court regarding the defaulter and reversed the finding of the trial court on the issue of bona fide requirement and held that the suit room is required bona fide for the use of the plaintiff's son for his business and dismissed the appeal vide judgment and order dated 29.7.2003. Challenging the said judgment and order by the defendant/petitioner has filed the present revision petition under the revisional jurisdiction of this Court under Section 115 of the CPC. 4. I have heard Mr. J.P. Sharma, learned Counsel for the defendant/petitioner and Mr. T. Islam, learned Counsel appearing for the plaintiff/respondent. 5. During the course of hearing it is contended by Mr. Sarma that both the courts below committed jurisdictional error in not accepting the Exhibit "Ka" books of accounts, thereby refusing to accept the documentary evidence in support of the oral evidence of the defendant/petitioner that an amount of Rs.5,000 was paid in advance to the plaintiff by him. The further submission of the learned Counsel is that the plaintiff/respondent not having independently challenged the findings of the learned trial court on the issued of bona fide requirement, he ought not to have been allowed in challenge the said find in the appeal and accordingly the learned appellate court in reversing the findings on bona fide requirement committed jurisdictional error which requires to be interference by this court. 6. Mr. T. Islam, learned Counsel for the respondent/plaintiff on the other hand submitted that the finding relating, to the defaulter is a concurrent findings of facts and in fact, both the learned trial court below had come to a conclusive finding that exhibit 'Ka' is not a genuine one and books of accounts within the meaning of Section 34 of the Act and on such finding both the courts below categorically held that the defendant/petitioner having failed to prove the advance payment of Rs.5,000. Considered him to be defaulter and the same is not liable to be interfered with by the revisional court. However, Mr. Considered him to be defaulter and the same is not liable to be interfered with by the revisional court. However, Mr. T. Islam, has submitted that the plaintiff/respondent is entitled to raise the issue relating to bona fide requirement as per the provisions contained in Order 41, Rule 22 of the CPC without independently challenging the same by filing cross objection and the learned appellate court in allowing the same has not committed any jurisdictional error. Submitting in the aforesaid manner, Mr. Islam prays for dismissal of the petition. 7. I have carefully considered the rival submissions made by the learned Counsel for the parties and also perused the materials available on record including the pleadings of the parties. 8. The basic issue for consideration in this revision petition is to whether the learned appellate court committed any jurisdictional error in passing the impugned judgment and order justifying interference by the revisional court on the basis of the pleadings of the parties and materials available on record. Although several issues were framed by the learned trial court, the main issue for deciding the dispute is the issue relating to the defaulter in payment. The learned trial court meticulously considered the evidence adduced by the parties. The learned trial court also examined the authenticity of the exhibit 'Ka' which is claimed to be books of accounts kept on regular day to day business by the defendant wherein the alleged payment of Rs.500 made to the plaintiff is stated to have been reflected. The learned trial court also considered the statement made in para 9 of the written statement from which it is ascertained that the plaintiff did not pay rent for the month of April, May, June and July 1997 to the plaintiff/respondent and allegedly sent the same by money order. Although the defendant/petitioner denies to be defaulter he has not been able to prove as to how and in what manner, the rent for the aforesaid months were paid to the plaintiff. In fact the evidence and the materials on record disclose that the defendant tendered the rent for the month of April to the plaintiff on 3.5.1997 and on his refusal to accept the same, he sent it by money order No. 78 on 20.6.1997 for the month of April and May together which was refused to accept by the plaintiff. In fact the evidence and the materials on record disclose that the defendant tendered the rent for the month of April to the plaintiff on 3.5.1997 and on his refusal to accept the same, he sent it by money order No. 78 on 20.6.1997 for the month of April and May together which was refused to accept by the plaintiff. It further transpires from record that, later on the defendant sent Rs.1,500 by money order No. 337 on 7.7.1997 being the rent for the month of April, May and June 1997, which was also refused to accept by the plaintiff and consequently the aforesaid amount remains unpaid making the defendant as defaulter. 9. The learned trial court on appreciation of the evidence on record and on close scrutiny of exhibit "Ka" did not accept it to be a genuine document to be treated as books of accounts kept in the regular courts of business within the meaning of Section 34 of the Indian Evidence Act and hence on the failure of the plaintiff to prove the said fact, the alleged payment of Rs.5,000 as security/advance rent to the plaintiff was disbelieved and not accepted by the learned courts below. In coming to the said finding, the learned trial court also noticed to the contradictory statements of DW 3 made during his deposition, which contradicts with the statement of DW 2. The learned lower appellate court, confirmed the aforesaid findings arrived at by the learned trial court relating to the defaulter. The learned appellate court also independently assessed the documents and materials and found that the defendant would not succeed the plea taken in his pleading and confirmed the findings of the learned trial court. Thus, the aforesaid findings relating to defaulter so made by both the court below which is a finding of facts was arrived at on proper appreciation and scrutiny or evidence and materials on record without excluding from consideration any relevant materials require, no interference by this Court in exercising of the powers under revisional jurisdiction. In fact no jurisdictional error or illegality or materials irregularity in arriving at the said decision could be brought to the notice of the court. 10. In fact no jurisdictional error or illegality or materials irregularity in arriving at the said decision could be brought to the notice of the court. 10. The basic issue for consideration in this revision petition as to whether the learned appellate court committed any jurisdictional error in allowing the plaintiff/respondent to challenge the part of the judgment of the learned trial court, i.e., the issue relating to bona fide requirement without filing any cross appeal and whether the learned appellate court committed any illegality or irregularity in confirming the findings, Ext. "Ka". While deciding the issue relating to bona fide requirement, the learned trial court taking note of the fact that Exts. 11 and 12 issued by Usha International Ltd. shows that the dealership given to the son of the plaintiff was valid up to 31.2.2000 and the plaintiff has not submitted anything about the recent position of the authorized dealership in the court. Consequently, though the plaintiff proved the facts about the requirement of the suit premises for bona fide use and occupation for entering into business by his son, the learned trial court only on the aforesaid consideration rejected the said contention. The plaintiff/respondent in exercising of his right under Order 41, Rule 22 challenged the said findings on the issue relating to the bona fide requirement arrived at by the learned trial court. 11. The Order 41, Rule 22, inter alia, provides that any respondent, though he may not have appealed from any part of the decree, may not only support the decree but may also state that the finding against him in the court below in respect of any issue ought to have been in his favour; and may also take any cross-objection. 12. There is no dispute regarding the proposition we may in this connection conveniently referring the decisions of the Apex Court rendered in 1960 (2) LLJ 95 SC The Management of Itakhoolie Tea Estate v. Its Workmen 1974 (1) SCR 442 Chandra Prabhuji Jain Temple and Ors. v. Harikrishna and Ors.. That apart, the decision of this Court reported in 1999 (1) GLT 479Sohanlal Agarwalla v. Krishto Mohan Choudhury has also taken the same view. 13. The learned appellate court accordingly committed no jurisdictional error in allowing the plaintiff/respondent to raise the issue relating to the bona fide requirement of the appeal without filing any cross objection. v. Harikrishna and Ors.. That apart, the decision of this Court reported in 1999 (1) GLT 479Sohanlal Agarwalla v. Krishto Mohan Choudhury has also taken the same view. 13. The learned appellate court accordingly committed no jurisdictional error in allowing the plaintiff/respondent to raise the issue relating to the bona fide requirement of the appeal without filing any cross objection. The appellate court on proper appreciation of facts found that the suit room is necessary for business of the son of the plaintiff. The learned trial court rejected the said plea by taking the said view the plaintiff taken any of dealership beyond the period as mentioned in Exts. 11 and 12. However, it is a proved fact that the plaintiff required the suit premises for the bona fide requirement of the business of his son, The other ground of refusal of the said plea by the learned trial court is that the plaintiff has another room in the said building which can be conveniently used by his son. The learned trial court did not at all considered the fact the plaintiff decided to remove the wall between the existing vacant room and the suit room to make it a bigger room for use of showroom for the dealership business of his son. The learned trial court decided the said issue on totally wrong approach and misdirected himself in arriving at the aforesaid findings. Consequently the learned appellate court has rightly reversed the same on proper appreciation on the proved facts, which is not liable to be disturbed in this revision petition. 14. No other point has been raised on behalf of the petitioner. The petitioner could not show and establish that the impugned judgment and decree has been passed without or in excess of jurisdiction and/or with illegality and/or with materials irregularity justifying the interference in this revision petition. Consequently, I do not find any merit of this revision petition and accordingly, the same stands dismissed. 15. The earlier interim order, passed by this court, stands vacated. 16. Registry is directed to transmit the LCR to the learned court below forthwith.