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2006 DIGILAW 737 (GAU)

Biswajit Saha v. Shah Md. Farid

2006-08-09

H.N.SARMA

body2006
JUDGMENT H.N. Sarma, J. 1. The revisional jurisdiction of this Court under Section 115 of the Code of Civil Procedure is sought to be invoked by challenging the judgment and decree dated 24.8.04 passed by Additional District Judge, Guwahati in TA No 14/03, affirming the judgment and decree passed by the learned trial Court in TS No. 185/01 dismissing the appeal. 2. I have heard Mr. P. Borthakur, learned Sr. Counsel for the Petitioner and Mr. A.M. Mazumdar, learned Senior Counsels for the Respondents. 3. The brief material facts necessary for disposal of this revision petition are that the Defendant/Petitioner was a monthly tenant under the Plaintiff/Respondent in respect of the suit premises at a monthly rent of Rs. 3,000.00. Alleging default in payment of the rent from November, 2000 by the Defendant/Petitioner in spite of repeated demands, as well as bonafide requirement of the suit premises, the Plaintiff filed the T.S. No. 185/01, in the Court of the learned Civil Judge (Senior Division) No. 3, Guwahati, inter alia, praying for ejectment of the Defendants from the suit premises and for recovery of arrear rent from November 2000 onwards till the Defendant is ejected from the suit premises and for other usual reliefs. The suit was contested by the Defendant by filing written statements, denying allegation of defaulter as alleged in the plaint. The Defendant pleaded that he paid rent regularly to the Plaintiff upto March 2001 and thereafter the Plaintiff having refused to accept the sent onto same was deposited in the Court from April 2001 onwards regularly and hence the Defendant/Petitioner is not a defaulter. 4. On the basis of the pleadings of the parties, the learned trial Court framed as many as 5 (five) issues out of which the issue No. 2 relates as to whether the Defendant is a defaulter and the issue No. 3 is as to whether there is bonafide requirement of the suit houses by the Plaintiff for his own use and occupation. Both the parties adduced the respective evidences in support of their respective case and the learned trial Court on the conclusion of the trial decided the issue relating to defaulter in favour of the Plaintiff. The issue relating to bonafide requirement was decided against him. Both the parties adduced the respective evidences in support of their respective case and the learned trial Court on the conclusion of the trial decided the issue relating to defaulter in favour of the Plaintiff. The issue relating to bonafide requirement was decided against him. The judgment of the learned trial Court was carried into appeal, being TA No. 14/03 in the Court of the Additional District Judge, Kamrup, Guwahati who also affirmed the decision arrived at by the learned trial Court with certain modifications regarding the period of default, which is the subject matter of the present revision petition. 5. From the judgments of the Courts below it is seen that the only issue relating to defaulter is survived for consideration and the decision, but the finding on the said issue is a concurrent one. 6. Mr. Borthakur submits that the learned appellate Court has committed error in arriving at the finding that the Defendant/Petitioner failed to prove the connected N.J. cases in support of his contention that he deposited the rent in the Court in the absence of these N.J. cases before the Court although the Petitioner exhibited the challan depositing the rent in the Court. It is submitted that if the case is remanded back to the learned trial Court and an opportunity is given to the Petitioner to prove these N.J. cases no injustice would be caused. Accordingly, learned Counsel submits that the matter may be remanded back to the learned trial Court to provide him such an opportunity to prove those N.J. cases. 7. Mr. Mazumdar, on the other hand submits that the concurrent findings of both the Courts below regarding the finding of defaulter need not required to be disturbed in the absence of any shown perversity committed by the learned Court below in exercise of power of revisional jurisdiction of this Court under Section 115, Code of Civil Procedure, and the Petitioner is not entitled to get the case remanded providing him Anr. opportunity to prove his case. 8. Mr. Borthakur, in support of his contentions, referred to a decision rendered by this Court in Mallika Dutta Roy and Ors. v. Bidyut Kr. Deb reported in 2004 (3) GLT 434. Mr. Mazumdar on the other hand submits and refers to a decision of the Apex Court reported in 2004 12 SCC 239 and Samsher Ali v. Khatun and in 1983 GHC 143. 9. v. Bidyut Kr. Deb reported in 2004 (3) GLT 434. Mr. Mazumdar on the other hand submits and refers to a decision of the Apex Court reported in 2004 12 SCC 239 and Samsher Ali v. Khatun and in 1983 GHC 143. 9. I have considered the rival submissions made by the learned Counsel for the parties and also perused the connected records. 10. In this revision petition, the point which is to be decided as to whether the learned Court below committed any jurisdictional error in arriving at the finding that the Petitioner is a defaulter in payment of the monthly rent in terms of Section 5 of the Assam Urban Areas Rent Control Act. 11. The written statement of the Defendant/Petitioner disclose that in his written statements he admitted to be a tenant under the Plaintiffs in respect of the suit premises on a monthly rent of Rs. 3000.00. The tenancy was according to the English Calender. The allegation in the plaint is that the Defendant defaulted in payment of rent for the month of November 2000 and, as such, terminating the tenancy after expiry of the first day of November 2000 and he issued notice dated 25.4.2001 to the Defendant. 12. The Defendant alleges that the rent for the month of November, 2000 to March, 2001 was paid to the Plaintiff by five different cheques for each month vide Ext-(1) and Ext-(1) (i), (1) (iv). But the Plaintiff did not encash the cheques and, as such the Defendant paid Rs. 15,000.00 in cash to the Plaintiff on account of the rent for those five months. Further, the case of the Defendant is that since the Plaintiff refused to accept the rent from the month of April, 2001, he deposited the same in the Court. In order to prove the said fact, the Defendants exhibited the treasury challan showing such deposit vide Ext-6 series. The learned trial Court found that though the Defendant exhibited the treasury challan did not prove that it relates to N.J. cases pertaining to the said period. Under such circumstances, the learned trial Court held that the provisions of Section 5(4) of the Act, has not complied with and held the Defendant/Petitioner to be a defaulter. 13. The learned appellate Court also independently considered the matter while deciding the issue relating to defaulter. Under such circumstances, the learned trial Court held that the provisions of Section 5(4) of the Act, has not complied with and held the Defendant/Petitioner to be a defaulter. 13. The learned appellate Court also independently considered the matter while deciding the issue relating to defaulter. The learned appellate Court on independent assessment of materials on record reiterated and accepted the relationship of landlord and tenant between the Plaintiff and the Defendant in respect of the suit premises and the monthly rent at the rate of Rs. 3,000.00. The learned appellate Court also considered the fact of issuance of five different cheques in favour of the Plaintiff by the Defendant towards payment of the monthly rent from the month of November, 2000 to March, 2001, issued on the first day of the succeeding months. The learned appellate Court, however, on assessment of evidence on records held that the payment of Rs. 15,000.00 on 15.4.01 cannot save the Defendant from being a defaulter in payment of rent for the month from November, 2000 to March, 2001. 14. So far the amount deposited as monthly rent from April, 2001, onwards in the Court, the learned appellate Court duly considered the treasury challan, Ext-6 series and found that before depositing the rent for the month from April, 2001, onwards in the Court, the same was not tendered to the Plaintiff/landlord. The Plaintiff specifically denied such tender of monthly rent by the Defendant. That apart, the learned appellate Court also considered the fact that apart from the treasury challan, the Plaintiff has not proved the connected N.J. cases showing the deposit of rent in the Court vide treasury challan by Ext-6 series which is necessary for scrutiny of the full compliance of the mandatory provisions of Section 5(4) of the Act. Accordingly on such consideration and assessment of the evidence, the learned appellate Court also affirmed the decision of the learned trial Court. The Defendant having failed to satisfy the deposit of monthly rent in the Court as per provisions of Section 5(4) of the Act, has been held to be a defaulter. However, the learned appellate Court modified the finding of the learned trial Court relating to period of default and held that the Defendant was a defaulter in payment of rent from November, 2000 onwards. 15. However, the learned appellate Court modified the finding of the learned trial Court relating to period of default and held that the Defendant was a defaulter in payment of rent from November, 2000 onwards. 15. Section 5(4) of the Act provides that in the event of the refusal of the landlord to accept the monthly rent being tendered by the tenant, he may within the fortnight of such refusal deposit the rent in the Court. Section 5(4) further provides that along with such rent, the Defendant shall also deposit with the same process fees for service of notice upon the landlord so that due and necessary notice can be served upon the landlord for withdrawal of the amount so deposited. Refusal of the landlord to accept the rent on being tendered and deposit of rent along with the process-fees is an integral part of Section 5(4) of the Act. Various judicial interpretations made by this Court including the Full Bench decision in Kali Kumar Sen v. Makhan Lal Biswas and Anr. AIR 1969 Gau 50 considered the responsibility of the tenant to deposit the monthly rent complying with the provisions of Section5(4) of the Act. Section 5(4) of the Act is also interpreted to be a mandatory one. In this connection we may conveniently refer to the decision of this Court reported in 1992 (1) GLR 250, Sudhir Chandra Das v. P.P. Verma 1995 (3) GLR 333 : 1995 (3) GLT 462, Mohan Kumar Agarwalla v. Parushottam 1983 GHC 143. The Defendant/Petitioner having taken the plea of deposit of monthly rent in the Court in terms of the Section 5(4) of the Act, the burden of such compliance lies on him to prove that there has been full compliance of Section 5(4) of the Act. In the instant case, the Petitioner failed to discharge the said burden and both the Courts below on perusal of evidence and materials available on record both the Courts concurrently held that the Petitioner is a defaulter. 16. Mr. Borthakur, learned Senior Counsel, submits that the case should be remanded to the trial Court so that the Petitioner can prove the necessary facts that he deposited the process fee and complied with requirements under Section 5(4) of the Act and necessary records are very much present in the trial Court. 16. Mr. Borthakur, learned Senior Counsel, submits that the case should be remanded to the trial Court so that the Petitioner can prove the necessary facts that he deposited the process fee and complied with requirements under Section 5(4) of the Act and necessary records are very much present in the trial Court. We are to see how far such a course as suggested, will be permissible to adopt by this Court at this stage. The power of remand can be exercised by the appellate Court under provisions of Order 41, Rule 23, and Rule 25 of the Code of Civil Procedure. The contention of the learned Counsel is that although such prayer was made before the appellate Court the same was not entertained committing thereby a jurisdictional error. The appellate Court can exercise such power of remand, if it thinks fit in the event the appeal is disposed on a preliminary issue with direction to decide other further issues. In other cases, as provided under Order 41, Rule 23(A), Code of Civil Procedure the appellate Court has got power to remand the suit for retrial if the decree is reversed and retrial is considered necessary. Order 41, Rule 25, Code of Civil Procedure provides that if the trial Court has omitted to try any issue and to determine any question of fact, which appears to the appellate Court essential to the right decision of the suit upon merits, the appellate Court, may, if necessary frame issues, and remand the same for trial to the Court from whose decree the appeal is preferred and is also entitled to direct such Court to take additional evidence if required. 17. The aforesaid provisions make the point clear that the remand order cannot be passed as matter of course. If, on the basis of the records of the case in the contingencies referred to above, the appellate Court consider it right to remand the case and on such consideration may remand the case to decide on any issue may arise for consideration. However, it is not permissible under the law to remand a case to fill up the lacuna of the case of any party. In our adversary system of trial, the contesting parties get equal and proper opportunity to defend their respect of his case. However, it is not permissible under the law to remand a case to fill up the lacuna of the case of any party. In our adversary system of trial, the contesting parties get equal and proper opportunity to defend their respect of his case. In fact, the code provides all necessary opportunities and facilities to the litigants to defend their case at all necessary stage. If a party fails to exercise the same properly and effectively at appropriate stage, he does it so on his own peril. Accordingly, I find it difficult to accept the contention of the learned Counsel that his case may be remanded back allowing the Petitioner an opportunity to prove the necessary records of the N.J. cases which he failed at the appropriate stage of the suit. Further, a remand of the case arises only after setting aside the judgment impugned in the proceeding. In the instant case, I do not find any reason to set aside the impugned judgment and hence the prayer made by the Petitioner to remand the case is not acceptable. 18. On the discussions made as above, I do not find that the learned Court below committed any jurisdictional error in passing the impugned judgment and order. No perversity could be pointed out in the impugned judgment. Consequently, this revision petition is devoid of any merit and hence it is dismissed. The interim order dated 29.9.2004 stands vacated. The Registry is directed to transmit the LCRs forthwith. 19. No costs. Petition dismissed.