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2007 DIGILAW 771 (GAU)

Kulendra Chandra Roy v. Debdas Roy Choudhury

2007-11-27

A.B.PAL

body2007
JUDGMENT A.B. Pal, J. 1. By this application under Article 227 of the Constitution, which has been registered as a Civil Revision Petition, the Petitioner Sri Kulendra Chandra Roy has called in question correctness and validity of the judgment dated 14.9.2006 passed by the Additional District Judge, West Tripura, Agartala (Court No. 2) in RCC (revision) No. 10 of 2005. By the said judgment the court of revision reversed the findings of the appellate court West Tripura, Agartala in judgment dated 21.7.2005 in RCC (Appeal) No. 2 of 2005 and up held the decision of the Rent Control court, Agartala, West Tripura in RCC Case No. 5 of 2003. 2. The admitted position on the anvils of which the present issues are to be adverted to commenced from 1.6.1979 when there was an agreement between the parties under which the Petitioner herein became a tenant under the Respondent in respect of the suit premises, situated in a commercial place in Agartala on a monthly rent of Rs. 260. But the relation between them ran into foul weather when the landlord instituted a case in 1981 seeking eviction of the tenant. Though the earlier proceeding for eviction proved to be a fiasco and a long spell went by with the tenant in continued possession of the suit premises, the landlord instituted, after about 22 years from the date of the first proceeding in 1981, the present rent control case No. 5 of 2003 seeking eviction of the tenant. Two grounds were advanced in support of the prayer, firstly, the tenant was a defaulter in payment of rent and secondly, the landlord himself was in bona fide need to the said premises for expansion of his small medicine business and for starting a new business for his unemployed son. Though the rent control court after a full-dressed trial did not find merit in the first part, a careful appreciation of the evidence brought on record convinced it to record a finding that the landlord was in bona fide need of the suit premises. It was also observed that the tenant had procured alternative accommodation and started business there under the management of his son. Further observation of that court was that suitable accommodation was available in the area for the tenant for shifting of his present business if he intend so. 3. It was also observed that the tenant had procured alternative accommodation and started business there under the management of his son. Further observation of that court was that suitable accommodation was available in the area for the tenant for shifting of his present business if he intend so. 3. But the learned appellate court noticed that the landlord himself stated before the trial court that he had constructed a new building and inducted tenants. Noticing this statement the appellate court wondered why some of the rooms were not kept vacant in the new building for his son to start a business or for him to expand his medicine business and why instead he had inducted new tenants. Thus, according to the learned appellate court the landlord had no bona fide need. The findings of the learned trial court on bona fide need of the landlord thus came to be reversed. 4. The landlord carried his grievance to the court of revision under Section 22 of the Tripura Buildings (Lease and Rest Control) Act, 1975 ('the Act'). This revision, not being under Section 115 of the Code of Civil Procedure, the scope and ambit of the revisional powers under Section 22 of the Act calls for a careful reading 22. (1) In cases where the appellate authority empowered under Section 20is a Subordinate Judge, the District Judge, and in other cases the High Court, may at any time, on the application of any aggrieved party, call for and examine the records relating to any order passed or proceedings taken under this Act by such authority for the purpose of satisfying itself as to the legality, regularity or propriety of such order or proceedings, and may pass such order in reference thereto as it thinks fit. (2) The costs of, and incident to, all proceedings before the High Court or District Judge under Sub-section (1) shall be in its or his discretion. It would, thus, appear from the above provision that the court of revision may examine legality, regularity or propriety of an order passed under the said Act. The court of revision proceeded with the scrutiny of the judgment of the appellate court and found that the new building which was constructed by the landlord was not in the same commercial area and it was a residential building which could be used at best for a godown. The court of revision proceeded with the scrutiny of the judgment of the appellate court and found that the new building which was constructed by the landlord was not in the same commercial area and it was a residential building which could be used at best for a godown. This factual position escaped notice of the appellate court as there is no discussion on the location and suitability of the new building in its judgment. Thus the observation of the appellate court about the new building of the landlord being contrary to the evidence and materials on record, the court of revision came to hold that the decision of the appellate court was not proper and considering from that angle he set aside and quashed that decision affirming the judgment and decree of the learned trial court. Aggrieved, this petition under Article 227 has been brought before this Court by the tenant. 5. I have heard learned Counsel for the parties. 6. Mr. D.K. Biswas, learned advocate for the Petitioner-tenant submitted that the revisional court below failed to exercise its jurisdiction given by the statute by not deciding how the judgment of the appellate court is incorrect, illegal or improper. According to him, the judgment impugned does not reflect a reasoned decision on this important aspect. In the second limb of his argument Mr. Biswas has referred to Section 12(3) of the Act which has built in the provisos certain protection for the tenants. According to the first proviso the court shall not give any direction for eviction of the tenant if the landlord has another building of his own in his possession in the same town or village. The admitted position is that the landlord constructed a new building where he inducted several tenants. The second proviso protects a tenant if he is dependant for his livelihood mainly on the income derived from the trade or business carried on in such building and there is no other suitable building available in the locality for such person to carry on such trade or business. Mr. Biswas would argue that in the background of the admitted fact that the landlord constructed a new building and the old tenant is dependant on the income from the business carried on from the suit premises, a direction for his eviction by the trial court is ex-facie contrary to law. Mr. Biswas would argue that in the background of the admitted fact that the landlord constructed a new building and the old tenant is dependant on the income from the business carried on from the suit premises, a direction for his eviction by the trial court is ex-facie contrary to law. The appellate court has, therefore, rightly reversed the same. The revisional court having very limited jurisdiction given by the statute to examine legality, regularity and propriety of an judgment should not have acted like an appellate authority to re-appreciate the evidence and then record contrary findings on facts. Thus, according to Mr. Biswas, the judgment of the court of revision is undoubtedly beyond jurisdiction and, therefore, unsustainable in law. 7. Mr. D. Sengupta, learned Counsel for the Respondent-landlord submitted that the frontiers of the revisional court under Section 22 of the Act is wider than the powers of revision under Article 227and unless there is manifest error causing a failure of justice the High Court in exercise of the powers under Article 227 of the constitution shall not interfere with the judgment and order rendered under the statutory powers of revision. His second submission is that the court of revision below rendered the judgment impugned on 14.9.2006 and the present petition under Article 227 has been preferred on 24.8.2007, after more than 11 months. Though there is no statutory limit in preferring such a petition, it is incumbent upon the Petitioner to explain the delay. The delay as explained in para-8 has been sought to be related to a fictitious story that there was an attempt for negotiating a settlement between the parties at the instance of the well-wishers. This has been strongly refuted by the landlord in paragraph 15 of his counter affidavit contending inter alia that no such attempt was ever made for negotiating settlement for the reason that the landlord being in bona fide need of the premises there cannot be any compromise as eviction is the only remedy for him. As a matter of fact, Mr. Sengupta submits, the tenant being more than 80 years' old is not in a position to run the business from the suit premises and all his sons have been doing their own business from other buildings. The delay thus shows that the tenant initially decided not to challenge the adverse decision of the court of revision. Sengupta submits, the tenant being more than 80 years' old is not in a position to run the business from the suit premises and all his sons have been doing their own business from other buildings. The delay thus shows that the tenant initially decided not to challenge the adverse decision of the court of revision. But when the execution proceeding was set in motion he decided to gamble by making this belated approach through a petition under Article 227 of the Constitution. 8. As regards the protection in the first two provisos to Sub-section (3) of Section 12 of the Act with reference to which Mr. Biswas made a submission that the revisional court failed to discuss anything on the same, Mr. Sengupta would argue that it is the trial court which has the power to discuss whether such protections are available to the tenant in the facts and circumstances of the case in hand and once that is done by the trial court, as has been done in the present case, it is not incumbent upon the court of revision to consider those aspects again by re-assessment of the evidence and materials on record. It is the forceful submission of Mr. Sengupta that the appellate court strangely missed the observation of the trial court that the new building constructed by the landlord is for residential purpose. Even the Petitioner-tenant herein has also admitted this fact. In consideration of the fact that all the four sons of the tenant were found well established, the Petitioner himself very old and there was alternative accommodation available in the locality for the tenant to shift his business the judgment of the trial court, giving direction for eviction of the tenant had nothing for the appellate court to interfere with and the error committed by the appellate court by misreading the evidence has been rightly corrected by the court of revision, Mr. Sengupta submits. 9. From the rival positions set out above what is to be borne in mind is that this is a petition under Article 227 and the power under this article should be exercised sparingly, only to set at right manifest error, not to re-appreciate the evidence and materials on record. The judgment of the learned trial court is exhaustive. It discussed thoroughly the oral and documentary evidence. The judgment of the learned trial court is exhaustive. It discussed thoroughly the oral and documentary evidence. To decide the question of bona fide requirement the trial court has considered all the aspects both of the landlord and of tenant. It was found that - (i) the landlord has a small medicine business and his unemployed educated son is in dire need of starting a business of his own to earn his livelihood; (ii) the new building constructed by the landlord is far from the road side and cannot be a suitable place for expanding the existence business or establishing a new business. It is suitable for residential accommodation only. Thus, in spite of the new building, the bona fide need of the landlord still subsists; (iii) the tenant is a very old man and all his four sons are either in Govt. service or doing business from other premises. The tenant himself stated in the present petition that he intended to continue his business only for a short period till his end comes. Thus it cannot be said that the old man is solely depending on the income from the business carried on from the suit premises; (iv) alternative accommodation on rent is available in the same area for shifting of the business of the tenant from the present location. In the light of the above position which has emerged from the materials on record the learned trial court unhesitatingly held that the landlord required the premises for his bona fide requirement and, therefore, considering the facts and circumstances in its entirety he gave the direction for eviction of the tenant. 10. A plain reading of the judgment of the appellate court would unmistakably show that the court failed to notice that the new building constructed by the landlord is a residential building and, therefore, it cannot be good ground to take a view that the landlord or his son could extend or established business from the new building. This glaring mistake being apparent on the face of the record, the same having arisen from a wrong reading or misreading of the evidence, the court of revision has enough jurisdiction to rectify the error by exercising its power of revision under Section22 of the Act. 11. This glaring mistake being apparent on the face of the record, the same having arisen from a wrong reading or misreading of the evidence, the court of revision has enough jurisdiction to rectify the error by exercising its power of revision under Section22 of the Act. 11. It has to be further noticed that the execution case was put on place by the landlord on 7.1.2005 in execution (RCC) No. 2 of 2005 and the same was pending in Rent Control Court No. 1. It is submitted Mr. Biswas, the case was lying pending for a long period as there was no presiding officer of that court. However, when the landlord made a prayer for transfer of the case to court No. 2 which was then functioning, the tenant appeared and sought time on 27.8.2007 and utilizing the time granted he filed the present petition under Article 227 only to delay the execution proceeding. 12. As I have already observed above, the power of revision under Section 22 of the Act is wider, enabling the court of revision to interfere with any judgment and order under the said Act if there exist irregularity, illegality and impropriety. As seen above, the judgment of the appellate court is improper inasmuch as the reverse findings is based on misreading of the evidence on record regarding the utility of the new building for commercial activity. The said court has obviously over looked the position admitted by the tenant himself that the new building is only a residential building. The error being apparent on the face of the record had to be corrected by the court of revision under Section 22 of the Act. I do not find any gross illegality causing failure of justice in exercise of the revisional powers in the judgment and order impugned. 13. For the reasons and discussions aforementioned, I am unable to accept the grounds taken in this petition under Article 227 of the Constitution to interfere with the judgment of the revisional court and, therefore, this petition having no merit is hereby dismissed without any order as to cost. Petition dismissed