Research › Search › Judgment

Gauhati High Court · body

2009 DIGILAW 563 (GAU)

Dilip Kumar Deb v. Musstt. Atabunnessa

2009-08-13

ANIMA HAZARIKA

body2009
JUDGMENT Anima Hazarika, J. 1. Heard Mr. P.K. Roychoudhury, learned Counsel appearing for the Petitioner. Also heard Mr. B.K. Goswami, learned Senior Counsel, assisted by Ms. T. Goswami, appearing for the opposite parties. 2. The matter arises under the Assam Urban Areas Rent Control Act 1972 (hereinafter referred to as the Act). The unsuccessful tenant is the Petitioner in this revision petition. The opposite parties landlords filed a suit being Title Suit No. 32 of 2003 against the Defendant in the Court of Civil Judge (Junior Division) No. 1, Cachar, Silchar, seeking a decree for ejectment of the Defendant from the suit premises and recovery of khas possession removing all the belongings etc., on the ground of default and bonafide requirement whereof the landlord took recourse to the provision of Section 5(1)(c) and (e) of the Act for such eviction. The learned trial Court decreed the suit and on appeal by the Defendant to the learned Civil Judge No. 1 Cachar, Silchar, being Title Appeal No. 40/2007 dismissed the appeal vide judgment and order dated 30.10.2008 by affirming the judgment and decree dated 17.09.2007 passed by the learned trial Court in T.S. No. 32/2003 which is under challenge invoking power under Section 115 of the Code of Civil Procedure, 1908 (hereinafter referred to as the Code). 3. The brief facts of the case is summarized herein-below: The opposite parties herein as Plaintiffs have brought the suit for eviction of the Petitioner/Defendant from two leased out tenanted premises on the ground of default and bonafide requirement. The facts pleaded in the plaint is that by a lease deed the said two rooms were let out to the Defendant Petitioner herein for a period of 5 years with effect from 1st November 1995 at a rent of Rs. 300/- payable within the 15th day of the following months. The Defendant Petitioner as averred paid rent till the months of February 2003 for which the printed receipt was given thereof and since thereafter has defaulted in payment of rent and is thus liable to be ejected under the law. The opposite parties have further averred that the tenanted premises are bonafide required for business of her two sons Abu Mia Choudhary and Ashu Mia Choudhury and hence the suit. 4. The opposite parties have further averred that the tenanted premises are bonafide required for business of her two sons Abu Mia Choudhary and Ashu Mia Choudhury and hence the suit. 4. The Petitioner herein as Defendant contested the suit by filing written statement contending inter alia that the rent was paid till November, 2003 at an agreed amount of Rs. 300/- against which receipts were issued. Thereafter he has tendered rent for the month of December, 2003 in the first week of January 2004 which the Plaintiff refused to accept and accordingly deposited the rent in Court and as such he is not a defaulter and is protected under Section 5 of the Act. 5. In regard to the bonafide requirement the Petitioner Defendant has referred the earlier suit whereby the Plaintiff obtained decree against one Swarup Roy but the said premises were let out to other persons and as such there is no bonafide requirement and prayed for dismissal of the case. 6. On the pleadings of the parties the following issues were framed:- (1) Is there any cause of action for the suit? (2) Is the Defendant defaulter in payment of monthly rent? (3) Is the suit premises bonafide required by the Plaintiff? (4) Whether the Defendant paid rent in Court as because Plaintiff had refused to accept the same? (5) Is the Defendant liable to be evicted? (6) To what relict the Plaintiffs are entitled to? The learned Trial Court framed additional issues as because the Plaintiffs Nos. 3 to 13 were impleaded to which the Defendant filed objection stating that they are not necessary parties to the suit and there is no landlord-tenant relationship between the Defendant and the impleaded Plaintiffs. The additional issues as framed are given hereunder: (i) Whether the suit is bad for mis-joinder of parties? (ii) Whether there was/is any landlord/tenant relationship between the Defendant and the impleaded Plaintiffs? (iii) Whether the suit is beyond the provisions of Assam Urban Areas Rent Control Act, 1972? 7. During the trial the Plaintiffs examined two witnesses including the Plaintiff Nos. 2 and 5 and exhibited certain documents whereas the Defendant has also examined two witnesses including the Defendant himself and exhibited certain documents to prove their respective cases. The learned trial Court decided all the issues in favour of the Plaintiff and decreed the suit. 8. 7. During the trial the Plaintiffs examined two witnesses including the Plaintiff Nos. 2 and 5 and exhibited certain documents whereas the Defendant has also examined two witnesses including the Defendant himself and exhibited certain documents to prove their respective cases. The learned trial Court decided all the issues in favour of the Plaintiff and decreed the suit. 8. The decree passed by the learned trial Court was challenged before the appellate Court and the appellate Court affirmed the judgment and decree passed by the learned trial Court holding that the Petitioner is a defaulter since March, 2003 and the house is bonafide required by the Plaintiff which is now under challenge before this Court under Section 115 of the Code. 9. Criticising the judgment of the learned Courts below Mr. P.K. Roychoudhury, Advocate, appearing for the Petitioner has referred the pleadings averred by the parties alongwith the documents exhibited in the case and would urge that the facts pleaded by the Plaintiff relating to default in paying the rent stated from March, 2003 whereas the Petitioner paid rent upto the month of November, 2003 whereof the receipts were issued and the Petitioners provided rent receipts marked as Ext. D, D(1) to Ext. D(10). In regard to genuineness of the rent receipts the Plaintiff had filed an application praying for comparison of the handwriting and signatures of the owner appeared in receipts Nos. 77 dated 05.04.2003, 80 dated 05.05.2003, 81 dated 05.06.2003, 82 dated 05.07.2003, 83 dated 05.08.2003, 84 dated 05.09.2003, 85 dated 06.10.2003, 86 dated 05.11.2003 and 87 dated 05.12.2003 with that of admitted rent receipt Nos. 104 dated 07.02.2003 and 105 dated 07.03.2003 through an expert. The said application was rejected by the Court which prejudiced the Petitioner in proving that he was not a defaulter and would therefore urge that the issue No. 2 was erroneously decided against him, which require interference in exercise of revisional jurisdiction. 10. Mr. Roychoudhury would further urge that there is no bonafide requirement of the Plaintiff of the suit premises wherefrom she is seeking eviction. In support of his contentions the Petitioner has proved Ext. 10. Mr. Roychoudhury would further urge that there is no bonafide requirement of the Plaintiff of the suit premises wherefrom she is seeking eviction. In support of his contentions the Petitioner has proved Ext. F the judgment of Title Appeal No. 21 of 1995 to show that the Plaintiff had earlier filed a suit for ejectment of one Shri Swapan Roy and got a decree but she did not use the room for her bonafide requirement rather it was leased out to other people and in the present on text the decision relied on by the appellate Court reported in (2000) 1 SCC 679 : Raghavendra Kumar v. Firm Prem Machinery and Co. to the effect that the landlord is the best Judge of his own requirement for residential or business purpose has no relevancy and hence the issue No. 3 decided by the Courts below is perverse and requires interference in the interest of justice. 11. In support of his contentions, Mr. Roychoudhury has referred the following decisions: (i) Biswanath Rai vs. Sachidanand Singh, (1972) 4 SCC 707 (ii) Masjid Kacha Tank Nahan vs. Tuffail Mohammed, (1991) Supp. (2) SCC 270 12. Refuting the criticism, the learned Senior Counsel Mr. B.K. Goswami, assisted by Ms. T. Goswami, would urge that the relationship between the parties is of landlord and tenant. The tenant is protected against eviction if he pays the rent within time stipulated in the agreement and if occasion arose when the landlord refused to accept the rent on tender, the tenant has a right to deposit the rent in the Court within fortnight of its becoming due. In the instant case the Petitioner paid rent upto February 2003 and thereafter defaulted in paying the rent and the facts pleaded in the written statement along with the evidence on record would go to show that rent receipts vide Ext. D(1) to (8) runs contrary to Ext. 2 which is a receipt book containing pages from serial Nos. 101 to 150. Serial No. of Ext. 2(1) is 105 which is the inner foil of the rent receipt for the month of February 2003 and said receipt Ext. 2(1) is not disputed by the Defendant Petitioner and he himself affirmed the genuineness of Ext. 2(1) by producing Ext. D(10) which bears serial No. 105. Ext. D(10) is the counter foil of Ext. 2(1) and serial number 106 onwards of Ext. 2(1) is not disputed by the Defendant Petitioner and he himself affirmed the genuineness of Ext. 2(1) by producing Ext. D(10) which bears serial No. 105. Ext. D(10) is the counter foil of Ext. 2(1) and serial number 106 onwards of Ext. 2 are blank which clearly proves that the Petitioner is a defaulter. 13. Mr. Goswami, learned Senior counsel has further drawn the attention of the Court that in a case under Section 5 of the Act is the duty of the tenant to pay monthly rent to the landlord during the pendency of an ejectment suit and such a liability subsists during the pendency of eviction suit even though the default related to period after filing of the eviction suit and if tenant fails to discharge his liability the landlord shall have the right to get the decree for ejectment. In support of his contention he has referred to deposit of rent for the month of January 2006 to December 2006 vide Misc. R/C Case No. 115/2006 which was even dismissed for want of step and therefore the Petitioner is a defaulter which finds support from the decision rendered by this Court reported in Sobha Biswas and other vs. Ranjit Lodh, (2006) 1 GLT 479 14. In regard to bonafide requirement Mr. Goswami, learned Senior Counsel would urge that the cause title of the plaint after amendment would go to show that the Plaintiff Nos. 2 to 18 were arrayed as Plaintiffs in the suit and all are grown up family members and the facts pleaded and established that the tenanted premises are required for accommodation of Abu Mia Choudhury and Ashu Mia Choudhury for the purpose of business and the question of bonafide requirement cannot be set at naught in the facts and circumstances of the case, more so, when both the Courts below have concurrently held that the suit premises are bonafide required for the purpose as indicated above. 15. In support of his submissions, Mr. Goswami, learned Senior Counsel has referred the following citations: (i) Amar Bahadur Thapa and another vs. Abdul Hai and another, AIR 1970 A&N 59 (FB) (ii) Mattulal vs. Radha Lal, (1974) 2 SCC 365 (iii) Shri Sudhir Chandra Deb and another vs. Par swam Prasad Verma and other, (1991) 1 GLJ 249 (iv) Sekhar Chand Swami and other vs. India Umbrella Manufacturing Co. and other, (1997) 1 GLR 5 (v) Mudigonda Chandra Mouli Sastry vs. Bhimanapalli Bikshalu and other (1999) 7 SCC 66 16. Considered the submissions made by the parties alongwith the pleadings of the parties and the evidence on record. Admittedly relationship in regard to landlord and tenant exists in the case. The Petitioner came to occupy the tenanted premises of the landlord by executing a lease agreement. In the said agreement it was stipulated that the rent is to be paid within 15th day of the succeeding month. The opposite parties landlord has averred that the Petitioner paid the rent upto February 2003 and thereafter he defaulted in paying the rent. The opposite parties have proved during the evidence vide Ext. D(9) and Ext. D(10) that the rent has been paid for the month of January 2003 and February 2003 and she has proved Ext. 2(1) the rent receipt of February 2003 and Ext. 2(2) is the signature of Defendant tenant. The opposite parties have further proved in evidence vide Ext. 2 which is a receipt book containing pages from serial Nos. 101 to 150 and serial No. of Ext. 2(1) is 105 which is the inner foil of the rent receipt for the month of February 2003 which has not been disputed by the Petitioner during the evidence. On the other hand, the Petitioner affirmed the genuineness of Ext. 2(1) by producing Ext. D(10) which bears the serial Nos. 105 and Ext. D(10) is the counter foil of Ext. 2(1) and serial No. 106 onwards of Ext. 2 are blank which supports the case of the opposite parties/landlady that the Petitioner has defaulted in making the rent from March, 2003. 17. Now let us consider how far the Petitioner proved his case of payment of monthly rent upto November 2003. The Petitioner has introduced the rent receipts vide Ext. D(1) to Ext. D(8) which are not genuine as alleged by the opposite parties. Therefore the burden shifts to the Defendant Petitioner to prove the genuineness of Ext. D(1) to D(8). But the Petitioner failed to prove even to examine the signatures appearing in Ext. D, D(l) to Ext D(8) with that of the signatures appearing in other admitted receipts during the evidence on trial. 18. Therefore the burden shifts to the Defendant Petitioner to prove the genuineness of Ext. D(1) to D(8). But the Petitioner failed to prove even to examine the signatures appearing in Ext. D, D(l) to Ext D(8) with that of the signatures appearing in other admitted receipts during the evidence on trial. 18. Moreover, even if the Court accepts that the rent receipts are genuine as proved by the Petitioner yet another question of statutory obligation to pay the rent during the pendency of ejectment suit subsists and the admitted facts would show that the Petitioner fails to discharge his liability and the landlord has the right to get the decree for ejectment. The Misc. R/C Case No. 115/06 would show that the case was dismissed for want of steps and the Court has no hesitation to hold that the Petitioner is a defaulter during the pendency of the ejectment proceeding and he cannot get the protection under Section 5 of the Act which finds supports from the decision rendered by the Division Bench of this Court reported in Sobha Biswas (supra). 19. The decision reported in (1972) 4 SCC 707 (supra) as referred to by the learned Counsel for the Petitioner, relates to election trial whereby the Apex Court referring to Order XVI Rule 4 of the Code has held that if relevancy or admissibility of a letter could be judged by the Court at the last stage of delivering the judgment, Courts examination of the author of the letter as its own witness is not called for and therefore interested party could have examined him as his witness. By the aforesaid reference the counsel wants to draw inference of the petition No. 440/04 whereby the Plaintiffs have prayed for comparison of the handwriting and signatures appearing in receipt Nos. 77 dated 05.04.2003, 80 dated 05.05.2003, 81 dated 05.06.2003, 82 dated 05.07.2003, 83 dated 05.08.2003, 84 dated 05.09.2003, 85 dated 06.10.2003, 86 dated 05.11.2003 and 87 dated 05.12.2003 and 105 dated 07.03.2003 through an expert which has been rejected. However, the Petitioner has cross-examined the Plaintiffs witnesses but failed to bring anything contrary to the evidence on record, more particularly with regard to Ext. (9) and Ext. However, the Petitioner has cross-examined the Plaintiffs witnesses but failed to bring anything contrary to the evidence on record, more particularly with regard to Ext. (9) and Ext. (10) whereby the Plaintiffs have proved the rent receipts for the months of January, 2003 and February, 2003 from which it is unhesitatingly can be held that the Petitioner is a defaulter and the decision referred to would not support his case. By referring the decision reported in (1991) Supp. (2) SCC 270 i.e. Masjid Kacha Tank (supra), the learned Counsel for the Petitioner tried to impress upon the Court that the issue Nos. 2 and 3 decided in the affirmative by both the Courts below are perverse and the non-consideration of genuineness of Ext. D, Ext. D(1) to Ext. D(8) in regard to acceptance of rent by the opposite parties is a jurisdictional error which require interference under Section 115 of the Code. However, in Masjid Kacha Tank (supra), the Apex Court has held that High Court in revision cannot appreciate the evidence and set aside the concurrent findings of the Courts below by taking a different view. The Apex Court further held that interference with findings of fact only justified if perverse or if there was non-appreciation or non-consideration of the materials on record. This is exactly the case in hand. This Court finds no perversity or jurisdictional error in the findings of facts arrived at by both the Courts below. Therefore, interference under Section 115 of the Code does not arise in the facts and circumstances of the case. 20. On the other hand, the learned Senior Counsel, appearing for the opposite parties had referred (1974) 2 SCC 365 whereby the Apex Court has held that the question of bonafide requirement do not involve the application of legal principles to the facts established in the evidence. In the present case in hand, the findings arrived at by both the Court's below on the issue of bonafide requirement are questions of fact which do not require any interference in the facts and circumstances of the case. In the present case in hand, the findings arrived at by both the Court's below on the issue of bonafide requirement are questions of fact which do not require any interference in the facts and circumstances of the case. The other reference reported in AIR 1970 A&N 59 (supra) relates to interpretation of Section 6(1)(e) and (4) Assam Urban Areas Rent Control Act, 1963, whereby the Full Bench of this Court has held that once a default in paying the rent is always a default and the landlord can bring the suit for eviction in case of default in paying the rent and on refusal of accepting the rent by the landlord the tenant has an option to deposit the rent within fortnight of its becoming due meaning thereby the Petitioner is liable for eviction in the instant case since he is a defaulter. In the case reported in (1991) 1 GLJ 249 (supra) relates to deposit of rent where die landlord refused to accept the lawful rent offered by the tenant as provided under Section 5(4) of the Act and there is no ambiguity with the decision cited. The other decision reported in (1997) 1 GLR 5 (supra) relates to bonafide requirement whereby the Court has held that rigorous view to prove the bonafide requirement should not be taken in a case under the provision of Section 5(4) of the Act. The decision referred to and reported in (1999) 7 SCC 66 relates to revisional power of the High Court whereby the Apex Court has held that concurrent findings of facts do not require to be interfered with where no legal infirmity has been pointed out and it is not open to High Court in exercise of revisional jurisdiction to reassess the evidence and interfere with such findings. 21. Heard the learned Counsel appearing for the parties at length. Perused the materials available on record as well as decisions cited by the learned Counsels. Upon perusal of the impugned judgments, I found that considering the matter in its entirety and keeping in view the pleadings of the parties and issues framed on the basis thereof viz. the default in paying the rent and the bonafide requirement i.e., issue Nos. Perused the materials available on record as well as decisions cited by the learned Counsels. Upon perusal of the impugned judgments, I found that considering the matter in its entirety and keeping in view the pleadings of the parties and issues framed on the basis thereof viz. the default in paying the rent and the bonafide requirement i.e., issue Nos. 2 and 3, the learned trial Court whereof after referring to the evidence has given a clear finding that the Petitioner is a defaulter and the suit premises are bonafide required by the Plaintiff which has been affirmed by the appellate Court. Considering the power under Section 115 of the Code, this Court do not find any legal infirmity of the judgment passed by both the Courts below. 22. In the result the revision petition is found to be devoid of any merit and the same is dismissed. Parties are left to bear their own costs. 23. However a request has been made by Mr. Roychoudhury, learned Counsel appearing for the Petitioner that the Petitioner may be allowed some time to vacate the suit premises. The request is accepted, subject to undertaking that the Petitioner would vacate the suit premises within (4) four months from today and shall pay the lawful rent for every month. Such undertaking be filed before the learned trial Court. Failure of vacating the suit premises within the aforesaid period of four months, the decree holder is at liberty to execute the decree. Petition dismissed.