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2014 DIGILAW 235 (GAU)

SARAWGI TRADING v. GINI DEVI AGARWALA

2014-02-26

A.M.SAPRE

body2014
JUDGMENT Heard Mr. D. Chakraborty, learned counsel for the petitioner. This is a civil revision filed by the defendant (tenant) under Section 115 of Civil Procedure Code against the order dated 22.01.2014 passed by Civil Judge, Dhubri in Title Appeal No.43 of 2011 which in turn arise out of judgment dated 11.3.2011 passed by Munsiff No.1, Dhubri in Title Suit No.236 of 2007. By impugned order, the first appellate court dismissed the petitioner’s appeal and affirmed the judgment and decree of the trial court for eviction of the petitioner from the suit house. So the question, which arises for consideration in this revision petition is whether two courts below were justified in decreeing plaintiff’s claim for eviction against the respondent from the suit house on the two grounds taken for eviction of the defendant under the provision of Assam Rent Control Act? It is an eviction matter. The respondent – a widow after the death of her husband inherited the suit house and became the owner and the landlady of the suit house which was let out to the petitioner on a monthly rent of Rs. 251 way back in late sixties by her husband. She as petitioner’s landlady filed a suit against the petitioner claiming his eviction from the suit accommodation interalia on the ground of her bonafide need for her own use and also on the ground of defaults committed by the petitioner (tenant) in payment of monthly rent for a particular period. On contest, the trial court decreed the suit and passed the decree for eviction against the petitioner on the grounds taken by the respondent for claiming eviction. The petitioner then filed the appeal out of which this revision arises. The lower appellate court concurred with the findings of the trial court and dismissed the appeal which gave rise to filing of the revision by the defendant. Having heard the learned counsel for the petitioner and on perusal of the record of the case, I am inclined to dismiss the revision as in my opinion, it does not involve any question of law and what is involved in this case is a pure question of fact and that too concurrent in nature and hence binding on the revisionary court. When the two court i.e. the trial court and the first appellate court on facts decide the factual issue arising in the case namely - whether there exists bonafide need and whether the tenant is a defaulter in payment of rent in plaintiff’s favour and against the defendant then such finding of fact being concurrent in nature is binding on the revisionary court. It is only when the concurrent finding is found to be totally dehores the record, or against the evidence or against any provision of law or is so perverse that no judicial man of average capacity can ever record, interference in revisionary jurisdiction may be called for but not otherwise. Such does not appear to be a case here because perusal of the two courts’ finding would go to show that it was capable of being returned on one set of evidence adduced by the parties and was accordingly properly returned making it binding on the revisionary court while hearing revision under section 115 ibid. Though learned counsel for the petitioner vehemently argued on facts and wanted to refer to the oral evidence of the parties on the two issues on which the impugned decree was passed with a view to show that findings are perverse but I am afraid, I can entertain his submission while hearing the revision. In my humble view, it is not possible to travel in the evidence and nor it is possible to appreciate the evidence for recording finding in defendant’s favour. If I do it then It will amount to exercising that jurisdiction which I do not possess. I therefore do not elaborate his submission and accordingly reject it. The revision thus fails and is accordingly dismissed. However, the petitioner is granted three months time from the date of this order to vacate the suit house and handover its vacant possession to the respondent. The petitioner shall deposit in advance within one month from today three months rent by way of damages for use and occupation. On such deposit being made, alone, the petitioner will be allowed to occupy for three months and the respondent will be entitled to withdraw the same. Failure to deposit will enable the respondent to execute the decree forthwith on the expiry of fifteen days. No cost.