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2014 DIGILAW 37 (GAU)

TOLARAM KARNANI v. GIRISH CH. DUTTA

2014-01-10

A.M.SAPRE

body2014
JUDGMENT Heard Mr. G.N. Sahewalla, learned senior counsel assisted by Ms. B. Sarma, learned counsel for the petitioners. This is a revision petition filed by non-applicant (tenant) against the judgment and decree dated 7.12.2006 passed by District Judge, Jorhat in Title Appeal No.28 of 2006, which in turn arises out of judgment and decree dated 27.1.2003 passed by the Civil Judge (Junior Division) No.1, Jorhat in Title Suit No.81 of 1995. By the impugned judgment and decree, the First Appellate Court confirmed the judgment and decree passed by the Trial Court, but while doing so, reversed the finding on one issue in favour of the appellant (tenant herein) and directed eviction of the appellant-tenant from the suit accommodation under the provisions of the Assam Urban Areas Rent Control Act, 1970. The short which arises for consideration in this revision petition is whether the first appellate court was justified in confirming the judgment and decree passed by the Trial Court. The facts in the lis in narrow compass are mentioned in brief. The petitioner is a non-applicant (tenant), whereas respondent/plaintiff is a landlord. The respondent filed a suit for eviction against the appellant seeking his eviction from the suit accommodation. The eviction was sought on three grounds ; (i) bonafide requirement of the plaintiff for his own business, (ii) that the tenant has sub-let the suit accommodation to third party, and (iii) arrear of rent to the effect that the defendant failed to pay monthly rent from May 1995 onwards at the rate of Rs.800/-. The defendant-tenant filed written statement and traverse the allegation on all the grounds taken by the plaintiff for his eviction. The Trial Court framed issues and the parties adduced evidence. The Trial Court decreed the plaintiff’s suit and granted decree for eviction. It was held that the plaintiff has failed to prove the matter of sub-letting and, therefore, he is not entitled to the petitioners’ eviction on that ground. The trial court, however, held that the ground for bonafide need is made out. The trial court further held that the defendant has defaulted in making payment of rent in so far rent pertaining to the month of January 1996 was concerned and, hence, a case for declaration of defendant-tenant status as a defaulter is made out. Accordingly, decree for eviction was passed against the defendant. The trial court further held that the defendant has defaulted in making payment of rent in so far rent pertaining to the month of January 1996 was concerned and, hence, a case for declaration of defendant-tenant status as a defaulter is made out. Accordingly, decree for eviction was passed against the defendant. The petitioner feeling aggrieved of the judgment and decree passed by the Trial Court filed appeal before the District Judge. The First Appellate Court, by the impugned judgment and decree, dismissed the appeal for all practical purposes. However, the First Appellate Court reversed the finding of the trial court in so far as it was held that no case been made out. It was also held that by confirming the finding of the Trial Court that defendant i.e. the petitioner herein is a defaulter in payment of rent. It is against this judgment and decree, the defendant/non-application has filed this revision under the provisions of Section 115 of the Code of Civil Procedure. Having heard the learned counsel for the petitioner and on perusal of the records of the case, I am inclined to allow the revision petition and set aside the impugned judgment and decree passed by the Trial Court. At the outset, I am to mention that although the decree in so far as it is passed on the ground of bonafide need is concerned, the same has been reversed by the First Appellate Court holding therein that bonafide need was made out by the landlord and, therefore, and, in the absence of any challenge to this finding by the landlord in the first appeal, this issue at the instance of landlord cannot be examined to find out whether the First Appellate Court was justified in reversing the said finding in favour of the defendant. So far as the issue relating to eviction is concerned, it is now based only on the question as to whether the appellant has committed error in depositing the rent. I have perused the finding relating to commission of default in payment of the monthly rent by the defendant and noticed that the learned Trial Judge did not take into account the registered lease deed entered into between the parties which in clear terms permit the defendant to pay the rent in the manner provided therein. I have perused the finding relating to commission of default in payment of the monthly rent by the defendant and noticed that the learned Trial Judge did not take into account the registered lease deed entered into between the parties which in clear terms permit the defendant to pay the rent in the manner provided therein. The lease agreement also in clear terms provided that the tenant will be a defaulter only when he commits two consecutive defaults in payment of rent. So long as the Trial Court did not decide that the appellant committed default of the terms of the agreement, it could not have recorded a finding of tenant being a defaulter because he deposited the rent for the month of January, 1996 on 13.3.1996. Therefore, the decree relating to eviction on the ground of default of paying rent is not legally sustainable. Since this was the only point involved in the revision and the same having been set aside, the suit filed by the landlord out of which this revision arises itself was liable to be dismissed. In the result, the appeal succeeds and the impugned judgment and decree is set aside. The suit filed by the plaintiff against the defendant suffers and is hereby dismissed. No cost.