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2014 DIGILAW 429 (GAU)

SUBHASH CHANDRA SAHA v. NAWRATAN MAL SURANA

2014-04-09

A.M.SAPRE

body2014
JUDGMENT AND ORDER This is a civil revision filed by the defendant/tenant under Section 115 of the Code of Civil Procedure against the judgment/decree dated 14.12.2004 passed by Civil Judge (Senior Division), Dhubri in Title Appeal No.36 of 2001 which in turn arise out of judgment/decree dated 4.8.2001 passed by Civil Judge (Junior Division No.II) Dhubri in Title Suit No.77 of 1990. By impugned judgment/decree, the first appellate court affirmed the judgment/decree passed by the trial court and accordingly confirmed the eviction decree passed by the trial court against the petitioner and in respondent’s favour in relation to the suit accommodation. So the short question, which arises for consideration in this revision petition is whether two courts below were justified in decreeing plaintiff’s suit for eviction against the defendant in relation to the suit accommodation on the grounds pleaded in the plaint? Facts of the case are these:- The petitioner is the defendant whereas the respondent is the plaintiff. It is an eviction matter governed by the provisions of The Assam Urban Areas Rent Control Act 1972 (for short called “The Act”). The respondent is the landlord/plaintiff whereas the petitioner is his tenant/defendant. The respondent/plaintiff (landlord) filed a suit out of which this revision petition arises against the petitioner/defendant (tenant) for his eviction from the suit accommodation in the civil court under the provisions of the Act. The eviction was sought on three grounds namely - (1) default in paying monthly rent by the petitioner/defendant to the respondent/plaintiff (2) bonafide requirement of the respondent/plaintiff of the suit accommodation and (3) sub-letting of the suit accommodation by the petitioner /defendant to one Santu Sahu, Jiban Das and Subhash Saha. The respondent/plaintiff also pleaded necessary facts in support of the three grounds to seek the eviction from the suit accommodation. It was alleged that since all the three grounds fall under Section 5 of the Act and satisfies its requirement and hence the decree for eviction against the petitioner (tenant) on all the three grounds be passed in relation to the suit accommodation. The petitioner/defendant while admitting the existence of relationship of landlord/tenant between him and the respondent/plaintiff denied the grounds pleaded in the plaint for his eviction from the suit accommodation. The petitioner/defendant while admitting the existence of relationship of landlord/tenant between him and the respondent/plaintiff denied the grounds pleaded in the plaint for his eviction from the suit accommodation. According to petitioner/defendant, none of the grounds pleaded by the respondent/plaintiff in the plaint were made out on facts as required under Section 5 ibid and hence no decree for eviction could be passed against him. In other words, according to the petitioner/defendant, so far as the ground relating to default in payment of monthly rent was concerned, he having paid the monthly rent of the period in question to the plaintiff or/and deposited the same in court, there were no arrears outstanding and nor there was any default on his part in paying or tendering the monthly rent within the meaning of Section 5 ibid and hence no ground treating him to be in arrears of payment of monthly rent was made out within the meaning of Section 5 ibid. So far as grounds in relation to bonafide need was concerned, it was also denied contending inter alia that that there was no bonafide need as alleged by the respondent/plaintiff and hence no decree for eviction on the ground of bonafide need could be passed under Section 5 of the Act and lastly: so far as the ground relating to sub-letting was concerned, it was denied contending that there was no sub-letting effected by the petitioner/defendant in favour of any persons so as to attract the ground under Section 5 ibid. This is how; the petitioner on facts/law joined the issue with the respondent/plaintiff against all the three grounds and opposed the prayer for his eviction from the suit accommodation. Party’s adduced evidence. The learned Civil Judge by his judgment/decree dated 4.8.2001decreed the suit and accordingly passed the eviction decree against the petitioner/defendant on two grounds namely - default in not paying the monthly rent and secondly: on the ground of sub-letting. So far as the ground of bonafide need was concerned, it was held as not made out. In this way, the decree for eviction was passed on the two grounds and denied on one ground. The petitioner/defendant felt aggrieved of the aforesaid judgment/decree filed first appeal to the appellate court. The first appellate judge dismissed the appeal and affirmed the judgment/decree of the trial court. In this way, the decree for eviction was passed on the two grounds and denied on one ground. The petitioner/defendant felt aggrieved of the aforesaid judgment/decree filed first appeal to the appellate court. The first appellate judge dismissed the appeal and affirmed the judgment/decree of the trial court. So far as the ground of bonafide need was concerned, the same was also held as not made out and in this view of the matter and the finding of the trial court on this ground was also upheld. The petitioner/defendant felt aggrieved filed the present revision against the aforesaid judgment/decree under Section 115 of the code of civil procedure. Having heard the learned counsel for the parties and on perusal of the record of the case, I am inclined to allow the revision in part and while setting aside the impugned appellate court’s judgment/decree, remand the case to the appellate court for deciding the first appeal afresh on merits as indicated infra. The need to remand the case to the appellate court has occasioned due to the reason that first appellate court while hearing the appeal neither referred to and nor appreciated the entire oral and documentary evidence adduced by the parties and in particular the one adduced by the petitioner/defendant while opposing the ground of default in paying the monthly rent and also of the ground relating to subletting. Any finding, if rendered in ignorance of evidence or when it is found to have been rendered on improper appreciation of documentary evidence and that too without examining the requirement of Section 5 of the Act is neither legally and nor factually sustainable. It is the duty of the appellate court while hearing the first appeal to examine and appreciate the issue both on facts, law and evidence independent to that of the findings of the trial court because it enjoys concurrent jurisdiction over the entire subject matter of suit dehores the finding of the trial court. It is the duty of the appellate court while hearing the first appeal to examine and appreciate the issue both on facts, law and evidence independent to that of the findings of the trial court because it enjoys concurrent jurisdiction over the entire subject matter of suit dehores the finding of the trial court. It must appear from the judgment that the appellate court examined the issue, appreciated the oral/documentary evidence in its proper perspective keeping in view the requirement of Section 5 with a view to find out as to whether the grounds taken by the plaintiff satisfies the requirements of Section 5 for granting decree and if so how and if not then why and then come to its independent conclusion which may be of affirmance or reversal. If this not found to have been done by the appellate court then such judgment is not legally sustainable. When I peruse the impugned appellate court’s judgment, I notice that the appellate court did not discuss and nor appreciate the entire evidence and especially of the one adduced by the petitioner/defendant on the issue of default in payment of rent and of the subletting. If the case of the petitioner/defendant was that he has paid/tendered/deposited in court the alleged arrears of rent, and in support thereof had filed certain documents to prove the factum of payment (be that of payment directly to the plaintiff or tender of rent directly to respondent or deposit in court), the court should have recorded a clear cut finding after evaluating the entire evidence as to whether, how, in what manner and to what extent, the defense of the defendant was capable of being acceptable and whether in the light of evidence adduced, could the court come to a conclusion that entire arrears of rent for the period in question have been paid by the petitioner/defendant and if so when, how and in what manner and whether in the light of this, no case was made out under Section 5 for passing a decree of eviction decree on such ground ? The issue in my view was not examined keeping in view these material requirements by the appellate court and it cursorily went into this issue without even referring to requirement of Section 5 for making out the grounds, and without taking note of any case law on the subject and whether in the light of such requirement, a decree for eviction on facts could be passed or not? The same was the case with respect to the ground relating to sub letting. The appellate court did not take note of requirement of Section 5 which provides are of the ground for passing the decree for eviction against the defendant/tenant on the ground of subletting and nor it took into consideration the case law on the subject as to what constitute the subletting, and parting away of exclusive possession in favour of any third party without the consent of plaintiff/landlord. In the light of foregoing discussion, I cannot subscribe the view of the appellate court who did not discharge his appellate duty as first appellate court while deciding the appeal and hence interference in the impugned judgment is called for. It being a jurisdictional issue, the same is capable of being interfered with in my revision jurisdiction. To conclude, the revision succeeds and is allowed in part. The impugned order is set aside and the appeal out of which this revision arises be restored to its file for hearing on merits. The appellate court would decide the appeal afresh on merits within three months because it is an old tenancy matter relating to eviction. Needless to say I have not expressed any opinion on the merits of the case and hence the appellate court would decide the appeal strictly on merits in accordance with law uninfluenced by any of my observations on merits which I have refrained from making once I formed an opinion to remand having found material discrepancies in the approach of the appellate court in deciding the appeal. Parties to appear before the appellate court on 28th April, 2014 to enable the appellate court to decide the appeal as directed. The registry is directed to send back the original record of the case to the appellate court forthwith so as to reach there before the date fixed for party’s appearance. No cost.