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2014 DIGILAW 61 (GAU)

RAMKRISHNA MISSION v. SAGARMOY DEY

2014-01-20

A.M.SAPRE

body2014
JUDGMENT This is a civil revision filed by the plaintiff/landlord under Section 115 of the Code of Civil Procedure against the order 19.5.2007 passed in Title Appeal No.5 of 2005 by Civil Judge, Karimganj, which, in turn, arise out of the order dated 3.12.2004 passed by Civil Judge (Jr. Division) No.1, Karimganj in Title Suit No.40 of 2004. By impugned order, the first appellate court dismissed the appeal filed by the petitioner herein and affirmed the judgment/decree passed by the trial court which had dismissed the suit filed by the petitioner against the respondent for his eviction from the suit house. So the short question, which arises for consideration in this revision petition, is whether two courts below were justified in dismissing the plaintiff’s suit for eviction filed against the defendant (respondent herein) from the suit house? Facts of the case lie in a narrow compass. They however need mention in brief infra. The petitioner is a plaintiff whereas the respondent is the defendant. The dispute in this case relates to and arises out eviction of the respondent from the suit house. The petitioner (plaintiff) filed a suit out of which this revision arises against the respondent (defendant) claiming (respondent’s /defendant’s) eviction from the suit house. The suit was filed under the provisions of the Assam Urban Areas Rent Control Act, 1972 (for short hereinafter called “the Act”). It was inter alia averred in the plaint that plaintiff is a charitable society engaged in several charitable activities in the State to carry out their Societies objects. It was averred that plaintiff is the owner/landlord of the suit house, whereas the defendant is their tenant occupying the suit house at the rate of Rs.800 per month for his personal use. The eviction of respondent was sought on the ground that plaintiff’s requires the suit house for setting up of one charitable dispensary including eye care hospital on the suit land. It was alleged that plaintiff would demolish the suit house and then construct a multistoried building after demolishing the superstructure. The eviction of respondent was sought on the ground that plaintiff’s requires the suit house for setting up of one charitable dispensary including eye care hospital on the suit land. It was alleged that plaintiff would demolish the suit house and then construct a multistoried building after demolishing the superstructure. It was alleged that defendant did not pay rent for the period specified in the plaint and hence he has become defaulter under the Act and accordingly rendered himself liable to suffer eviction from the suit house on two grounds – namely, plaintiff’s bonafide need for personal use and for non-payment of monthly rent by the defendant to the plaintiff of the suit house. The defendant denied the existence of both the grounds and contended that alleged need set up by the plaintiff is neither genuine and nor bonafide. It was also alleged that he is not in arrears of rent and hence not a defaulter under the Act. It is these issues which were tried by the trial court on merits on the basis of pleadings of the parties. The parties adduced evidence. The Trial court by its judgment and decree dated 3.12.2004 dismissed the plaintiff’ suit. It was held that plaintiff’s need is not made out and hence no decree can be granted on such ground. It was also held that defendant was not in arrears. With these findings, the suit was dismissed. The plaintiff felt aggrieved filed the first appeal before the first appellate court out of which this revision arises. The appellate court upheld the judgment and decree of the trial court and dismissed the appeal giving rise to filing of the revision by the plaintiff. Heard Mr. D. Mazumdar, learned counsel for the petitioner and Mr. B.R.Dey, learned counsel for the respondent. Having heard the learned counsel for the parties and on perusal of the record of the case, I am inclined to dismiss the revision as in my view, the revision has no merit. In the first place the question as to whether plaintiff’s need is bonafide or/and whether defendant is in arrears etc is essentially the questions of fact. These issues therefore need to be decided and proved by the parties with the aid of oral and documentary evidence. In the first place the question as to whether plaintiff’s need is bonafide or/and whether defendant is in arrears etc is essentially the questions of fact. These issues therefore need to be decided and proved by the parties with the aid of oral and documentary evidence. Once any finding is rendered by the trial court and affirmed by the appellate court, then such finding becomes a concurrent finding of fact and binding on the revisionary court, while hearing revision under Section 115 of the Civil Procedure Code. It is only when such finding, though concurrent, is found to be rendered against the pleadings or evidence or any provision of law or when it is found to be so perverse to the extent that no judicial man of average capacity can ever record, a case for interference in revisional jurisdictional in such finding may be held made out, but not otherwise. Coming now to the facts of this case, when I perused the two judgments under consideration, I have not been able to notice any kind of such error so as to enable me to interfere in the impugned order in my revisional jurisdiction. In my view, the appellate court did appreciate the evidence on all material issues for sustaining the finding of the trial court. The finding of the two courts was such that it was capable of being recorded on the evidence adduced. The two courts below held and in my opinion rightly that since the plaintiff did not even file any document such as- estimate, sanctioned map for construction of multistoried hospital and further any document to show as to whether they had with them requisite money to construct such a super speciality hospital it cannot be held that their need is real, bonafide and genuine for construction of hospital, but it was only a mere desire. In my opinion, the reasoning and the conclusion of the two court’s in recording this finding against the plaintiff apart from being concurrent and binding is otherwise just, legal and proper calling no interference. In my opinion, the reasoning and the conclusion of the two court’s in recording this finding against the plaintiff apart from being concurrent and binding is otherwise just, legal and proper calling no interference. In order to prove that plaintiff’s need was bonafide, real and genuine for construction of the hospital on the land in question, it was necessary for the plaintiff to have proved that firstly they had obtained a sanctioned map for construction of such hospital from the Municipal Authorities, and from all other agencies involved in granting permission for construction of such a big hospital: secondly adequate funds needed for making such constructions should have been proved that they are available and lastly whether plaintiff’s have arranged for sufficient staff to run such hospital after its completion or/and what planning and arrangements are made by them to run such hospital once it is complete. No evidence was filed to prove any of these material facts. As rightly held by the two courts below, the plaintiff filed only the copy of the resolution by which the decision was taken to construct the hospital on the suit land after demolition of the suit house let out to the respondent/defendant. It was not at all enough. In the absence of any evidence regarding sanctioned map, estimate, availability of funds with the plaintiff, the two courts below rightly dismissed the suit holding that no decree for eviction could be passed on such ground. I respectfully concur with the findings of two courts below. So far the issue relating to the arrears of rent was concerned; this issue also was answered by the two courts against the plaintiff (petitioner) and in my view rightly for want of any evidence against the respondent. I find no good ground to go into factual matrix. Before parting with the case, I consider it apposite to mention that petitioner would be at liberty to file a fresh suit seeking defendant’s eviction on the ground of their bonafide need and if they are able to prove it with reference to the facts pleaded and evidence adduced in support thereof, the impugned judgment would not come in their way while prosecuting the fresh suit. In view of foregoing discussion, I find no merit in this revision petition. The revision, thus, fails and is accordingly dismissed. No cost.