Research › Search › Judgment

Gauhati High Court · body

2014 DIGILAW 95 (GAU)

LAXMI HAZARIKA v. MANJUR ALI

2014-01-24

A.M.SAPRE

body2014
JUDGMENT This is a civil revision filed by the plaintiff/landlord under Section 115 of the Code of Civil Procedure Code against the order dated 30.3.2005 passed in Title Appeal No.23/2004 by Civil Judge (Sr. Division), Sibsagar which in turn arise out of the judgment/decree dated 16.11.2004 passed by Civil Judge (Jr. Division) No.1, Sibsagar in Title Suit No.9/93. By impugned order, the first appellate court reversed the judgment and decree passed by the trial court which had decreed plaintiff’s suit for eviction against the defendant and while allowing the defendant’s appeal dismissed the plaintiff’s suit. So the question which arises for consideration in this revision petition is whether first appellate court was justified in allowing the defendant’s appeal which resulted in dismissal of plaintiff’s suit? Facts of the case are these:- The petitioners are the plaintiffs whereas the respondent is the defendant. The petitioners (plaintiff’s) claiming to the Owners and the landlords of the suit accommodation through their predecessor in title namely - late – Chitra Nath Hazarika and other filed a suit out of which this revision arises against the respondent (defendant). The suit was filed for eviction of the respondent from the suit accommodation (shop) under the provisions of The Assam Urban Areas Rent Control Act 1972 (for short hereinafter called The Act). It was interalia averred in the plaint that plaintiff’s predecessor in title – namely late Chitra Nath Hazarika was the owner and landlord of the suit accommodation and had inducted the defendant as his tenant in the suit accommodation on a monthly rent of Rs. 600. It was alleged that on his death, the respondent (defendant) became the plaintiff’s tenant by operation of law. It was alleged that plaintiffs are in need of suit accommodation for their personal need and especially for the need of plaintiff no 1 (lady) having no independent source of her own after the death of her late husband. It was alleged that plaintiff therefore wants to start a business of opening of a shop – lady’s corner to maintain herself and her family. It was also alleged that respondent (defendant) is in arrears of rent for the period from 1.1.1992 to June 1993 and hence being the defaulter in payment of rent has rendered himself liable for his eviction from the suit accommodation. It was also alleged that respondent (defendant) is in arrears of rent for the period from 1.1.1992 to June 1993 and hence being the defaulter in payment of rent has rendered himself liable for his eviction from the suit accommodation. In this way, the eviction was sought by the plaintiff of the respondent (defendant) from the suit accommodation on two grounds viz under Section 5 (1) (C) and (e) of the Act i.e. – bonafide requirement of the petitioner/plaintiff to start the business for her survival and livelihood and secondly for non-payment (arrears of rent) by the respondent/defendant to the petitioner/plaintiff for the period mentioned in the plaint. The respondent/defendant filed his written statement. The case of the defendant in the written statement is set out by the first appellate court in the impugned order in para 7 and 8 in the following words and I consider it apposite to reproduce the same herein below for convenience. “ The specific case of the defendant is that he is in occupation of the disputed suit house since in the year 1979 as a tenant under one Sri Parimal Hazarika since deceased, the brother of late Chitra Nath Hazarika, who is also known as Chitra Ranjan Hazarika, the deceased husband of the plaintiff No.1. The said Chitra Nath Hazarika @ Chitra Ranjan on 29-10-84 sold 1 ½ locha of land duly mutated in the name of defendant vide order dated 21.6.88 passed by the Circle Officer, Sivasagar Revenue Circle in mutation case No.277/87-88. Accordingly, defendant constructed with C.I. sheet roof, pucca wall room over this land which comprises the part of the suit house. Hence, the defendant is the lawful owner of the part of the suit house as it comprises the said land; so sold by the deceased husband of plaintiff No.1 in favour of the defendant. 8. Defendant admitted the fact that the agreement was entered into between the plaintiff No.1 and the defendant on 1-9-90 regulating the tenancy which was continuously subsisting at the time of execution of the agreement. Defendant further stated in his written statement that late Chitra Nath Hazarika @ Chitra Ranjan during his life time and during the subsistence of the tenancy had received Rs.1,000/- ; Rs.8,000/- & Rs. 2,000/- on 31-3-81, 21-2-84 & 12-6-85 respectively from the defendant as advance of rent with a promise to adjust the amount from the payable monthly rent. Defendant further stated in his written statement that late Chitra Nath Hazarika @ Chitra Ranjan during his life time and during the subsistence of the tenancy had received Rs.1,000/- ; Rs.8,000/- & Rs. 2,000/- on 31-3-81, 21-2-84 & 12-6-85 respectively from the defendant as advance of rent with a promise to adjust the amount from the payable monthly rent. Defendant also stated that plaintiff No.1 also received money in advance existing the amount of payable rent from the defdt. It is further contended by the defdt. The plaintiff No.1 in violation of the terms of Regd. Deed of Agreement dtd. 1-9-90 had received the full monthly rent from Sept/90 onward to Feb/91 from the defdt. Without adjusting the advance amount; but started adjusting Rs.200/- from the payable monthly rent of Rs.600/- towards the liquidation of the advance amount of Rs.5,600/- from March/91 to Dec/92, leaving thereby a balance of Rs.1200/- which is yet to be paid by the plaintiff No.1. Defdt. Also stoutly denied that he had stopped payment of his monthly rent w.e.f. January/93. Defdt. Stated that he is not a defaulter and as such, the contentions so raised by the plaintiff No.1 cannot hold good under law. Hence, defendant prayed to dismissed the suit with costs.” The trial court on the basis of aforesaid pleadings framed as many as 8 issues and called upon the parties to adduce evidence. It was done. The Trial court then answered the issues in plaintiff’s favour and accordingly decreed the suit by granting decree for possession. The defendant felt aggrieved of the judgment /decree of the trial court filed first appeal. By impugned order, the first appellate court allowed the appeal and while reversing the judgment/decree of the trial court dismissed the plaintiff’s suit. It is against this reversing judgment/decree, the plaintiff has felt aggrieved and filed this revision. Heard Mr. Sheeladitya, learned counsel for the petitioners. Also heard Mr. GN Sahewalla, learned senior counsel assisted by Ms. B Sarma, 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 allow the revision and while setting aside of the impugned order/judgment remand the case to the first appellate court to decide the appeal afresh on merits. B Sarma, 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 allow the revision and while setting aside of the impugned order/judgment remand the case to the first appellate court to decide the appeal afresh on merits. The need to remand the case to the first appellate court is considered necessary for the reason that firstly the court below erred in deciding the issue of title of ownership of the suit house in a suit for eviction filed under the provisions of the Act. This the court below could not do. Secondly, it being the settled principle of law laid down in series of case by the Supreme Court (see (1995) 6 SCC 580 , Dr. Ranbir Singh vs. Asharfi Lal, (2000) 8 SCC 123 Shamim Akhtar vs. Iqbal Ahmed & another, (2006) 5 SCC 532 Bhogadi Kannababu & Ors vs. Vuggina Pydamma & Ors.) that in a eviction case filed under the Rent laws, the court cannot decide the title/ownership of the parties over the suit house, the court below in this case should not have converted the eviction suit into a regular title suit by enlarging its scope and jurisdiction by proceeding to record a finding of ownership. Thirdly and as stated above, the court below seemed to have concentrated more on the issue of ownership/title of the parties rather than to decide the issues relating to the eviction arising under the Act with a view to find out as to whether plaintiff was able to make out the grounds falling under Section 5(1) (C) and (e) to claim decree for defendant’s eviction from the suit house and whether there existed relationship of landlord and tenant between the parties. Indeed in a suit for eviction filed under Section 5 of the Act, the court was only entitled to confine its inquiry to the issues arising under the Act to find out as to whether plaintiff was able to discharge his/her burden by making out a case falling under any of the clauses of Section 5 (1) thereby entitling him/her to claim decree for eviction of his/her tenant from the suit accommodation. In this case and as observed supra, I notice that the court below mixed up both the issues namely the issues relating to eviction under the Act and the issue of ownership of the suit accommodation set up by the defendant and then proceeded to decide both in defendant’s favour. This in my view was not permissible in an eviction suit as has been laid down by the Supreme Court in aforementioned cases. In other words, the intricate and complicated issues of title could be decided by the court only in regular title suit but not in a suit filed for eviction by the landlord against his tenant under the Tenancy Laws. In other words, while deciding the matter of this nature, the court below could not keep in mind the distinction, scope and jurisdiction of the court while trying the suit filed for eviction under the Act and the suit for declaration of title of any immovable property i.e. title suit and mixing the both in one suit proceeded to record finding on all the issues. It is for all these reason, I am unable to concur with the findings of the court below on any of the issues and consider it just and proper to remand the case for its fresh decision on merits. As a consequence of the foregoing discussion, the revision succeeds and is allowed in part. The impugned order is set aside. The appeal out of which this revision arises is restored to its file before the first appellate court. The first appellate court will decide the appeal afresh on merits keeping in view the observations made above and also keeping in view the law laid down by the Supreme Court in aforementioned cases. Let the appeal be decided within six months from the date of party’s appearance. Parties to appear before the first appellate court on 3rd March 2014 to enable the concern court to decide the appeal as directed. Record of the case be sent back to the concerned court below by the registry of the High Court so as to reach to the court below before the date of parties appearance. No cost.