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2015 DIGILAW 124 (GAU)

DINA NATH DAS v. MADHAB CH DAS

2015-02-05

HRISHIKESH ROY

body2015
ORDER (ORAL) Heard Mr. PK Roy Choudhury, the learned counsel appearing for the petitioner, who as a tenant filed the T.S. No.45/1994, for a declaration that the tenancy continues under the defendant No.1 with a further prayer for mandatory injunction for removal of the obstruction to the suit premises caused on 13.8.1994 by the defendants. After the defendants (landlord) appeared, the counter claim was filed for ejectment on the ground of bona fide requirement and rent default. The learned counsel Mr. BK Bhagabati appears for the respondents (landlord). 2. The learned Civil Judge (Sr. Divn.), Barpeta, after consideration of the pleadings, framed the following 7 issues:- 1. Whether there is any cause of action for the suit? 2. Whether the plaintiff is a tenant under the defendant? 3. Whether defendant No.1 entered into an agreement with the plaintiff on 19.10.91 for a fixed period from 1.10.91 to 31.8.92 without the acquiescence of their legal heirs of late Krishna Kt. Das @ 650/- p.m.? 4. Whether the plaintiff is a defaulter in respect of the suit premises? 5. Whether the defendants are entitled to khass possession of the suit premises by evicting the plaintiff? 6. To what other relief or reliefs if any the parties are entitled? 7. Whether the suit house is bona fide required by the defendant? 3. During the trial, the tenant examined three witnesses including himself and exhibited documents, whereas the defendant/landlord examined himself and also exhibited few documents. 4. The Trial Court held that cause of action was present for the suit and further declared that tenancy of the plaintiff existed since 1985 even prior to the written agreement of 19.10.1991. However on the counter claim for ejectment the Court declared through the judgment dated 25.4.2001 (Annexure-D) that the (plaintiff) tenant is not a defaulter. Moreover the issue of bona fide requirement was also answered against the landlord. On the basis of this finding, the Trial Court held that the tenancy between the plaintiff and the defendant No.1 is subsisting and the landlord was restrained from creating obstruction in the peaceful enjoyment of the tenanted premises. 5. The aggrieved defendants (landlord) then filed the T.A. No.26/2006 to challenge the verdict in favour of the tenant. The learned Addl. On the basis of this finding, the Trial Court held that the tenancy between the plaintiff and the defendant No.1 is subsisting and the landlord was restrained from creating obstruction in the peaceful enjoyment of the tenanted premises. 5. The aggrieved defendants (landlord) then filed the T.A. No.26/2006 to challenge the verdict in favour of the tenant. The learned Addl. District Judge, FTC, Barpeta through his judgment dated 26.5.2009 (Annexure-E), reversed the decree and ordered for ejectment by declaring that the tenant is a defaulter and the bona fide requirement is proved by the landlord to facilitate his unmarried sister to open an embroidery shop, in the room let out to the tenant. 6.1. Mr. PK Roy Choudhury, the learned counsel submits that the tenancy started in the year 1985 and therefore notwithstanding the expiry of the lease agreement dated 19.10.1991 (Exhbt.1), which was valid from 1.10.1991 to 31.8.1992, the plaintiff should be considered as a protected tenant under the Assam Urban Areas Rent Control Act, 1972 (hereinafter referred to as ‘the Rent Act’). Referring to the protection provided to the tenant under Section 5 of the Rent Act, the Counsel submits that so long as the tenant pays rent and performs the condition(s) of the tenancy, he can’t be evicted. 6.2. Assailing the basis for the defaulter finding of the Appellate Court, the petitioner contends that when the landlord refused to accept the rent in November, 1992, the tenant deposited the rent in Court and on this basis it is argued that the defaulter finding is not based on cogent materials. 6.3. On the issue of bona fide requirement for the embroidery shop for the landlord’s unmarried sister, Mr. Roy Choudhury submits that 3 shop rooms were let out by the landlord and there is no basis on why ejectment from the room occupied by the plaintiff was sought. Moreover unless all the 3 tenanted rooms are vacated, there can be no new construction where the landlord’s sister can have her shop room on the ground floor of the new building. 7.1 Representing the defendant (landlord), Mr. BK Bhagabati, learned counsel does not challenge the tenancy of the plaintiff under the defendant No.1 and therefore this Court’s adjudication is not needed on this point. 7.2 However on the issue of bona fide requirement, Mr. 7.1 Representing the defendant (landlord), Mr. BK Bhagabati, learned counsel does not challenge the tenancy of the plaintiff under the defendant No.1 and therefore this Court’s adjudication is not needed on this point. 7.2 However on the issue of bona fide requirement, Mr. Bhagabati submits that it is for the landlord to decide which of the 3 shop rooms would be most suitable for the embroidery shop of his unmarried sister and since there is no rebuttal finding for bona fide requirement projected by the landlord, merely because there are two other tenanted shop rooms, will not justify the protection of the tenant, particularly when he has defaulted in payment of rent. 8. The tenant examined himself as PW.1 and he testified that after the landlord refused to accept the rent, he deposited rent in Court. The PW.3 Shyamal Bose as an Official witness testified on the N.J. Cases, through which rent was tendered by the tenant. But in his cross-examination, the P.W.3 deposed that the tenant failed to take any step for dispatching the notice to the landlord, on the rent deposits made in Court. 9. In Gian Devi Anand vs. Jeevan Kumar reported in (1985) 2 SCC 683 , the Supreme Court held that the landlord is not permitted to snap his relationship with the statutory tenant by serving a tenancy termination notice. But protection for the tenant under State’s rent Act is envisaged, subject to payment of rent and compliance of the tenancy conditions. 10. Let me now examine whether the landlord could seek ejectment without justifying why the plaintiff is being targeted when he has let out 2 other shop rooms which can also be suitable for the embroidery shop for the landlord’s sister. From the cross-examination of the DW.1, it emerges that the suit house was constructed about 100 years back and is in a dilapidated condition. The landlord has an unmarried sister by the name of Dipika Das, who has no prospect of marriage and she wants to open an embroidery shop in the room, let out to the plaintiff. On the basis of these findings, the bona fide requirement of the landlord was found to be established by the Appellate Court. The landlord has an unmarried sister by the name of Dipika Das, who has no prospect of marriage and she wants to open an embroidery shop in the room, let out to the plaintiff. On the basis of these findings, the bona fide requirement of the landlord was found to be established by the Appellate Court. On this aspect it is really for the landlord to decide which shop room could be the best option for the embroidery shop and his choice should normally be respected unless any attempt at unlawful eviction is noticed. Moreover when bona fide requirement is found to be present, any of the 3 tenants, if faced without eviction, will raise similar objection on why he is the targeted evictee. Therefore the landlord’s claim of bona fide requirement can’t be rejected on this count. This view is taken as the requirement for rehabilitation of the landlord’s unmarried sister is not rebutted by any other contrary evidence. 11. The issue to be decided next is whether the tenant was a defaulter of rent. The PW.1 Dina Nath Das testified that on refusal of rent, he arranged to deposit the same in Court through various N.J. Cases. Evidence is available that rent was deposited in Court by the tenant. But this by itself may not be sufficient compliance of law on rendering rents to avoid being a defaulter. 12. This Court while interpreting Section 5(5) of the Rent Act in Abdul Matin Choudhury vs. Nilayananda Dutta Banik reported in 1997 (II) GLT 590 held that rent must be deposited in Court together with process fee along with written up notice, for service on the landlord. In this case, depositing of money in Court by the tenant is found to be established but at the same time the evidence of PW.3 Shyamal Bose shows that the tenant failed to take steps for dispatching notice to the landlord. Moreover on specific query the learned counsel for the plaintiff failed to show that written up notices were furnished and steps were taken by his client dispatch the notice in the N.J. Cases to the landlord. 13. From the above discussion, I hold that the conclusion reached by the Appellate Court on the tenant not being a defaulter is inconsistent with the evidence on record and this finding ignores the law laid down in Abdul Matin Choudhury (Supra). 13. From the above discussion, I hold that the conclusion reached by the Appellate Court on the tenant not being a defaulter is inconsistent with the evidence on record and this finding ignores the law laid down in Abdul Matin Choudhury (Supra). Therefore the finding on the tenant not being a defaulter of the appellate Court is held to be a jurisdictional error. 14. For the above conclusion, I uphold the Trial Court’s order dated 25.4.2001 (Annexure-D) in the T.S. No.45/1994 and quash the impugned judgment dated 26.5.2009 (Annexure-E) in the T.A. No.26/2006, rendered by the learned Addl. District Judge, FTC. With this order, the defendant/landlord’s Revision Petition is dismissed without any order on cost. 15. The Registry should return back the L.C.R. with a copy of this order.