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2015 DIGILAW 1420 (GAU)

President v. Babul Dutta

2015-11-17

RUMI KUMARI PHUKAN

body2015
JUDGMENT : Heard Mr. K. K. Mahanta, learned Senior Counsel assisted by Mr. K. Konwar, learned counsel for the petitioners. Also heard Ms. K. Devi, learned counsel appearing for the respondent. 2. This is a revision under Section 115 read with Section 151 of the Code of Civil Procedure, 1908 against the judgment and decree dated 20.03.2014 and 27.03.2014 passed by the learned Civil Judge (Sr. Division), Lakhimpur in T.A. No.7/2013 arising out of judgment and decree dated 01.11.2013 and 05.11.2013 respectively passed by the learned Court of Munsiff No. 1, Lakhimpur in T.S. No.15/2011, whereby the learned Appellate Court set aside the judgment and decree so passed by the learned Munsiff No. 1, North Lakhimpur by which the respondent-defendant by holding defaulter was directed to vacate the suit room and premises immediately after paying arrear rent to the petitioners-plaintiffs accrued till the date of vacating the room and to restore the khas possession of the petitioners-plaintiffs over the rented room and premises mentioned in the schedule to the plaint by evicting the respondent-defendant therefrom with a further direction to the petitioners-plaintiffs to return the security money of the respondent-defendant-respondent. 3. The facts of the case in a nutshell is that – the petitioners-plaintiffs are the President and Secretary of North Lakhimpur Wholesale Consumers’ Co-operative Society Ltd (herein after referred as ‘society’) and they filed the title suit on behalf of the society on being authorized by the Board of Directors Resolution of the society. The petitioners-plaintiffs had let out an RCC room to the respondent-defendant on monthly rental basis and its premises is 17.82 ft (Average) in length and 28.5 ft (Average) in breadth, that is a total area of 508 sq. Ft. and it exists in the eastern part of Dag No.1994 of Part-I of North Lakhimpur Town within Lakhimpur Mouza. The respondent-defendant entered into an agreement with the petitioners-plaintiffs to run his business in the name and style as M/s Manish Enterprise Ltd. w.e.f. 01-07-2002 and to initially pay rent @ 2,500/- p.m. and the plaintiff received and acknowledged a sum of Rs. 80,000/- as advance and Rs.20,000/- as security for the said tenancy from the respondent-defendant but subsequently the respondent-defendant became very irregular in paying monthly rent. The advance money acknowledged by the petitioners-plaintiffs had also already been adjusted and the petitioners-plaintiffs are ready to refund the security money to the respondent-defendant and he became defaulter. 80,000/- as advance and Rs.20,000/- as security for the said tenancy from the respondent-defendant but subsequently the respondent-defendant became very irregular in paying monthly rent. The advance money acknowledged by the petitioners-plaintiffs had also already been adjusted and the petitioners-plaintiffs are ready to refund the security money to the respondent-defendant and he became defaulter. The suit premises also required for bonafide requirement for extension of business of petitioners. 4. Renewal of last agreement for tenancy was entered on 01-11-2009 but since then no renewal of tenancy was entered. Even the petitioners-plaintiffs had informed the respondent-defendant to make a fresh agreement but the respondent-defendant did not turn up and therefore no agreement could be made. The petitioners-plaintiffs had sent a letter to the respondent-defendant to quit possession of the room on 14.12.2010. On receipt of the letter, the respondent-defendant requested to renew the agreement on 27.12.2010 with a prayer to extend the tenure of tenancy. After receipt of the reply, on 05.01.2011 the petitioners-plaintiffs asked the respondent-defendant to vacate the room and premises within 15 days from the date of receipt of the letter of the petitioners-plaintiffs. Then the respondent-defendant on receipt of the second letter again insisted the petitioners-plaintiffs to extend the tenancy period but the Board of Directors of the Society had already taken decision to get the suit room and premises vacated. When the respondent-defendant refused to vacate it, the petitioners-plaintiffs had to move the Court and the hence the petitioners-plaintiffs have filed the title suit against the respondent-defendant. 5. The respondent as defendant contested the suit by filing written statement stating that there is no cause of action for the suit. The respondent-defendant stated that the petitioners-plaintiffs are not the elected and authorized persons to file the suit and they are not representative of the society. They have no capacity to file the suit as no such resolution was taken by the Board of Directors of the society on 01.04.2011. The suit is bad for want of necessary parties and it is barred by law. The respondent-defendant admitted that he had taken the room and premises on rent to open his show and sales room for storing and selling scooters. He had totally denied that he is a defaulter as a tenant as he used to regularly pay the rent. The suit is bad for want of necessary parties and it is barred by law. The respondent-defendant admitted that he had taken the room and premises on rent to open his show and sales room for storing and selling scooters. He had totally denied that he is a defaulter as a tenant as he used to regularly pay the rent. Even he has been paying the rent in the Court since February, 2011 when the petitioners-plaintiffs have refused to receive it. It is further submitted by the respondent-defendant that there was no such condition in the agreement that the petitioners-plaintiffs shall be entitled to re-enter into the premises if required by the petitioners-plaintiffs. The respondent-defendant had approached the plaintiff for renewal of their agreement and even he had sent a blank non-judicial stamp paper of Rs. 20/- to the petitioners-plaintiffs but they have returned the same without renewal. The petitioners-plaintiffs are reluctant to renew it and they had not co-operated with him for renewal with their ill motive to evict him. The petitioners-plaintiffs had initially served notice to him for renewal of their tenancy agreement however when the respondent-defendant replied in affirmative, the petitioners-plaintiffs again served notices telling him to vacate the room and premises by showing other reasons. The petitioners-plaintiffs have no bona fide requirement of the room and premises as asserted by them. 6. Upon the pleadings, the learned trial Court framed the following issues : (1). Whether there is any cause of action for the Suit? (2). Whether suit is maintainable? (3). Whether the defendant is a defaulter, if not, whether he has right to occupy the disputed premises in view of the rent agreement between the parties? (4). Whether the plaintiff has right for khas possession of the disputed premises given in the schedule of the plaint by evicting the defendant therefrom? (5). To what other relief or reliefs, parties are entitled to? 7. Both sides adduce evidence and also exhibited various documents in support of their respective claims. The learned trial Court below passed the judgment in favour of the plaintiff appellant on the ground that defendant/respondent is a defaulter and he is directed to vacate the suit premises after paying the arrear rent. 7. Both sides adduce evidence and also exhibited various documents in support of their respective claims. The learned trial Court below passed the judgment in favour of the plaintiff appellant on the ground that defendant/respondent is a defaulter and he is directed to vacate the suit premises after paying the arrear rent. It is also directed to restore the khas possession of the rented premises to the plaintiff appellant by evicting the defendant/respondent, with further direction to the plaintiff appellant to return the security money, vide order dated 01.11.2013 and the decree dated 05.11.2013. Being aggrieved with the aforesaid judgment, the defendant/respondent preferred an appeal before the Civil Judge, North Lakhimpur, which was registered as T.S. No. 07/13. After hearing both the parties, the learned Appellate Court has allowed the appeal and set aside the judgment & order so passed by the learned Munsiff No. 1, Lakhimpur, North Lakhimpur, in T.S. No. 15/11 on the ground that the decision taken by the learned trial Court on the ground of defaulter is beyond the pleadings and evidence on record. As against the findings of the Appellate Court, present Civil Revision Petition has been preferred by the appellant/plaintiff on the ground that the learned Appellate Court has erred in law while deciding issues No. 3 and 4 and arrived at an erroneous conclusion. 8. It is also urged that the Appellate Court failed to appreciate different aspects of the matter that defendant/respondent was irregular in paying monthly payment in terms of tenancy agreement, wherein it has been specifically mentioned that the defendant/respondent has to pay monthly rent on or before 5th day of succeeding month. Similarly, the findings of the Appellate Court is bad in law in view of the fact that it failed to appreciate the evidence of the witnesses of the plaintiff as well as admission of the defendant/respondent about bona fide requirement of the suit premises, in proper perspective. The plaintiff appellant has been able to prove the bona fide requirement of the suit premises for larger interest of cooperative society and the learned Appellate Court ought not to have reverse the findings of the learned trial Court. That apart, without offering the rent to the plaintiff appellant, the defendant/respondent cannot deposit the rent in the Court to avail the benefit of Section of 5(4) of the Assam Urban Land Control Act. 9. That apart, without offering the rent to the plaintiff appellant, the defendant/respondent cannot deposit the rent in the Court to avail the benefit of Section of 5(4) of the Assam Urban Land Control Act. 9. While initiating the argument, both the parties have not disputed about the findings of other issues apart from the issue No. 3 of defaulter as because the learned trial Court has held the defendant/respondent as defaulter and has passed the Judgment & Decree for eviction while the Appellate Court has held that defendant/respondent is not a defaulter in view of the pleadings and evidence of the plaintiff itself. 10. The learned counsel for the appellant Mr. Mahanta, has addressed the Court by making a fair submission that it was not at all a pleaded case of the appellant that the suit was filed on defaulter ground but the very nature of the plaint as well as the evidence so adduce reveals that the suit was filed for bona fide requirement. In this context, attention of the Court has been drawn to the copy of the plaint which exclusively reveals that the subject-matter of the said plaint, mentioned as under: “Claim – suit for ejectment against tenant for bona fide need of the suit premises.” 11. Further, the learned counsel for the appellant has argued that the judgment of the learned Munsiff No. 1, Lakhimpur, North Lakhimpur, is liable to be sustained because though no specific issue on bona fide requirement was framed but the learned Court has discussed about the pleadings and evidence elaborately that there was a need for bona fide requirement on the part of plaintiff appellant. The same aspect has also been accepted by the learned Appellate Court but the same was not accepted with the observation that it was beyond the pleadings. The defendant/respondent, in his evidence, has admitted about having alternative accommodation to run his business so there is no difficulty on his part to vacate the suit premises and also in view of the fact that the tenancy agreement has already been terminated, the defendant/respondent cannot occupy the said suit premises anymore. It has also been contended by the learned counsel for the plaintiff appellant that in view of specific findings by the learned Court below about such bona fide requirement, the non-framing of issues is not fatal as parties were aware about the entire aspect of the matter. It has also been contended by the learned counsel for the plaintiff appellant that in view of specific findings by the learned Court below about such bona fide requirement, the non-framing of issues is not fatal as parties were aware about the entire aspect of the matter. Accordingly, it is submitted on behalf of the appellant that the order of the Appellate Court is liable to be set aside. 12. On the other hand, the learned counsel for the defendant/ respondent has opposed the argument of the learned counsel for the appellant that there is no bona fide requirement of the suit premises as the defendant/respondent is also a member of the same Society and also there was no specific issue framed on the subject. Similarly, referring to the evidence of PW-1, as discussed in the said judgment itself, it has been contended that the plaintiff/appellant used to accept the rent irregularly, irrespective of the agreement so the defendant/respondent cannot be held defaulter. It has been further contended that plaint is silent about the date of defaulter nor anything specifically pleaded as to when the defendant failed to offer the rent to the plaintiff appellant and begun to deposit the same in the Court. In view of the prevailing practice, which is different from the agreement for accepting rent, there is no any scope to hold the defendant/respondent as defaulter. The defendant/respondent issued letter to the plaintiff appellant for extension of agreement but as they denied and refused to accept the rent, so the defendant begun to deposit the rent to the Court on compulsion. The claim for arrear amount is also, cannot be allowed as no specific averment is made as regards the arrear accumulated, if any. 13. I have given my anxious consideration to the rival contentions of both the parties and gone through the judgment of the learned Court below as well as pleadings between the parties. Both the learned Courts below have discussed the evidence adduced by the parties and there is no dispute about the evidence and pleadings between the parties and any other issue except fact of deviation on the issue of defaulter. Both the learned Courts below have discussed the evidence adduced by the parties and there is no dispute about the evidence and pleadings between the parties and any other issue except fact of deviation on the issue of defaulter. As has been referred into by the learned counsel for the appellant, I have gone through the copy of the plaint which clearly reveals that the suit was filed for eviction on the ground of bona fide requirement and the defendant/ respondent has also replied in his written statement that there is no such bona fide requirement on the part of the plaintiff appellant. In view of such pleadings between the parties, the learned trial Court should have framed a specific issue on the aspect but it was not done. However, the same aspect has been discussed in the Issue No. 4 in due manner. Similarly, the Appellate Court has also conceded the fact that the learned trial Court has discussed about the bona fide requirement of the suit premises but refused to accept such findings on the pretext that the same is beyond the pleadings. But, the learned Appellate Court has failed to appreciate the matter in proper perspective of law and facts. Even if the learned trial Court has failed to frame an issue as required but the Appellate Court was in a position to frame an additional issue or to accept the findings of the learned trial Court on point of bonafide requirement in view of the pleadings between the parties. How the Appellate Court arrived at a conclusion that there was no such pleadings on such bona fide requirement of the suit premises, is not understood. Moreover, non-framing of issue is not always fatal while the parties are very much aware about their respective cases. It has been held in the case of K.S. Venkatesh V. N.G. Lakshminarayana & Ors, reported in 2008(2) KRLJ 342, that absence of an issue, is not fatal and it cannot be said that there was any mis-trial. If the materials on record shows that the parties have understood their cases and adduced evidence, addressed arguments, mere non-framing of issues on that point would not vitiate the judgment, if the Court on consideration of aforesaid material has recorded a finding on the said disputed question. If the materials on record shows that the parties have understood their cases and adduced evidence, addressed arguments, mere non-framing of issues on that point would not vitiate the judgment, if the Court on consideration of aforesaid material has recorded a finding on the said disputed question. Similar observation was followed in a catena of cases by this Court, as reported in 2000(1) GLT 291, Hazi Abdul Salam Borlaskhar v. Ruttonepore Plantation Ltd. & ors.; 2011(5) GLT 328, Habibur Rahman & anr. V. M/s T. T. Umme Nessa @ Kulsum; 1996(3) GLT 62, Montu Ghosh & ors. V. Amar Chand Sarma. Same view was endorsed by Hon’ble Kolkata High Court (Appellate Side) in recent judgment on 28th January, 2014 in the case of Gopal Chandra Samanta V. Ranjit Pandit. 14. In the instant case, the learned trial Court while discussing the Issue No. 4 has elaborately discussed the matter, in Page No. 12 of the Judgment, as below: “Upon perusal of Ext. ‘UNGO’, it is found that the defendant has requested to extend the agreement and allow him to occupy the room for a period of another 2 years on humanitarian ground. However, after expiry of the period, till date, the defendant has not vacated the room and the premises. During cross-examination, he has stated that he is also a member of the Society and is aware about the poor financial condition of the Society and he has admitted that Society had let out the room to him due to financial problem. He has further admitted that he is aware of Government Notification to expand the business of the Society. He had sincerely stated that it is the duty of every person to save the Society. He further stated that he has another Yamaha Showroom and Sales with open space on the opposite side of the disputed room. This indicates that inspite of having alternative arrangement for shifting of his business, he had not done so. The last tenancy agreement did not get renewed therefore, the defendant is bound to vacate the rented room and premises in the present circumstances of the suit.” 15. This indicates that inspite of having alternative arrangement for shifting of his business, he had not done so. The last tenancy agreement did not get renewed therefore, the defendant is bound to vacate the rented room and premises in the present circumstances of the suit.” 15. The above findings of the learned Court below is enough to hold that the Court has given due consideration about the bona fide requirement of the suit premises by the plaintiff appellant which is in support of pleadings and evidence between the parties and the defendant/respondent cannot rebut the said findings of the learned Court below in any manner, whatsoever. Admittedly, the tenancy agreement has already been terminated and the respondent appellant can no more continue in the suit premises in view of the same as well as proof of bona fide requirement of the suit premises by the plaintiff appellant. There is nothing to show that there is any mala fide on the part of plaintiff appellant while claiming for vacant possession of the premises rather it is the admitted position that the plaintiff cooperative Society is in acute loss of business for which they require the suit premises for expansion of the business for greater interest of all the members of the Society. There is no vested individual interest to take the vacant suit premises from the defendant. The defendant/respondent himself has admitted about the affairs of the plaintiff Society being a member of the same Society and he should assist the Society so as to serve the purpose of the Society, rather than to resist the claim of bona fide requirement. Furthermore, he has an alternative accommodation to run his business so it will not be inconvenient for him for vacation of the suit premises. The learned trial Court has rightly appreciated the matter in his discussion as above though no issue was framed on the said subject. As has been observed in the above mentioned citations, the suit is not bad for non-framing of issue while the parties were aware about their own cases. The findings of the learned trial Court can be sustained in law as well as facts whereas the findings of the Appellate Court, on this score, is devoid of merit. 16. As has been observed in the above mentioned citations, the suit is not bad for non-framing of issue while the parties were aware about their own cases. The findings of the learned trial Court can be sustained in law as well as facts whereas the findings of the Appellate Court, on this score, is devoid of merit. 16. However, the findings of the learned trial Court regarding defaulter of the defendant/respondent cannot be maintained in absence of specific plea, time and date, etc., when the rent fall due and about the date when the defendant respondent turned defaulter. The learned Appellate Court has of course rightly appreciated the above aspects, in its judgment, in point No. 2. In view of the evidence of the plaintiff appellant side that they used to accept rent for several months together, subsequently, they cannot raise such plea of defaulter for non-depositing of rent, on monthly basis. The practice of accepting rent for months together, itself, is indicative of the fact that the plaintiff appellant used to accept the rent in contrary to their own tenancy agreement. The plaint of the plaintiff appellant is also not so well-drafted to spell out as to how the defendant became defaulter except some mere averments that the defendant/respondent was regularly irregular in paying monthly rent and also there was no mention as to the amount of arrear. Rather, it has been categorically admitted that the amount of arrear rent has been already adjusted against the advance of Rs. 80,000/- given by the defendant/respondent. The learned counsel for the plaintiff appellant has fairly admitted at the initiation of argument that it was not the case of defaulter but a case on the ground of bona fide requirement of the suit premises. 17. The learned Appellate Court though have appreciated the findings of the learned trial Court on the point of bona fide requirement of the suit premises, but, has discarded the same for want of pleadings but in view of the above findings, the Appellate Court could have maintained the decree on the ground of bona fide requirement instead of ground of defaulter. Accordingly, this Court hereby uphold the judgment of the learned trial Court of Munsiff No. 1, Lakhimpur, North Lakhimpur, and the defendant/respondent is hereby directed to be evicted on the ground of bona fide requirement of the suit premises instead of defaulter. Accordingly, this Court hereby uphold the judgment of the learned trial Court of Munsiff No. 1, Lakhimpur, North Lakhimpur, and the defendant/respondent is hereby directed to be evicted on the ground of bona fide requirement of the suit premises instead of defaulter. With such modification, the Judgment & Decree so passed by the learned Munsiff No. 1, Lakhimpur, North Lakhimpur, in T.S. No. 15/11 is hereby upheld. 18. Accordingly, the Civil Revision Petition is allowed to the extent indicated above. No order as to costs.