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2015 DIGILAW 408 (GAU)

Deba Prasad Bhowmik v. Narayan Chandra Choudhury

2015-04-01

HRISHIKESH ROY

body2015
Hrishikesh Roy, J. 1. Heard Mr. B.R. Dey, the learned Counsel appearing for the petitioner (plaintiff). Also heard Mr. P.K. Kalita, the learned Counsel for the respondent (defendant). 2. The Title Suit No. 9/2000 was filed for ejectment of the defendant Chandra Mohan Choudhury by projecting him to be the sole tenant of the shop premises. The pleaded case of the plaintiff is that the tenant became a defaulter of rent from January to December 1999 and the suit premises is required to accommodate the unemployed and educated sons of the plaintiff. 3. In the W.S. (Annexure-II) the defendant Chandra Mohan Choudhury pleaded that he retired from the business and his second son Narayan Chandra Choudhury is handling the business of M/s Book Corner in the tenanted premises. Thus Narayan Chandra Choudhury was projected as the real tenant and it was pleaded that the suit is liable to be dismissed for non-joinder of the tenant who is in possession and from whom rent was received by the plaintiff. 4. As the occupier of the tenanted premises Narayan Chandra Choudhury (2nd son of the defendant) applied for impleadment by filing application under Order I Rule 10 of the CPC and the Trial Court permitted the applicant to be impleaded as the contesting party in the ejectment suit. In his W.S. (Annexure-III), the impleaded defendant stated that the plaintiff was receiving monthly rent from him and he was recognized as a tenant for the suit house by the plaintiff, after the original tenant Chandra Mohan Choudhury retired from the business. 5. After pleadings were exchanged, the Trial Court framed the following Issues which are extracted hereinbelow for ready reference: 1. Is there any cause of action for the suit? 2. If the suit is maintainable in its present form and manner? 3. If there exists landlord tenant relationship between plaintiff and the added defendant in respect of the suit holding? 4. If the suit holding is bona fide required by the plaintiff? 5. Whether the defendant is a defaulter in payment of rent of the suit holding? 6. Whether the plaintiff is entitled to get reliefs as prayed for? 6. In support of his case, the plaintiff examined himself as P.W.1 and also exhibited some documents. The P.W.1 was cross-examined by the impleaded defendant who also adduced documentary evidence. 5. Whether the defendant is a defaulter in payment of rent of the suit holding? 6. Whether the plaintiff is entitled to get reliefs as prayed for? 6. In support of his case, the plaintiff examined himself as P.W.1 and also exhibited some documents. The P.W.1 was cross-examined by the impleaded defendant who also adduced documentary evidence. 7.1 On the vital issue on whether landlord tenant relationship exists between the plaintiff and the defendant, the Court observed that the original defendant Chandra Mohan Choudhury died on 8.3.2002 during the pendency of the suit and therefore there can be no landlord tenant relationship between the plaintiff and the deceased defendant. The Trial Judge noted that P.W.1 in his cross-examination stated that "I issued receipt of rent in favour of defendant on 7.8.1991 to aid him in carrying business in the suit room". After considering the Exbt.2 and the Exbt.A & A(1), the Court concluded that the plaintiff by his conduct had accepted the impleaded defendant as the tenant for the suit premises. The admission of the plaintiff indicated that he accepted the contesting defendant to be tenant of the suit premises. The No objection Letter given on 4.11.1991 (Exbt.2) by the deceased defendant to the plaintiff to allow the landlord to issue rent receipt in the name of his 2nd son Narayan Ch. Choudhury was also examined by the Court. On the basis of these materials the Issue No. 3 was decided by declaring that Narayan Ch. Choudhury is the statutory tenant under the Assam Urban Areas Rent Control Act, 1972 (hereinafter referred to as "the Rent Act") and he is entitled to retain possession until duly evicted, in accordance with law. 7.2 Despite the specific plea in the W.S. that the impleaded defendant is the tenant for the suit premises, the plaintiff did not amend the pleadings to specify the grounds for which the impleaded defendant should be ejected and in the absence of the material averments against the concerned defendant, the Issue No. 1 was answered against the plaintiff. 7.3 On the issue of bonafide requirement, the P.W.1 in his cross-examination admitted that he has two shop houses of which, one is the suit premises and the other is in the plaintiff's possession, where his son is doing business. 7.3 On the issue of bonafide requirement, the P.W.1 in his cross-examination admitted that he has two shop houses of which, one is the suit premises and the other is in the plaintiff's possession, where his son is doing business. Accordingly the plea of the landlord that the suit premises is needed for his son's business, was rejected by the Trial Court. 7.4 Because of the landlord tenant relationship between the plaintiff and the impleaded defendant and in the absence of any pleading against the actual tenant, the suit was held to be not maintainable. Consequently through the impugned judgment dated 24.6.2004 (Annexure-IV), the learned Civil Judge (Jr. Division) No. 1, Karimganj dismissed the ejectment suit. 8.1 The Title Appeal No. 63/2004 was then filed by the aggrieved plaintiff. The Appellate Court considered that the impleaded defendant is the actual tenant and his status was recognized by the landlord by his conduct and oral agreement. The plaintiff's plea that deceased defendant was the sole tenant was disbelieved, since the plaintiff admitted that he issued rent receipt on 7.8.1991 in the name of Narayan Ch. Choudhury to aid him in carrying on his business in the suit room. 8.2 It was further noted by the Appellate Judge that although the deceased defendant was projected to be the sole defendant, after his death, his legal heirs were not substituted. The Appellate Court upon consideration of the evidence, declared that the ejectment suit is not maintainable since there was no cause of action and accordingly the plaintiff's appeal was dismissed to uphold the trial Court's suit dismissal verdict. 9.1 Assailing the legality of the concurrent judgments, Mr. B.R. Dey, the learned Counsel submits that there is no privity of contract between the plaintiff and the impleaded defendant Narayan Chandra Choudhury and therefore he argues that the plaintiff was not obliged to make any specific plea against the impleaded defendant. 9.2 The learned Senior Counsel submits that the deceased tenant Chandra Mohan Choudhury had failed to pay the rent from January 1999 and on the basis of the principle that once a defaulter is always a defaulter, Mr. Dey argues for reversal of the dismissal decree. 10.1 On the other hand, Mr. P.K. Kalita, the learned Counsel submits that a concurrent finding was given by both Courts to the effect that Narayan Ch. Dey argues for reversal of the dismissal decree. 10.1 On the other hand, Mr. P.K. Kalita, the learned Counsel submits that a concurrent finding was given by both Courts to the effect that Narayan Ch. Choudhury is the tenant of the suit premises and accordingly he argues that this finding of fact can't be altered in a Revision proceeding. 10.2 The respondent contends that although a specific contention was made by the deceased defendant in his W.S. that without addition of the actual tenant no relief can be given, the plaintiff failed to implead the tenant on his own and more importantly after the tenant got himself impleaded on 18.8.2001, the pleadings were not amended to make out a case for ejectment of the statutory tenant. 10.3 Mr. Kalita argues that defaulter plea against the deceased defendant could be a ground for ejectment in a given case if the legal heirs were substituted and since this was not done, the ejectment of the actual tenant who was duly recognized by the plaintiff, can't be allowed without necessary amendment of the pleadings and the evidence to justify, the ouster of the impleaded defendant 11. In this case the original tenant Chandra Mohan Choudhury died on 8.3.2002 during the pendency of the suit but his legal heirs were not substituted. In his cross-examination the P.W.1 admitted that he issued rent receipt on 7.8.1991 to aid Narayan Chandra Choudhury to carry on the business in the suit room. The letter issued on 4.11.1991 by the original tenant shows that he gave the green signal to the landlord to issue rent receipts in the name of his 2nd son Narayan Ch. Choudhury from November 1991. The exhibited rent receipt indicates that Narayan Chandra Choudhury was shown as a tenant in those receipts. In these circumstances, the Court finding that Narayan Ch. Choudhury was recognized to be the tenant by the landlord is a logical conclusion which is found to be consistent with the evidence in the case. 12. When the original tenant expired during pendency of the suit, his legal heirs were not substituted and more importantly the pleadings were not amended to make out any case for ejectment against the actual tenant Narayan Ch. Choudhury who got himself impleaded on 18.8.2001. 12. When the original tenant expired during pendency of the suit, his legal heirs were not substituted and more importantly the pleadings were not amended to make out any case for ejectment against the actual tenant Narayan Ch. Choudhury who got himself impleaded on 18.8.2001. Therefore I feel that the case pleaded by the plaintiff against the deceased defendant can be of no assistance for getting the statutory tenant evicted, as the present suit must fail for non-joinder of the actual tenant. 13. It is also of great significance that the landlord admitted that the 2nd shop house is under his possession where his son is doing business and accordingly I find that the landlord's plea of bona fide requirement for his son's business was rightly rejected by the Court. 14. When the plaintiff himself has facilitated the impleaded defendant to do his business from the tenanted premises and issued rent receipts to him, the landlord tenant relationship is found to be established between the two contesting party. Therefore the petitioner's plea of absence of privity of contract between the plaintiff and the contesting defendant is found to be untenable, in the face of the evidence on record. 15. For the forgoing reason and discussion I do not see any illegality or perversity with the concurrent decisions of the two Courts and accordingly this Revision petition is dismissed. Parties to bear their own cost.