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2015 DIGILAW 549 (GAU)

Sivaji Saha v. Shah Md. Farid

2015-05-12

HRISHIKESH ROY

body2015
ORDER : Heard Mr. S.P. Roy, the learned Counsel appearing for the petitioner (tenant). Also heard Mr. P.S. Deka, the learned Counsel representing the respondents (landlords). 2. The Title Suit 184/2001 was filed for ejectment of the tenant from the commercial premises measuring 23 ft. x 8 ft. in the Paltanbazar area of Guwahati. In the plaint, the landlord pleaded bona fide requirement and default of rent from October 2000 and accordingly ejectment and arrear house rent was claimed from the tenants. In the W.S., the defendant claimed that he tendered monthly rent of Rs.3000/- by cheque(s) from October 2000 to March 2001 and thereafter when the rent was refused, due rent were deposited in the Court w.e.f April 2001. 3. On the basis of the pleadings, the learned Trial Judge framed the following five Issues : (a) Whether the suit is maintainable ? (b) Is there any cause of action for the suit ? (c) Whether the defendant is a tenant under the plaintiffs ? (d) Whether the defendant has become a defaulter ? (e) Whether the plaintiff is entitled to get the decree as prayed for? 4. The plaintiff No.2 examined herself as P.W.1 and 5 documents were exhibited. On the other hand, the defendant examined three witnesses and exhibited 10 documents. 5.1 The 4th Issue relating to defaulter was considered first and the learned Trial Judge observed that 6 cheques of Rs.3000/- each was issued by the tenant but the plaintiffs did not encash the same to deliberately make the tenant defaulter of rent. The Court also considered the two letters dated 4.4.2001 and 6.5.2001 (Exbt.-G) sent by the tenant to the 1st plaintiff Shah Md. Farid where the landlord was requested to present the cheques to the bank. But despite receipt of the registered envelop as proved from the Certificate issued by the Postal Authorities, the cheques were deliberately withheld from presentation by the landlords. Accordingly the learned Civil Judge Jr. Division No.1, Guwahati concluded that the tenant tendered the rent by cheques from October 2000 to March 2001 in due time but the plaintiffs did not encash them and from April 2001 onwards, the rent was deposited in Court. Thus the defaulter Issue was answered in favour of the tenant. Accordingly the learned Civil Judge Jr. Division No.1, Guwahati concluded that the tenant tendered the rent by cheques from October 2000 to March 2001 in due time but the plaintiffs did not encash them and from April 2001 onwards, the rent was deposited in Court. Thus the defaulter Issue was answered in favour of the tenant. 5.2 As the defendant had not denied that he is a tenant under the plaintiffs, the Court answered the Issue No.3 in the affirmative or in other words, it was held that the defendant is a tenant under the plaintiffs. 5.3 Although the plaintiffs did not press their plea of bona fide requirement, the Trial Court nevertheless discussed the 2nd Issue and held that the plaintiffs have other tenanted property and the small shop let out to the defendant may not be a bona fide requirement of the landlords. 5.4 On the basis of the above finding on the key issues, the ejectment suit was dismissed on 13.12.2006 (Annexure-16). 6. The aggrieved landlords then filed the Title Appeal NO.2/2007 and the learned Civil Judge No.1, Guwahati after due consideration on how the trial Court adjudicated the matter observed that, in the appellate proceedings three key points require consideration. They are : (i) Whether there was any cause of action for the suit ? (ii) Whether the respondent/defendant ha become defaulter by not paying the monthly rent of the suit premises to the landlord with the statutory period ? (iii) Whether the appellants/plaintiffs are entitled to a decree for ejectment of the respondent/defendant from the suit shop house and recovery of arrear rent? 7.1 The above Point No.(i) & (ii) were analogously considered by the Appellate Court and the provisions of Section 5 of the Assam Urban Areas Rent Control Act, 1972 (hereinafter referred to as “the Rent Act”) were noted and the Court observed that a tenant seeking protection from ejectment must establish that the rent was tendered in due time. The evidence of the tenant (D.W.1) was then considered who stated that on 2.4.2001, he learnt that the plaintiffs did not encash the tendered cheques for the monthly rent of October 2000 to February 2001. Thus a request was made to the plaintiffs to encash the five cheques but the same were not presented to the bank. The evidence of the tenant (D.W.1) was then considered who stated that on 2.4.2001, he learnt that the plaintiffs did not encash the tendered cheques for the monthly rent of October 2000 to February 2001. Thus a request was made to the plaintiffs to encash the five cheques but the same were not presented to the bank. Then the tenant paid Rs.18,000/- in cash to the plaintiffs against the 6 months’ rent from October 2000 to March 2001. But for this arrear rent payment, rent receipt was not given by the plaintiff No.2, to whom the amount was tendered. 7.2 The Court considered the self-generated Bank Statement (Exbt.A), the defendant’s Ledger Account showing tendering of House Rent (Exbt.B), the tenants Reconciliation Statement (Exbt.C), Counterfoils of the 6 cheques (Exbt.E), Income Tax Returns of the Assessment year [2001-2002] (Exbt.-F), the tenant’s Notice dated 4.4.2001 and 6.4.2001 (Exbt.-G), the Postal Receipt dated 9.4.2001 (Exbt.H). The Civil Judge also took into account the evidence of the witnesses Haripada Saha and Biswajit Saha. Then the Appellate Court considered the evidence of the defendant’s witnesses, who stated that the tenant paid Rs.18,000/- to the 2nd plaintiff towards arrear rent from October 2000 to March 2001. After due consideration of all these materials, for the monthly tenancy, tendering of 6 months’ arrear rent was declared as not due tendering and therefore the tenant was held to be a defaulter of rent from October 2000 to March 2001. Through this conclusion on the key points, the learned Civil Judge reversed the Trial Court’s finding and ordered for ejectment of the tenant, on the ground of rent default. 8.1 Assailing the legality of the impugned decision of the Appellate Court, Mr. S.P. Roy, the learned Counsel submits that the plaintiff No.1 Shah Md. Farid was the actual landlord and he never presented himself as a witness and accordingly the Counsel argues that adverse presumption against the plaintiffs’ pleaded case should have been drawn for withholding the key witness from the plaintiffs’ side. For support he cites Vidhyadhar vs. Manikrao reported in (1999) 3 SCC 573 . Farid was the actual landlord and he never presented himself as a witness and accordingly the Counsel argues that adverse presumption against the plaintiffs’ pleaded case should have been drawn for withholding the key witness from the plaintiffs’ side. For support he cites Vidhyadhar vs. Manikrao reported in (1999) 3 SCC 573 . 8.2 Placing reliance on Nabajyoti Mahanta vs. Prabini Majumdar reported in 1996 (II) GLT 459, the petitioner contends that default of the tenant must be wilful and when the cheques towards monthly rent were tendered in due time and the landlord deliberately did not present them for encashment, the wilful default of the tenant can’t be concluded and accordingly the Counsel argues that a faulty finding was given by the Appellate Court. 8.3 The petitioner refers to the Certificate dated 13.8.2002 (Page-103) issued by the Postal Authorities to project that registered letter booked on 9.4.2001 by the tenant was delivered to the plaintiff No.1 and accordingly Mr. Roy argues that proper notice to encash the cheques was given to the landlord and only because they still didn’t present those cheques in their bank, the six months’ arrear rental dues (Rs.18,000/-) was paid in cash by the P.W.1 to the plaintiff No.2. 8.4 As the landlords own several commercial property and the shop room let out to the tenant is not required bona fide, the petitioner cites Badrinarayan Chunilal Bhutada vs. Govindram Ramgopal Mundada reported in AIR 2003 SC 2713 and contends that comparative hardship of the contesting parties will have to be considered and the tenant must be protected to allow him to earn his livelihood from the tenanted shop premises. 9.1 On the other hand, Mr. P.S. Deka, the learned Counsel representing the landlords submits that rent was never tendered to the plaintiffs from October 2000 onwards and a false plea of tendering of cheques for the concerned 6 months is projected by the tenant. The Counsel argues that the Cash Book, Ledger Book and the other computer generated Exhibits were tenant’s self-created documents and from them it can’t be inferred that cheques for rent was ever tendered to the plaintiffs. 9.2 The respondents submit that the Certificate issued by the Postal Department on 13.8.2002 (Exbt.-H) can’t lead to the conclusion that the tenant’s two letters of 4.4.2001 and 6.4.2001 was delivered to the addressee Shah Md. 9.2 The respondents submit that the Certificate issued by the Postal Department on 13.8.2002 (Exbt.-H) can’t lead to the conclusion that the tenant’s two letters of 4.4.2001 and 6.4.2001 was delivered to the addressee Shah Md. Farid and the Counsel argues that those two letters were mischievously created by the tenant to support their false claim of tendering cheques for rent from October 2000 onwards, to protect himself from ejectment. 9.3 Since the defaulter finding was given by the Appellate Court on the basis of 6 months’ arrear rent being tendered together (as is admitted by the D.Ws), the lawyer for the landlord argues that when the rent is payable after each month, if the landlord refuses to accept the rent, the tenant should have deposited the arrear rent in Court within the permitted time in accordance with the provisions of Sub-Section (4) of Section 5 of the Rent Act and since this was not done, the factual finding on rent default, shouldn’t be disturbed by the Revisional Court. In support Mr. Deka relies on Pothina Narasamma vs. Marupilla Ammaji reported in (2006) 9 SCC 749 . 10. While interference with a finding of fact of a Lower Court may not be warranted in a Revisional proceeding, it will be necessary to consider whether the Appellate Court gave a perverse finding without any relevant evidence. In order to prove that the cheques for rent for the month of October 2000 to March 2001 was tendered, the tenant has relied upon his self-generated documents and I feel that those records do not conclusively establish that the rent for the concerned six months was actually tendered to the landlord. But assuming that the cheques were tendered and they were not encashed, the same amounts to refusal by the landlord and in that event, the tenant should have deposited the arrear rent in Court, in order to secure protection under the Rent Act. But instead it is the tenant’s own case that six months’ arrear rent was paid to the plaintiff No.2 although receipt of any arrear rent in cash is denied by P.W.1. When the arrangement is a monthly tenancy and the rent is payable after each month, tendering of six months’ rent can’t obviously be lawful tendering. Therefore on this count, the defaulter finding given by the Appellate Court is found to be logical and based on relevant evidence. 11. When the arrangement is a monthly tenancy and the rent is payable after each month, tendering of six months’ rent can’t obviously be lawful tendering. Therefore on this count, the defaulter finding given by the Appellate Court is found to be logical and based on relevant evidence. 11. In so far as the non-presentation of the plaintiff No.1 in the trial, it is the defendant’s own case that the arrear rent was tendered to the plaintiff No.2 and therefore her authority to receive rent is not disputed by the defendant. Moreover the 2nd plaintiff is covered by the definition of “landlord” given under Section 2(c) of the Rent Act. The plaintiff No.2 has testified as the P.W.1 and thus the non-presentation of the 1st plaintiff in the trial can’t be fatal and I hold that no adverse presumption can be drawn against the plaintiffs’ by applying the ratio of Vidyadhar (supra) as the co-owner/co-plaintiff can certainly testify for the other plaintiff. 12. In this case the tenant never challenged the status of the plaintiff No.2 as the landlord and in fact it is his own case that six months arrear rent was tendered to the 2nd plaintiff (not to the co-owner/1st plaintiff). Therefore when the ejectment suit is jointly filed by both co-owners the ratio of FGP Limited vs. Saleh Hooseini Doctor reported in (2009) 10 SCC 223 can have no bearing in this proceeding. 13. If the six cheques were actually tendered by the tenant as rent for October 2000 to March 2001, it is hard to believe that the tenant was oblivious until April, 2001 about non-eacashment of the cheques, particularly when theirs was a wholesale and retail business concern where a professional accountant (D.W.2) was employed. Considering the multiple and active transactions in the defendant’s Bank Account it is difficult to accept that if the cheques were actually tendered, their non-encashment came to light only six months later. This suggests that a false case was projected by the defendant. The more plausible version is that no cheques were ever tendered by the tenant towards rent from the month of October 2000 and the letters (Exbt.-G) for encashment of cheque was manufactured with oblique motive. This suggests that a false case was projected by the defendant. The more plausible version is that no cheques were ever tendered by the tenant towards rent from the month of October 2000 and the letters (Exbt.-G) for encashment of cheque was manufactured with oblique motive. The mischief of the litigant can also be noticed from the fact that 2 separate letters of 4.4.2001 and 6.4.2001 were shown to be written whereas a single letter would have served the intended purpose. Conspicuously both letters were purportedly dispatched in a single envelop and all these unnatural acts taken together show the falsity of the defendant’s case. 14. The ejectment of the tenant in the present case is ordered on the ground of rent default and not because of bona fide requirement of the landlord. In such circumstances, to consider the relative hardship of the parties may not be justified as the tenant didn’t discharge his burden to prove comparative hardship. Therefore I hold that the case of Badrinarayan Chunilal Bhutada (supra) cited by the petitioner will not benefit the tenant. 15. In Sanjay Singh Rawat vs. National Small Industries Corpn. Ltd. reported in (2005) 12 SCC 146 relied on by Mr. S.P. Roy, the appellate Court summarily dismissed the first appeal leading to intervention of the higher Court. But in this case the Civil Judge had considered all the relevant evidence and had also formulated the key points to be decided and gave its finding after due consideration and discussion. Therefore I hold that no case is made out for interference by the Revisional Court with the factual conclusion reached by the Appellate Court and the ratio of Sanjay Singh Rawat (supra) is inapplicable in the facts of the present case. 16. For the above reasoning, I hold that ejectment decree was rightly ordered by the Appellate Court and accordingly this Revision petition is dismissed by leaving the parties to bear their own cost.