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2015 DIGILAW 673 (GAU)

Swapan Das v. Pradip Kr. Paul

2015-06-02

HRISHIKESH ROY

body2015
JUDGMENT : Heard Mr. U. Dutta, the learned counsel appearing for the petitioner, who was the defendant No.1 in the ejectment case i.e. Title Suit No.170/2003 filed by the respondents (landlords). Also heard Mr. B.R. Dey, the learned Sr. counsel appearing for the Decree Holders (plaintiffs). 2. The landlords filed the Title Suit No.170/2003 under the Assam Urban Areas Rent Control Act, 1972 (hereinafter referred to as the “Rent Act”) for ejectment of the defendants by pleading that the rent was unpaid from the month of Kartik, 1406 B.S. The plea of sub-letting the tenanted premises by the defendant No.1 Swapan Das (original tenant) to the defendant No.2 Narayan Choudhury was also alleged by the plaintiffs. The defendants in their WS on the other hand claimed that they are not defaulter of rent. Moreover, the defendant No.1 denied that he has his own vegetable business in his shop room at Chantar Bazar. It was further denied that the defendant No.1 has sublet the suit holding to defendant No.2. On the other hand, the defendant No.2 claimed to be an employee of the defendant No.1 entrusted to look after the business of defendant No.1 in the suit premises. 3.1 On the basis of the above pleadings, the learned Civil Judge (Jr. Division) No.2, Karimganj, framed the following 4(four) issues:- “1. Is there any cause of action for the suit? 2. If the defendants are defaulter in payment of the rent of the suit holding? 3. Whether the plaintiffs are entitled to get reliefs as claimed for? Additional Issue: 4. Whether the defendant No.1 sublet the suit holding to defendant No.2?” 3.2 In support of their case, the plaintiffs examined 4(four) PWs and exhibited few documents, whereas equal number of witnesses were adduced by the defendants and they also exhibited few documents. 4.1 The learned Trial Judge considered the defaulter issue and observed that the landlords failed to prove the obligation of the tenants to pay rent at the end of each Bengali calendar month. The earlier instances of the rent being received for multiple months were proved. Moreover tendering of rent by the defendants for several months which, upon refusal by the plaintiff No.2, was deposited in Court was also found established. Therefore the defaulter issue was answered against the landlords. The earlier instances of the rent being received for multiple months were proved. Moreover tendering of rent by the defendants for several months which, upon refusal by the plaintiff No.2, was deposited in Court was also found established. Therefore the defaulter issue was answered against the landlords. 4.2 In so far as the issue of sub-letting is concerned, the Trial Court noted the evidence of DW-2 where he claimed to be an employee of DW-1 on a monthly salary of Rs.1,500/-. But since Rs.100/- increment per year was the norm and the DW-2 was employed for 5(five) years (starting with a salary of Rs.1,300/-), his current salary with yearly increment at the relevant time should be more than Rs.1,500/-. Thus noticing this discrepancy in the testimony of DW-2, he was disbelieved by the Court. 4.3 Then the Court noted the Registration Certificate (Exbt.-4) of the tenanted shop under the Assam Shops and Establishment Act, 1971 (hereinafter referred to as the “1971 Act”). The certificate issued by the authorities under the Act reflected that the shop was registered in the name of M/s. Narayan Choudhury, Santar Bazar. Then the Court considered the likelihood of an owner registering his shop in the name of his employee in normal course of affairs. After weighing the possibility, the Court disbelieved the case pleaded by the defendants and declared that the defendant No.2 was running his own shop registered under his own name in the tenanted premises and the shop was sublet to DW-2 by DW-1. On that basis the issue No.4 was answered against the tenants. Consequently, the ejectment suit was decreed on 19.06.2006 (Annexure-III) by the learned Civil Judge (Jr. Division) No.2, Karimganj. 5.1 The aggrieved defendants then filed the Title Appeal No.69/2006, where the learned Civil Judge, Karimganj, examined the matter. The Appellate Court noted that the rent used to be paid for 4/5/6 months on earlier occasions and after the death of the father of DW-1, the defendants tendered 5/7 months rent to the plaintiffs, but the same was refused by the landlord. Thereafter the rent was deposited in Court by the defendants. Accordingly the appellate Court agreed with the conclusion of the trial Judge that the plaintiffs failed to prove the rent default. Thereafter the rent was deposited in Court by the defendants. Accordingly the appellate Court agreed with the conclusion of the trial Judge that the plaintiffs failed to prove the rent default. 5.2 Then the Court examined the evidence of DW-2, who testified that as an employee, he looks after the business in the tenanted premises, under the ownership and guidelines of the defendant No.1, on monthly salary. But from the cross-examination of DW-2, the Court gathered that the DW-2 as an employee could not have endorsed the warranty registration for a refrigerator as this was the responsibility of the owner. Thus the plea of the defendant No.2 being an employee was disbelieved. The Appellate Court also considered that the shop was registered as M/s. Narayan Choudhury, (in the name of the 2nd defendant Narayan Choudhury) and noted that the defendant No.1 failed to explain why his shop was registered in the name of the employee instead of the owner. The projection of defendant No.2 being an employee of the original tenant (defendant No.1) was disbelieved, as with a yearly Rs.100/- increase of salary, he could not be drawing Rs.1,500/- per month at the relevant time. Thus the Appellate Court concurred with the finding of sub-letting of the shop by the original tenant (defendant No.1) to the defendant No.2 and on this basis, the ejectment verdict of the Trial Court was upheld by the learned Civil Judge, Karimganj, through the impugned judgment dated 17.11.2009 (Annexure-IV). 6. I have heard the learned counsel for the contesting parties and have also noted the relevant evidence of DW-2 and also the registration certificate (Exbt.-4) of the tenanted shop, under the 1971 Act. 7. On the issue of sub-letting, I find that the landlords in the present case have discharged their initial burden by proving the Exbt.-4 which indicates that the shop premises is registered in the name of the defendant No.2 which is abnormal for an employee. This at first blush suggests that the defendant No.2 is the real proprietor of the shop. Then the onus shifts to the defendants to explain why the shop is registered in the name of an employee and not the owner. But the defendants failed to give any satisfactory explanation for this abnormal registration. This at first blush suggests that the defendant No.2 is the real proprietor of the shop. Then the onus shifts to the defendants to explain why the shop is registered in the name of an employee and not the owner. But the defendants failed to give any satisfactory explanation for this abnormal registration. Therefore I hold that the Court rightly rejected the claim that the 2nd defendant was an employee under the 1st defendant/tenant for the shop in question. 8. In view of the above conclusion, no infirmity is noticed in the Courts ordering ejectment on the ground of subletting. According to me, the finding of both Courts on the 4th issue is based upon cogent evidence and therefore the said concurrent findings of the two Courts are left undisturbed. 9. For the foregoing reason, this Revision Petition is found to be devoid of legal merit and the same is accordingly dismissed by leaving the parties to bear their own cost. The Registry should send a copy of this order along with the LCR to the concerned Court.