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2016 DIGILAW 352 (GAU)

Pabitra Narayan Choudhury v. Raju Jalan

2016-05-03

N.CHAUDHURY

body2016
JUDGMENT : In this revision petition filed under Section 115 of the Code of Civil Procedure, the title appellate judgment and decree dated 20.9.2011 passed in Title Appeal No.13 of 2010 thereby allowing the appeal and dismissing Title Suit No.55 of 2006 reversing the judgment and decree dated 9.8.2010 passed by the learned Munsiff No.1 in that suit has been called in question in the present revision petition. The learned trial court decreed the suit for eviction of the tenants herein and the learned first appellate court reversed the decree of eviction by dismissing the suit. 2. Brief facts involved in the case are required to be stated at threshold. Plaintiff, Pabitra Narayan Choudhury instituted title Suit against defendant No.1 for his eviction from the suit premises described in the schedule to the plaint on the ground of default and bonafide requirement. It is stated in the plaint that suit premises originally belonged to Late Karuna Narayan Choudury, the deceased father of the plaintiff and the proforma opposite parties. He inducted the defendant No.1 as tenant with respect to the suit premises as a monthly tenant at a rental of Rs.1400/- per month. The original owner prior to his death executed a registered girt in favor of the plaintiff and thus the suit properties fell in the share of the plaintiff. Thus, the defendant was paying rent to him. But the defendant failed to pay rent since June, 2004 and thus he became a defaulter. Moreover, plaintiff required the suit premises bonafide for his own use and so issued a notice to the defendant. Upon receipt of the notice, the defendant sent an amount of Rs.1000/- by money order towards rent for the month of June, 2006 and as the actual monthly rent was Rs.1400/-, the plaintiff did not accept the rent. The defendant thereafter served a notice in Misc.(NJ) Case No.10 of 2006 and deposited an amount of Rs.1000/- as rent for the month of June, 2006. The plaintiff, therefore, instituted the suit for eviction of the tenant on the ground of default and bonafide requirement and also for realization to the tune of Rs.33,600/-. 3. On being summoned, the defendant appeared and submitted written statement denying the case of the plaintiff. But in paragraph-11 of the written statement, he admitted that he was a tenant under the father of the plaintiff at a monthly rental of Rs.1000/-. 3. On being summoned, the defendant appeared and submitted written statement denying the case of the plaintiff. But in paragraph-11 of the written statement, he admitted that he was a tenant under the father of the plaintiff at a monthly rental of Rs.1000/-. According to him, monthly rents were being collected by the proforma defendant No. 4, Prasanta Narayan Choudhury till May, 2006 but he did not issue any receipt. In paragraph-17 of the written statement, he further stated that he was a tenant under Prasanta Narayan Choudhury at a monthly rental of Rs.1000/- who collected rent as per his convenience till May, 2006. In the first week of July, 2006, when rent was offered to the proforma defendant No.4, he refused to accept and asked the defendant to offer rent to the plaintiff. The plaintiff also refused to accept the rent whereupon it was sent by money order. But as the plaintiff did not accept the money order, the defendant No.1 was compelled to institute Misc. (NJ) Case No. 10 of 2006 and had to deposit the rent in court under the provision of Assam Urban Area Rent Control Act, 1972. The defendant also denied bonafide requirement of the plaintiff and prayed that the suit of the plaintiff be dismissed with compensatory cost. The learned trial court upon consideration of the averments made in the pleadings of the parties framed as many as eight issues and the same are quoted below:- i. Whether there is cause of action? ii. Whether the suit is maintainable? iii. Whether the suit is bad for mis-joinder and non-joinder of necessary parties? iv. Whether the suit is properly valued and proper court fee is paid? v. Whether the defendant No.1 is a defaulter and liable to be evicted from the suit premises? vi. Whether the plaintiff is entitled to the claims as prayed for? vii. Whether To what other relief/reliefs the parties are entitled ? viii. Whether the plaintiff has bonafide requirement of the suit premises? 4. In course of trial, the plaintiff did not lead any evidence in the suit and at his prayer, an order was passed by the learned trial court on 7.12.2008 providing that the evidence adduced in a separate suit being Title Suit No.53 of 2006 with respect to a different tenancy would be relied on at the time of consideration of the case. The defendant, however, adduced evidence and examined two witnesses on its side. The aforesaid Title Suit No.53 of 2006 was contested by both sides and plaintiff examined three witnesses including himself. The learned trial court decreed Title Suit No.53 of 2006 on being satisfied that plaintiff proved the issue on default and bonafide requirement by appropriate evidence and that defendant could not establish deposit of rent in court under Section 5(4) of the Assam Urban Areas Rent Control Act, 1972. Relying the same evidence of Title Suit No.53 of 2006 which admittedly is in regard to a different tenancy though owned by the same landlord and occupied by a different tenant was considered by the learned Munsiff for the present suit as well and an identical judgment was passed on the same date in the present suit holding that plaintiff has established the issue of default and bonafide requirement against the defendant no.1 and accordingly the suit was decreed for eviction of defendant No. 1 along with realization of rent. This judgment and decree was brought under challenge in the Title appeal No. 13 of 2010 along with three other identical judgments passed by the same learned court in three other identical cases including Title Suit No. 53 of 2006 as referred to above. The learned first appellate court considered all these cases separately but passed identical judgments in all these four cases. In so doing, the learned first appellate court was of the view that the plaint did not contain the required material fact as to due date and mode of payment. But in so doing, the learned first appellate court failed to take note of averments made in paragraphs-11 and 17 of the written statement whereby the tenant admitted his tenancy at the monthly rental under the predecessor of the plaintiff. He, however, claimed that he was making payment of rent to proforma defendant no.4. But in so doing, the learned first appellate court failed to take note of averments made in paragraphs-11 and 17 of the written statement whereby the tenant admitted his tenancy at the monthly rental under the predecessor of the plaintiff. He, however, claimed that he was making payment of rent to proforma defendant no.4. The learned first appellate court also considered the evidence adduced by the plaintiff in Title Suit No. 53 of 2006 for the purpose of present suit i.e. Title Suit No. 55 of 2006 and thereupon arrived at the finding that the issues on default and bonafide requirements were not correctly decided by the learned Munsiff and accordingly allowed the appeal by his judgment and decree dated 20.9.2011 separately passed in all these four Title appeals and thereby dismissed the suit of the plaintiff in entirety. The appellate judgment passed in Title Appeal No.13 of 2010 has been called in question in the present revision petition. 5. I have heard Mr. M Choudhury, learned counsel for the petitioner and Mr. J Sharma, learned counsel for the sole opposite party. I have perused the materials made available to the court by the learned counsel for the parties by their respective pleadings. 6. When Mr. Choudhury, learned counsel for the petitioner sought to place reliance on the evidence led by the plaintiff in Title Suit No. 53 of 2006, an objection was raised by Mr. J Sharma, learned counsel for the opposite party saying that those evidence would not be applicable in the case in hand as it relates to a different tenancy. The amount of rent in Title Suit No.53 of 2006 is not the same as that of title Suit No. 55 of 2006 and tenants are different in all the four eviction suits although averments by both the sides are identical. Calling attention of the court to the provision of Section-33 of the Indian Evidence Act, 1872, the learned counsel would argue that the evidence of Title Suit No. 53 of 2006 is not relevant for the purpose of the other suits as they do not satisfy the conditions precedent mentioned in the section. Each of the suits are based on their own pleadings and so undoubtedly independent evidence are to be led in each of the suits. Each of the suits are based on their own pleadings and so undoubtedly independent evidence are to be led in each of the suits. The defendant being aware of the provision of law laid separate though on identical ground in all the cases but the plaintiff failed to lead separate evidence in the present case and so it was a fit case to dispose under the provision of Order XVII Rule 3(b) read with Rule 2 of the same order along with Order IX Rule 8 of the Code of Civil Procedure. The learned trial court without doing so disposed of the suit on merit relying on the set of evidence led in a different suit and so the trial court judgment is no judgment in the eye of law. However, the learned first appellate court failed to notice this aspect of the matter and decided the appeal on the basis of evidence of a different suit. Thus, the plaintiff is not entitled to a decree for eviction of the defendant. 7. I have perused the impugned trial court judgment and decree. The learned Munsiff has specifically stated in paragraph-4 of the judgment that on 7.12.2008, an order was passed in three other suits of same nature for placing reliance on the evidence adduced in title Suit No.53 of 2006. The plaintiff alleged in Title Suit No.53 of 2006 that defendant Sunil Kumar Jain who was supposed to pay rent of Rs.1400/- per month failed to make payment of rent since June, 2004 and that the suit house required bonafide by the plaintiff. The said defendant thereafter offered rent for the month of June, 2006 by money order but he offered only Rs.1000/- and so it was not accepted. By filing written statement the defendant admitted tenancy and also disclosed that he was making payment of rent on the first week of succeeding month as per English calendar. It is decipherable from the averments made in paragraph-11, 13 and 17 of the written statement that the defendant claimed to have paid rent to the proforma defendant No. 4 in the first week of the next month @ Rs.1000/- . The Plaintiff did not lead any evidence to prove that these tenants did not pay any rent. It is decipherable from the averments made in paragraph-11, 13 and 17 of the written statement that the defendant claimed to have paid rent to the proforma defendant No. 4 in the first week of the next month @ Rs.1000/- . The Plaintiff did not lead any evidence to prove that these tenants did not pay any rent. Evidence that was laid is in respect of Sunil Kumar Jain and not in respect of other tenants, namely, Anil Kumar Jain, Gyan chand Jain and Raju Jalan. The plaintiff has really failed to adduce any evidence in the three other suits other than Title Suit No.56 of 2004 and so there was no material whatsoever on record to arrive at the finding that the defendant No.1 was defaulter in each of these cases. The question as to bonafide requirement, however, may be on a different footing. This is because all these four rooms are adjacent rooms of same Assam type house. If evidence was led in Title Suit No. 56 of 2004 of the effect that floors of the suit premises is much below the road and rain water comes in rendering the suit premises inhabitable, that finding probably may affect the proceedings of the other suit as well but straightly speaking there is no specific evidence of bonafide requirement in the present case. Under such circumstances, this court does not feel that it is possible to decide these two points in the present revision petition in view of what has been stated above. 8. Accordingly, this court is of the view that the learned first appellate court committed error in not taking note of this aspect of the matter. Had the learned first appellate court noted that there was no evidence in the present suit from the side of the plaintiff, in that event, he would have remanded the matter to the learned trial court for re-trial after having set aside the trial court judgment and decree. As this matter has been brought to the notice of the revisional court by the learned counsel for the opposite party, Mr. J. Sharma, the first appellate judgment is also set aside and the matter is remanded to the learned trial court for affording opportunity to both sides to lead evidence or further evidence as the case may be within a fixed time. J. Sharma, the first appellate judgment is also set aside and the matter is remanded to the learned trial court for affording opportunity to both sides to lead evidence or further evidence as the case may be within a fixed time. After such evidence is led, the learned trial court shall decide the matter afresh on the basis of the materials available on record and thereupon to decide the suits. Since it is suit of 2006, the exercise shall be completed within 6(six) months from the date of receipt of certified copy of this order. It is pointed out that the trial court record have not been brought and so the parties shall appear before the trial court on 1.6.2016 and upon their appearance, the learned court shall pass necessary order. 9. The revision petition stands disposed. 10. No order as to cost.