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Gauhati High Court · body

2016 DIGILAW 467 (GAU)

Birdhichand Pannalal v. Bhanwarlal Dugar

2016-05-26

N.CHAUDHURY

body2016
JUDGMENT : 1. The two revision petitions being CRP No.98/2011 and CRP No.115/2011 are directed against a common judgment and decree dated 29.01.2011 passed by learned Civil Judge (Senior Division) No.2, Kamrup at Guwahati in Title Appeal No.66/2007. By that judgment the learned First Appellate Court upheld the decree for eviction of the defendants on the ground of default and reversed the finding of the learned trial court on the point of bonafide requirement. The plaintiffs, therefore, being aggrieved with the aforesaid findings of the learned First Appellate Court preferred CRP No.115/2011 and the defendants, on the other hand, have challenged the same judgment and decree insofar as it relates to the finding on default. Thus, finding in regard to default is a concurrent finding of the two Courts below and the finding of the learned First Appellate Court in regard to bonafide requirement is a one of reversal. The two revision petitions, therefore, are taken up for disposal together and this common judgment is accordingly being passed. 2. M/S Bhanwarlal Dugar and others as plaintiffs instituted Title Suit No.312/2001 in the Court of learned Civil Judge (Senior Division) No.2 at Guwahati stating, inter alia, that the defendants became tenant with respect to the suit premises under their predecessors. On 01.04.1991 there was a family settlement among the owners and thereupon the suit premises fell in the share of the plaintiffs and thus the defendants became their tenants with effect from the said date. It is further stated that the defendants agreed to make payment of rent to the plaintiffs with effect from 01.04.1991 attorning them as their landlord. The monthly rent was fixed at Rs.625/- payable monthly and the due date was last day of every month as per English calendar. It is further stated that the rent was payable within the first week of the succeeding month as per English calendar. The defendants paid rent upto the month of March, 1993 as per the arrangement but since thereafter no rent was offered or paid to the landlord and thus the defendants became defaulter. The plaintiffs also pleaded that the suit premises were required bonafide for their own use as they and their sons were in need of the suit premises for their own business and so the defendants are liable to vacate the schedule premises. The plaintiffs also pleaded that the suit premises were required bonafide for their own use as they and their sons were in need of the suit premises for their own business and so the defendants are liable to vacate the schedule premises. The defendants were asked to vacate the suit premises which they declined but for which institution of the suit became necessary. A prayer, therefore, was made for a decree of ejectment against the defendants along with realization of arrear rent for last three years with effect from December, 1998 to November, 2001 amounting to Rs.22,500/- along with interest at the rate of 18% per annum on the arrear rent. A prayer for compensation at the rate of Rs.50/- per day has also been made by the plaintiffs in the suit. 3. On being summoned the defendants appeared and submitted written statement wherein apart from taking the usual plea they claimed that there was no fixed mode of payment or due date. Plaintiffs used to collect rent either in cash or by cheque as per their desire and convenience. The plaintiffs used to collect rent sometimes for one month and sometimes for 2 or more months or sometime for six months together and sometimes in advance as well. The rent for the month of April, 1993 was offered to the landlord but as they refused to accept the same with ulterior motive, the defendants became compelled to deposit the same under Section 5(4) of the Assam Urban Areas Rent Control Act, 1972 (herein after referred to as 'the Act') and thus the defendants were not defaulter. Subsequently, after the plaint was amended the defendants were given a scope to file additional written statement wherein they took a plea that a sum of Rs.70,000/- had been paid by the defendants to the original landlord in the year 1979 on the condition that the same would be refunded at the time of vacating the suit premises along with interest at the rate of 18% per annum. The plaintiffs being aware of this fact had assured the defendants that they would also refund the aforesaid amount on the same condition but the plaintiffs did not make such refund. The plaintiffs being aware of this fact had assured the defendants that they would also refund the aforesaid amount on the same condition but the plaintiffs did not make such refund. The defendants have also denied the plea of bonafide requirement of the plaintiffs specifically and as claimed in paragraph 11 of the written statement that the plaintiffs have adequate space for extension of their business. Moreover, in the year 1997 the plaintiffs have started a new business under the name and style of Oswal Tripal Centre. The defendants further pleaded that besides them there are a number of other tenants in the suit premises such as Canara Bank, Madan Electricals etc. in the same building but the plaintiffs did not take any 4. On the basis of the pleadings of the parties the learned trial Court framed seven issues and the same are as follows :- “1. Whether the suit premises is bona fide required by the plaintiff for their own use and occupation? 2. Whether the defendant is a defaulter in making payment of monthly rent, if so, whether the plaintiff is entitled to get decree for interest @ Rs.18% per annum on the arrears of rent as prayed for? 3. Whether the plaintiff is entitled to get compensation @ Rs.50/- per day with effect from 24.12.01? 4. Whether the plaintiff is entitled to get decree for ejectment of the defendant from the suit premises? 5. To what other relief/reliefs the parties are entitled to? 6. Whether the plaintiff No.2 along with other co-owners of the suit premises by letter dtd. 1-9-79 acknowledged the receipt of Rs.70,000/- by signing on the said letter? 7. Whether the condition stated in the letter dtd. 1-9-79 is a condition precedent in claiming possession of the suit premises?” 5. In course of trial plaintiffs examined one witness and adduced two documents. The defendants, on the other hand, examined one witness and exhibited eleven documents in all. 6. The learned trial Court after consideration of the evidence adduced by the parties and after hearing all the learned counsel passed judgment and decree dated 31.08.2007 holding the defendants defaulter and also holding that the suit premises were required bonafide by the plaintiffs. The defendants, on the other hand, examined one witness and exhibited eleven documents in all. 6. The learned trial Court after consideration of the evidence adduced by the parties and after hearing all the learned counsel passed judgment and decree dated 31.08.2007 holding the defendants defaulter and also holding that the suit premises were required bonafide by the plaintiffs. The learned trial Court did not accept the subsequent pleading of the defendants that a sum of Rs.70,000/- had been paid to the predecessor of the plaintiffs in the year 1979 with condition to refund with interest. The learned trial Court while deciding the issue of default along with other issues such as Issue Nos.2, 3, 6 and 7 has considered the depositions of PW 1 as well as DW 1. The learned trial Court noticed that admittedly there was a relationship of landlord and tenant between the parties since 1991 and the monthly rent was fixed at Rs.625/-. Although the DW 1 denied of having any fixed due date or fixed mode of payment of rent but during cross-examination of DW 1 a certified copy of an application under Section 5(4) of the Act was brought to his notice and on being confronted with the document it came to light that it is these defendants who had described themselves to be monthly tenants of the plaintiffs and due date was described to be within seven days of the subsequent month. Such admission on the part of the defendants that the rent fell due and was payable within the first week of the succeeding month was available from the application filed by the defendants themselves under Section 5(4) of the Act and the same were exhibited by the plaintiffs in course of trial. Even Ext-U which was proved under objection was shown to the DW 1 in course of cross-examination when he admitted that the defendants used to pay rent after completion of the month and within seven days of the succeeding month. With these findings the learned trial Court was of the view that rent of the suit premises becomes due on the last day of the month and the same was payable within first week of the succeeding month by cheques. Having decided the due date and the mode of payment the learned trial Court proceeded to examine the issue of default. Having decided the due date and the mode of payment the learned trial Court proceeded to examine the issue of default. In this process, the Ext-L to Ext-T were pressed by the defendants into service. The learned trial Court found that these exhibits were not submitted while submitting the examination-in-chief. Even DW 1 failed to disclose in his examination-in-chief as to when did he offer rent to the plaintiffs. No independent witness was examined by the defendants to corroborate the oral testimony of DW 1 that rent was offered to landlord and that the landlord refused to accept the same with effect from May, 1993 till date. Even no secondary evidence of the deposit of rent was brought on record by the defendants to prove that the deposit was made in accordance with the procedure prescribed under Section 5(4) of the Act. Having considered Ext-U, the learned trial Court was of the view that no step was taken even in that case for issuance of notice upon the landlords. The learned trial Court found that original records 7. Coming to the question of payment of security deposit to the extent of Rs.70,000/- in the year 1979, the learned trial Court noticed that these averments were not made in the original written statement. After the plaint was amended by the plaintiffs to make some corrections in the name of the parties the defendants were given another chance to file additional written statement. At that stage the defendants took the new plea of payment of Rs.70,000/- to the predecessor of the plaintiffs. Since this stand was not taken at the initial stage and there was no corroborating evidence to prove payment of Rs.70,000/- either orally or by examining the books of accounts the learned trial Court did not believe in Ext-A for the purpose of ascertaining correctness as to the claim of payment of Rs.70,000/- in the year 1979 as security and accordingly all the issues, viz., Issue Nos.2 to 7 were decided in favour of the plaintiffs and against the defendants. It was held that the defendants could not establish payment of Rs.70,000/- as security deposit to the predecessor of the plaintiffs and so there was no question of refund thereof alongwith interest by the plaintiffs. 8. It was held that the defendants could not establish payment of Rs.70,000/- as security deposit to the predecessor of the plaintiffs and so there was no question of refund thereof alongwith interest by the plaintiffs. 8. Coming to the issue of bona fide requirement, the learned trial Court held that there are a number of tenants but the defendants cannot dictate the term as to which of the tenants can be evicted by the plaintiffs for the purpose of establishing their business. It is the landlord who will make selection about the tenanted premises from more than one tenant. The landlord is at liberty to choose any of them for the purpose of their bonafide requirement. The learned trial Court considered the judgment of the Hon'ble Supreme Court in the case of Sati Nagrie Puroshotham reported in (2005) 8 SCC 252 and held that a tenant cannot dictate term under such circumstances. Having noticed that the plaintiffs had given explanation in course of cross-examination that there was no vacant space on the ground floor of the suit premises the objection taken by the defendants against the plea of bonafide requirement was held untenable. On the other hand, the plea taken by the plaintiffs was acceptable. Accordingly, Issue No.1 (bonafide requirement) was decided in favour of the plaintiffs. 9. Having so decided the learned trial Court by his judgment and decree dated 31.08.2007 decreed the suit of the plaintiffs for eviction of the defendants from the suit premises along with a decree for recovery of arrear rents from December, 1996 to November, 2001 amounting to Rs.22,500/- with interest at the rate of 6% per annum from the date of filing of the suit till realization. 10. The aforesaid trial Court judgment and decree dated 31.08.2007 came under challenge before the learned First Appellate Court at the instance of the defendants. The learned First Appellate Court by judgment and decree dated 03.04.2009 dismissed the Title Appeal No.66/2007. The tenants thereafter preferred a revision petition vide CRP No.157/2009 and this Court by setting aside the concurrent judgment of the two Courts below dismissed the suit of the plaintiffs by judgment and order dated 13.08.2009. The plaintiffs thereafter approached the Hon'ble Supreme Court vide Civil Appeal No.4889/2010 and the Hon'ble Supreme Court by judgment and order dated 05.07.2010 remanded the matter to the learned First Appellate Court for deciding the issues afresh. 11. The plaintiffs thereafter approached the Hon'ble Supreme Court vide Civil Appeal No.4889/2010 and the Hon'ble Supreme Court by judgment and order dated 05.07.2010 remanded the matter to the learned First Appellate Court for deciding the issues afresh. 11. On remand the learned First Appellate Court heard both sides and thereupon passed the impugned judgment and decree dated 29.01.2011. This time the finding of the learned trial Court in regard to bonafide requirement was reversed. In paragraph 20 of the impugned judgment the learned First Appellate Court has observed that the plaintiffs made mere averments pertaining to bonafide requirement but there was no proof. In a court of law every fact must be proved by leading evidence and since the plaintiffs have failed to prove their bonafide requirement , this issue was liable to be decided against them. Accordingly, decision of the learned trial Court in Issue No.1 was reversed by the by the learned First Appellate Court. Be that as it may, it is to be noted that in so doing the learned First Appellate Court did not consider the findings of the learned trial court in regard to Issue No.1. The learned First Appellate Court did not consider the reasons recorded by the learned trial Court before reversing the findings and merely held that the plaintiffs could not prove the plea of bonafide requirement to be a pressing and genuine need. However, the learned First Appellate Court did not find any error with the finding of the learned trial Court insofar as it relates to the issue of default. In paragraph 12 of the first appellate judgment it was held that the plaintiffs amended the plaint only for correction of some clerical mistakes and the defendants while filing additional written statement against such amendment went to the extent of incorporating new fact which they had never stated in their earlier written statement and so such additional fact could not be considered. The learned First Appellate Court held that appellants used to pay rent at the rate of Rs.625/- per month upto March, 1993 to the plaintiffs which shows that the defendants had attorned the plaintiffs as their landlord and so the plaintiffs were entitled to institute the suit for eviction of the defendants. The defendants having attorned the plaintiffs to be their landlord was stopped from challenging the title. The defendants having attorned the plaintiffs to be their landlord was stopped from challenging the title. Having considered the respective cases of both sides in regard to mode of payment and alleged default by the defendants the learned First Appellate Court held that provision under Section 5(4) of the Act is 12. I have heard Mr. R.C. Sanchati, learned counsel for the petitioners in CRP No. 98/2011 and Mr. P. Khataniar, learned counsel for the petitioners in CRP No. 115/2011. Mr. Khataniar has argued on behalf of the opposite parties in CRP No. 98/2011 and similarly Mr. R.C. Sanchati strenuously placed his case in favour of the opposite parties in CRP No. 115/2011. I have perused the lower court records including the documents adduced by the parties and the depositions made by them. 13. The learned First Appellate Court decided Issue No.1 on bonafide requirement against the plaintiffs holding that a mere desire cannot take place of bonafide requirement within the meaning of Section 5(1)(c) of the Act. It is true that mere desire of a plaintiff cannot take place of bonafide requirement. It has to be a pressing need but such need has to be genuine as well. In the case in hand the plaintiffs urged that their family members, particularly the young ones, are required to start their own business and they do not have any other alternative space for the purpose. The defendants came forward with an objection that the same plaintiffs had already started a new business in the name and style of M/S Oswal Tripal Center in the same building and so there cannot be a further case for bonafide requirement. The tenant cannot say as to whether the need for the landlord has been over. There are several owners of the suit premises who joined together to institute the suit for eviction and merely due to the fact that a new business has been started by some of the plaintiffs it cannot be end of all bonafide requirements of all the plaintiffs. The defendants also stated that there are other tenancies in the same building which could have been used by the plaintiffs for the purpose of their own business, if there be any, but the plaintiffs did not institute any proceeding against any of those tenants. Reference has been given to Canara Bank, Madan Electricals etc. The defendants also stated that there are other tenancies in the same building which could have been used by the plaintiffs for the purpose of their own business, if there be any, but the plaintiffs did not institute any proceeding against any of those tenants. Reference has been given to Canara Bank, Madan Electricals etc. to show that there are in the same building. PW 1 gave explanation in this regard in course of evidence by saying that the Canara Bank is situated on the first floor of the building which is not feasible or commercially viable for the purpose of running a business. The suit premises is situated on the ground floor and it is best suited for the purpose of starting a new business. Such an explanation given by the plaintiffs cannot be said to be not plausible. The learned trial Court took the view that on the basis of the averments made by the plaintiffs in the pleading as well as in the evidence that a case of bonafide requirement was made out. But the learned First Appellate Court while reversing the findings on Issue No.1 did not discuss the reasons recorded by the learned trial Court in regard to Issue No.1. Having referred to the leading judgments on bonafide requirements the learned First Appellate Court spared only one paragraph in para 20 of the first appellate judgment to hold that plaintiffs failed to prove their pleaded case of bonafide requirement. Such a decision without considering the evidence adduced by the witnesses and the findings recorded by the learned trial Court, the exercise made by the learned First Appellate Court cannot be said to be a proper exercise as the last court of fact 14. Both the Courts below have concurrently held that the defendants committed default in payment of rent. The pleaded case of the plaintiffs is that defendants attorned them as landlord with effect from 01.04.1991 and continued making payment of rent at the rate of 625/- every month. Payment was made in the first week of succeeding month but since April, 1993 no rent was offered or paid by the defendants to the plaintiffs and thus they became defaulters. Reacting to such pleading of the plaintiffs the defendants laid foundation of a different story in their written statement. Payment was made in the first week of succeeding month but since April, 1993 no rent was offered or paid by the defendants to the plaintiffs and thus they became defaulters. Reacting to such pleading of the plaintiffs the defendants laid foundation of a different story in their written statement. According to the defendants rent for the month of April, 1993 was never demanded by the plaintiffs. When the defendants offered the rent for the month of May, 1993 the landlord refused to accept it. Under such circumstances, the rents were deposited in Court in terms of provisions of Section 5(4) of the Act. Section 5(4) of the Act provides an opportunity to the tenants to avoid the rigour of eviction in case a clever landlord refuses to accept rent so as to trap the tenant. The section provides that in case rent is offered and is refused by the landlord, in that event, tenant is at liberty to deposit the same in court within a fortnight of its falling due along with process fee so as to serve notice upon the landlord. The section has been held to be mandatory in preponderant judicial pronouncements of this Court. The section has several ingredients such as offer of the rent on the due date, a consequent refusal by the landlord to accept the rent, depositing rent within a fortnight of its falling due and payment of required process fee for issuance of notice upon the landlord. If a tenant chooses to avail the benefit of Section 5(4) of the Act, it is his burden to establish all these ingredients. If any of them is not satisfied in that event he cannot get the benefit of the section and consequently he becomes a defaulter. In the present case having laid foundation in the written statement that deposits were being made till date according to Section 5(4) of the Act, the defendants knowingly took the burden on them to establish the required ingredients of the section. Offer of rent and refusal by landlord may be proved orally by examining an appropriate witness in terms of Section 60 of the Evidence Act but so far as deposit in court within fortnight of its falling due along with process fee is concerned, the same are apparently matters of documents and so such a fact can be established only by adducing documentary evidence. Once an application under Section 5(4) of the Act is filed before a court offering to deposit rent and the same is allowed, the tenant is required to fill up challans to make the deposit in Bank and thereafter to file the same in court again along with process fee. To show that deposit was really made in Bank and that thereafter 15. At this stage, Mr. R.C. Sanchati, learned counsel for the tenants/defendants, would argue that a sum of Rs.70,000/- was paid to the predecessor of the plaintiffs in the year 1979 and so unless and until this amount is adjusted the defendants could not have been held to be defaulters. To examine this question this Court has perused the findings of the learned Courts below in this regard. The learned Courts below have concurrently held that payment of Rs.70,000/- was not pleaded by the defendants at the first instance of filing the written statement. After the plaint was amended for correcting some clerical mistakes the defendants filed a written statement anew in the garb of additional written statement and this fact was incorporated therein. Order VIII Rule 9 of the CPC prohibits subsequent pleadings. It provides that no pleading subsequent to the written statement of a defendant other than by way of defence to set-off or counter-claim shall be presented except by the leave of the Court and upon such terms as the Court thinks fit. However, the Court may at any time require a written statement or additional written statement from any of the parties and fix a time for the purpose. Here, in this case, when amendment of plaint was allowed so as to correct clerical mistakes, the defendants were given a scope to file additional written statement. So far as the additional written statement in regard to the amended plaint is concerned, the same would not be barred by the provision of Order VIII Rule 9 of the CPC. The defendants could have filed additional written statement only to the extent of amendment made and not in excess of it. Here, the defendants availed the opportunity of additional written statement for incorporating a new case. This could have been done subject, however, to prior leave of the Court. The defendants could have filed additional written statement only to the extent of amendment made and not in excess of it. Here, the defendants availed the opportunity of additional written statement for incorporating a new case. This could have been done subject, however, to prior leave of the Court. The order sheet so perused does not disclose such leave was granted by the learned trial Court and so the learned trial court has rightly held that this part of the pleading cannot be taken into consideration. Moreover, having pleaded by way of additional written statement that a sum of Rs.70,000/- was given by the defendants to the predecessor of the plaintiffs in the year 1979 on such terms or conditions as security, the defendants did not adduce the books of accounts to prove such transaction. No independent witness was examined to prove the fact even by oral evidence that such payment was really made. The learned trial Court did not miss to notice such defect on the part of the defendants and accordingly held that the defendants could not prove payment of Rs.70,000/- as security at ll. Ext-A did not reveal that such 16. As has been pointed out above, the learned Courts below have rightly held that defendants are defaulters but the finding of the learned trial Court that plaintiffs required the suit premises bona fide was not properly dealt with by the learned First Appellate Court. Under such circumstances perhaps this case could have been remitted to the learned First Appellate Court to decide the Issue No.1 afresh but this may be a mere formality or an academic exercise. This is because a decree of eviction can be passed on any of the grounds mentioned in Section 5 of the Act. If a decree of eviction is possible on the ground of default, in that event, proof of issue on bonafide requirement is not necessary. It will unnecessarily result in further delay and accordingly this Court does not feel inclined to remit the records back to the learned First Appellate Court for deciding afresh the issue on bona fide requirement. The decree passed on Issue No.2, namely, default in payment of rent, therefore, requires to be upheld and consequently the decree of eviction and for realization of arrear rent is not interfered with. The CRP No.98/2011 is accordingly dismissed. The CRP No.115/2011 is hereby allowed. 17. The decree passed on Issue No.2, namely, default in payment of rent, therefore, requires to be upheld and consequently the decree of eviction and for realization of arrear rent is not interfered with. The CRP No.98/2011 is accordingly dismissed. The CRP No.115/2011 is hereby allowed. 17. It is to be noted that although issue on compensation has been allowed by the learned Courts below but no decree has been passed for compensation whatsoever. It is not in dispute that a tenant under Assam Urban Areas Rent Control Act is a statutory tenant and he continues to remain so unless and until he is evicted by the decree of a competent court. Admittedly, the defendants are in possession of the suit premises till date as tenants. The defendants are not trespassers. They have an ongoing contractual relation with the plaintiffs being in landlord and tenant relationship. The defendants, therefore, are not liable to pay any compensation for their occupation of the suit property. The landlord would be entitled to arrear rents only for which a decree has already been passed. No order as to cost. Send down the records.