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2016 DIGILAW 482 (GAU)

Badal Goala v. Ranjit Goala

2016-05-31

N.CHAUDHURY

body2016
JUDGMENT : 1. The concurrent findings of the learned two Courts below holding the present petitioner a defaulter in a proceeding under Section 5 of the Assam Urban Areas Rent Control Act, 1972 (hereinafter referred to as ‘the Act’) has been called in question in the present revision petition. The learned Munsiff No.1, Cachar at Silchar decreed Title Suit No.65/2008 of his Court ex parte against the sole defendant refusing to consider the written statement belatedly filed and an appeal preferred there-against being Title Appeal No.23/2010 in the Court of learned Civil Judge No.1, Cacahr at Silchar stood also dismissed by the judgment and decree dated 23.05.2011. Aggrieved, the tenant has approached this Court challenging both the judgments and decrees passed by the learned Courts below. 2. To understand the respective cases of both sides it is necessary to narrate the brief facts at the beginning. Opposite party herein as plaintiff instituted Title Suit No.65/2008 in the Court of learned Munsiff No.1, Cachar at Silchar stating that the petitioner herein, the defendant in that suit, was a tenant under him with respect to the suit premises described in Schedule-2 to the plaint at a monthly rental of Rs.400/- payable within 10th day of the next month as per English calendar. The tenant continued paying rent till November, 2005 and thereafter defaulted. The schedule-2 suit premises which is a two storied Assam Type house standing on schedule-1 land became old and dilapidated requiring reconstruction. The son of the plaintiff had also become adult in the meantime and he was in need of being accommodated. With these twin reasons the plaintiff claimed that there was bona fide requirement for demolition and reconstruction of the suit premises. The suit was accordingly instituted praying for a decree of eviction of the sole defendant along with realization of Rs.11,200/- being arrear rent. In the body of the plaint it was the basic case of the plaintiff that the suit land described in schedule-1 to the plaint originally belonged to one Rafique Uddin Mazumdar of Madhurbond, Silchar who sold the same to the plaintiff on realization of due consideration by executing a registered deed on 01.07.1988. The plaintiff thereafter had developed the land and made construction and ultimately put the defendant in possession of one room at the ground floor and one room at the first floor at the aforesaid monthly rental of Rs.400/-. 3. The plaintiff thereafter had developed the land and made construction and ultimately put the defendant in possession of one room at the ground floor and one room at the first floor at the aforesaid monthly rental of Rs.400/-. 3. On being summoned the defendant appeared and by filing written statement denied the entire story pleaded in the plaint. According to the defendant, the original owner, namely, father of Rafique Uddin Mazumdar took settlement of the suit land along with Ruplal Goala, the father of the plaintiff and the defendant. Ruplal Goala, the father of the plaintiff as well as the defendant, thereafter developed the land and made construction of the suit premises and thus both the plaintiff and the defendant were enjoying the suit property. After the death of Ruplal Goala both the plaintiff and the defendant acquired right, title and interest over the suit land. The defendant denied the relationship of landlord and tenant between him and the plaintiff and repudiated the claim of default and bona fide requirement made by the plaintiff. Ultimately, the defendant prayed that the suit of the plaintiff for realization of arrear rent as well as for eviction should be dismissed. It is necessary to mention here that this written statement submitted by the defendant was beyond the statutory period of 90 days. The notice was served on the defendant on 21.04.2008 and so he was entitled to file written statement on or before 21.07.2008 although the suit was fixed for necessary order on 15.09.2008. On 15.09.2008 having noticed that the written statement was filed only on 30.08.2008, the matter was fixed for filing objection and objection hearing. In the meantime, the defendant filed an application under Section 5 of the Limitation Act praying for condonation of delay in filing the written statement. By order dated 16.03.2009 the learned trial court rejected the application filed under Section 5 of the Limitation Act holding that the Limitation Act was not applicable and so application under Section 5 thereof was also not maintainable. Consequently, the written statement filed by the defendant on 30.08.2008 remained out of record and the defendant did not file any revision petition challenging the order dated 16.03.2009. The suit thereafter proceeded ex parte. 4. The plaintiff examined himself and one witness as PW 2. As the matter proceeded ex parte against the defendant he was given liberty to cross-examine these two witnesses. The suit thereafter proceeded ex parte. 4. The plaintiff examined himself and one witness as PW 2. As the matter proceeded ex parte against the defendant he was given liberty to cross-examine these two witnesses. The defendant cross-examined the PW 1 but cross-examination of PW 2 was not allowed by order dated 03.02.2010 as allegedly the learned counsel for the defendant did not turn up in spite of call before 2.00 P.M. and he attended the Court only at 2.00 P.M. The learned trial Court thereafter on the basis of the depositions of the two PWs passed his judgment and decree dated 23.03.2010 holding the defendant a defaulter and also holding that the plaintiff required the house bona fide. 5. The decree of eviction passed along with realization of arrear rent vide aforesaid judgment dated 23.03.2010 was called in question by the defendant in Title Appeal No.23/2010 in the Court of learned Civil Judge No.1, Cachar at Silchar. The learned First Appellate Court dismissed the appeal by his judgment and decree dated 23.05.2011. 6. In the memorandum of appeal of Title Appeal No.23/2010 the defendant/appellant had taken a ground that the written statement filed by him was not taken on record for any cogent reason and so prejudice has been caused to him. But while deciding the first appeal the learned appellate court did not consider this aspect of the matter although the entitlement of the appellant to challenge any of the orders of the learned trial court under Section 104 of the Code of Civil Procedure was not disputed by the learned First Appellate Court. This ground taken up in the memorandum of appeal appeared to have escaped the notice of the learned First Appellate Court. The learned First Appellate Court also failed to act in accordance with the provision of Order XLI Rule 31 CPC by not framing any point for determination in the present case. He simply affirmed the findings of the learned trial Court without discussing the evidence available on record. He has not applied his independent mind as required in terms of the guidelines laid down by the Hon’ble Supreme Court in the case of Santosh Hazari vs. Purushottam Tiwari (deceased) by LRS., reported in (2001) 3 SCC 179 . The first appellate judgement, therefore, appears to be deficient to the above extent. 7. Mr. S. Dutta, learned senior counsel assisted by Mr. The first appellate judgement, therefore, appears to be deficient to the above extent. 7. Mr. S. Dutta, learned senior counsel assisted by Mr. C. Sharma, learned counsel for the petitioner, would argue that the learned trial Court committed error of jurisdiction in refusing to accept the written statement filed merely after a delay of 39 days explanation for which was duly given by filing an application under Section 5 of the Limitation Act. By that time law had crystalised that court is not devoid of any power to accept a written statement beyond the period of 90 days provided extraordinary circumstances are made out by the defendant. Here, in the present case, the defendant by filing an application explained the reasons under which the written statement could not be filed within the statutory period of 90 days. The learned trial Court did not enter into the merit of the case but merely holding that the application under Section 5 was not applicable refused to go into the reasons cited for filing the written statement belatedly and such action on the part of the learned trial Court amounts to error in jurisdiction. The defendant, therefore, took such failure on the part of the trial Court vide order dated 16.03.2009 as a ground vide ground No.(e) in the memorandum of first appeal while challenging the final judgment and decree but the learned First Appellate Court also committed jurisdictional error in not considering the ground at all and in overlooking the matter. Thus, both the Courts below have committed jurisdictional error warranting exercise of jurisdiction of this Court under Article 227 of the Constitution of India. 8. Per contra, Mr. N. Dhar, learned counsel for the opposite party, argues that even if the written statement is taken into consideration, the defendant was duty bound to establish either by leading evidence or by cross-examining the witnesses of the plaintiffs to show that the suit property was really the ancestral property of the plaintiff and the defendant and so both of them have equal right, title and interest. The defendant miserably failed to duly cross-examine the PWs to find out the case sought to be set up by him by filing the written statement and so allowing the defendant at this stage to lead evidence and/or allowing the written statement to be taken on record at this stage would only cause harassment and prejudice to the plaintiff, Mr. Dhar argued. 9. Having heard the learned counsel for the parties and having perused the order-sheet of the Title Suit as well as the Title Appeal this Court finds that the plaintiff and the defendant are brothers. The plaintiff claimed that he purchased the land and then he made construction of the suit premises described in schedule-2 to the plaint and much thereafter the defendant was inducted therein as a tenant at a monthly rental of Rs.400/- payable within the 10th day of the next month as per English calendar. The defendant, on the other hand, comes forward and says that the property was actually taken in settlement by the father of the plaintiff and the defendant and it is he who developed the land and constructed the suit premises described in Schedule-2 and so the plaintiff cannot claim to be the sole owner even if the sale deed was executed by the original owner. The written statement was filed after a delay of 39 days. The defendant furnished explanation by filing an application under Section 5 of the Limitation Act. Under such circumstances the learned trial Court was duty bound to find as to whether it was an appropriate case for accepting written statement beyond the expiry of statutory period. Although by an amendment of Order VIII Rule 1 of the Code of Civil Procedure a timeframe has been fixed for filing of the written statement but in view of the preponderant judicial pronouncements holding the field by now it is apparent that proviso to Order VIII Rule 1 is directory in nature and not mandatory. Power of court to accept written statement filed beyond 90 days has not in any way been taken away by the amendment made in 2002 in Order VIII Rule 1 of the CPC. This provision is a procedural one and like any other procedural law it is also handmaid of justice. Power of court to accept written statement filed beyond 90 days has not in any way been taken away by the amendment made in 2002 in Order VIII Rule 1 of the CPC. This provision is a procedural one and like any other procedural law it is also handmaid of justice. In the case of Shaikh Salim Haji Abdul Khayumsab vs. Kumar and others, reported in (2006) 1 SCC 46 , the Hon’ble Supreme Court held that even at the stage of argument a trial can be said to have commenced and so there is no bar in accepting written statement at that stage. In the case 10. In view of what has been stated above, the first appellate judgment is hereby set aside and quashed and the matter is remanded back to the learned First Appellate Court to redecide the same taking into consideration the observations made herein above. The parties shall appear before the learned First Appellate Court on 18.07.2016. Registry shall transmit the records on the meantime so that appropriate order can be passed by the learned First Appellate Court on that day upon appearance of the parties. The revision petition stands allowed. No order as to cost.