Pritpal Singh v. Mustt. Nur Nahar Begum, W/o. Late Samsul Hussain
2016-08-18
SUMAN SHYAM
body2016
DigiLaw.ai
JUDGEMENT AND ORDER : Heard Mr. A. Sattar, learned counsel for the petitioner. Also heard Mr. S. Ali, assisted by Mr. A. Iqbal, learned counsel representing the respondents. 2. This revision petition has been preferred against the judgment and decree dated 16/02/2016 passed by the Civil Judge, Lakhimpur in Title Appeal No. 2/2015 affirming the judgment and decree dated 15/12/2014 passed by the Court of Munisff No.2, North Lakhimpur in Title Suit No. 23/2011. 3. The brief facts of the case is that the husband of the plaintiff no. 1 i.e. late Samsul Hussain was the original owner of the suit land. The defendant no.1 entered into a tenancy in respect of the tenanted premises under late Samsul Hussain on condition of paying monthly rent way back in the year 1989 and continued to occupy the said premises, wherefrom he has been running a shop in the name and style of “Shoe Emporium”. Samsul Hussain died in the year 1999, whereafter the suit property devolved upon the plaintiff no.1 i.e. his wife and plaintiff nos. 2 and 3, who are his sons. It is the case of the plaintiffs that after the death of Samsul Hussain, no fresh agreement of tenancy was entered with the defendant no.1. However, he was verbally allowed to continue to occupy the suit premises on condition that the defendant no.1 would vacate the same as and when the plaintiffs were in need of the same. Subsequently, when the need for using the tenanted premises was felt by the plaintiffs, several requests were made to the defendant no.1 to vacate the suit premises on the ground of bonafide requirement of the same but instead of vacating the premises, the defendants continued to occupy the same and on the contrary, they also stopped paying rent since the month of December, 2010, falsely alleging that the rent when offered to the plaintiffs, it was declined by them. It has been categorically pleaded in the plaint that the tenanted premise was bonafide required by the plaintiffs for their own use and occupation as the old dwelling house of the plaintiff, adjacent to the suit premises has become dilapidated and congested requiring immediate repair. It has also been pleaded that the plaintiff nos. 2 and 3 have no other business of their own and since the plaintiff no.
It has also been pleaded that the plaintiff nos. 2 and 3 have no other business of their own and since the plaintiff no. 2 had lost his previous job, hence, they intend to reconstruct the suit house in the existing place and thereafter, start a business of their own. The plaintiff had sent a Pleader’s notice to the defendants on 06/05/2012 but despite receipt of the same, the defendants have not vacated the tenanted premises, as a result of which the plaintiffs had instituted the suit praying for a decree of ejectment of the defendants from the suit premises. 4. The defendant nos. 1 and 2 had contested the suit by filing their written statement wherein it has been stated that the defendant no.1 was running a shoe business from the tenanted premises till 2009. But in the month of January, 2009, the defendant no.1 had suffered a brain haemorrhage which has caused paralysis to him and the defendant no.1 has been bed ridden since 2009. It is the defendant nos. 2 i.e. his son who has been running the business from the tenanted premises. While denying the case of the plaintiffs, the defendants have also stated that there was no agreement to vacate the suit premises as and when asked by the plaintiffs. On the contrary, the plaintiffs had demanded 2 lakhs of rupees as advance to the defendant no.2 which could not be paid by him due to the expenses incurred in the treatment of the defendant no.1, as a result of which the plaintiffs have falsely alleged that the defendants have become defaulter and had accordingly instituted the suit to evict the defendants from the suit premises. Through their pleadings, the defendants had also denied that the suit property was bonafide required by the plaintiffs. 5. Based on the pleadings of the parties, the Court below had framed the following issues:- i. Whether there is cause of action for the suit? ii. Whether the plaintiff suit is maintainable in law? iii. Whether there was an oral agreement between the plaintiff side and the defendant no.1 after the death of Samsul Hussain that the defendant would subsequently vacate the tenanted premises for their own use ? iv. Whether the plaintiff side has accepted rent from defendant no. 2 from the year 2009 till the month of November 2010 and from November 2010 the plaintiff side ?
iv. Whether the plaintiff side has accepted rent from defendant no. 2 from the year 2009 till the month of November 2010 and from November 2010 the plaintiff side ? v. Whether the defendant side defaulter in payment of monthly rent to the plaintiff? vi. Whether the defendant side had violated the norms of tenancy with the plaintiff side? vii. Whether the plaintiff had requested the defendant side to vacate the rented premises? viii. Whether the plaintiff side has bona fide requirement of the tenanted premises? ix. Whether the plaintiff side is entitled to prayers forwarded in the plaint? x. To what other relief’s the parties are entitled to? 6. By drawing the attention to the findings and recorded by the First Appellate Court, Mr. A. Sattar, learned counsel for the petitioner submits that the impugned judgment and decree passed by the First Appellate Court is vitiated in the eye of law due to several inconsistencies in the observation made therein whereby the Court below has even gone to the extent of observing that the issue nos. 4 and 5 have been wrongly framed, meaning thereby that the question of defendant having become a defaulter in the eye of law was not material for the purpose of decision of the suit in the opinion of the First Appellate Court. Since such a conclusion runs contrary to the pleaded stand of the parties, hence, submits Mr. Sattar, the entire judgment is liable to be set aside by this Court. 7. Coming to the question of concurrent findings recorded by the Courts below on the issue of bonafide requirement i.e. issue no. 8, Mr. Sattar submits that although the plaintiffs had taken the plea of bonafide requirement, yet, the same could not be proved and established by the plaintiffs during trial by adducing cogent evidence. On the contrary, from the testimony of the plaintiff witnesses, according to Mr. Sattar, it is apparent that the reconstruction/renovation of their residential premise had been completed during the pendency of the suit and as such the basis of the plea of bonafide requirement was non-existent on the date on which the suit filed by the plaintiffs was decreed. In support of his aforesaid argument, Mr. Sattar has relied upon a decision of this Court rendered in the case of Data India Ltd. and others Vs.
In support of his aforesaid argument, Mr. Sattar has relied upon a decision of this Court rendered in the case of Data India Ltd. and others Vs. United Publishers and others reported in 2005 (1) GLT 437, wherein it has been held that the plaintiffs are under a legal obligation to prove that the bonafide requirement is a natural, real and sincere/honest requirement of the plaintiffs. According to the learned counsel for the petitioner, the plaintiffs have failed to discharge the said burden of proof in the present case. 8. Mr. Ali, learned counsel for the respondents on the other hand submits that both the Courts below have recorded concurrent findings of facts in respect of issue no. 8 holding that the suit premises were bonafide required by the plaintiffs for their own use. Such finding of fact having been recorded based on evidence available on record, there is no scope for this Court to interfere with the same in exercise of revisional jurisdiction under Section 115 of the CPC. Mr. Ali submits that the plaintiffs have adduced sufficient evidence to prove and establish their bonafide requirement of the suit premise and therefore, there is no illegality in the decision and conclusion recorded by the Courts below. 9. I have considered the submissions made by and on behalf of the parties and have also gone through the materials available on record. From a careful scrutiny of the pleadings of the parties as well as the relief sought in the plaint, it is evident that the material issue having a determinative value in the outcome of the suit would be the issue no. 8 which pertains to the question of bonafide requirement of the suit premises by the plaintiffs. From a perusal of the pleadings contained in para 10 of the plaint, it is seen that the plaintiffs have pleaded the necessary facts so as to set up the plea of bonafide requirement of the suit premises. During trial, the plaintiffs have also led evidence in support of such pleadings. On the contrary, save and except, making a vague denial of the plea, the defendants have not been able to demolish the aforesaid claim of the plaintiffs by adducing proper evidence.
During trial, the plaintiffs have also led evidence in support of such pleadings. On the contrary, save and except, making a vague denial of the plea, the defendants have not been able to demolish the aforesaid claim of the plaintiffs by adducing proper evidence. On the basis of the evidence available on record, the learned trial Court had arrived at a categorical finding of fact that the suit premises was required by the plaintiffs for their bonafide use and occupation. On the basis of such finding, the trial court has decreed the suit. 10. The First Appellate Court had also re-appreciated the evidence available on record and thereafter, recorded findings in respect of issue no. 8 holding that the suit premises were bonafide required by the plaintiffs. The First Appellate Court had recorded a finding of fact to the effect that the suit house was n a dilapidated condition requiring urgent repair to be carried out. It has also been observed that the plaintiff no. 2 Md. Arshad Hussain, who was earlier working with the Vodafone Company, is presently jobless and therefore, there is a need to reconstruct the tenanted premises where the plaintiffs could start their own business. In the case of Smti Durga Bala Das vs. Smti Chitra Bala Das reported in (1989) 2 GLR 458, it has been held by this court that the requirement of the suit premises for expansion of the business of the sons of the plaintiff would constitute bonafide requirement of the Plaintiff/Land lord. 11. It has also been found by the court below that due to the paucity of proper accommodation, the plaintiff no. 2 and his family is required to stay separately at the K.B. Road, which itself was posing difficulty to the plaintiffs. Such findings of fact have been recorded on the basis of cogent evidence available on record. The courts below have recorded concurrent finding of fact answering the issue no. 8 in favour of the plaintiffs and I do not find any justifiable ground to disturb such concurrent findings recorded by the courts below. The plaintiffs have succeeded in establishing that they were in genuine requirement of the tenanted premises for starting a family business and also to tide over the accommodation problem. Therefore, the plea of bonafide requirement of the landlord stands established in this case. 12.
The plaintiffs have succeeded in establishing that they were in genuine requirement of the tenanted premises for starting a family business and also to tide over the accommodation problem. Therefore, the plea of bonafide requirement of the landlord stands established in this case. 12. It is settled law that in exercise of revisional jurisdiction under section 115 of the CPC, the Court would not interfere with the concurrent findings of fact recorded by the Courts below unless such findings is found to be perverse in the eye of law. On a proper examination of the materials on record I am of the view that the findings recorded by the courts below does not suffer from any perversity warranting interference from this court. 13. Law is settled that a decree for ejectment of a tenant can be passed by the civil Court if any one of the grounds mentioned in section 5(A) of the Assam Urban Areas Rent Control Act is satisfied. The ground of bonafide requirement of the tenanted premises by the landlord is also a ground on which a decree of ejectment of a tenant can be passed by the Civil Court. In the instant case, the courts below have concurrently found that the suit premises was bonafide needed by the plaintiffs for their own use and occupation. The said finding has been affirmed by the First Appellate Court. This Court is of the opinion that the learned court below has rightly decided the issue no. 8. Such being the position, reference to the findings recorded in respect of other issues is un-necessary in the facts and circumstances of the case. 14. For the reasons stated above, this revision petition is held to be devoid of any merit and is hereby dismissed. 15. At this stage, Mr. Sattar, learned counsel for the petitioner submits that the defendant no. 1 is practically counting his last days and considering his physical condition, a year’s time may be granted to the defendants to vacate the suit premises. Mr. Ali has, however, vehemently opposed the said prayer by stating that having enjoyed the tenanted premises since 1989, the defendants cannot be allowed another one year’s time to continue in the suit premises.
1 is practically counting his last days and considering his physical condition, a year’s time may be granted to the defendants to vacate the suit premises. Mr. Ali has, however, vehemently opposed the said prayer by stating that having enjoyed the tenanted premises since 1989, the defendants cannot be allowed another one year’s time to continue in the suit premises. Having heard the learned counsel and also having regard to the overall facts and circumstances of the case, I am of the opinion that ends of justice would be met if the defendants are given 6 (six) months time to vacate the tenanted premises. Accordingly, it is provided that the defendants be permitted 6(six) months time with effect from today to vacate the suit premises subject to the condition that they continue to pay the agreed rent for each calendar month and also the further condition that vacant possession of the suit premises would be handed over by the defendants to the plaintiffs on or before completion of the six months period. This revision petition stands dismissed. No order as to cost.