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2016 DIGILAW 976 (GAU)

Bongaigaon Stores v. Mool Chand Kucheria

2016-11-03

SUMAN SHYAM

body2016
JUDGMENT : Suman Shyam, J. 1. Heard Mr. S.S. Sharma, learned Sr. counsel appearing for the petitioner. Also heard Mr. G.N. Sahewalla, learned Sr. counsel representing the respondents. This revision petition has been preferred against the judgment and decree dated 5.11.2013 passed by the court of Civil Judge, Bongaigaon in Title Appeal No. 35/2010 dismissing the appeal filed by the petitioner and affirming the judgment and decree passed in Title Suit No. 02/2000 by the learned Munsiff, Bongaigaon decreeing the suit filed by the respondents as plaintiffs seeking ejectment of the petitioners from the tenanted premises. 2. The brief facts of the case is that the petitioner No. 2 had entered into a tenancy agreement in respect of the suit premises located in the ground floor of the building jointly owned by the respondent. The tenancy had commenced in the year 1975 on condition of paying a monthly rent of Rs. 280/-. However, according to the respondents the petitioner No. 2 (defendant No. 2) had stopped paying the rent and instead started depositing the same in the court without offering the same to the respondents/plaintiffs and that the suit premises were bona fide required for the purpose of business activities of the respondent No. 3 who has shifted his business from Delhi to Bongaigaon. On such ground the respondents as plaintiffs had instituted the Title Suit No. 02/2000 in the court of Munsiff, Bongaigaon. 3. Petitioner No. 1 is a proprietorship firm in respect of which the petitioner No. 2 is the sole proprietor. The petitioners as defendants had contested the suit by denying the claim made by the plaintiff. 4. On the basis of the pleadings of the parties several issues were framed by the learned Trial Court. All the issues need not be quoted here. Suffice it to mention that the issue Nos. 4 and 5 were framed on the question of defaulter and bona fide requirement respectively. 5. During trial both parties led evidence. Based on the evidence available on record the learned trial court had recorded finding in respect of issue No. 4 in favour of the respondents/plaintiffs by holding that the petitioners/defendants were defaulters in respect of payment of the rent. 5. During trial both parties led evidence. Based on the evidence available on record the learned trial court had recorded finding in respect of issue No. 4 in favour of the respondents/plaintiffs by holding that the petitioners/defendants were defaulters in respect of payment of the rent. However, the trial court had found that the tenanted premises were not bona fide required by the landlords/plaintiffs and accordingly recorded finding in respect of issue No. 5 against the plaintiffs and in favour of the defendants. However, the result of the findings and conclusion recorded by the Trial Court was that the suit filed by the respondents/plaintiffs stood decreed. 6. Being aggrieved by the judgment and decree dated 05.08.2010 passed by the learned Munsiff, Bongaigaon in Title Suit No. 02/2000 the petitioners had preferred Title Appeal No. 35/2010. At the same time the respondents also preferred a cross objection assailing the findings of the Trial Court as regards issue No. 5. 7. After hearing the learned counsel for the parties, the First Appellate Court had affirmed the decree passed by the Trial Court but on the basis of completely different finding of fact. While the learned First Appellate Court had reversed the findings of the Trial Court as regards issue No. 4 by holding that the petitioners/defendants were not defaulters in the eye of law, the lower appellate court had also recorded a finding as regards issue No. 5 by holding that the suit premises were bona fide required by the respondents/plaintiffs. 8. Mr. S.S. Sharma, learned Sr. counsel had invited the attention of this Court to the findings and conclusions recorded by the first appellate court as regards issue No. 5 to contend that the lower appellate court had reversed the findings of the trial court on the said issue without discussing the evidence or recording any independent finding of fact in accordance with law. The learned Sr. counsel submits that since the decision on issue No. 4 has been recorded in favour of the petitioner by the lower appellate court and considering the fact that the said decision has not been assailed by the respondent, the same has attained finality in the eye of law. As such, the revision petition deserves to be allowed by setting aside the judgment and decree which is passed on an erroneous findings of fact recorded in respect of issue No. 5. 9. Mr. As such, the revision petition deserves to be allowed by setting aside the judgment and decree which is passed on an erroneous findings of fact recorded in respect of issue No. 5. 9. Mr. G.N. Sahewalla, learned Sr. counsel appearing for the respondents on the other hand, submits that from the materials available on record it is possible to conclude that the suit premises were bona fide required by the respondent. Mr. Sahewalla, however, fairly admits that the decision in respect of issue No. 5 has been reversed by the first appellate court without proper discussion of the evidence available on record. 10. I have considered the submission made by the learned Sr. counsel appearing for both the parties and have also gone through the materials available on record. Law is firmly settled that the first appeal is a valuable right of the appellant and the court in exercising its jurisdiction as a first appellate court would be entitled to appreciate the evidence and record findings both on question of fact as well as law. Order XLI Rule 31 of the CPC lays down the guidelines for exercise of jurisdiction by the appellate court. As per the mandate of Order XLI Rule 31 CPC, the lower appellate court was duty bound to record reason for the decisions since the decree of the trial court was reversed and/' or varied. However, as has been noted hereinabove, no such reason has been given by the lower appellate court. Such being the position, I am of the considered opinion that the impugned judgment and decree of reversal passed by the first appellate court without discussing the evidence on record is not sustainable in the eye of law. As such, the impugned decree is liable to be interfered with and is hereby set aside. However, having regard to the facts and circumstance of the case, this Court is of the opinion that the matter deserves to be remanded to the first appellate court for recording a fresh decision of the issues by discussing the evidence available on record and by bearing in mind the principles embodied in Order XLI Rule 31 CPC. However, having regard to the facts and circumstance of the case, this Court is of the opinion that the matter deserves to be remanded to the first appellate court for recording a fresh decision of the issues by discussing the evidence available on record and by bearing in mind the principles embodied in Order XLI Rule 31 CPC. Since the suit is of the year 2000, hence, the court below is requested to make an endeavor to dispose of the appeal as expeditiously as possible, preferably within a period of 06 (six) months from the date of receipt of the record. Registry to transmit the LCR. With the consent of learned counsel for both the parties, 12.12.2016 is fixed as date of appearance before the lower appellate court by both the parties. No order as to cost.