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2017 DIGILAW 206 (JHR)

Bankey Lal Gupta v. Sanjay Kumar Agrawalla

2017-01-31

AMITAV K.GUPTA

body2017
JUDGMENT Amitav K. Gupta, J. This instant appeal has been filed impugning the judgment and decree dated 21.01.2015 and 27.01.2015 respectively passed by the Principal District Judge Dhanbad in Title (Eviction) Appeal No. 78 of 2013 affirming the judgment and decree passed by Civil Judge (Junior Division) No. 1, Dhanbad in Title (Eviction) Suit No. 44 of 2007 decreeing the suit of the plaintiff and directing the appellant for vacating the suit premises. 2. The appellant was defendant and the respondent was the plaintiff in the trial court hence, they shall be referred to as the plaintiff and defendant for sake of the convenience in the present appeal. 3. The case of the plaintiff is that schedule ''B'' property is integral part of schedule ''A'' property of which the recorded owner was Bela Ghatak. That defendant was a tenant in the schedule ''B'' premises on a monthly rent of Rs. 150/-. The plaintiff intimated the defendant about the purchase of the property and informed him that the future rent should be remitted to him, however, the defendant failed to remit the rent from March 1988 to November 1994 and consequent thereto, the plaintiff sent notice intimating the defendant that he had defaulted in payment of rent and asked him to vacate the suit premises. The plaintiff has also pleaded that he required schedule ''B'' premises for his personal necessity. That since the defendant did not pay any heed to the request of the plaintiff, Title Eviction Suit no.14 of 1995 was instituted. During the pendency of the said suit, an application under Section 15 of Bihar Buildings (Lease, Rent & Eviction) Control Act, 1982 (hereinafter to be referred as ''B.B.C. Act'' for short) was filed for depositing the arrears whereupon the Court directed the defendant to deposit the rent from November 1992 to July 1999 subject to the condition that the plaintiff shall not withdraw the said amount till disposal of the suit. It is stated that due to non-prosecution of the suit, the same was dismissed, where-after, a miscellaneous case was filed which also stood dismissed. After the dismissal of the Title Eviction Suit no.14 of 1995, the defendant failed to deposit the rent, and thereby, he again defaulted in payment of rent. It is stated that due to non-prosecution of the suit, the same was dismissed, where-after, a miscellaneous case was filed which also stood dismissed. After the dismissal of the Title Eviction Suit no.14 of 1995, the defendant failed to deposit the rent, and thereby, he again defaulted in payment of rent. That the cause of action for the suit arose on 01.07.1988 and subsequent thereto, when the plaintiff failed to deposit the monthly rent and also after April 2004, i.e. after the dismissal of the earlier suit. 4. The defendant contested the suit and filed his written statement denying that there was any relationship of landlord and tenant. The defendant denied default in payment of rent and the bona-fide requirement of the suit premises by the plaintiff. It was pleaded that since the earlier Title Eviction Suit no.14 of 1995 was dismissed and restoration application was also dismissed on 02.02.2007 thereafter, the second restoration petition also stood dismissed as withdrawn on 04.09.2007, hence, the second suit was barred under Order 9, Rule 9 of the Code of Civil Procedure and by principles of res judicata. The defendant has pleaded that the ex-landlady, Bela Ghatak had entered into an agreement with him for sale of the suit property accordingly, Rs. 6,000/- was paid as part of the consideration amount. That the defendant was in possession of the suit premises as a prospective purchaser, hence, no relationship of landlord and tenant exists between the plaintiff and the defendant, accordingly, the question of default in payment of rent does not arise. On the pleadings of the parties, the trial court has framed as many as nine issues which are as under:- (i) Whether the suit is maintainable in its present form? (ii) Whether the plaintiff has got any valid cause of action for the suit? (iii) Whether the suit is barred by limitation? (iv) Whether the suit is barred under the provisions of T.P. Act or under the provisions of Bihar Building (L, R & E) Control Act? (v) Whether the defendant is a defaulter in payment of rent for a period of more than two months and as such is liable to be evicted from the suit premises? (vi) Whether the plaintiff bona fide requires the suit premises tenanted to the defendant, for his own personal necessity? (v) Whether the defendant is a defaulter in payment of rent for a period of more than two months and as such is liable to be evicted from the suit premises? (vi) Whether the plaintiff bona fide requires the suit premises tenanted to the defendant, for his own personal necessity? If so, whether the requirement of the plaintiff would be fulfilled by the eviction of the defendant from a portion of the tenanted premises? (vii) Whether the relationship of landlord and tenant exists between the plaintiff and defendant? (viii) Whether the suit is barred by law of res judicata? The plaintiff examined three witnesses and adduced documentary evidence which were marked as Exhibits 1 to 6. The defendant also examined four witnesses and adduced the documentary evidence, i.e., Exhibits A to D. 5. On consideration of the oral and documentary evidence, the learned sub-judge decreed the suit holding that the defendant had defaulted in payment of rent and was liable to be evicted. The defendant was directed to hand over the vacant possession of schedule ''B'' property and to pay arrears of rent from September 2004 to August 2007. 6. Being aggrieved and dissatisfied with the judgment and decree of the trial court, the defendant preferred the aforesaid title appeal and by the impugned judgment, the Principal District Judge affirmed the judgment and decree of the trial court whereupon this second appeal has been carried to this court. 7. Learned counsel for the appellant has argued that the courts below have misconstrued and erred in law in not considering and appreciating the fact that the suit was barred as being hit under the principles of res judicata, since, the earlier Title Eviction Suit no.14 of 1995 instituted on the grounds of default and personal necessity was dismissed. That the learned lower appellate court and the trial court have committed grave error while arriving at the finding that the defendant had defaulted in payment of rent by not appreciating the fact that earlier the suit which was dismissed on 26.02.2004 was instituted due to the dispute of ownership of suit property accordingly, the plaintiff had stopped accepting the rent from the defendant. It is argued that due to dispute of title of the suit property, the defendant had denied the relationship of landlord and tenant from the very inception of the suit, hence, the finding regarding default in payment of rent was perverse. On the above grounds, it is contended that due to the perversity in the findings recorded by the courts below, a substantial question of law is involved for adjudication in the present second appeal. 8. Heard. On-going through the impugned judgment of the lower appellate court it is explicit that the arguments reiterated herein were also advanced in the courts below. The lower appellate court has scrutinized the oral and documentary evidence and held in para-14 that the defendant has denied the relationship of landlord and tenant and at the same time he has stated that he had been remitting rent to original owner Bela Ghatak. He admitted that he had got knowledge about purchase of property by the plaintiff through Advocates notice dated 11.10.1994. The defendant-D.W. 2, has admitted in his cross-examination that he was remitting rent regularly through money orders to Bela Ghatak from June 1988 to 1994 and when he came to know that Bela Ghatak had died in 1991, then, after 1994 he did not remit or deposit any rent, but, was depositing the rent in the court. That after dismissal of the suit on 26.02.2004, he did not deposit the rent anywhere. The appellate court has also considered and discussed the evidence regarding the defence set-up by the defendant that he had entered into an agreement with original owner Bela Ghatak for purchase of the suit property of schedule ''B'' property and had paid Rs. 6,000/- as an advance, the receipt of which was filed as Ext. B. The court below has held that the defendant had entered into an agreement for purchase of land of schedule ''B'' property, but schedule ''A'' property comprising of schedule ''B'' (suit shop) was purchased by the plaintiff who got his name mutated in the revenue and municipal records and had been paying tax as per receipts of Exts. 2 and 3 series filed by the plaintiff. The appellate court has recorded its finding that Ext. B produced by the defendant is on a plain paper and genuinity of the same was doubtful. 2 and 3 series filed by the plaintiff. The appellate court has recorded its finding that Ext. B produced by the defendant is on a plain paper and genuinity of the same was doubtful. The Court below has held that the defendant has admitted that he had remitted the rent and had knowledge about purchase of the suit property by the plaintiff, as such, he cannot deny the relationship of landlord and tenant. On scrutiny and appreciation of the evidence on record, it has rightly held that there is a relationship of landlord and tenant between the plaintiff and defendant. The defendant has admitted that he had not paid rent to the plaintiff after July 2004, hence, he had defaulted in payment of rent and was liable to be evicted from the said premises. On the point of the suit being barred by the principles of res judicata, the appellate court and trial court have considered the arguments advanced and in view of Ext. (C), i.e., the order sheet dated 16.02.2004 passed in Title Eviction Suit no.14 of 1995, it has been rightly held that the suit was dismissed for non-prosecution and the suit has been instituted not only for default in payment of rent from 1988 to 1994, but also from year 2004. 9. It is well settled that default in payment of rent is a recurring cause of action and the suit on ground of non-payment of rent cannot be barred neither is it hit by principles of res judicata. It is established principle that subsequent cause of action arises due to subsequent default in payment of rent, moreover, the earlier suit was not decided on merit rather it was dismissed for non-prosecution, hence, there is no question of the suit being hit by the principles of res judicata. The findings of the lower appellate court are based on proper appreciation and examination of the evidence as well as the application of law. In fact, no error or perversity has been committed by the lower appellant court in affirming the judgment and decree of the trial court. Thus, in view of the discussions made above, no substantial question of law is involved in the present appeal and the arguments advanced by the counsels and the points raised are purely question of fact which has been elaborately discussed and answered by the court below. 10. Thus, in view of the discussions made above, no substantial question of law is involved in the present appeal and the arguments advanced by the counsels and the points raised are purely question of fact which has been elaborately discussed and answered by the court below. 10. In the result, the appeal being devoid of any merit is, hereby, dismissed.