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2017 DIGILAW 218 (GAU)

PARIKSHIT DUTTA v. BIJOY KUMAR AGARWAL

2017-02-20

KALYAN RAI SURANA

body2017
JUDGMENT AND ORDER : 1. Heard Mr. G.P. Bhowmik, learned Senior Counsel appearing for the Petitioner and Mr. S. Samaria, learned Counsel appearing for the respondent. 2. By filing the present revision under section 115 of the Civil Procedure Code, the petitioner has challenged the impugned judgment and decree dated 24.02.2011 passed by the learned Civil Judge, Tinsukia, in T.S. No. 14/2010. The said suit was instituted by the petitioner under section 6 of the Specific Relief Act, 1963, praying for recovery of khas possession a shop premises. 3. It was projected by the learned counsel for the petitioner that for last several years, the petitioner was a monthly tenant of the respondent, paying a monthly rent of Rs.300/- for the shop situated in Margherita Town, Makum Mouza, Dist. Tinsukia, Assam, described in Schedule appended to the plaint. The petitioner was doing business of selling cosmetics and other items in the name and style of M/s. Variety Corner. The respondent had entered into a written agreement dated 03.09.1996 with the petitioner for letting out the shop and had also given his ‘no objection’ for installing a PCO telephone connection in the suit premises. It is stated that on 17.03.2010, when the petitioner had gone to open his shop, he found a new lock on the door of the suit premises which was put by the respondent and thereby, the petitioner was dispossessed from the suit premises. The petitioner filed a proceeding under section 144 of the Criminal Procedure Code and in addition to which the petitioner has filed the said suit, praying for recovery of khas possession. The respondent did not contest the suit, which proceeded ex-parte against him. In support of his case, the petitioner exhibited 9 (nine) exhibits, viz., (1) Tenancy Agreement, (2) Rent Receipt, (3) No objection from respondent, (4) Certificate of Registration under Assam Shops & Establishment Act, (5) Trade Licence from Margherita Town Committee, (6) Rent deposit challan, (7) Standard Fire and Special Perils Insurance Policy for shops, (8) Original Photograph of the shop. The Petitioner examined himself as PW-1 and one Sri Rituraj Goswami as PW-2. As the respondent did not appear or contested the suit, the said evidence remained unrebutted. 4. The Petitioner examined himself as PW-1 and one Sri Rituraj Goswami as PW-2. As the respondent did not appear or contested the suit, the said evidence remained unrebutted. 4. The suit was dismissed by the learned Civil Judge, Tinsukia, by disbelieving the evidence and by holding that the petitioner could not prove that that he was possessing the suit property since the year 1996 by paying rent regularly to the respondent, further holding that the tenancy agreement (Ext.1) did not support the petitioner’s case that the same is made in respect of the suit premises. 5. The learned Senior Counsel for the petitioner submits that the decision of the learned court below is vitiated by exercise of jurisdiction with material irregularity and the impugned judgment was not sustainable. By referring to the impugned judgment, it is stated that the learned court disbelieved the tenancy agreement on the ground that it did not disclose any tenure and it does not contain any schedule, which is a totally perverse and erroneous appreciation of its contents. It is submitted that when both parties to the agreement are aware as to the subject matter of the agreement, the non-mentioning of schedule or tenure in the agreement cannot obliterate and/or render the said agreement as non-believable. It has been further urged that each and every exhibit proved the existence of the shop and, as such, the learned court below erred in holding that the documents do not disclose possession of the suit premises by the petitioner. It is also submitted that the learned Civil Judge instead of deciding whether the petitioner was in possession of the suit premises six months before being illegally dispossessed by the respondent, disbelieved one rent receipt (Ext.2) signed by the respondent and went on to decide that by proving Ext.2, the petitioner failed to prove that he was paying rent to the respondent regularly since 1996. Similarly, the “no objection” (Ext.3) was disbelieved by the learned court below only because it did not contain any date and that it did not disclose that it was for the suit premises. The Licence in Form-Q under Assam Shops & Establishment Act issued on 26.09.2009 i.e. only 9 months prior to alleged dispossession and it was disbelieved as it did not prove his business since the year 1996. The Licence in Form-Q under Assam Shops & Establishment Act issued on 26.09.2009 i.e. only 9 months prior to alleged dispossession and it was disbelieved as it did not prove his business since the year 1996. The Trade Licence (Ext.5) issued on 09.03.2006 was disbelieved without assigning any reason and the rent deposit treasury challan (Ext.6) and Insurance Policy (Ext.7) was disbelieved as it was just prior to filing of the suit. No reason was assigned for disbelieving the photograph (Ext.8). 6. The learned counsel for the respondent, per contra, submits that the petitioner did not prove his pleadings and could not prove that the shop in the suit premises was doing regular business. Moreover, if the petitioner could not prove his tenancy, he cannot be said to have been in lawful possession of the suit premises, for which there was no infirmity in the impugned order passed by the learned court below. It was further submitted that it would be evident from the impugned judgment that the petitioner could not prove his pleadings and none of the documents can be accepted as a conclusive proof that the petitioner was in possession of the suit premises from the year 2006 as claimed. He visited the exhibited documents once again and submitted that in Agreement (Ext.1), there was no period of tenancy, Ext.2 was the rent receipt for the month of July, 2004, Ext.4 i.e. Certificate of Registration was for the period from 29.06.2009 to 31.12.2009, Ext.5 i.e. Trade Licence was from year 01.04.2005 to 31.03.2006, Ext.6 i.e. Rent deposit challan was showing rent paid for the month of March, 2010, when it did not even fell due, Ext.7 i.e. Insurance Policy was from 10.09.2009 to 09.09.2010, which did not prove possession of suit premises by the petitioner and nor did it prove tenancy from 2006, or that it was for shop located in the suit premises, and similarly, Ext.8 i.e. photo did not prove when it was taken. The learned counsel for the respondent submits that in the evidence tendered by the PW-1 it could not be proved by documents that the shop was in running condition at till 16.03.2010. The learned counsel for the respondent submits that in the evidence tendered by the PW-1 it could not be proved by documents that the shop was in running condition at till 16.03.2010. It was further argued that although the suit had proceeded ex parte, still it was incumbent for the petitioner to prove that he was in possession of the suit premises till 6 months prior to the institution of the suit on 03.04.2010. 7. This court has perused the said Ext.1 from the lower court record and it is seen that the Ext.1 contained a diagram and/or a rough sketch of the tenanted shop premises, which is found to be sufficiently proving the four boundaries, as it disclosed road on one side mentioning the shop was 10 feet in breadth, shop of respondent on second side mentioning the shop was 15 feet in length, house of respondent on third side and Metro Studio on the fourth side. The photograph of the shop having been exhibited and proved as Ext.8, there was no difficulty in ascertaining the identity of the land, as it prominently shows the suit premises with the signage of variety Corner, with its main gate blocked with two dumps of bricks and the neighbouring M/s. Metro Studio also clearly visible. If the said photograph (Ext.8) is juxtaposed to the sketch available in Ext.1, it can be seen that at least two of out of the four the boundary drawn/sketched in Agreement (Ext.1) tallies with two out of four boundaries seen in the photograph (Ext.8), leaving no doubt that the suit/shop premises is identifiable as M/s. Variety Corner of the petitioner. It is also seen that the learned court below had referred in the impugned judgment that evidence was tendered by PW-2, and even mentioned that the PW-2 supported the case of the plaintiff i.e. petitioner herein. The said PW-2 had deposed that at the time of execution of Ext.1, he was present and since then the petitioner had been carrying on business in the suit premises till dispossession, yet no reason has been assigned for disbelieving the evidence of the said PW-2. The said PW-2 had deposed that at the time of execution of Ext.1, he was present and since then the petitioner had been carrying on business in the suit premises till dispossession, yet no reason has been assigned for disbelieving the evidence of the said PW-2. This court is further of the opinion that notwithstanding the bar under section 49(c) of the Registration Act, the Agreement (Ext.1) can be relied for collateral purpose in a suit under section 6 of the Specific Relief Act because of the special circumstances like the case in hand wherein a tenant is evicted without following due process of law, presumption can be taken that it is quite possible under the circumstances that all other documents kept inside the shop premises would be lost forever. Hence, technicalities will not prevent a court from viewing the said Ext.1 for ascertaining whether the petitioner was in possession of the suit prior to six months of filing of the suit. 8. It appears that the learned court had appreciated the evidence as if the court was deciding a suit between a landlord and tenant under the provisions of the rent control law, unmindful of the fact that in a suit under section 6 of the Specific Relief Act, the party who is the plaintiff is only required to prove (i) existence of preponderance of probability that the plaintiff was in lawful occupation of the suit premises at any point of time 6 (six) months prior to the suit, and that (ii) he was illegally and without due process of law dispossessed from the suit premises within a period of six months prior to the date of institution of the suit. 9. In the opinion of this court, a suit under section 6 of the Specific Relief Act is like a summary trial inasmuch as the enquiry is confined to finding out the possession and dispossession within a period of six months prior from the date of the suit ignoring the question of title and in the present case in hand, by ignoring whether or not the tenancy and/or possession of the petitioner in respect of the suit premises was lawful. Therefore, the purpose behind section 6 of the Specific Relief Act is to dissuade a person from using force and to dispossess a person without his consent otherwise than in due process of law. Therefore, the purpose behind section 6 of the Specific Relief Act is to dissuade a person from using force and to dispossess a person without his consent otherwise than in due process of law. This also reminds of the reference by the Hon’ble Apex Court in the case of Rame Gowda V. M. Varadappa Naidu, (2004) 1 SCC 769 to the doctrine of “Possessis contra omnes valet praeter eur cui ius sit possessionis” meaning thereby that a person who has possession has a good title against all those who have a better title. 10. In the present case in hand, the petitioner had not only pleaded that he was in possession over the suit premises, but has also proved the existence of written agreement, rent receipt of July, 2004, Trade Licence, Certificate of Registration, valid insurance policy, and photographs, all pointing out to his shop in the suit premises. These evidence cannot be brushed aside by stating that those were just prior to the date of filing of the suit, because even if any single evidence which points out that the petitioner was in possession of the suit premises within six months prior to the date of the suit, that single evidence can also be sufficient to prove the cause of action for a suit under section 6 of the Specific Relief Act. The evidence of PW-2 also gives credence to the case projected by the petitioner, who has stated that prior to dispossession, the petitioner was running a shop in the suit premises. 11. In this case, the proceedings before the learned trial court was held ex parte against the respondent and even in the present application, the respondent has not specifically denied the correctness of the case projected by the petitioner. In the absence of any affidavit-in- opposition by the respondent, under the principles of doctrine of non-traverse, the statements made by the petitioner are deemed to be accepted and/or admitted by the respondent. Moreover, although the learned counsel for the respondent has vehemently disputed the documents exhibited and proved by the petitioner, which are annexed to the present revision, but despite such forceful argument, none of the said documents can be doubted as false, fabricated or forged or otherwise not believable. Moreover, although the learned counsel for the respondent has vehemently disputed the documents exhibited and proved by the petitioner, which are annexed to the present revision, but despite such forceful argument, none of the said documents can be doubted as false, fabricated or forged or otherwise not believable. Therefore, it cannot be doubted that the other exhibits like rent receipt (Ext.2), NOC by Respondent (Ext.3), Certificate of Registration (Ext.4), Trade Licence (Ext.5), rent deposit challan (Ext.6), Insurance policy (Ext.7) are also in respect of the same shop of the petitioner. 12. Although the learned counsel for the respondent had strenuously argued that the herein before referred documents does not prove the shop running as a going concern and were not a proof of the shop being in existence from the point of time when the petitioner claims to be in possession, but in the opinion of this court, the said question is not material for deciding a suit under section 6 of the Specific Relief Act, 1963, where the only issue is possession and/or dispossession within six months prior to the date of suit. For that said limited purpose, the documents exhibited and proved by the petitioner inspires confidence that it was in respect of the suit premises and duly demonstrating that the petitioner was in possession of the suit premises. 13. The learned counsel for the petitioner, in support of his argument has relied on the case of Shri Mahabir Prasad Jain V. Shri Ganga Singh, (1998) Supp (3) SCC 274: MANU/SC/0638/1999, and submits that as per the ratio of the said case, it was held that as the respondent in the said case could not prove the plea of tenancy, he was not found to be entitled to relief in a suit under section 6 of the Specific Relief Act. He also relies on the case of East India Hotels Ltd. V. Syndicate Bank, (1992) Supp (2) SCC 29 to urge that after expiry of licence, the plaintiff was not entitled to relief in a suit under section 6 of the Specific Relief Act. He also relies on the case of East India Hotels Ltd. V. Syndicate Bank, (1992) Supp (2) SCC 29 to urge that after expiry of licence, the plaintiff was not entitled to relief in a suit under section 6 of the Specific Relief Act. However, the learned Senior Counsel countered the cited case of East India Hotels (supra) by submitting that in the said case, owing to the conflict of opinions of the two Hon’ble Judges in the Bench, the matter was referred to a larger Bench, the outcome of which is not known, for which nothing opined in the said case could even be termed as a ‘ratio decidendi’. The decision rendered in the case of Shri Mahabir Prasad Jain (supra) was not applicable in the present case in hand as in the present case, the petitioner had successfully proved his tenancy unlike in the cited case, where the tenancy could not be proved. This court finds force in the argument by the learned senior counsel for the petitioner that the said two cases cited by the respondent does not apply to the facts of the present case in hand. 14. In the opinion of this court, the evidence tendered by the two PWs are of the nature which comes within the zone of preponderance of probability. Therefore, this is found to be a fit case where the power of judicial review is required to be exercised in respect of the impugned decision by the competent court in a suit under section 6 of the Specific Relief Act, which is within the inherent powers of this court, unfettered with the bar to appeal as provided under section 6(3) of the said Act. 15. Accordingly, by holding that the petitioner had been able to project a prima facie case of being in possession of the suit premises, for where he was dispossessed on 17.03.2006, i.e. within a period of six months prior to the institution of the suit, it is held that the respondent had no right to evict the petitioner without following due process of law. Hence, the impugned judgment and decree dated 24.02.2011 passed by the learned Civil Judge, Tinsukia, in T.S. No. 14/2010 is hereby set aside and the prayers made by the petitioner in the said suit is allowed and, as such, the petitioner is found entitled to recovery of possession of the suit premises described in Schedule of the plaint. 16. This revision stands allowed. Let the lower court record be returned forthwith.