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2017 DIGILAW 468 (GAU)

Pradip Kumar Moral v. Sambhu Nath Verma

2017-04-20

KALYAN RAI SURANA

body2017
JUDGMENT : Kalyan Rai Surana, J. Heard Mr. Bipul Sarma, the learned counsel for the petitioners and Mr. P.J. Saikia, the learned counsel for the respondents. 2. The lower court records had been requisitioned as per order dated 22.07.2016 and the same has been received. Hence, with the consent of the learned counsel for the parties, the matter has been heard at the admission stage. 3. This revision by the petitioner/tenant is directed against the concurrent finding of both the learned courts below and in challenge is the first appellate judgment and decree dated 19.04.2014 passed by the learned Civil Judge, Dibrugarh in Title Appeal No. 38/2009, whereby the judgment and decree in the original suit dated 18.08.2009 passed by the learned Munsiff No.2, Dibrugarh in Title Suit No. 117/2005 was upheld. 4. The case in brief is that the petitioner was a monthly tenant under the predecessor-in-interest of the respondents in respect of a shop room at the monthly rent of Rs.500/- per month within the 7th day of next English calendar month as per verbal agreement and the petitioner No.1 was doing his proprietorship cloth business in the name and style of petitioner No.2 therefrom. However, since the month of July, 1994, the petitioners stopped paying monthly rent to the respondents. The petitioners started to make alterations in the suit premises, for which the predecessor-in- interest of the respondents, namely, Surya Nath Verma instituted Title Suit No. 38/2000, for declaration of right, title and interest over the suit premises and for permanent injunction restraining the petitioners herein from making any alteration, construction and repairing the suit premises. The suit was allowed by judgment and decree dated 31.07.2004 passed by the learned Civil Judge (Junior Division) No.1, Dibrugarh. The said judgment and decree had attained finality as the petitioners herein did not prefer any appeal. During the pendency of the suit, the predecessor-in- interest of the petitioners had died on 31.03.2002. In the present suit, the respondents prayed for recovery of possession of the suit premises by evicting the petitioners and their dependents with their belongings and for recovery of Rs.18,000/- as arrear rent for last three years, as other previous claim of money was barred by limitation, and for cost of the suit. In the present suit, the respondents prayed for recovery of possession of the suit premises by evicting the petitioners and their dependents with their belongings and for recovery of Rs.18,000/- as arrear rent for last three years, as other previous claim of money was barred by limitation, and for cost of the suit. The petitioners denied that the predecessor-in- interest of the respondent was his landlord and claimed to be the tenant under the Hindu Undivided family of Late Amir Chand Verma, the father of Late Surya Nath Verma and the rent collected by Late Surya Nath Verma was as the representative of Late Amir Chand Verma. It was claimed that on 03.04.1994, after Late Surya Nath Verma, the predecessor-in- interest of the petitioners refused to accept rent tendered for the month of March, 1994 the monthly rent for the suit premises was deposited in court. It was also claimed that the decree passed in T.S. No. 38/2000 was a nullity and in-executable an, as such, the same was challenged by the petitioners by filing TS No. 145/2005. 5. In course of trial, the learned Trial Court framed the following issues:- 1. Whether there is cause of action in the suit? 2. Whether the suit is maintainable in the present form? 3. Whether the defendants are tenants under the plaintiff in respect of the suit premises? 4. Whether the defendants are defaulters to pay the monthly rent to the plaintiff? 5. Whether the defendants have changed the nature and feature of the suit premises? 6. Whether the plaintiffs are entitled to decree as prayed for? 7. Whether any other relief or reliefs the parties are entitled to? 6. The respondents/ plaintiffs examined two witnesses and exhibited 4 documents, whereas the petitioners' side examined 4 witnesses and exhibited 112 documents. 7. In respect of Issue No.3, the learned trial Court discussed the evidence of the witnesses, specifically the evidence of petitioner No.1, who examined himself as DW-1. The learned Trial Court observed that from the documents exhibited by the petitioners, it appeared that since April, 1979 all the rent receipts exhibited by DW-1 was signed by the predecessor-in- interest of the petitioners or collected on his behalf and not in the name of HUF as claimed by the petitioners. The learned Trial Court observed that from the documents exhibited by the petitioners, it appeared that since April, 1979 all the rent receipts exhibited by DW-1 was signed by the predecessor-in- interest of the petitioners or collected on his behalf and not in the name of HUF as claimed by the petitioners. DW-1 also admitted that despite death of Late Surya Nath Verma, the predecessor-in- interest of the petitioners, he has continued to deposit monthly rent in court in the name of the said dead person. The learned Trial Court on meticulously examining the exhibited documents found that the monthly rent for several months together was deposited before the Rent Controller and held that if monthly rent was tendered monthly, the refusal ought to be monthly and deposit must be regular too. It was also held that Ext.A55 and Ext.A57 showed that monthly rent was deposited in court without becoming due. The learned Trial court also held that despite adequate opportunity being given, the petitioners could not prove the rent deposit treasury challans and did not prove the payment of process fees for service of notice upon the landlord. As a result, it was held that the petitioners were defaulters. Consequently, Issues No.6 and 7 were decided in favour of the respondents by holding the respondents/ plaintiffs entitled to recovery of possession of the suit premises by evicting the petitioners/ defendants and their dependants together with their belongings. The suit was also decreed for recovery of a sum of Rs.18,000/- as arrear rent. The other issues are not relevant for the decision in this revision and, as such, the same are not repeated herein for brevity. 8. The petitioners assailed the said judgment and decree by filing Title Appeal No. 38/2009. The learned First Appellate court has re-appreciated the pleadings and evidence on record and heard the appeal on the following Point for Determination, viz., Whether the judgment and decree passed by the learned trial court is just and proper or needs any interference in this appeal. 9. The issues No. 1, 2, 4 and 5 are not material for the decision in this revision and the relevant issues are No.3, 6 and 7, as such, only the said issues are discussed herein. 9. The issues No. 1, 2, 4 and 5 are not material for the decision in this revision and the relevant issues are No.3, 6 and 7, as such, only the said issues are discussed herein. On the issue No.3 as framed by the learned Trial Court, the learned first appellate court took the view that as the plea of the petitioners herein in their written statement was that the property was a HUF property, there was no logic to deposit the monthly rent in court in the name of predecessor- in- interest of the petitioners and to continue to make such deposit in the name of the dead person. Hence, it was held that the petitioners herein were the tenants under the petitioners/ plaintiff after the death of their predecessor-in- interest. Hence, the decision on the said issue by the learned Trial Court was affirmed. In connection with Issue No.4, the learned First Appellate Court held that certain deposits were made conjointly for some months which was clear from Ext.A55 and Ext.A57 and it was held that such deposits were absolutely untenable and no benefit can be claimed by the tenant for such deposit. It was held that the petitioners did not examine anyone from the office of the Rent Controller to prove the incidental facts of deposit of rent in the court and also to prove the subsequent follow-ups. It was also held that no evidence was led to prove that rent was offered to the landlord and refused by him and then the same has been deposited in court. Hence, the decision on the said issue by the learned Trial Court was affirmed. Similarly, in view of decisions on other issues, Issue No.6 and 7 as framed by the learned Trial Court was also affirmed by holding that the respondents herein are entitled to the reliefs as prayed for in the suit. Consequently, the appeal was dismissed on contest by upholding the judgment and decree passed by the learned Trial Court. 10. On hearing the learned counsel for the parties and upon perusal of the materials available on record, before appreciating the concurrent finding of fact by both the learned courts below, it would be relevant to re-produce the provisions of section 5(4) of the Assam Urban Areas Rent Control Act, 1972, which is as follows: "5. 10. On hearing the learned counsel for the parties and upon perusal of the materials available on record, before appreciating the concurrent finding of fact by both the learned courts below, it would be relevant to re-produce the provisions of section 5(4) of the Assam Urban Areas Rent Control Act, 1972, which is as follows: "5. Bar against passing and execution of decree and orders for ejections (4) Where the landlord refuses to accept the lawful rent offered by his tenant, the tenant may within a fortnight of its becoming due, deposit in Court the amount of such rent together with process fees for service of notice upon the landlord, and on receiving such deposit, the Court shall cause a notice of the receipt of such deposit to be served on the landlord, and the amount of the deposit may thereafter be withdrawn by the landlord on application made by him to the Court in that behalf. A tenant who has made such deposit shall not be treated as a defaulter under clause (e) of the proviso to sub-section (1) of this section." 11. The Trial Court records reveal that the rent challan for the months of March, 2002 to June, 2002 was deposited vide Ext.A80, while the predecessor-in- interest of the petitioners had died on 31.03.2002. Even thereafter, vide Ext. A-81 to Ext.A112 rent was deposited in the name of the deceased person. Thus, it is unbelievable that the petitioners offered and/or tendered monthly rent to a dead person and on his refusal deposited such monthly rent in court under the provisions of section 5(4) of the Assam Urban Areas Rent Control Act, 1972. 12. This Court, in the case of Ram Karanji More v. Keshar Deo Jalan, (1996) 2 GLT 526, has held that when there is no written contract, the tenancy is always monthly, and the rent is due at the end of the month. In the case of Smt. Sushila Devi Khemka v. Smti. Sabitri Devi Kejriwal, (2016) 5 GLJ 275, it has been held by this Court as follows:- "18. .... A mere deposit of rent in Court would not be a valid deposit unless the conditions precedent enumerated in section 5(4) of the Assam Urban Areas Rent Control Act, 1972 are satisfied. In the case of Smt. Sushila Devi Khemka v. Smti. Sabitri Devi Kejriwal, (2016) 5 GLJ 275, it has been held by this Court as follows:- "18. .... A mere deposit of rent in Court would not be a valid deposit unless the conditions precedent enumerated in section 5(4) of the Assam Urban Areas Rent Control Act, 1972 are satisfied. Those requirements are as follows:- (i) The tenant has to offer the rent to the landlord before deposit; (ii) Upon such offer, landlord has to refuse to accept the rent; (iii) The tenant thereafter has to make the deposit in Court within a fortnight of its falling due; and (iv) Such deposit has to be of the entire amount of the rent along with process fee for the service of notice upon the landlord. In a case, therefore, where the defendant takes the plea that he is not a defaulter because he has been depositing rent in Court under section 5(4) of the Act, in that event, burden falls heavily on such defendant to plead and establish all the aforesaid conditions precedent. If any of these conditions precedent is not pleaded and established, in that event, deposit will not be a valid deposit and the tenant will not get the benefit of section 5(4) of the Act so as to avoid the rigour of default under section 5(4) of the Act." 13. In the present case in hand, the said four prerequisites as mandated by this court as referred above, are neither pleaded in the written statement of the petitioners nor the same has been proved. Thus, this court finds no infirmity whatsoever, in the judgment and decree passed by both the learned Trial Court and the First Appellate Court. This Court also does not find any perversity or jurisdictional error in both the said judgments, rather, the findings on defaulter is found to be passed on the basis of materials available in the record. The concurrent decree for eviction of the petitioner/defendant, for realization of arrear rent from the month of February, 2012 onwards and for recovery of suit premises in favour of the respondents is found fully justified and sustainable and the same are, accordingly, upheld. 14. That is one additional reason to dismiss the present revision. As per the plaint, the plaintiff No.1 was Smt. Rukmini Devi, wife of Late Surya Nath Verma. 14. That is one additional reason to dismiss the present revision. As per the plaint, the plaintiff No.1 was Smt. Rukmini Devi, wife of Late Surya Nath Verma. Her name was arrayed as Respondent No.1 in Title Appeal No. 38/2009. Hence, in order to find out what happened to her, this court has gone through the record of the learned Trial Court as well as of the learned First Appellate Court. On the perusal of the said record, it is seen that in the court attendance sheet (i.e. Hazira) dated 18.01.2011 (available at pg.58 of the first appellate court record), it is mentioned that Rukmini Devi (who was plaintiff No.1 in suit and respondent No.1 in appeal) had since died. It appears that no pain was taken either by the respondents herein to bring the notice of the learned first appellate court about the death of respondent No.1 in the said appeal, nor the petitioners herein filed any application for substitution or for striking out the name of the deceased respondent, as required in accordance with law. The petitioners herein appear that have conveniently omitted to array the said Smt. Rukmini Devi in this revision and has given no explanation for omitting to array her in this revision despite her name being present in the first appellate decree. Thus, apart from this revision being without any merit, the present revision is bad for non-joinder of necessary parties and consequently, the first appellate judgment is deemed to have attained finality against the said Rukmini Devi. In the present case in hand, as the respondents have not taken a plea that the court attendance sheet (i.e. Hazira) dated 18.01.2011 (available at pg.58 of appellate court record), constituted to be a valid information about the death of Rukmini Devi (who was plaintiff No.1 in suit and respondent No.1 in appeal), this court is not inclined to hold that the Title Appeal No. 38/2009 had abated on her death. Thus, the present revision is held to be not maintainable for non impleading of Rukmini Devi (who was plaintiff No.1 in suit and respondent No.1 in appeal). 15. Both the learned courts below have concurrently held that the petitioners are defaulter and were liable to be evicted from the suit premises together with their dependents and articles and the respondents were also found entitled to arrear rent of Rs.18,000/-. 15. Both the learned courts below have concurrently held that the petitioners are defaulter and were liable to be evicted from the suit premises together with their dependents and articles and the respondents were also found entitled to arrear rent of Rs.18,000/-. Upon perusal of the evidence on record as discussed above, this court does not find this to be a case where the learned courts committed any perversity or jurisdictional error or misreading or misconstruing the pleadings and evidence on record while deciding the said relevant issues No.3, 4 6 and 7, amongst others. Under such circumstances, this revisional court is required to be slow in re-appreciating the evidence as in appeal. In the opinion of this court, on merit, the said relevant issues were rightly decided by both the learned courts below with its well reasoned judgment, as such, the same needs no interference. In an additional ground, this revision is held to be not maintainable for not impleading the original plaintiff No.1, which would have the effect that both the judgments and decree passed by the learned Trial Court as well as the First Appellate Court have attained finality in so far as the right of Rukmini Devi, the plaintiff No.1 is concerned. ORDER 16. This revision is found to be without any merit and the same is dismissed. The judgment and decree dated 2nd September, 2009 passed by the learned Munsiff No.2, Dibrugarh in Title Suit No. 117/05 as well as the First Appellate judgment and decree dated 19th April, 2014 passed by the learned Civil Judge, Dibrugarh in Title Appeal No. 38/2009 are upheld. Let the LCR be returned back. 17. The judgment and decree dated 2nd September, 2009 passed by the learned Munsiff No.2, Dibrugarh in Title Suit No. 117/05 as well as the First Appellate judgment and decree dated 19th April, 2014 passed by the learned Civil Judge, Dibrugarh in Title Appeal No. 38/2009 are upheld. Let the LCR be returned back. 17. As the petitioners have projected that the petitioner No.2 firm, i.e. M/s. Surabhi had been operating in the suit premises since the year 1972, this court is inclined to give 3 (three) months time from today to vacate the suit premises, subject to the following conditions: a. The petitioners shall deposit the decreetal sum as decreed before the learned Court of Munsiff No.2, Dibrugarh within a period of one month from today; b. The petitioners shall submit an unconditional undertaking in writing before the learned Court of Munsiff No.2, Dibrugarh within 1 (one) month from today to vacate the suit premises on or before 31.07.2017; c. The petitioners shall not hand over the suit premises to anyone other than any one of the respondents herein (plaintiffs No. 2 to 5); d. The petitioners shall henceforth pay monthly rent every month to any one of the respondents herein (Plaintiffs No.2 to 5), which shall not constitute any further tenancy or create any tenancy right in favour of the petitioners. e. The petitioners shall not cause any nuisance or any other disturbance and/or cause any damage to the suit premises in the meantime. f. It is made clear that if any of the above five conditions (a) to (e) are not complied with, the respondents herein (Plaintiffs No.2 to 5) shall be entitled to enforce the decree.