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2017 DIGILAW 956 (GAU)

Rajesh Pincha v. Mahesh Kumar Rathi

2017-07-20

KALYAN RAI SURANA

body2017
JUDGMENT AND ORDER : Heard Mr. A.C. Das, learned counsel assisted by Mr. H. Betala, the learned counsel appearing for the petitioner as well as Mr. S.C. Keyal, learned counsel assisted by Ms. P. Barua, the learned counsel appearing for the respondent. 2. By this application filed under section 115 of the Civil Procedure Code, the petitioner has challenged the first appellate judgment dated 30.11.2015, passed by the learned Civil Judge, Jorhat, in Misc. (J) Appeal No. 7/2014. By the said judgment, the order dated 28.08.2014 passed by the learned Munsiff No.1, Jorhat was set aside and consequently, the application filed by the respondent-plaintiff under section 6 and 7 of the Assam Urban Areas Rent Control Act, 1972 for restoration of electricity connection and to repair the northern side wall was allowed. 3. In view of the issue raised in the present application, with the consent of the learned counsels for the parties, the matter was taken up for disposal at the admission stage. 4. The case of the respondent- plaintiff is that since the year 1975, his father was the tenant of the petitioner in respect of two separate premises, viz., (i) Shop No. 4 consisting of old tin shed premises, and (ii) Godown, bearing Godown No.6, consisting of new Tin Shed godown, both standing over a plot of land covered by Dag No. 3682/4197, K.P. Patta No. 101/350, under Municipal Holding No.20, situated at Pincha Market, Ground Floor, Chamber Road, Jorhat Town, Jorhat. On the death of his father on 06.02.1982, the respondent was accepted as the tenant under the petitioner, paying monthly rent for the said tenanted premises and also the electricity charges separately. The respondent is carrying business of empty bags from the said tenanted premises. On 04.12.2010, the tenanted premises caught fire, resulting damage to stocks and to the tenanted premises. The C.I. sheet roof, northern side boundary wall and electricity lines and fittings got badly damaged. The requests for carrying out repairs were not considered and, as such, the respondent had filed an application under section 6 and 7 of the Assam Urban Areas Rent Control Act, 1972 for restoration of electricity line, which was an essential service and for carrying out repair of the CI Sheet roof and northern wall of the tenanted premises. The requests for carrying out repairs were not considered and, as such, the respondent had filed an application under section 6 and 7 of the Assam Urban Areas Rent Control Act, 1972 for restoration of electricity line, which was an essential service and for carrying out repair of the CI Sheet roof and northern wall of the tenanted premises. However, in the said application, the respondent had mentioned in the Schedule that the premises was one shop room totaling 1784 square feet with C.I. Sheet roof and was situated on a part of Holding No. 19. The petitioner- landlord denied the description of the tenanted premises and in the written objection, the correct description of the two tenanted premises was given. It was also mentioned that there existed two separate rent agreements in respect of two separate premises. 5. The schedule of the tenanted premises remained un-rectified and the learned Munsiff No.1, Jorhat, by order dated 28.08.2014 rejected the prayer, inter-alia, on the ground that the respondent had failed to satisfy the court as to the identity of the suit premises and therefore, held that until the court can come to a conclusion about the identity of the rented premises, it cannot direct the repair or restoration of electricity connection. 6. The said order was put to challenge by filing Misc. Appeal before the Court of Civil Judge, Jorhat, and the said appeal filed under Order XLI Rule 1 and 2 of Civil Procedure Code was numbered as Misc. Appeal No. 7/2014. The respondent had, inter-alia, taken a ground of appeal that the minor discrepancy in the schedule is not a ground for rejection of the petition when the petitioner had admitted that the respondent herein was a tenant. 7. The learned first appellate court, by the order impugned herein, inter-alia, held that it was an admitted position that there is relationship of landlord and tenant between the parties and that it was evident that there is no discrepancy regarding the identification of the tenanted premises and upon such finding, the appeal was allowed by setting aside the order passed by the learned Munsiff No.1, Jorhat, and directing repair and restoration of electricity connection. This order is assailed in the present application. 8. This order is assailed in the present application. 8. The learned counsel for the petitioner has made a short submission to the effect that – a. There existed landlord and tenant relationship only in respect of two separate premises under Holding No.20, and not in respect of one shop covered by Holding No.19. There was no material before the learned first appellate court to arrive at a conclusion that it was an admitted position that there is landlord and tenant relationship between the parties; and b. As the description of suit premises is not similar to one at site, the finding recorded by the learned first appellate court that there was no discrepancy regarding the identity of the suit premises is perverse; and c. An alternative submission was made that the courts below may enforce the order passed by the learned first appellate court, but there must be a rider that such repair and restoration of electricity cannot be done outside the schedule of premises given by the respondent i.e. it must be restricted to one shop premises covered by Holding No.19 only; and d. It is also submitted that this court is exercising jurisdiction under section 115 of the Civil Procedure Code, where this court must appreciate the impugned order in light of whether the learned court below had exercised jurisdiction with material irregularity. 9. The learned counsel for the respondent has argued in support of the impugned order. By referring to the order dated 12.06.2017, it is submitted that this court had allowed the prayer made for permitting the respondent to produce copy of plaint and other related documents in support of his stand. But, on the basis of instructions received, and going by the contents of the two tenancy agreements, it is admitted by the learned counsel for the respondent that there has been an inadvertent error in giving the description of the tenanted premises in his application before the learned trial court. He however, submits as follows:- a. The respondent had handed over all the papers to his counsel and, as the respondent had no knowledge about law, he could not locate the defect of mis-description of the tenanted premises in his application before the learned trial court. He however, submits as follows:- a. The respondent had handed over all the papers to his counsel and, as the respondent had no knowledge about law, he could not locate the defect of mis-description of the tenanted premises in his application before the learned trial court. However, the same is a bona fide mistake and, as this revision is an extension of the suit, this court had the jurisdiction to allow the respondent to amend his petition to give the correct description of the suit premises. b. It is submitted that the mis-description of the suit property cannot prevent this Court to exercise inherent powers under section 151 read with section 152 of Civil Procedure Code to correct the schedule provided in his application before the learned Trial court. c. The courts should be liberal and under the garb of technicalities, justice cannot be denied to a tenant, who has an indefeasible right to have the tenanted premises kept in good repair and for restoration of electricity connection, which are essential services. d. It is submitted that the Assam Urban Areas Rent Control Act, 1972 enjoins or casts a duty on the landlord to keep the tenanted premises in good repair and electricity connection is an essential services, which is liable to be restored and such right cannot be allowed to be defeated just because the respondent and his counsel incorrectly described the tenanted premises, there being no dispute as regards existence of tenancy under Holding No.20. e. It is further submitted that the tenanted premises was gutted by fire on 04.12.2010 and now for about 7 years, the respondent is continuing to occupy the tenanted premises, which is in totally damaged condition and without electricity connection. It is urged that repair of house and electricity connection are both essential services, which the landlord is required to maintain. f. An alternative argument is made that if this court is not inclined to accept the submissions advanced on behalf of the respondent on account of mis-description of suit premises, for the purpose of doing complete justice in this case, liberty may be granted to the petitioner to either to amend the schedule in course of this revision and/or to approach the court afresh for repair and for restoration of electricity connection, as essential services cannot be denied to the tenant on account of defective pleading. 10. 10. This court has perused the two separate rent agreements, which are annexed to this revision as a part of Annexure-B (i.e. written objection by petitioner before trial court). It is seen that there is no doubt that (i) the agreement dated 05.05.2007 is in respect of 'Shop No.4', being an old construction of tin-shed shop, standing on part of Municipal Holding No.20, and (ii) the second agreement dated 05.05.2007 is in respect of 'Godown No.6', being a new construction of tin-shed godown, standing on par of Municipal Holding No.20. Thus, it indeed appears that in Misc. (J) Case No. 7/2014, there is a definite mis-description of the tenanted premises because in the Schedule appended thereto, the tenanted premises is shown to be one shop covered by part of Municipal Holding No.19. 11. In view of above, as the tenanted premises is not in respect of any construction covered by Holding No.19, the finding by the learned first appellate court about the (i) existence of relationship of landlord and tenant between the parties; and (ii) there is no discrepancy regarding the identification of the tenanted premises is not found to be sustainable. The two tenancy agreements dated 05.05.2007 show that the two tenanted premises are said to exist in a part of Municipal Holding No.20. Hence, the said finding, as recorded in the judgment dated 30.11.2015 passed by the learned Civil Judge, Jorhat deserves to be set aside, and is set aside. 12. This leads to another question as to whether it would be proper for this revisional court to pass any observation in terms of alternative submissions made by the learned counsels for both the sides viz., (i) that the courts below may enforce the order passed by the learned first appellate court, but there must be a rider that such repair and restoration of electricity cannot be done outside the schedule of premises given by the respondent i.e. it must be restricted to one shop premises covered by Holding No.19 only, as submitted by the learned counsel for the petitioner; and (ii) whether liberty may be granted to the petitioner to either to amend the schedule in course of this revision and/or to approach the court afresh for repair and for restoration of electricity connection. 13. 13. In this regard, this court is of the unhesitant opinion that it would be most impractical for this court to direct enforcement of the order passed by the learned trial court on an erroneous schedule and, as such, the submission made by the learned counsel for the petitioner cannot be allowed. 14. However, insofar as the submissions made by the learned counsel for the respondent is concerned, this court is of the view that the civil court retains the power both under section 151 and sections 152 read with 153 of the Civil Procedure Code to permit correction of the description of the Schedule of the suit property, which may be done at any stage and even at the execution stage to ensure that the judgment, decree or order should be frustrated. However, as on date, except for a verbal prayer, there is no application for correction of description of the tenanted premises on part of the respondent. 15. At this stage, this court deems it fit to refer to the Full Bench decision of the Hon’ble Supreme Court of India in the case of Bhavan Vaja V. Solanki Hanuji Khodaji Mansang, reported in (1973) 2 SCC 40 : AIR 1972 SC 1371 : (1972) 0 Supreme (SC) 87. In the said case, the following was observed [extract from (1972) 0 Supreme (SC) 87]: “19. It is true that an executing court cannot go behind the decree under execution. But that does not mean that it has no duty to find out the true effect of that decree. For construing a decree it can and in appropriate cases, it ought to take into consideration the pleadings as well as the proceedings, leading upto the decree. In order to find out the meaning of the words employed in a decree the Court, often has to ascertain the circumstances under which those words came to be used. That is the plain duty of the execution Court and if that Court fails to discharge that duty it has plainly failed to exercise the jurisdiction vested in it. Evidently the execution court in this case thought that its jurisdiction began and ended with merely looking at the decree as it was finally drafted. That is the plain duty of the execution Court and if that Court fails to discharge that duty it has plainly failed to exercise the jurisdiction vested in it. Evidently the execution court in this case thought that its jurisdiction began and ended with merely looking at the decree as it was finally drafted. Despite the fact that the pleadings as well as the earlier judgment rendered by the Board as well as by the appellate Court had been placed before it, the execution Court does not appear to have considered those documents. If one reads the order of that Court, it is clear that it failed to construe the decree though it purported to have construed the decree. In its order there is no reference to the documents to which we have made reference earlier. It appear to have been unduly influenced by the words of the decree under execution. The appellate Court fell into the same error. When the matter was taken up in revision to the High Court, the High Court declined to go into the question of the construction of the decree on the ground that a wrong construction of a decree merely raises a question of law and it involves no question of jurisdiction to bring the case within Section 115, Civil Procedure Code. As seen earlier in this case the executing Court and the appellate Court had not construed the decree at all. They had not even referred to the relevant documents. They had merely gone by the words used in the decree under execution. It is clear that they had failed to construe the decree. Their omission to construe the decree is really an omission to exercise the jurisdiction vested in them.” 16. Therefore, as per the ratio of the said case, the executing court also has the power to peruse the relevant pleadings to find out the correct description of the decreetal property. Hence, considering the facts of the present case, this court could have allowed correction of the schedule to be carried out, but this court has refrained from doing so in the absence of a written prayer to that effect. However, there is no reason for this court to prevent the respondent to apply afresh for getting the tenanted premises repaired and essential service of electricity to be restored by allowing the respondent to file a fresh application. However, there is no reason for this court to prevent the respondent to apply afresh for getting the tenanted premises repaired and essential service of electricity to be restored by allowing the respondent to file a fresh application. Hence, under the facts of this case, despite objection raised by the learned counsel for the petitioner, this Court has no hesitation in granting leave the petitioner to approach the learned trial court once again with a fresh petition for seeking such relief as he may be advised in respect of the correct schedule or suit premises. If such application is filed, the learned court of Munsiff No.1, Jorhat may entertain the same without being influenced by its previous order dated 28.08.2014, passed in Misc. (J) Case No. 7/2014 or by the first appellate judgment dated 30.11.2015 passed by the learned Civil Judge, Jorhat in Misc. Appeal No. 7/2014. As this is being done under the unique facts of this case, this order is not intended to be cited as a precedent. 17. Thus, this revision stands allowed, in terms of the observations made above, with liberty to the respondent to approach the learned trial court again, if so advised. 18. The parties are left to bear their own cost.