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2018 DIGILAW 1301 (GAU)

Parimal Kejriwal v. Nilima Paul

2018-09-03

KALYAN RAI SURANA

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JUDGMENT : KALYAN RAI SURANA, J. 1. Heard Mr. G N. Sahewalla, the learned senior counsel assisted by Mr. M. Sahewalla, learned counsel appearing for the petitioners as well as Mr. S. Dutta, the learned senior counsel assisted by Mr. S. Dutta, learned counsel appearing for the respondents. 2. By this application under Article 227 of the Constitution of India, the petitioners have challenged the order dated 02.05.2018 passed by the learned District Judge, Dibrugarh, thereby rejecting petition No. 521/18 dated 23.02.2018, filed by the petitioners under Order XLI Rule 27 read with Section 151 CPC in connection with Title Appeal Case No. 15/17 (Title Appeal No. 40/2010). 3. The predecessor-in-interest of the respondents, namely, Radheshyam Raul, was the landlord of the petitioners. He had filed Title Suit No. 3/2003 for eviction of the petitioners from the suit premises. Title Suit No. 3/2003 was decreed by the learned Court of Munsiff No. 1, Dibrugarh by judgment and decree dated 25.08.2010. The petitioners, being defendants No. 1 and 2 had filed an appeal, being Title Appeal No. 40/2010, which was dismissed by first appellate judgment and decree dated 31.03.2015. 4. Both the above referred judgment and decree was challenged by the petitioners i.e. defendants No. 1 and 2, which was registered as CRP 284/15. This Court vide judgment and order dated 15.09.2016, had allowed the revision by remanding the matter back to the learned first appellate Court to decide the appeal afresh. At the first appellate stage, upon remand, the petitioners had filed an application under Order XLI rule 27 read with section 151 CPC to lead additional evidence. It was projected that by virtue of deed of gift No. 168, registered before the Dibrugarh Sub-Registry, the predecessor of the respondents had gifted the suit land and property in favour of his three daughters, namely (1) Smt. Rajashree Paul, (2) Smt. Jayashree Paul and (3) Smt. Tanushree Verma, and accordingly, the land revenue records were corrected. It was further projected that upon search, the petitioners had come to know that by another registered gift deed No. 807 dated 16.03.2009, the predecessor-in-interest of the respondents had, during his life time, gifted the land to his son, namely, Sri Jayanta Paul and accordingly, it was projected that the respondents had concealed the aforesaid facts for wrongful gain. It was further projected that upon search, the petitioners had come to know that by another registered gift deed No. 807 dated 16.03.2009, the predecessor-in-interest of the respondents had, during his life time, gifted the land to his son, namely, Sri Jayanta Paul and accordingly, it was projected that the respondents had concealed the aforesaid facts for wrongful gain. It was further projected that on and from September, 1998 to March 2009, the rent deposit challans were already filed before the learned trial Court and since then i.e. since April 2009, further rent up to January, 2018 was being duly deposited in Court of Rent Controller cum Munsiff No. 1, Dibrugarh vide various N.J. Cases and, as such, the petitioners had desired additional evidence to be led to prove the said gift deeds and the records of various Misc.(N.J.) cases for proving subsequent deposit of rent in Court. 5. The learned first appellate Court, by virtue of the impugned order, had rejected the said application under Order XLI Rule 27 CPC on the ground that this Court, vide order dated 15.09.2016 in CRP 284/15 had directed the learned trial Court to decide the appeal on proper appreciation of evidence available on record and the learned first appellate Court held that in view of the directions contained in the order passed by this Court, the said petition cannot be allowed as it was required to consider only the evidence already available on record. Hence, the said petition was rejected. 6. The learned senior counsel for the petitioners has submitted that the gilt deeds executed by the predecessor of the respondents was required to be proved to show that the son of the predecessor of the respondents had already been given a suitable land and therefore, the bonafide requirement of the suit premises does not exist. It is further submitted that the subsequent deposit of rent are also required to be proved to show that even during the pendency of the suit, the petitioners were not defaulter. It is submitted that as the additional evidence is sought to be led in respect of events subsequent to the filing of the suit, for which, the petitioners may be permitted to lead additional evidence to prove their defence. 7. It is submitted that as the additional evidence is sought to be led in respect of events subsequent to the filing of the suit, for which, the petitioners may be permitted to lead additional evidence to prove their defence. 7. The learned senior counsel for the respondents, while opposing this application, has submitted that the scope of bonafide requirement was already decided by this Court by order dated 15.09.2016 passed in CRP 284/15, wherein it was held that the issue of bonafide requirement has to be decided afresh by considering the bonafide requirement of the daughters of the plaintiffs and thereafter, this Court proceeded to appreciate the facts to hold that the issue No. 4 was not correctly decided by the learned first appellate Court for which the matter was remanded back. It is further submitted by producing a copy of Deed of Gift dated 22.01.2016, registered as deed No. 168 dated 25.01.2016 that it had contained a narration that the suit property was gifted to the three daughters and that the plot of land gifted to the son of the original plaintiff was at a different location. Therefore, the subsequent gift deed did not concern the suit land. Hence, it is submitted that the said gift deed would prove nothing in respect of the suit land because this Court had categorically decided the scope of bonafide requirement in CRP 284/2015. 8. Having considered the submissions made by the learned senior counsel for the both sides, the materials on record have been perused and the copy of the Gift Deed No. 168 dated 22.01.2016 is kept as part of record, which shows that the land gifted thereby was not the suit land. 9. In view of the findings recorded by this Court in CRP 284/2015, indicating that the bonafide requirement has to be decided afresh by considering the bonafide requirement of the daughters of the deceased predecessor of the respondents, this Court does not find any infirmity in order passed by the learned first appellate Court to reject the prayer for additional evidence in so far as deed of gift is concerned. 10. 10. Coming to the requirement of the petitioners to prove the various N.J. case, records pertaining to the period of April, 2009 till January, 2018, this Court is of the view that as the respondents had not raised the issue of subsequent default on part of the petitioners, there is no requirement to prove the subsequent deposits and this Court is of the opinion that subsequent deposit of grant is required to be proved only in the event when the landlord takes the plea that the tenant has subsequently also defaulted in regularly making the payment of rent during the pendency of the suit, otherwise, the manner of proving subsequent deposit of rent would become an endless proposition because for every month rent becomes due and payable, as such, if all subsequent deposit of rent is required to be proved before the learned trial Court, it would not only be cumbersome but would protract the trial of all landlord tenant cases. Then again, a question may arise, why deposit of rent is not required to be proved at the first appellate and revisional stage, which according to this Court, was never envisaged in regular trial, where landlord does not raise a dispute that rent was not deposited during the pendency of suit, appeal or revision, and if such question is raised, it shall be the burden of the tenant to rebut such allegation by proving the subsequent deposit of rent in Court in accordance with law. 11. In this connection, this Court would like to refer the paragraphs 7 and 8 of the case of Abdul Matin Choudhury & Anr. Vs. Nityananda Banik, (1997) 2 GLT 590: (1998) 7GL/57P which are quoted below:- "7. In case of L.P.A U/76 (R.C Basak v. D.N Pandit) date of judgment of D/B 13.4.79 on difference by the third Judge on 30.10.79 this court pointed out that the Rent Control Act has curtailed the right of land lord but at the same time this casts a duty on the tenant to perform his part of the obligation, as protection has been given to the tenants who are dutiful and diligent. If it is found that the tenant has not performed his part of the obligation, the tenant shall forfeit the protection given to him and shall be liable to be ejected. If it is found that the tenant has not performed his part of the obligation, the tenant shall forfeit the protection given to him and shall be liable to be ejected. To the same effect there is the decision of the Apex Court reported in 1979 SC Page 1745 (V. Dhanapal Chettiar v. Yesodai Amma 1) wherein the law has been laid down as follows: "In spite of the notice, the law says that he continues to be a tenant and he does so enjoying all the rights of a lessee and is at the same time deemed to be under all the liabilities such as payment of rent etc. in accordance with the law." 8. A Single Judge decision of this court in 1997 (1) GLR Page 5 (Sekhar Chandra Swami v. On the death of Nandalal Agarwalla His heirs and Smti. Savitri Agarwalla) wherein the same law has been reiterated. So, it is crystal clear that a tenant is deemed to be under all liabilities as such payment of rent etc. in accordance with law all along if he wants to avail the protection granted by a rent control legislation. The protection granted to a tenant cannot be a one way traffic. If he wants to enjoy certain privileges or benefits, the corresponding duty/obligation thrust on him by the legislature must be performed/discharged by the tenant. As pointed out in the case of R.C Bashak, this liability shall subsist all through the proceedings even when the matter may be pending in highest court. If at any point of time, the landlord by prudent manner can bring to the notice of the court even during the pendency of the proceeding that the tenant has failed to discharge his liabilities a right shall spring up in favour of the landlord to get the decree for ejectment on any of the grounds as incorporated in the Assam Urban Areas Rent Control Act, 1972 (hereinafter called the Act for the sake of brevity) In the same manner a right available to the landlord for ejectment of the tenant may be wiped out by the happening of certain events during the pendency, of the proceeding and if such event is brought to the notice of the court by the tenant, the court is bound to take notice of it to mould the relief in accordance with law. This is highly desirable state of things inasmuch as this will do away with the multiplicity of litigations. There is no justification that if by happening of any event during the pendency of the proceeding, the landlord gets a right to eject the tenant and/or the tenant derives certain benefits by happening of the certain event, the court should not take note of such things to avoid multiplicity of litigation. So, it is the duty and obligation of the tenant to prove that he is entitled to the protection during the pendency of the entire proceeding and he has performed his duties and obligations. This is a wholesome provision." Therefore, from the above, it appears to amply clear that this Court, while deciding the case of Abdul Matin Choudhury (supra) was conscious of the fact that if at any point of time, the landlord by prudent manner can bring on notice of the court even during the pendency of the proceeding that the tenant has failed to discharge his liabilities and right shall bring up in favour of the landlord to get a decree for ejectment any of the grounds as incorporated in the Assam Urban Areas Rent Control Act, 1972 and on such event, it has been explained that it is the duty and obligation of the tenant to prove that he is entitled to the protection during the pendency of the entire proceeding and that he has performed his duties and obligation. Therefore, the observations made by this Court in paragraph 10 above, is only clarificatory in nature following the ratio laid down by this Court in the case of Abdul Matin Choudhury (supra) and the observations made above, is not to dilute the well settled principles as enunciated in the case of Abdul Matin Choudhury (supra). 12. Therefore, this Court is of the considered view that there is no requirement for the petitioners to prove various Misc.(N.J.) cases which does not form the subject matter of the suit. 12. Therefore, this Court is of the considered view that there is no requirement for the petitioners to prove various Misc.(N.J.) cases which does not form the subject matter of the suit. However, it is clarified that in the event the respondents take up the plea of subsequent default on the part of the petitioners to deposit rent in Court, at that stage, right would accrue to the petitioners to prove the deposit of rent subsequent to the institution of the suit Therefore, the rejection of the prayer for additional evidence is found to be sustainable in so far as the prayer to prove subsequent deposit of rent in Court is concerned. 13. Therefore, this Court does not find any jurisdictional error in the impugned order. Hence, this revision fails and the same stands dismissed, leaving the parties to bear their own cost. 14. Both sides, who are duly represented by their learned counsel shall appear before the Court of learned District Judge, Dibrugarh without any notice of appearance on 18.9.18, and on the said date, by producing a copy of this order, the parties shall seek further instructions from the said learned Court.