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2018 DIGILAW 1391 (GAU)

Siraj Khan v. Hari Prasad Agarwal

2018-09-18

KALYAN RAI SURANA

body2018
JUDGMENT : Kalyan Rai Surana, J. Heard Mr. G. N. Sahewalla, learned senior counsel assisted by Mr. P. Deka, learned counsel for the petitioner as well as Mr. A. Ganguly, learned counsel appearing for the respondent. 2. By this application under Section 115 CPC, the petitioner has challenged the concrete finding of the learned First Appellate Court, thereby decreeing the suit for eviction and arrear of rent against the petitioner-dependant and thereby reversing the judgment and decree passed by the learned Trial Court in the suit. 3. The respondent herein is the plaintiff in T. S. No. 31/2001. As per the plaint, the respondent had a steel and iron material manufacturing factory under the name and style of M/s Assam Udyog Company, situated at Mancotta Road, Dibrugarh, under Municipal Holding No. 246 of Ward No.16 of Dibrugarh Municipality, Dibrugarh standing on land measuring 8 Bigha 4 Katha 6 Lecha covered by Dag No. 72 (Ka) and 72 (Kha) of PP No. 7 of Rehabari Ward, Dibrugarh Town Mouza Dibrugarh. 4. Due to unavoidable circumstances, the said factory was closed in the year 1997 and the suit premises was kept in locked condition. On 31.03.2001 when the respondent visited the factory premises and staff quarters of the erstwhile Assam Udyog Company he came to know that the petitioner including his family members had occupied the staff quarter consisting of four rooms in the first floor of building of Assam Udyog Company. 5. On enquiry, the petitioner informed the respondent that he had entered into the suit premises on 17.12.1998 by taking the suit premises on rent from his son (since deceased), agreeing to pay rent at the rate of Rs. 1,650/- per month w.e.f. 17.12.1998, for which no documents could be produced in respect of payment of rent or any agreement. Hence, it was pleaded that taking advantage of the death of the son of the plaintiff, false plea was taken for permissive occupancy by the petitioner. Hence, after serving a notice for eviction dated 30.06.2001, demanding arrear of rent of Rs. 49,500/- w.e.f. 17.12.1998 to 17.06.2001, the petitioner was asked to quit the suit premises within 30 days from the date of receipt of notice. 6. Thereafter, the petitioner deposited the monthly rent in Court for which the respondent received a notice in respect of Misc. Hence, after serving a notice for eviction dated 30.06.2001, demanding arrear of rent of Rs. 49,500/- w.e.f. 17.12.1998 to 17.06.2001, the petitioner was asked to quit the suit premises within 30 days from the date of receipt of notice. 6. Thereafter, the petitioner deposited the monthly rent in Court for which the respondent received a notice in respect of Misc. Case (J) 47/2001 from the Court of Civil Judge (Junior Division) No.1, Dibrugarh for consumption of electricity under Section 6 & 7 of the Assam Urban Areas Rent Control Act, 1972. Accordingly, the suit was filed for eviction of the petitioner and for recovery of the arrear rent. 7. The petitioner contested the suit by filing his written statement, denying the allegations and took a plea that he was a bona-fide tenant, having paid the sum of Rs. 43,000/- to the son of the respondent on 17.12.1998 and that he was paying monthly rent of Rs. 1,650/- per month. Stating that he was not a defaulter, the petitioner had prayed for dismissal of the suit with cost and compensation of Rs. 50,000/-. 8. In course of trial, the learned trial Court had framed the following seven issues for trial: i. Whether the plaintiff has got any right, title and interest over the suit premises? ii. Whether the defendant occupied the suit premises on 17.12.1998 unlawfully without proper authority? iii. Whether the defendant has made any payment to the plaintiff for the suit premises? iv. Whether the defendant is a trespasser to the suit premise? v. Whether the defendant is a defaulter in making payment? vi. Whether any lease is existing in between the parties? vii. To what reliefs the parties are entitled? 9. In support of the case, the respondent had examined one Rajender Mishra as the PW-1, who had deposited the strength of Power of Attorney (Ext. 2 & 3) and he exhibited 22 exhibits. The petitioner, though filed his evidence-on-affidavit on 12.04.2016, but did not appear for his cross-examination despite being given several opportunities. Accordingly, his evidence stood expunged from record. 10. The learned trial Court did not deal the various issues independently. Upon evaluating the evidence on record, it was held that if a person withholds himself from appearing to the face cross-examination, presumption can be drawn against him upon finding that the petitioner had not adduced any evidence to prove his contention. Accordingly, his evidence stood expunged from record. 10. The learned trial Court did not deal the various issues independently. Upon evaluating the evidence on record, it was held that if a person withholds himself from appearing to the face cross-examination, presumption can be drawn against him upon finding that the petitioner had not adduced any evidence to prove his contention. Nonetheless, on examination of record, the learned trial Court had held that the petitioner was depositing rent at the rate of Rs. 1650/- in the office of the Rent Controller Dibrugarh, i.e., the Court of Munsiff Dibrugarh in the name of Assam Udyog Company. It was held that although the challans were not exhibited, but the documents available with the court of Rent Controller showed that rent was deposited in the said Court. 11. Hence, it was held that as the petitioner had no notice of fact, for depositing rent in the name of Assam Udyog Company, the petitioner cannot be held as defaulter. But it was held that during the course of the trial, the petitioner has got several notices that the respondent was a landlord. Hence, it was directed that the petitioner shall pay rent to the respondent and not in favour of the Company. Accordingly, the learned trial Court had held that the rent should be deposited in the name of the respondent and not in favour of Assam Udyog Company. The respondent was granted liberty to withdraw the rent deposited in favour of Assam Udyog Company from the office of the Rent Controller. 12. Aggrieved by the said judgment and decree dated 30.03.2009 passed by the learned Munsiff No. 1, Dibrugarh in T.S. No. 206/20017 (formerly T.S. No. 31/2007), the respondent preferred a first appeal, which was registered as Title Appeal No. 10/2009. 13. The learned First Appellate Court revisited the issues framed by the learned trial Court. 14. In respect of issue No.1, on the basis of the evidence on record, it was held that the respondent-plaintiff had the right, title and interest over the suit property. In respect of issue No.2, it was held that the learned trial Court had rightly come to the conclusion that petitioner did not occupied the suit premises on 17.12.1998 unlawfully without proper authority and, as such, the issue No.2 was decided in the negative and against the respondent-plaintiff. In respect of issue No.2, it was held that the learned trial Court had rightly come to the conclusion that petitioner did not occupied the suit premises on 17.12.1998 unlawfully without proper authority and, as such, the issue No.2 was decided in the negative and against the respondent-plaintiff. In respect of issue No. 3 & 5, it was held that there was no documents to show that the petitioner had paid monthly rent of Rs. 1,650/- per month in cash or to show after the respondent had stopped collecting monthly rent from him, as such, the petitioner had started to deposit rent before the Rent Controller. The learned First Appellate Court relied on the assertion made by the respondent in the plaint as well as in the advocate's notice about the non-receipt of monthly rent from the petitioner and, as such, it was held that the petitioner was a defaulter-tenant and, as such, the issue No.3 was decided in negative and in favour of the respondent-plaintiff. 15. Accordingly, issue No.5 was decided in the affirmative and in favour of the respondent-plaintiff by upholding that the petitioner was a defaulter in making payment of rent. In respect of issue No.4, the learned First Appellate Court concurred with the finding of the learned trial Court that the petitioner was not a trespasser in the suit premises. In respect of issue No.6, on the basis of the pleadings of the respondent-plaintiff, it was held that the respondent had admitted that the petitioner was a tenant. The learned First Appellate Court had referred to the Evidence Act to hold that admitted fact was not required to be proved, yet in the absence of any documentary evidence on part of the both the parties, issue No.6 was decided in negative and against the petitioner. Accordingly, in respect of issue No.7, it was held that the petitioner, being a defaulter, was liable to be evicted. Accordingly, the appeal was allowed contest by reversing the judgement and decree passed by the learned trial Court and the suit was decreed without cost. 16. The learned counsel for the petitioner has referred to the stand taken by the petitioner in the revision petition. Accordingly, the appeal was allowed contest by reversing the judgement and decree passed by the learned trial Court and the suit was decreed without cost. 16. The learned counsel for the petitioner has referred to the stand taken by the petitioner in the revision petition. It is submitted that the learned trial Court, being the custodian of the records of the Rent Controller, had correctly appreciated the records to hold that the petitioner was not a defaulter and therefore, the learned First Appellate Court had erred in law by declaring the petitioner to be a defaulter. 17. Hence, it is submitted that as the learned First Appellate Court had erred in the appreciation of the records, the finding of the defaulter is liable to be set aside by upholding the judgment and decree passed by the learned trial Court. 18. The learned counsel had made submission in terms of the statements made in the revision petition to support his contention that as the petitioner had no knowledge that the respondent was a landlord and not the Assam Udyog Company, Therefore, merely over the said reason, the petitioner could not be held to be defaulter. It is also submitted that as the suit was filed in the name of an individual, being the proprietor of the firm, M/s. Assam Udyog Company, the said suit itself was not maintainable as the landlord had not filed the suit. 19. Per contra, the learned counsel for the respondent has made his submission in support of the judgment and decree passed by the learned First Appellate Court by submitting that as the petitioner had not proved the deposit of rent, the essential requirements of the Section 5(4) of the Assam Urban Areas Rent Control Act, 1972 having not been proved, the learned First Appellate Court had rightly held that the petitioner to be a defaulter. 20. On a perusal of the materials on record, the first point to strike the attention of this Court is that the learned First Appellate Court had not formulated any points for determination as required under Order XLI Rule 31(a) CPC. Nonetheless, as the present suit is for eviction of the tenant, it is seen that the learned First Appellate Court had evaluated and decided all the issue afresh on the basis of the pleadings and evidence of record. Nonetheless, as the present suit is for eviction of the tenant, it is seen that the learned First Appellate Court had evaluated and decided all the issue afresh on the basis of the pleadings and evidence of record. Hence, the irregularity of not formulating the points of determination is found to be not fatal as the decision of the learned trial Court on all the issues framed for trial has been challenged. Nonetheless, the absence of formulating point for determination appears to be lapse on the part of the learned First Appellate Court. 21. In the present case in hand, it is seen that by virtue of the judgment and decree passed by the learned trial Court, it was subsequently directed that the petitioner shall pay future rent during the tenure of the tenancy to the respondent and not to the company. However, petitioner could not discharge the obligation to comply with the direction contained in the judgement of the learned trial Court that after the decree was passed by the learned trial Court future rents were tendered to the respondent. Thus, compliance of judgment and decree passed by the learned trial Court, directing the petitioner to henceforth pay rent to the respondent could not be demonstrated before the learned first appellate Court. 22. Moreover it is the well settled requirement of the Section 5(4) of the Assam Urban Areas Rent Control Act, 1972 that prior to deposit of the rent in the Court, rent must be offered to the landlord from month to month and on the refusal of the landlord to accept the rent lawfully tendered by the tenant, the right of the tenant to deposit the rent in the Court after observing the due formalities, which are, submission of the process fee and the filing of written-up notice to enable the Court to issue notice on depositing the rent to the landlord. 23. In course of trial, the petitioner is found to have not discharged his burden of proving the due deposit of rent in Court in accordance with law. 24. In such circumstances, this Court finds that the judgment passed by the learned trial Court, holding that the petitioner is not a defaulter, cannot be sustained. 23. In course of trial, the petitioner is found to have not discharged his burden of proving the due deposit of rent in Court in accordance with law. 24. In such circumstances, this Court finds that the judgment passed by the learned trial Court, holding that the petitioner is not a defaulter, cannot be sustained. Accordingly, this Court does not find any infirmity with the judgment and decree passed by the First Appellate Court by holding the petitioner to be a defaulter in payment of rent. 25. As stating herein before, the petitioner did not stand on witness box to face his cross-examination and accordingly, the evidence of the petitioner was expunged. Under such circumstances, the petitioner having not proved his stand, as taken in his written statement, this Court does not find any infirmity in the First Appellate judgment and decree to hold that the petitioner herein to be a defaulter in payment of rent. 26. In view of the aforesaid position, the non-framing of the point of determination under Order XLI Rule 31(a) CPC is not found to be fatal in the facts and circumstances of the present case. 27. Hence, this Court is inclined to affirm the judgment and decree passed by the learned First Appellate Court and accordingly, the present revision fails, and the same stands dismissed. 28. At this stage, the learned Senior Counsel for the petitioner has submitted that the petitioner has been occupying the suit premises for quite a long period since the year 1998 and therefore, the petitioner may be granted at least one year's time to vacate the suit premises. The said prayer is opposed by the learned counsel for the respondent. 29. However, considering the fact that some time is required to the respondent to vacate the suit premises, this Court is inclined to grant time to the petitioner upto 31.03.2019 to voluntarily vacate the suit premises, subject to the following terms and conditions: a. That the petitioner-defendant shall submit a declaration/undertaking before the learned trial Court in the form of an affidavit, undertaking to voluntary vacate the suit premises on or before 31.03.2019 and to deliver vacant and khas possession of the suit premises to the respondent/landlord without fail on 31.03.2019. b. During the said period of time, the petitioner shall pay the rent of Rs. b. During the said period of time, the petitioner shall pay the rent of Rs. 1,650/- per month to the respondent in cash on basis of English Calendar month and on receipt of such monthly rent, the respondent shall issue a money receipt to the petitioner. However, it is made clear that the payment of such rent shall not create any fresh relationship between the parties, nor such deposit shall create any right whatsoever in favour of the petitioner for the continuance of the tenancy and/or to occupy the tenanted premises beyond 31.03.2019. c. It is provided that if the petitioner does not vacate the suit premises by the 31.03.2019, the respondent would be at liberty to enforce the decree passed against the petitioner. d. Within a period of two months from today, the petitioner shall pay the arrear monthly rent at the rate of Rs. 1,650/- p.m. from 17.12.1998 till 30.11.2018. The petitioner shall have the liberty of withdrawing money deposited as rent in favour of Assam Udyog Company as the learned Counsel for the respondent has informed that there is no bank account in the name of M/s. Assam Udyog Company, an erstwhile proprietorship firm, which is no longer in existence. Hence, it is provided that the Rent Controller, Dibrugarh may act accordingly. 30. It is made clear that if an undertaking to the aforesaid effect is not filed within a period of one month from today or if there is any violation of the terms and conditions imposed above, this order shall not be a bar for the respondent to enforce the decree as passed by the learned First Appellate Court. 31. This revision stands dismissed. 32. Sent back the LCR.