Research › Search › Judgment

Gauhati High Court · body

2019 DIGILAW 221 (GAU)

Shyan Sundar Debnath v. Nabendu Kishore Sinha

2019-02-18

PRASANTA KUMAR DEKA

body2019
JUDGMENT : PRASANTA KUMAR DEKA, J. 1. Heard Mr. A.K. Purkayastha, the learned counsel for the petitioner. Also heard Mr. D. Mazumder, the learned Senior Counsel assisted by Mr. S. Biswas, the learned counsel for the respondent. 2. In this revision petition, judgment and decree dated 16.06.2016 passed by the learned Civil Judge No. 1, Cachar at Silchar in Title Appeal No. 20/2014 is put under challenge. 3. The present petitioner is the plaintiff in Title Suit No. 12/2009 in the learned Court of Munsiff No. 2, Cachar at Silchar filed against the sole defendant/respondent for restraining the defendant/respondent from ejecting him from the tenanted premises which is the suit premises without due process of law by way of injunction. It is the case of the plaintiff/petitioner that he was a tenant under late Nanda Kishore Singha, the father of the defendant/respondent with respect to the suit premises at a monthly rent of Rs. 500/-. After the death of late Nanda Kishore Singha, the three brothers of the defendant/respondent namely, Niresh Kishore Singha, Nripendra Kishore Singha and Nagendra Kishore Singha, renewed the tenancy in favour of the plaintiff/petitioner by way of an agreement dated 26.06.1997. The said tenancy was for a period of 5 years starting from 01.06.1997 to 31.05.2002 on the condition of payment of monthly rent of Rs. 1100/-. The plaintiff/petitioner regularly paid the monthly rent and vide letter dated 05.08.1999, the defendant/respondent informed the plaintiff/petitioner that as per an amicable family arrangement between the legal heirs of late Nanda Kishore Singha, the suit premises exclusively fell in the share of the defendant/respondent. Again vide letter dated 17.10.2001 the defendant/respondent instructed the plaintiff/petitioner to deposit the monthly rent in his account with Central Bank of India, Silchar Branch. In the month of March 2002, the plaintiff/petitioner approached the defendant/respondent to renew the tenancy agreement dated 26.06.1997 and on being instructed he started to deposit Rs. 1320/- per month as rent in the said account of the defendant/respondent till the month of December, 2008. On 28.12.2008, the brothers of the defendant/respondent alongwith some bad elements armed with deadly weapons attempted to dispossess the plaintiff/petitioner by force from the tenanted premises. Complaint was lodged before the SDM (S), Silchar on 31.12.2008 under Section 207 Cr.P.C. Thereafter, on 08.01.2009 the brothers of the defendant/respondent made attempts to put the suit premises under lock and key. Hence, the suit. 4. Complaint was lodged before the SDM (S), Silchar on 31.12.2008 under Section 207 Cr.P.C. Thereafter, on 08.01.2009 the brothers of the defendant/respondent made attempts to put the suit premises under lock and key. Hence, the suit. 4. The defendant/respondent filed his written statement and pleaded that the father of the plaintiff/petitioner took a room measuring 800 sq. feet from the father of the defendant/respondent on rent for a period of 5 years with effect from 01.06.1988 to 31.05.1993. To that effect, a tenancy agreement dated 01.06.1988 was executed on the condition that the said suit premises would not be sublet and in the event, the said agreement is not extended then the plaintiff/petitioner would vacate the same. Thereafter, on the death of the father of the defendant/respondent, the plaintiff/petitioner was brought in by one Gouranga Chandra Debnath and illegally constructed the wall in the middle of the tenanted premises and started occupying the tenanted premises. Thereafter, the other brothers of the defendant/respondent entered into two separate tenancy agreements with the plaintiff/petitioner and another person being one Shankar Debnath for a period of 5 years with effect from 01.06.1997 to 31.05.2002 at a monthly rent of Rs. 1100/-. Due to family arrangement later on, the tenanted premises absolutely devolved on the present defendant/respondent. It was informed to the plaintiff about the said family arrangement but the plaintiff/petitioner failed to deposit the rent in the Central Bank of India after October 2007 and became a defaulter from the month of November 2007. The defendant/respondent asked the plaintiff/petitioner to vacate the premises for the purpose of construction and his own accommodation alongwith his family members which he failed to do. Accordingly counter claim is filed praying for a decree of ejectment of the plaintiff and recovery of khas possession of the tenanted premises in favour of the defendant/respondent on the ground of defaulter and bonafide requirement. 5. The plaintiff/petitioner filed his written statement against the counter claim and denied the fact that he defaulted in paying the rent and also requirement of the suit premises bonafide by the defendant/respondent for his own accommodation. 6. On the basis of the pleadings, the learned trial court framed the following issues:- "1. Is there is any cause for this suit? 2. Whether the suit is maintainable in its present form and manner? 3. Is the suit is barred by law of limitation? 4. 6. On the basis of the pleadings, the learned trial court framed the following issues:- "1. Is there is any cause for this suit? 2. Whether the suit is maintainable in its present form and manner? 3. Is the suit is barred by law of limitation? 4. Whether the suit is bad for non joinder of necessary parties? 5. Whether the plaintiff has any right, title, interest and possession as monthly tenant under the defendant over the suit land? 6. Whether the plaintiff is entitled to for decree as prayed for? 7. Is there any cause of action for the counter claim? 8. Whether the counter claim is maintainable in its present form and manner? 9. Whether the plaintiff is defaulter in paying rent to the defendant in respect of the suit land? 10. Whether the defendant has bonafide requirement of the suit land? 11. Whether the defendant is entitled for a decree as prayed for?" 7. The learned trial court vide its judgment and decree dated 26.06.2014 dismissed the suit. The plaintiff/petitioner adduced evidence of three witnesses including himself as the PW-1. However, the evidence of the said PW-1 was expunged as he failed to turn up for further cross-examination vide order dated 31.05.2013 and as such, the trial court did not consider the evidence of PW-1. On the other hand, the defendant/petitioner side adduced evidence of one witness. The learned trial court while deciding issue No. 9 as to whether the plaintiff/petitioner is a defaulter in paying the monthly rent to the defendant/respondent in respect of the suit premises held that as per the oral agreement the defendant/respondent requested the plaintiff/petitioner to pay the monthly rent timely as per the earlier agreement which expired on 31.05.2002 i.e. within a period of 7(seven) days of the following English Calendar month by demand draft. But the plaintiff/petitioner neglected in paying the monthly rent and as such, he disclosed his bank account number and directed the plaintiff/petitioner to deposit the monthly rent in the bank account of the defendant/respondent at Central Bank of India, Silchar Branch. The plaintiff/petitioner deposited the monthly rent up to the month of October 2007 in the bank account No. 6600 as per passbook account No. 1705689297 and thereafter, he did not deposit the monthly rent and accordingly, became a defaulter since November 2007. The plaintiff/petitioner deposited the monthly rent up to the month of October 2007 in the bank account No. 6600 as per passbook account No. 1705689297 and thereafter, he did not deposit the monthly rent and accordingly, became a defaulter since November 2007. The learned trial court holding that the burden lies on the tenant to prove that rent was paid or deposited in the event of any allegation that such rent was not paid to the landlord did not disbelieve the statement of the defendant/respondent as DW-1 that the plaintiff/petitioner had not paid rent since the month of November 2007. The plaintiff/petitioner failed to duly prove any rent receipt or bank counter foil or account statement of the defendant/respondent to show that the plaintiff/petitioner paid the monthly rent of the suit premises to the defendant/respondent for each month within 7th day of following English Calendar since November 2007 and also during the pendency of the suit nor the other witnesses i.e. PW-2 and PW-3 did not state anything to that effect. Thus, the plaintiff was held to be a defaulter in paying monthly rent to the defendant/respondent with respect to the suit premises. 8. The learned trial court decided the issue No. 10 relating to the question whether the defendant/respondent has bonafide requirement of the suit premises in favour of the defendant/respondent. It was held that the defendant/respondent as the DW-1 stated that the suit premises is required by him for residence/accommodation of himself and his family members. The suit premises fell in his share as per the family arrangement and further stated that after his retirement he settled temporarily at Guwahati for the purpose of education of his children and resides in his own residential house at Guwahati. During his visit to Silchar he had to stay in the hotel and as such the suit premises is required by him for residential accommodation of himself and his family members inasmuch as he hails from Silchar. Accordingly, the learned trial court held that the landlord is the best judge of his residential requirement and the tenant cannot dictate to the landlord how and in what manner he should use the tenanted premises. Thus, deciding the issue of bonafide requirement of the suit premises in favour of defendant/respondent. The counterclaim was decreed in favour of the defendant/respondent dismissing the suit. 9. Thus, deciding the issue of bonafide requirement of the suit premises in favour of defendant/respondent. The counterclaim was decreed in favour of the defendant/respondent dismissing the suit. 9. Being aggrieved by the said judgment and decree dated 26.06.2014 passed in Title Suit No. 12/2009 by the learned Munsiff No. 2, Cachar at Silchar, the plaintiff/petitioner preferred Title Appeal No. 20/2014 in the Court of learned Civil Judge No. 1, Cachar at Silchar and the same was dismissed vide judgment and decree dated 16.06.2016. The said judgment and decree of the first appellate court is put under challenge in this revision petition. 10. Mr. Purkayastha, the learned counsel for the petitioner, submits that the act of expunging of the evidence of the PW-1 i.e. the plaintiff/petitioner of the whole evidence was incorrect inasmuch as the plaintiff/petitioner was partly cross-examined and as such, the evidence ought to have been taken into consideration to the extent which is material in order to decide the issues before the court below. Referring to the cross-examination of the petitioner PW-1 it is submitted by Mr. Purkayastha that it was deposed in his cross-examination that he deposited rent vide Ext. 4 and Ext. 4(series) i.e. 4(1) to 4(116). The said exhibits were proved and the cross-examination was also done substantially and as such, the learned court below ought to have kept the said evidence of PW-1 on record and considered while deciding the issues taking up the relevant deposition from the evidence of the PW-1. 11. Coming to the merit of the findings of the courts below, Mr. Purkayastha submits that the findings in the issue in respect of bonafide requirement of the suit premises by the defendant/respondent is totally perverse inasmuch as the defendant/respondent failed to prove his bonafide inasmuch as it is the admitted position that he settled at Guwahati and only during his casual visits to Silchar he had to stay in the hotel but to that effect he failed to prove any such occasion in which he had to stay in a hotel during such visit to Silchar. 12. Mr. Mazumder, on the other hand, opposing the submission of the learned counsel for the petitioner, submits that the court cannot go ahead and accept the partial cross-examination in a situation wherein the witness failed to appear to face cross-examination. If the submission of Mr. 12. Mr. Mazumder, on the other hand, opposing the submission of the learned counsel for the petitioner, submits that the court cannot go ahead and accept the partial cross-examination in a situation wherein the witness failed to appear to face cross-examination. If the submission of Mr. Purkayastha is accepted by keeping the incomplete cross-examination on record of the PW-1 then it would be failure of the principle of natural justice so far defendant/respondent is concerned inasmuch as the defendant/respondent would be deprived of his valuable right of cross-examination in order to examine the veracity of the statements made in the evidence-on-affidavit by the plaintiff/petitioner as PW-1. It is further argued that the courts below rightly held that the defendant/respondent had raised his bonafide requirement of the suit premises in order to reside by way of permanent settlement at Silchar, that cannot be faulted only because of the fact that the defendant/respondent is having his residence at Guwahati. The courts below rightly held that landlord is the best person to decide his requirement and the court cannot dictate the manner in which he is supposed to enjoy his property. 13. Considered the submissions of the learned counsel. In order to decide as to whether the act of expunging of the evidence of PW-1 was the only recourse available to the court, Order XVII Rule 2 of the Code of Civil Procedure 1908 (CPC) prescribes the procedure if any parties fail to appear on the date fixed for hearing or any date to which the hearing is adjourned the court may proceed to dismiss the suit in one of the modes directed by Order IX of the CPC or make such other order the court may think it fit. Order XVII Rule 2, CPC further stipulates that where a substantial portion of the evidence of any party has already been recorded and such party fails to appear on any date to which the hearing of the suit is adjourned, the court may in its discretion proceed with the case as if such parties were present. Order XVII Rule 2, CPC further stipulates that where a substantial portion of the evidence of any party has already been recorded and such party fails to appear on any date to which the hearing of the suit is adjourned, the court may in its discretion proceed with the case as if such parties were present. Order XVII Rule 3, CPC further authorizes the court to proceed notwithstanding either party fails to produce evidence where any party to a suit to whom, time was granted, fails to cause the attendance of his witness or to perform any other act necessary to the further progress of the suit, the court may notwithstanding such default if the parties are present proceed to decide the suit or if the parties are or any of them is absent proceed under Order XVII Rule 2 of the CPC. 14. In the present case in hand, the learned trial court proceeded after dispensing with further cross-examination of PW-1 i.e. the plaintiff/petitioner and subsequently the partial evidence was expunged. Evidence of other two witnesses of plaintiff side are on record. The said act of the court below was not put under challenge before any higher court to set it aside nor the same was raised before the first appellate court invoking the jurisdiction under Section 105, CPC by the plaintiff/petitioner. 15. From the judgment of the trial court it is seen that the order of dispensing with the cross-examination of PW-1 was passed on 11.04.2013 and subsequent thereto the same was expunged as per order dated 31.05.2013. I have perused the date on which the cross-examination of the plaintiff/petitioner was reserved for further cross-examination from the certified copy of evidence of PW-1 produced by Mr. Purkayastha. The cross-examination of the PW-1 started on 06.08.2012 on which date cross-examination was reserved and further cross-examination of PW-1 was dispensed with vide order dated 11.04.2013. If the date on which the cross-examination started is taken into consideration and the order on 11.04.2013 is again considered, it is exactly after 8 months the cross-examination of PW-1 was dispensed with and vide order dated 31.05.2013 the same was expunged. 16. If the date on which the cross-examination started is taken into consideration and the order on 11.04.2013 is again considered, it is exactly after 8 months the cross-examination of PW-1 was dispensed with and vide order dated 31.05.2013 the same was expunged. 16. The anguish of the Hon'ble Supreme Court in the prevailing practice of the trial courts of calling witness for cross-examination after a long span of time subsequent to examine-in-chief can be gathered from the decision rendered in Vinod Kumar -vs.- State of Punjab reported in (2015) 3 SCC 220 which is reproduced below:- "57.4. In fact, it is not at all appreciable to call a witness for cross-examination after such a long span of time. It is imperative if the examination-in-chief is over, the cross-examination should be completed on the same day. If the examination of a witness continues till late hours the trial can be adjourned to the next day for cross-examination. It is inconceivable in law that the cross-examination should be deferred for such a long time. It is anathema to the concept of proper and fair trial. 57.5. The duty of the court is to see that not only the interest of the accused as per law is protected but also the societal and collective interest is safeguarded. It is distressing to note that despite series of judgments of this Court, the habit of granting adjournment, really an ailment, continues. How long shall we say, "Awake! Arise!". There is a constant discomfort. Therefore, we think it appropriate that the copies of the judgment be sent to the learned Chief Justices of all the High Courts for circulating the same among the learned trial Judges with a command to follow the principles relating to trial in a requisite manner and not to defer the cross-examination of a witness at their pleasure or at the leisure of the defence counsel, for it eventually makes the trial an apology for trial and compels the whole society to suffer chicanery. Let it be remembered that law cannot allowed to be lonely; a destitute." Thus, it is not at all appreciable to call a witness for cross-examination after such a long span of time. It is proper and the requirement of procedural law that if the examination-in-chief is over, the cross-examination should be completed on the same day. Let it be remembered that law cannot allowed to be lonely; a destitute." Thus, it is not at all appreciable to call a witness for cross-examination after such a long span of time. It is proper and the requirement of procedural law that if the examination-in-chief is over, the cross-examination should be completed on the same day. If the examination of a witness continues till late hours the trial can be adjourned for the next day for cross-examination. It is "anathema" to the concept of proper and fair trial. Thus the act of dispensing with further cross-examination of the PW-1 by the learned trial court in my opinion is proper. Such act is well within the prescribed procedure under Order XVII Rule 3 of the CPC. 17. The said evidence of PW-1 with partial cross-examination if kept on record as submitted by Mr. Purkayastha, would prejudice the defendant/respondent inasmuch as it would deprive the defendant/respondent from the right to destroy or weaken the force of evidence of PW-1 already given by way of examination-in-chief. From the certified copy of the evidence of PW-1 it cannot be concluded that the said witness was thoroughly cross-examined on many dates but it was on 06.08.2012 cross-examination started and it was reserved further and the said stage in the suit remained static till 11.04.2013. Accordingly, it cannot be concluded that thorough cross-examination was carried out by the defendant/respondent so far PW-1 is concerned. Cross-examination is the integral part of "evidence" as per Section 3 of the Indian Evidence Act, 1872. If any evidence is permitted to be kept on record without thorough cross-examination of the witness who defaulted in his appearance to face the cross-examination, the evidence cannot be held to be within the term "evidence" of the Indian Evidence Act and as such the expunging of the evidence of PW-1 by the trial court was proper. 18. The findings in issue Nos. 9 and 10 are concurrent in nature and the jurisdiction of this revisional Court is also limited under such circumstances. 18. The findings in issue Nos. 9 and 10 are concurrent in nature and the jurisdiction of this revisional Court is also limited under such circumstances. Even then on going through the findings of the courts below it is rightly held by the first appellate court while upholding the finding of the trial court in issue No. 9 that the evidence of the plaintiff/petitioner shows that he deposited the rent till the month of October 2007 but thereafter, did not deposit the rent and became a clear defaulter in November 2007. The plaintiff/petitioner failed to discharge his onus in order to disprove the allegation of defaultership and the DW-1 i.e. the defendant/respondent who is the counter claimant has been able to show that the plaintiff/petitioner deposited monthly rent till the month of October 2007. Further the other witnesses of the plaintiff side in their evidence did not state anything that the petitioner paid the rent since November 2007 and during the pendency of the suit which is also required to be proved. Accordingly, the finding on the issue No. 9 of the courts below is upheld. 19. Regarding bonafide requirement of the suit premises the plaintiff/petitioner failed to disprove the evidence of the defendant/respondent that he had to reside in the hotel during his visit to Silchar owing to constraint of accommodation. The submission of Mr. Purkayastha cannot be accepted that there was no genuineness in the claim of the plaintiff/petitioner. The Court cannot ask the defendant/respondent not to come to Silchar and settle there for the anticipated inconvenience to the plaintiff/petitioner inasmuch as he is the landlord admittedly and the landlord is the best judge to decide his convenience and the court cannot ask him to refrain from enjoying his property in a specific manner. However revisional court can enter into the bonafide of such claim which I find to be a genuine and bonafide claim of the requirement of the suit premises. 20. Accordingly, I do not find any merit in this revision petition and the same stands dismissed. 21. The petitioner has been staying in the suit premises admittedly since long as such the defendant/respondent shall not go ahead with the execution process of the decree of ejectment at least for 3(three) months from the date of judgment in this revision petition. Accordingly, I do not find any merit in this revision petition and the same stands dismissed. 21. The petitioner has been staying in the suit premises admittedly since long as such the defendant/respondent shall not go ahead with the execution process of the decree of ejectment at least for 3(three) months from the date of judgment in this revision petition. During this period the petitioner shall pay the monthly rent as per the tenancy agreement admitted by both the parties. After 3(three) months on the failure of the plaintiff/petitioner to vacate the suit premises the defendant/respondent shall take up the execution process of the decree of ejectment in the proper court of law. 22. This revision petition is disposed of with the aforesaid observation. No cost.