High Court
Case Details
CRP 62/2005 BEFORE HON’BLE MRS. JUSTICE ANIMA HAZARIKA JUDGMENT AND ORDER The other part of the same house on the land of the plaintiffs now in oc The petitioners as owner landlord of the premises comprising of the southern par t of the pucca RCC house having several rooms fully equipped with doors, windows and other fittings and fixtures including electrical fittings together with a s imilarly constructed front verandah along with one C.I. sheet roofed two-chamber ed sanitary latrine, one tube well, a part of the vacant back land over which t he defendant illegally constructed a C.I. sheet roof house and the land on which the aforesaid houses and structures stand measures 78 ft x 4 inches in length and 32 ft x 6 inches in breadth, being part of the land of Dag No.5466 covered by periodic patta No. 476 situated at Sukhanpukhuri of Tinsukia town (first part ) and included in Municipal Holding No.1151 of Ward No.5 of Tinsukia Municipalit y and bounded as: - North: cupation of ESI holding office South: East: West: instituted an eviction suit in the court of Civil Judge (Sr. Div.) Tinsukia bein g Title Suit No. 2 of 1997 against the defendant seeking the following reliefs: - (cid:28)(a) ependants therefrom removing the goods and breaking and removing the illegally c onstructed C.I. sheet roofed on the back land, (b) (c) (d) sion of the suit premises is restored to the plaintiffs @ Rs. 960/- per month, (e) ty. (cid:29) Recovery of the sum of Rs. 20,520/-, Costs of the suits, The future compensation with interest on and from 1.1.97 till the posses
Legal Reasoning
Khas possession of the suit premises by ejecting the defendant and his d Any other relief to which the plaintiffs are entitled under law and equi Associated Plywood Industry Poultry Farm Road -Do- The reliefs as indicated above have been sought for on the following ple 2. aded facts: - The plaintiff Nos. 1, 2 and 3 are the son, wife and daughter of Late Shubhkaran Sarma, who was the karta of Hindu Undivided Mitakshara family. Late Shubhkaran S arma possessed landed property at Dibrugarh and Tinsukia. He constructed a pucca RCC house at Tinsukia, making two parts, one part of the house was let out to t he office of ESI and the other part was let out to one Omprakash Agarwalla. The house at Diubrugarh was used for residential purpose of his two sons, viz. Govin dram Sarma and Giridharilal Sarma. However, the tenant Shri Omprakash Agarwalla vacated the rented premise but inducted the defendant Sri Sanwarlal Modi as a te nant under late Shubhkaran Sarma. The tenancy was accepted by late Shubhkaran Sa rma and rent was accepted till 1994. The original landlord Shubhkaran Sarma died on 26.03.1994. Thereafter the plaintiff No.1 became ’karta’ of the Hindu Undivi ded Family (’HUF’ for short). Accordingly, the plaintiff No.1 accepted the rent from the defendant for himself and the other co-owners. However, all of a sudden , the defendant became irregular in paying the rent and he stopped payment of re nt from beginning of the month of January, 1995 and inspite of demands, he becam e defaulter. Hence, the plaintiffs brought the suit for eviction inter alia on t he grounds of defaulter and bona-fide requirement. 3. The facts pleaded by the defendant in his written statement was that tho ugh the rent was settled monthly, the predecessor-in-interest of the plaintiffs used to collect rent at an irregular interval and at his own convenience wher eof the defendant has disputed the factum of paying the rent strictly in the fi rst week of succeeding month. The facts further pleaded was that Subhkaran Sarma died on 23.6.1994 and after the death of Shubhkaran Sarma, his son plaintiff No .1 used to collect the rent and the same was paid to him as and when demanded. T hereafter, the landlord did not turn up to collect the rent from January 1995 an d only on 25.9.1996, the plaintiff No.1 came to Tinsukia and demanded an exorbit ant rent and refused to accept the rent fixed on the basis of settlement dated 1 0.12.1989 (Ext. I). The plaintiff not only refused to accept the rent tendered b y the defendant at the existing rate, but also directed the defendant to vacate the suit premises immediately. Consequently thereupon the rents were deposited i n the court. 4. On the pleadings of the parties, the following issues were framed by the learned trial court: - (cid:28)(i) Whether the plaintiff has right to sue as the Karta of the HUF or as a c Whether the suit is maintainable in law and in fact? (ii) oparcener? (iii) (iv) orised construction? (v) (vi) (vii) Whether the defendant is defaulter in payment of rent? Whether the defendant has violated the terms of tenancy by making unauth Whether the suit premises is bona fide required by the plaintiffs? Whether the plaintiffs are entitled to a decree, as prayed for? To what reliefs, if any, parties are entitled? (cid:29) 5. During the trial, the plaintiffs have examined three witnesses and exhib ited certain documents, whereas the defendant has examined three witnesses and e xhibited certain documents to substantiate his pleas as averred in the written s tatement. Shri Shrawan Kumar Sarma examined himself as PW 1. PW 2 is the brother of the plaintiff, viz. Giridharilal Sarma and PW 3 is an independent witness fr om Dibrugarh being the neighbour of the plaintiffs. The plaintiffs exhibited the settlement deed vide Ext. I executed on 10.12.1989. On the other hand, the defe ndant examined his son Sushil Modi as DW 1. DW 2 is the brother of the original tenant Shri Om Prakash Agarwalla and DW 3 Bajrang Dhanuka is an independent witn ess from Dibrugarh. The defendant has proved rent receipts issued by the plainti ff’s predecessor-in-interest showing that the rents were collected for months to gether in lump sum and that too at an irregular interval. Ext. - Ka, Kha, Ga and Gha are those rent receipts. The defendant has also proved two letters marked a s Exts- Unga and Jha written by the deceased landlord to prove that the rent was collected by him at an irregular interval. Ext. Cha is the rent receipt for the period from 01.07.1994 to 31.12.1994. Ext. Ja (1), Ja (2) and Ja (3) are the co pies of challans showing payment of rents in court. 6. On the basis of the evidence on record including the pleadings of the pa rties and the authorities referred to by the parties, the learned trial court de cided the issue Nos. 1 and 2 in the affirmative. 7. The question of default in making the payment of rent has been discussed in issue No.3. In issue No.3, the learned trial Court has observed that the def endant has admitted that though the rent was settled monthly but for the sake o f convenience, Shubhkaran Sarma used to collect the same for months together as he very often used to stay at Rajasthan which is evident from the letter dated 2 8.09.1992 whereby Shubhkaran Sarma acknowledged the receipt of the sum of Rs.16, 805/- being the rent from January 1991 upto November 1992 which would go to sho w that Subhkaran Sarma collected rent upto December 1993 without issuing any for mal receipt against payment of rent for, on the demise of Shubhkaran Sarma, the plaintiff No.1 as Karta collected rents from the defendant upto December 1994 b ut no formal receipts were granted by him. After January 1995, the plaintiff nei ther came nor made any arrangement for collecting the rent and on 25.09.1996 he came to Tinsukia and demanded exorbitant rent at the rate of Rs.1500/- per mont h which he declined to part with, i.e. the aforesaid demanded rent and in order to protect his tenancy right from the rigour of Assam Urban Areas Rent Control Act, 1972 (hereinafter referred to as ’the Act’, in brief) has deposited the ren t in the court for the period from January 1995 to December 1996 vide Misc. (Re nt) Case No. 405/1996. Thereafter, he deposited the rent from January 1997 to De cember 1997 being Misc. (Rent) Case No. 34/1997. Again he deposited a sum of Rs. 11,520/- being the rents for the months of January 1998 to December 1998 vide Mi sc. (Rent) Case No. 10/1998, wherefor learned trial court held him to be a defau lter. However, Ext. I was executed on 12.10.1989 at the intervention of Sri Radh a Kishan Agarwalla of Tinsukia and a written agreement was executed. Ext 1(1) is the signature of plaintiff’s father, Ext. 1(2) is the signature of Radhakrishan Agarwalla and Ext. 1(3) is the signature of the defendant. The learned trial co urt from the evidence on record has come to a finding that the defendant has not paid rent as per terms of the agreement whereby he has admitted that from Janua ry 1995 he has not paid the rent nor complied with the provisions of Section 5(4 ) of the Act, inasmuch as, the defendant, as per record has paid rent at a time for 12 months and therefore, he cannot claim the protection under the provision of the Act and thus, the defendant is a defaulter within the meaning of Section 5(1)(e) of the Act. Issue No.3 thus decided in favour of the plaintiff and answ ered in affirmative. 8. In deciding the issue No.4 which relates to unauthorised construction on the vacant land, the learned trial court has come to a finding that the defend ant in fact constructed a house in the vacant portion of the suit premises there by violating the terms and conditions of the agreement executed between the part ies. The issue No.4 is thus decided in favour the plaintiff and answered in affi rmative. 9. Regarding issue No.5 which relates to bona fide requirement, the learn ed trial court on the evidence of PWs and DWs came to a finding that the suit pr emises are bona fide required for carrying business at Tinsukia by PW 2 Giridhar ilal Sarma since the establishment of the plaintiffs at Dibrugarh is not suffici ent to accommodate PW 2 and hence, the court answered the issue in favour of the plaintiff and in affirmative. In view of the decisions arrived at with regard to issue Nos.1, 2, 3, 4 10. and 5, the learned trial Court decided issue Nos.6 and 7 in affirmative and ther eby decreed the suit of the plaintiffs. The defendant took up the case in appeal before the learned District Jud 11. ge, Tinsukia being Title Appeal No. 10 of 2004 questioning the legality and vali dity of the judgment and decree passed on 02.09.2004 by the Civil Judge (Sr. Div .) Tinsukia in Title Suit No. 2 of 1997. The learned appellate court took up the issue Nos.3, 4 and 5, which relate to the question of defaulter, unauthorized c onstruction and bonafide requirement as the main issues in deciding the appeal. The learned appellate court after going through the evidence on record has found that there was no written agreement fixing any specific date of payment of rent and at no point of time during the subsistence of tenancy the rent was ever dem anded on monthly basis. The learned appellate court, in this connection referred to Exts. Ka, Kha, Ga and Gha, i.e. the rent receipts issued by the predecessor- in-interest of the plaintiffs showing accumulated rent. Ext. Chha is the receipt of rent for six months paid to the plaintiff No.1 after the death of his father . Ext. Cha and Unga are two letters written by the original landlord to the tena nt acknowledging receipt of a sum of Rs.16,805/- for the period of two years whi ch has been admitted by the plaintiff No.1 meaning thereby that there was no ar rangement between the parties to pay rent by any specific date wehrefor the cour t inferred that the agreement, if any, between the parties to pay rent at varyin g intervals on demand from the landlord at his convenience and the conduct of pa rties spreading over fairly long period of time to the contrary without any prot est or objection from either party indicates that the argument on arrangement i n regard to the payment of rent between the parties was impliedly modified and the finding of the learned trial court holding that the defendant is a defa ulter was set aside by the learned lower appellate court. 12. While deciding the issue No.4 relating to unauthorized construction, the learned lower appellate court has held that the allegation of unauthorized cons truction finds favour on the evidence of PW 1 which is otherwise has not been co rroborated by any other witness, whereas DW 1 has categorically stated that the land measuring 8 feet X 10 feet was vacant and is still vacant and the defendant is ready to help the plaintiffs to make any construction thereon and the settle ment deed Ext I also speaks about the vacant land situated just behind the suit premises which is not a part of the tenanted premises and hence the issue No. 4 has been reversed and the findings of the learned lower court have been interfer ed with. 13. Another vital issue which relates to bona fide requirement of the landlo rd has been discussed in issue No.5. The issue No.5 has been decided in the affi rmative and in favour of the plaintiffs by the leaned lower court, which, howeve r, has been reversed and set aside by the leaned lower appellate court. The reas oning of setting aside the findings of the learned lower court rests on the evid ence of the contesting parties. While dealing with the issue, the learned lower appellate court took into consideration the existing accommodation of the plaint iffs at Dibrugarh in order to determine the bona fide requirement as pleaded. In their evidence, PW 1 and PW 2 have deposed that they have only two rooms apart from shop house for residential accommodation, whereas, PW 2 in his cross-examin ation admitted that the size of the dwelling portion of the house is 12 feet X 6 5 feet and the shop house is of 12 feet x 30 feet. According to PW 3, the size o f the rooms are 10 feet X 13 feet and if the length of each room can be 13 feet only, there must be at least five rooms in the ground floor alone and thereby fa lsified the statement of PWs 1 and 2 by the statement of PW 3. Moreover, from th e evidence of PW 1, PW 2 and PW 3, it would appear that there are about ten fami ly members including grown-up children from two families, however, PW 1 and PW 2 are totally silent as to in which room their brother Govindram used to live tho ugh PW 3 has given an emotional and passionate deposition thereby exaggerated th e alleged difficulties of the plaintiffs. PW 3 has further deposed that the chil dren of the plaintiffs used to sleep on the ’chang’ (a wooden platform upto the middle height of a room), a statement which has not been corroborated by the pla intiff Nos. 1 and 2 whereby PW 3 in cross-examination has admitted that there is a wooden stairs to go to the upper floor indicating that the house of the plain tiffs have few rooms on the first floor also which finds support from the eviden ce of DW 3. The learned lower appellate court has referred the agreement execute d by the parties on 10.12.1989 wherein rent was revised with effect from 01.01.1 994 and provision was made that rent will automatically be increased @ 12.5% eve ry three years in the same ratio from January 2003 onwards, which indicates that the suit house will not be required at least till then which can be safely be i nferred that the suit house will not be bonafide required for the plaintiffs and accordingly, the issue was answered in negative and in favour of the defendant and thereby allowed the appeal of the defendant against which the present revisi on petition has been filed assailing the judgment and decree passed by the learn ed lower appellate court.
Legal Reasoning
14. Heard Mr. OP Bhati, learned counsel appearing for the petitioners. Also heard Mr. GN Sahewalla, learned Senior counsel assisted by Md. Aslam, learned co unsel appearing for the respondent. 15. Criticizing the judgment and decree of the learned lower appellate court , Mr. Bhati, learned counsel appearing for the petitioners would contend that th e learned lower appellate court has exercised a jurisdiction not vested in it by law in holding that the defendant did not violate the mandate of section 5(4) o f the Act though the evidence on record would reveal that prior to deposit of re nt in court the same was offered to the plaintiffs and on refusal the rent was d eposited in the court which thus require interference under revisional jurisdict ion. 16. Mr. Bhati, learned counsel would contend that a bare reading of section 5(1)(c) of the Act coupled with the evidence on record, more particularly, the e vidence of PW 1, PW 2 and PW 3 would amply demonstrate that the residential acco mmodation at Dibrugarh of both the brothers including their grown up children ar e insufficient for which they require the tenanted premises bona fide which has been established during the trial and as such the learned lower appellate court has failed to exercise a jurisdiction so vested in it by law, while setting asid e the findings arrived at by the learned trial court which require inference und er revisional jurisdiction being perverse to the evidence on record. Learned counsel appearing for the petitioner would further contend that 17. even if it has been accepted that there was no specific date on which the rent b ecame due though Ext.1 speaks otherwise, however, there was no valid deposit in court in absence of process fee and the notice to the landlord as required under the law and hence the judgment rendered by the learned lower appellate court su ffers from illegality and with material irregularity which require interference under section 115 of the Code of Civil Procedure. 18. Countering the attack, Mr. Sahewalla, learned Senior counsel appearing f or the defendant/opposite party would contend that the learned lower appellate c ourt has rightly set aside the judgment and decree rendered by the learned trial court after exhaustively dealing with the evidence on record which do not requi re interference being the finding arrived at by the first appellate court and th e power under revisional jurisdiction being limited, the revisional court would refrain from interfering on the findings arrived at by the first appellate court and thereby prayed for dismissal of the revision petition. Considered the argument advanced by the contesting parties. Perused the 19. pleadings of the parties along with the evidence on record and the decision arri ved at by this Court is rendered as follows- The learned lower appellate court has considered the entire matter with 20. preconceived notion in holding that the Act is a beneficial legislation to prote ct the tenant from greedy and grasping landlords and to prevent them from resort ing to eviction proceedings without reasonable grounds, whereas the rent statute s contain exception in favour of the landlord which give him a right to evict th e tenant, the most important thing to ensure that he gets payment of rent regula rly and promptly and that in case the tenant premises is required by him for his personal need, he is able to get its possession from the tenant. Therefore, the beneficial provisions contained in these statutes made in favour of the tenant must be meaningfully construed as to advance the object of the Act. 21. In a similar circumstance, the Apex Court in the case of Dwarakaprasad - vs- Niranjan and another, reported in (2003) 4 SCC 549, has held at paragraph 18 as thus; In the case in hand, the landlord is the head of the family being the el (cid:28)18. dest amongst the brothers. All the brothers and sisters including the mother of the landlord live with him as members of the joint Hindu family. It is his oblig ation to settle his younger brothers in business as it is his obligation to sett le his children in business. Therefore, he can legitimately seek eviction of a t enant by pleading that he needs the demised premises to settle his son and his y ounger brothers in business. This being the legal position, the conclusion is in evitable i.e. the plaintiff landlord must succeed and a decree for eviction is l iable to be passed in his favour for the entire demised premises. Accordingly th is appeal is allowed. The impugned judgment of the High Court which has granted only a decree for half portion of the suit premises is hereby modified. The land lord is held entitled to a decree for possession of the entire demised premises. The decree for possession passed by the lower appellate court with respect to t he entire suit premises is hereby restored & & &.. (cid:29) 22. In the present case in hand, the issue No.3 deals with the question of d efault, which rests on Ext-1 dated 12.10.1989, perusal of which would reveal tha t both the parties decided that the defendant was a monthly tenant under the pla intiffs with a stipulation to enhance the rent by 12.5% at the interval of every three years with effect from January 1991. In the written statement, the defend ant admitted the enhancement of rent by 12.5% at the interval of every three yea rs with effect from January 1991 but there was no terms and conditions of the te nancy. But the evidence shows that the tenant failed to pay rent from the month of January 1995 and on refusal to accept the rent by the plaintiffs he has been depositing the rent in the court for the period from 1995 to 1998 vide Ext Ka to Ext Cha. Even the court accepts that both the plaintiffs and the defendant were usually paying and receiving rent together for several months as arrears of ren t. But the plaintiffs have asked for rent at the enhanced rate of 12.5% in the y ear 1995 as agreed upon in the agreement executed on 12.10.1989, whereupon the d efendant offered the rent existed prior to the expiry of 3 years and agreed to p ay at the enhanced rate from the year 1997 and on refusal, the defendant deposit ed the rent without taking steps to issue notice to the landlord regarding depos it of rent accompanied with the requisite process fee for service, which lacks m andatory provision of section 5(4) and hence, the court has no hesitation to hol d that the defendant is a defaulter within the meaning of Section 5()1(e) of the Act and accordingly, set aside the issue No.3 as held by the learned lower appe llate court and restore the findings of the learned trial court. The ground of eviction contained in clause (c) of Section 5(1) of the Ac 23. t has to be liberally construed. The fact that the petitioners landlord constitu tes a joint Hindu family along with their brothers, sons and sister besides thei r own wife and children and that the plaintiff No.1 required the demised premise s for settling his brother PW 2 in business is not disputed. It is his obligatio n as Karta of HUF to settle his younger brother in business which facts have bee n established both by PW 1, PW 2 and more particularly by PW 3, while deposing i n the Court, which, however, has been turned down by the learned appellate court as (cid:28)emotional and passionate deposition (cid:29). In view of the legal provision and th e decision rendered by the Apex Court in Dwarkaprasad (supra), the conclusion is inevitable i.e. the petitioners/plaintiffs must succeed and a decree for evicti on is liable to be passed in their favour for the demised premises and according ly set aside the findings arrived at issue No.5 by the learned lower appellate c ourt. 24. Regarding issue No.4 which relates to unauthorized construction by the d efendant/respondent on the vacant land of the tenanted premises, the Court is no t inclined to discuss the issue since both the vital issue Nos.3 and 5 have been answered in the affirmative and in favour of the plaintiffs/petitioners. 25. Accordingly, the instant revision petition is allowed. The judgment and decree rendered by the first appellate court on 15.03.2005 in Title Appeal No. 1 0 of 2004 is set aside and quashed and the judgment and decree dated 02.09.2004 passed by the learned Civil Judge (Sr. Div.) Tinsukia in Title Suit No. 2 of 199 7 is restored. No costs. 26. Send down the lower court records forthwith.