High Court
Case Details
CRP 130/2013 BEFORE HON’BLE MR. JUSTICE N. CHAUDHURY JUDGMENT & ORDER(ORAL)
Legal Reasoning
By this application under Section 115 of the Code of Civil Procedure the defenda nts have challenged the decree of eviction passed by the Munsiff No. 4, Kamrup a t Guwahati in Title Suit No. 483 of 2007 and the affirmation of the said evictio n decree by the appellate Court on 20.12.2012 in Title Appeal No. 81 of 2011, th ereby dismissing the appeal. Plaintiff instituted Title Suit No. 483 of 2007 in the Court of Munsiff at Guwah ati stating that Late Akshay Chand Baradia (Jain) the predecessor-in-interest of the defendants became a tenant under the plaintiff with respect to the suit pre mises at a monthly rental of Rs. 901/- payable within first week of the subseque nt month. Having paid the rent on 09.02.1985 for the month of January, 1985, for the last time the defendants who had stepped into the shoes of their predecesso rs in the meantime, did not pay rent to the plaintiff any more and became defaul ter. According to the plaintiff the defendants have number of shops elsewhere an d plots of land as well at M.S. Road, Guwahati whereas the plaintiff has been st aying in rented house and has been running their business in rented accommodatio n. The family has extended in the meantime but the place of business has not. Th e plaintiff, therefore, asserts that he has genuine and pressing need to get the tenants evicted for expansion of his business apart from their own residential accommodation. The said suit was instituted by the plaintiff through his son Kap ish Sharma, his constituted Attorney. The defendants appeared and submitted written statement denying the averments ma de in the plaint and further claiming that there was no fixed mode of payment. On the rival contentions of the parties, trial Court framed as many as 7 issues and the same are as follows: 1. 2. y party? 3. ? 4. liable to be evicted? 5. family members for their own use and occupation? 6. fendants with interest? 7. Whether the suit is maintainable ? Whether the suit is bad for mis-joinder and / or non-joinder of necessar Whether the defendants are defaulter in payment of rent and as such are Whether the plaintiff is entitled to realize the arrear rent from the de Whether the suit is properly valued and proper court fee is paid thereon Whether the suit premises is bonafide required by the plaintiff and his To what other relies / reliefs the plaintiff is entitled? Out of them issue No. 4 relates to default and issue No. 5 relates to bonafide r equired. Obviously, these are the two principal issues in the suit. Plaintiff examined 5 witnesses including himself as PW1 and his Attorney as PW5. The defendants examined 1 witness in their behalf, namely, Swarup Kumar Jain wh o is the defendant No. 2 in this case. In his evidence DW1 admitted the tenancy but further stated that he was not aware about terms and conditions of the tenan cy inasmuch as the tenancy was created at a time when he was not born. It appears that the defendants having taken a stand that they deposited rent in Court also called for some of the rent deposit proceedings and the same are exhi bited as exhibit ka, kha, ga, gha, cha, etc. These rent deposit cases were dismi ssed for non-taking steps. So, these deposits were no deposit in the eye of law and consequently defendants became defaulters. The learned trial Court after pe rusal of the evidence on record decided issue No. 4 & 5 in favour of the plainti ff. It is the finding of the learned trial Court that defendants could not rebut the evidence of the plaintiff side to the effect that no rent was paid after 19 85. The learned trial Court has further observed (cid:28)DW1 in fact admitted that his father used to pay the rent till 1985 so he does not remember if his father has paid any rent for those months. Thus it is proved that defendants defaulted for the above stated months. (cid:29) It is also the findings of the learned trial Court th at the defendants have failed to prove refusal by Landlord before making deposit of rent in Court. On totality of all the facts, the learned trial Court held th at the defendants were defaulters. Coming to issue No. 5 with regard to bonafide required the findings of the trial Court are: (cid:28)All the plaintiff’s witnesses are unanimous in their testimony that the present rented premises where the plaintiff is residing and doing business is not suita ble for his family as well as for expansion of his business. The plaintiff exhib ited the lease deed dated 01.12.1996 (Exhibit-8) and 01.01.2000 (Exhibit-9) exec uted between him and Smt. Parmeswari Sangma. Exhibit 10 is the lease deed with r espect to the present rented premises and exhibit 11(1) to 11(42) are some of th e rent receipts issued by the present Landlord. (cid:29) Considering all these exhibits and individually discussing the evidences led by PW1, PW2, PW3 & PW4, the trial Court has decided the issue of bonafide requireme nt in favour of the plaintiff. Thus deciding issue Nos. 4 & 5, both in favour of the plaintiff, the suit for evection was decreed by the trial Court on 20.08.20 11. Aggrieved, the defendants preferred Title Appeal No. 81/2011 before the Civil Ju dge No. 3, Kamrup at Guwahati. The learned appellate Court did not fully conside r the findings of the trial Court in regard to issue of default. It appears that the learned First Appellate Court was influenced by exhibit Z & Z(1) whereby re nt for the month of January, 2009 was deposited in two instalments by the defend ant on 12.02.2009 and 13.02.2009 respectively. Learned First Appellate Court was also of the view that the rent for April, 2006 was deposited by exhibit R-3 on 01.06.2006 and as such the defendants were defaulters. However, since the defend ants failed to prove refusal by Landlord to accept rent prior to deposits were m ade under section 5(4) of the Assam Urban Areas Rent Control Act, 1972 the learn ed First Appellate Court held all these deposits bad. While criticising the findings of the learned appellate Court in regard to defau lt in payment of rent vide Ext. R(3), the learned counsel Mr. K. Agarwal represe nting the petitioner has brought my attention to Annexure-8 of this revision pet ition which was exhibit-W(3) in the trial Court. It appears that the rent for th e month of April, 2006 was really deposited by the defendant on 08.05.2006 vide exhibit W(3) and not by exhibit R(3) on 01.06.2006, as found by the learned Firs t Appellate Court. Per contra Mr. S. Ali, learned counsel for the opposite party -plaintiff has drawn my attention to exhibit R(3) which relates to challan for d eposit of rent for the month of April, 2001 which shows that the rent was deposi ted on 01.06.2001. So the finding of the learned First Appellate Court that rent for the month of April, 2006 was deposited on 01.06.2006 is not correct. It sho uld have been that rent of April, 2001 was deposited on 01.06.2001. However, the other findings of the learned First Appellate Court affirming the judgment of t he learned trial Court that the defendant did not tender rent to the Landlord be fore making deposit in Court cannot be faulted in as much as it was the burden o f the defendants to prove by adducing evidence that the rents were actually tend ered to the Landlord before making deposit. Having taken a stand in the written statement that the rent was being deposited by them in Court under Section 5(4) of Assam Urban Areas Rent Control Act, 1972 and thereafter the tenants not havin g led any evidence in that respect, presumption has to be taken against the defe ndants that rent was never tendered to the Landlord before making deposit. Conse quently deposits would be illegal and no deposit in the eye of law and hence fin dings of the learned Courts below in regard to default by the defendants in payi ng rent cannot be said to be perverse or not based on materials on record. The learned First Appellate Court has also upheld the findings of the learned tr ial Court in regard to findings of the bonafide requirement. In so doing the Fir st Appellate Court appears to have considered the evidence on record. Nothing ha s been brought on record in course of argument to show that the said concurrent findings by the learned Courts below in regard to bonafide requirement is perver
Legal Reasoning
se and/or not based on materials on record. The learned counsel for the petitioner has submitted copies of the depositions b y both the sides but has not pointed out any part therefrom to contend that the said evidence has not been considered by the learned Courts below in arriving at the findings in regard to default or bonafide requirement. Mr. K. Agarwal, leaned counsel for the petitioner has also contended that the su it of the plaintiff for eviction is not maintainable inasmuch as the plaintiff h imself did not present the plaintiff but has done the same through his son, Kape sh Sharma describing him as a constituted Attorney. According to the learned cou nsel for the petitioner exhibits 1 & 2, the two deeds of Power of Attorney do no t relate to the suit premises and that they do not empower the Attorney to insti tute any suit. I have gone through both the exhibits 1 & 2. Learned counsel Mr. S. Ali representing the plaintiff-opposite party has drawn m y attention to Clause 8 of the exhibit -1 and showed that the constituted Attorn ey was entrusted with power to present plaint alongwith other jobs related to te nancy over the land in question. Presentation of plaint and institution of suit cannot be disjoined. In this view of the matter the argument put forward by the learned counsel for the petitioner that suit is not maintainable for unauthorise d presentation cannot be countenanced. The concurrent findings of the Court below are that the defendants are defaulter s and that plaintiff requires the suit premises bonafide for his own use for res idential as well as commercial purpose. There being no perversity in the finding s of the learned Courts below in arriving at such conclusion and there being no allegation of non-consideration of any relevant material available on record, th ere is no scope to interfere under Section 115 of the Code of Civil Procedure. T he revision, therefore, is devoid of any merit and the same is accordingly dismi ssed. Stay order passed earlier stands automatically vacated. No order as to costs. Before parting it is necessary to mention here that the suit premise is under po ssession of the defendant for nearly 30 years and the same is under commercial u se at the prime commercial hub of the northeast i.e. at Fancy Bazar only at a me agre rental of Rs. 901/- p.m. After hearing both sides and rather with the conse nt of both the sides I feel it necessary to issue the following directions for b enefit of both the sides: 1. That the defendants shall be entitled to retain the suit premises under their possession for 1 year more w.e.f. today and shall be bound to vacate on 18 .06.2014 without fault in favour of plaintiff. 2. very month by cash without fail and shall obtain receipt. The defendant shall pay Rs. 5,000/- per month as rent to the plaintiff e 3. The defendant shall not part with possession of the suit premises to any third party other than the plaintiff during this intervening period. The defendant shall file an undertaking before executing Court to the ab 4. ove effect, namely, the conditions referred in Clause 1, 2 & 3 above within a pe riod of 15 days from today and there upon only other conditions will be applicab le. It is necessary to mention here that in case the defendants fail to give und ertaking in the permitted period and / or even thereafter commit default in comp lying any of the conditions No. 1, 2 or 3 above the plaintiff-landlord shall be at liberty to put the decree into execution and to get the defendant evicted.