High Court
Case Details
CRP 86/2005 BEFORE HON’BLE MR. JUSTICE A.K. GOSWAMI
Legal Reasoning
Heard Mr. P. Roy, learned counsel for the petitioners who are legal repr esentatives of the plaintiff. Also heard Mr. D. Choudhury, learned counsel appea ring for the opposite party No.2/defendant No.2 in the suit. At the very outset, Mr. D. Choudhury submits that decree had since been executed
Legal Reasoning
in the year 2008. The assertion is not disputed by Mr. Roy. The pleaded version in the , in a nutshell, is that the plaintiff was a tenant under the predecessor of the defendant No.1 since 16.8.71 in respect of t he suit premises where he was running his business of wood. Written agreement wa s also executed and after expiry of the term of the agreement, agreements were e ntered into between the parties evidencing tenancy after expiry of each term. Af ter the death of the landlord, the suit property fell in the share of defendant No.1 and the plaintiff attorned to defendant No.1 as his landlord. An agreemen t dated 13/12/99 was also executed with the defendant No.1. There was a verbal a greement in between the plaintiff and defendant No.1 that in the event of defend ant No.1 proposing to sell the suit property, offer will be first made to the pl aintiff. On 20/12/2000, defendant No.1 sold the suit property to the defendant N o.2. There was an attempt to dispossess the plaintiff by defendant No.1 and defe ndant No.2. The plaintiff prayed for a declaration that the plaintiff has tenancy rights in the suit property and for a decree restraining the defendant No.2 from evicting the plaintiff from the suit property. Mandatory injunction commanding the defend ant No.2 to make a new agreement for rent with the plaintiff as tenant was also prayed. The suit property is a plot of land measuring 90 ft in length and 20 ft in bread th with a house thereon. The defendant No.1 and 2 jointly filed a written statement, contending, amongst others, that the plaintiff is a defaulter due to non-payment of rent to the defe ndant No.1 and also to defendant No.2 subsequent to the transfer of the suit pro perty. Over and above the said written statement, the defendant No.2 filed a cou nter-claim stating that defendant No.2 became the landlord of the plaintiff afte r purchase of the suit property on 11/12/2000. The existing rent of Rs.300/- per month was not paid to defendant No.2 and as such the plaintiff was a defaulter. A plea of requirement of the premises was also made. The plaintiff also filed written statement to the said counter-claim stating tha t the plaintiff had deposited rent in the Court as the defendant had refused to accept the rent. Plea of requirement of the suit property was also denied. The plaintiff examined 3 witnesses and defendants examined 4 witnesses during tr ial. The learned Civil Judge (Jr.Div) by judgment and decree dated 19/1/05 in T.S. No .1/2001 dismissed the suit of the plaintiff, while allowing the counter-claim of defendant No.2 and accordingly, granted the decree of eviction of the plaintiff from the suit premises. The appeal preferred being Title Appeal No.8/05 was als o dismissed by the Civil Judge (Sr. Div), Nalbari by judgment and decree dated 2 7/6/05. The revision petition is filed challenging the aforesaid 2 judgments. Mr. P. Roy, learned counsel for the petitioners submits that no issue of default er and bonafide requirement was framed by the learned Court below and as such fi ndings recorded by the Courts below that the plaintiff was a defaulter and that the defendant No.2 required the house bonafide, are not sustainable in law. He r elies on the decision of the Apex Court in the case of Moran Mar Basselios Catho lics vs Most Rev. Mar Poulose Athanasius and Ors, reported in 1954 SC 526 to sup port his contention. It is also pointed out by him that the judgment of the lowe r appellate Court is perverse inasmuch as contrary findings have been recorded w ith regard to existence of tenancy between the plaintiff and the defendant No.2. Mr. D. Choudhury, learned counsel for the opposite party No.2 submits that even though no specific issues were framed with regard to the plea of default, as wel l as that of bonafide requirement, the parties knew their respective cases and e vidence was also led by the respective parties and therefore, non-framing of iss ue relating to plea of default and bonafide requirement will not vitiate the jud gments of the learned Courts below. In order to show that there is no dispute wi th regard to the tenancy between the plaintiff and the defendant No.2 it is subm itted by him that the plaintiff himself stated in evidence that he tendered rent to the defendant No.2 and in the counter-claim also, the plea of the defendant No.2 was that he had become the subsequent landlord of the plaintiff. It is subm itted by him that the plaintiff miserably failed to prove tendering of rent to t he defendant No.2 as also deposit in Court in terms of Section 5 (4) of the Assa m Urban Area Rent Control Act, 1972, in short, the ’Act’. He submits that no int erference is called for with the finding of facts recorded by the learned Courts below. Having regard to the pleadings and evidence on record, it is an accepted positio n that plaintiff had become the tenant of defendant No.2. Though no issues regar ding defaulter and bonafide requirement were framed, issues were framed, amongst others, as to whether plaintiff was liable to be evicted from the suit premises and as to whether defendant No.2 was entitled to get khas possession over the s uit land/premises. So far as issue relating to default is concerned, I am of the considered opinion that the plaintiff was aware that the defendant No.2 was seeking eviction on th e ground of default. Categorical assertion was made by him denying the allegatio n that he was a defaulter. In order to avail the benefit granted by Section 5 of the Act, it is the burden of the tenant to prove that he had paid rent to the f ull extent and had performed the conditions of the tenancy. Section 5 (4) of the Act provides that if the landlord refused to accept the rent offered by the ten ant, the tenant may within a forthnight of rent becoming due, deposit in the Cou rt the amount of such rent together with process fees for service of notice upon the landlord. The specific stand of the plaintiff in the written statement to t he counter-claim was that the rent not having been accepted, he had deposited th e rent in the Court. The evidence on record shows that the plaintiff did not exh ibit any document showing deposit of rent in the Court and as such, I am of the considered opinion that the tenant had failed to prove payment of rent in order to avail the benefit of Section 5(4) of the Act. Though the learned Courts below also held that the suit premise was required bon afide by defendant No.2, I am of the considered opinion that in absence of an is sue of bonafide requirement, the possibility of prejudice being caused to the pl aintiff cannot be ruled out. In the counter-claim, only a bald statement had bee n made that the defendant No.2 required the suit premises for his own use since he had no other property. It cannot be wished away that the defendant No.2 had p urchased the property only on 21/12/2000 knowing fully well that the suit premis e was under occupation of a tenant. The counter-claim was filed on 19/3/2001. As the finding with regard to default in payment of rent has been upheld by this Court, a decree for eviction of the plaintiff would be sustainable on the groun d of default alone and therefore, it is not necessary to dilate on the issue of bonafide requirement of the suit premises as the decree had already been execute d and the defendant No.2 is now in possession of the suit premises. In view of the discussions aforesaid, this revision petition fails and the same is dismissed.