Gauhati High Court
Ganesh Deka vs Bhabesh Sarma on 30 January, 2019
Author: Prasanta Kumar Deka
Bench: Prasanta Kumar Deka
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GAHC010177042015
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRP 255/2015
1:GANESH DEKA
S/O LT. MADHU RAM DEKA, R/O DURGA SAROBAR, KAMAKHYA GATE,
GHY-9, DIST- KAMRUP, ASSAM
VERSUS
1:BHABESH SARMA
S/O LT. SATISH SARMA, R/O NEAR KAMAKHYA TEMPLE, GUWAHATI,
DIST- KAMRUP, ASSAM
Advocate for the Petitioner : MR.R ISLAM
Advocate for the Respondent : MR.G KAKOTI
BEFORE
HONOURABLE MR. JUSTICE PRASANTA KUMAR DEKA
JUDGMENT AND ORDER (ORAL)
Heard Mr. R. De learned counsel for the petitioner. Also heard Mr. G. Kakati learned counsel for the respondent.
2. The present respondent is the plaintiff in Title Suit No. 329/2008 in the Court of Page No.# 2/4 learned Munsiff No 1, Kamrup, Guwahati. The said suit was filed against the present petitioner tenant for his ejectment alongwith arrear rent on the ground of defaultership in payment of rent. The defendant petitioner admitting the tenancy filed his written statement taking the defence that he repaired the tenanted premises and incurred a substantial amount of Rs.1 lac. The said amount be treated as the rent inasmuch, the landlord respondent promised to repay him the expenses so borne out by him for repairing the tenanted premises. The learned trial court decreed the suit.
3. While deciding the issue No. 2 as to whether the defendant defaulted in payment of monthly rent, the learned trial court held that on the face of the defence taken by the defendant petitioner that he paid monthly rent in the Court after being refused to accept by the landlord respondent, the defendant petitioner failed to call for N. J. Case records in order to prove that he deposited the monthly rent in the court and that too as per requirement of Section 5 (4) of Assam Urban Areas Rent Control Act, 1972.
4. With regard to issue No. 3 as to whether the defendant incurred Rs. 1 lac for repairing the suit house, the learned court below came to the finding that the defendant petitioner failed to produce any corroborating evidence to substantiate his defence that during the period of 2004-2007 the defendant petitioner incurred the said amount of Rs 1 lac towards repairing of tenanted premises. The learned trial Court took note of the cash memos of the years 2004 and 2007 but disbelieved the same on the ground that the alleged permission to carry out the repairing works in the tenanted premises was granted on 25.5.2002 by the landlord plaintiff but why there was delay in carrying out the repairing work remained unexplained. It was also pointed out by the learned trial court that in support of said repairing works purportedly done by the defendant petitioner, no persons were examined as witnesses not to speak of a mason or any labour engaged therein. In support of the defence that there was failure on the part of the plaintiff respondent in carrying out the repairing works, the learned court below came to the finding that the petitioner did not even file any petition in the court under the Assam Urban Areas Rent Control Act, 1972 for a direction to landlord to repair the house. After discussing the issue the court below decreed the suit and dismissed the counter claim of the defendant petitioner holding that the petitioner defendant did not undertake any repairing works in the tenanted premises.
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5. Being aggrieved by the said judgment and decree dated 16.3.2012 by the learned court of Munsiff No. 1 Kamrup at Guwahati, the defendant petitioner filed Title Appeal No. 55/2012 in the court of Civil Judge No.2, Kamrup(M), Guwahati. The said appeal was also dismissed by judgment and decree dated 9.1.2015. While preferring the said appeal the defendant petitioner also filed an application under Order 41 Rule 27 of the CPC with a prayer to allow him to adduce evidence by calling N.J.Case records which he failed to call for in the learned trial court. From the contention made in application under Order 41 Rule 27 of CPC, the grounds urged before the first appellate court, falls within the Order 41 Rule 27(1)(aa) of the CPC. The said provision stipulated that the party seeking additional evidence must establish that notwithstanding the exercise of due diligence such evidence was not within his knowledge or could not after exercise of due diligence produced by him. The learned first appellate court while rejecting the said application held that the appellant petitioner sought to call for the said case record for the first time before the appellate court and there was no refusal by the learned trial court of any such prayer for adducing the said evidence. Accordingly, the first appellate court rejected the said application. On perusal of the said application under Order 41 Rule 27 of the CPC, it is seen that there are no grounds as to why the said N.J.Cases could not be called for.
6. Keeping in view the contention of the said application, in my opinion, I do not find any wrong application of the jurisdiction by the learned first appellate court in rejecting the petition under Order 41 Rule 27 CPC filed by the defendant petitioner. The learned first appellate court rightly upheld the findings of the learned trial court so far the issue with respect to the defaultership and the amount which was shown to be the incurred by the defendant petitioner for repairing the premises for which a counter claim was also filed by the defendant petitioner in order to adjust the same with the arrear rent.
7. On perusal of the judgment passed by the court below, I am of the considered view that the learned first appellate court has rightly exercised its jurisdiction and the impugned judgment and decree dated 9.1.2015 passed by learned Civil Judge, Kamrup, Guwahati in Title Appeal No. 55/2012 which requires no interference by this Court.
8. Accordingly, this revision petition stands dismissed. The petitioner has been residing in the tenanted premises as such the plaintiff respondent shall not take coercive measure for Page No.# 4/4 execution of the decree for two months from today. After two months if the defendant petitioner fails to vacate the tenanted premises, the plaintiff respondent shall go ahead for execution of the decree for ejectment of the petitioner through the Executing Court.
JUDGE Comparing Assistant