Gauhati High Court
Amarchand Inderchand & Anr vs On The Death Of Anandi Devi Jalan, Her ... on 7 August, 2017
Author: Prasanta Kumar Deka
Bench: Prasanta Kumar Deka
Page No.1
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
CRP 258 of 2016
1. AMARCHAND INDERCHAND.
A PARTNERSHIP FIRM HAVING ITS OFFICE AND PLACE OF BUSINESS AT S.R.C.B. ROAD,
FANCY BAZAR, GUWAHATI.
2. JHUMARMAL JAIN
PARTNER OF M/S AMARCHAND INDERCHAND,
S.R.C.B. ROAD, FANCY, GUWAHATI.
- Appellants/plaintiffs
Versus-
1. ON THE DEATH OF ANANDI DEVI JALAN, HER LEGAL HEIRS
1(a) BISWANATH JALAN
S/O- LT. ANANDI DEVI JALAN, KEDAR ROAD, SHANKAR BUILDING, GHY- 1, DIST.- KAMRUP, ASSAM
1(b)SARITA DEVI GOENKA
W/O- SRI SAJJAN KUMAR GOENKA, BELTOLA, GUWAHATI, ASSAM- 25.
- Respondent/Defendants
BEFORE
HON'BLE MR. JUSTICE PRASANTA KUMAR DEKA
Advocate for the appellant Mr. G N Sahewalla & Ms. B Sarma
Advocate for the respondent Mr. D Mazumdar & Mr. S K Sanganeria
Date of hearing & Judgment: 7th August, 2017
JUDGMENT AND ORDER
(ORAL)
Heard Mr. G N Sahewalla, learned senior counsel assisted by Ms. B Sarma, learned counsel appearing on behalf of the petitioner. Also heard Mr. D Mazumdar, learned senior counsel assisted by Mr. S K Sanganeria, learned counsel appearing on behalf of the respondents.
CRP 258 of 2016 Page No.2
2. This Revision Petition challenges the judgment and decree dated 22.04.2016 passed by the learned Civil Judge No.2, Kamrup(M), Guwahati in Title Appeal No.36/2010. The said Title Appeal arose out of the judgment and decree dated 26.02.2010 passed by the learned Munsiff No.2, Kamrup(M), Guwahati in Title Suit No. 238/1996 (new) 50/85(old). The mother of the present respondents as the sole plaintiff filed Title Suit No.238/1996 against the present petitioners/defendants for ejectment from the suit premises on the ground of defaulter and bonafide requirement. It is the case of the plaintiff/respondent that the suit premises was taken on rent by the defendants/petitioners on monthly rent @ Rs.1001/- payable by the defendants/petitioners after expiry of every month. The defendants/petitioners paid rent up to the month of June, 1984 but did not pay rent for the subsequent months as such the defendants/petitioners are defaulter. The suit premises is required by the plaintiff/respondent for personal use as she is residing in a rented house. Moreover, the unemployed son of the plaintiff/respondent, Biswanath Jalan wanted to start business in the suit premises. Accordingly, the plaintiff/respondent prayed for ejectment of the defendants/petitioners from the suit premises.
3. The defendant/petitioner No.2 as the partner of defendant/petitioner No.1, contested the suit by filing written statement interalia stating that there is no cause of action, the suit is not maintainable, bad for non joinder of necessary party. It is also pleaded that the tenancy commenced in the year 1960 on the basis of oral agreement and there is no fixed mode for payment of rent between the parties. The plaintiff/respondent and/or her son/agent used to collect rent as per their convenience. The defendants/petitioners paid rent to the plaintiff/respondent up to June,1984. However, the plaintiff/respondent did not come to collect rent for the month of July, 1984 till 20.08.1984. So the partner of the defendants/petitioners went to offer rent to the plaintiff/respondent but she send back the partner stating that on the next day she would send her son with receipt. On 21.08.1984, the son of the plaintiff/respondent demanded to enhance rent from Rs.1001/- to Rs.1501/- CRP 258 of 2016 Page No.3 and declined to accept rent. The defendants/petitioners again offered rent to the plaintiff/respondent at her residence on 21.08.1984 but she refused to accept the rent and as such the defendants/petitioners were compelled to deposit rent in the court. The plaintiff/respondent filed this suit with malafide intention to increase the rent. The defendants/petitioners stated that the fair rent should be Rs.500 which is required to be fixed. It was further pleaded that the defendants/petitioners are not defaulter rather depositing rent in the court regularly. The ground of bonafide requirements was disputed being false. Accordingly, the defendants/petitioners prayed for dismissal of the suit. On the basis of the pleadings following issues were framed:
"1. Whether the suit is maintainable?
2. Whether there is cause of action for the suit?
3. Whether the suit is bad for non-joinder of necessary parties?
4. Whether the defendants are defaulters as alleged by the plaintiff?
5. Whether the suit premises is bonafide required by the plaintiff?
6. To what other relief or reliefs the parties are entitled?
7. Whether the fair rent of the suit premises should be Rs.500 per month?
8. Whether the defendant is entitled to of excess amount paid towards rent? If so to what extent?"
4. The learned trial court after the trial, decreed the suit vide judgment dated 26.02.2010. The learned trial court while deciding issue No.4 came to the finding as follows:
"DW-1 in his cross-examination admitted that order sheet of Ext-19(67) shows that the NJ Case was dismissed for not taking steps. Order sheet of Ext-19(67) does not disclose that notice was served upon the plaintiff in respect of deposit of rent. Issuance of notice to the landlord is a mandatory provision of law and non compliance is not a valid deposit and it makes a tenant defaulter. The order sheet of Ext-19(69), 19(74), 19(78), 19(100) shows that these NJ cases were dismissed for not depositing challans. Ext-19(122), 19(123), 19(124) does not disclose deposit of challan. Deposit of challans is an indication of deposit of rent. But when there is no challans and the cases were dismissed for not depositing challans it can be held that no rent was deposited in respect of the aforesaid cases. So from the aforesaid discussion defendants are clearly a defaulter."
5. While deciding issue No.5, the learned trial court came to the finding that the plaintiff/respondent pleaded that she required the suit premises for her own living as she is residing in a rented house. The original plaintiff had died but her legal heirs are residing in a rented house which is admitted by none other than the present defendant/petitioner No.2, CRP 258 of 2016 Page No.4 DW-1. Accordingly, it further held that when the landlord is residing in a tenanted premises it is accepted that there is bonafide requirement of the landlord to get the possession of the suit premises. The court or tenant cannot ask the landlord to reside in tenanted premises only to accommodate the tenant to reside in the suit premises. Accordingly, the trial court held that the ground of bonafide requirement was genuine and the said issue was decided in favour of the plaintiff/respondent, who were substituted on the death of the sole plaintiff, Late Anandi Devi Jalan.
6. Being aggrieved by the said judgment and decree passed by the learned Munsiff No.2, Kamrup, Guwahati, Title Appeal No.36/2010 was preferred by the present defendants/petitioners. Along with the said appeal an application Under Order 41 Rule 27 of the Code of Civil Procedure, 1908 (hereinafter referred to as CPC) was also preferred by the present defendants/petitioners to allow them to adduce additional evidence of dealing assistant of NJ Case records and also of the sheristadar of the court of Munsiff No.1, Guwahati. The contention of the defendants/petitioners before the Appellate Court were that from the perusal of case record of Non Judicial (NJ) Case records, it appeared that those records were not maintained properly and the concerned dealing staff did not regularly pass orders in NJ Cases. Some of the NJ cases were dismissed intentionally to make the tenant defaulter in payment of rent. There was no proper procedure in the court for submitting paid up rent challans in NJ Cases. Citing the process involved in depositing the rent in the court, it was contended that the tenants had no access to the rent deposit cases and they does not know what happened to those cases after depositing challans in the court. Accordingly, citing such instances the defendants/petitioners prayed for allowing to adduce additional evidence of the dealing assistant of NJ case records and the sheristadar of the said court. It is also submitted that the said evidence were not before the learned trial court and the defendants/petitioners were deprived of adducing those evidence for the reasons beyond their control because of bonafide mistakes and omission on the part of his advocate. CRP 258 of 2016 Page No.5
7. The learned First Appellate Court took up the said petition for disposal while deciding the Title Appeal No.36/2010. Finally, the said petition under Order 41 Rule 27 of CPC was dismissed along with the Title Appeal No.36/2010 vide judgment dated 22.04.2016. Thereafter, the defendants/petitioners have preferred this revision petition challenging the judgment and decree dated 22.04.2016 passed by the learned Civil Judge No.2, Kamrup, Guwahati in Title Appeal No.36/2010.
8. On 09.11.2016 the petitioners filed an additional affidavit thereby bringing to the notice of this Court that the respondent No.1(a), Sri Biswanath Jalan son of the original plaintiff, Lt. Anandi Devi Jalan is one of the Directors of M/S JRK International Private Ltd, a duly registered private limited company and the said company took loan from Bank of Baroda, Kolkata by depositing the title deeds in respect of various properties including the suit property. As the said company defaulted in repayment of the loan amount, the Bank of Baroda filed O.A. No. 26/2001 before the Debt Recovery Tribunal, Kolkata which is currently pending. On 10.03.2014 the said Tribunal appointed one Debashis Choudhury, advocate as 'receiver' of the properties mortgaged, which includes the suit premises and in the said proceeding before the Tribunal the defendant No.9 is the present respondent No.1(a). In pursuant to the aforesaid order of appointment of receiver, the said Sri Debashis Choudhury had taken symbolic possession of the property and as such the present respondents ceased to be owners of the property involved in the suit. Mr. Sahewalla, the learned senior counsel appearing on behalf of the petitioners submits that as on date the suit property is "Custodia legis" and as such the judgment and decree passed in favour of the respondent cannot be executed inasmuch as by way of the said symbolic possession the bank had already accepted the possession of the suit premises and the receiver had also been appointed on the basis of which the receiver is authorized to collect the rent from the suit premises. In order to CRP 258 of 2016 Page No.6 support his submission Mr. Sahewalla relies N Gani Vs K P Ranganathan reported in The Laws and referred para 10 of the said decision which is reproduced herein below:
" In 1995 (1) LW 445 (Ponnammal (dead) by LRS Vs. N Muthuswamy Chettiar) the Apex Court held as follows:
"The point involved in this case is whether a tenant inducted into possession by a court Receiver could claim the benefit of the statutory protection even after the discharge of the Receiver" . We need not labour much in view of the decision of this Court in Krishna Kumar Khemka Vs. Grindlays Bank PLC and Others (1990 (3) SCC
699). We are aware that was a case where the Receiver leased out the property in the teeth of an injunction order. Nevertheless, this court approved the Full Bench judgment of the Madras High Court above referred to. In fact, in para 16 it is stated thus:- "Similarly as observed in Arumugha Gounder case any such act of the receiver done on behalf of the court pendent lite and anyone who gets possession through such an act could only do so subject to the directions and orders of the court".
Therefore, we hold that receiver when he leases out property does so as an agent of the Court. After all, what is the object of appointment of a receiver" To bring the property under custodia legis, once the receiver is discharged, the tenancy also must come to an end. There is great reason and justice in holding so. As was pointed out by Justice Venkatraman in the impugned judgment that if the object of appointment of Receiver is to preserve the property by fastening a tenancy on the successful party, it will be detrimental to the ultimate person who succeeds to the property."
9. With regard to the disposal of the petition under Order 41 Rule 27 Mr. Sahewalla submits that the courts below accepted the findings that vide exhibit 19(67) the NJ case was dismissed for not taking steps. Further, the exhibit 19(69), 19(74), 19(78), 19(100) shows that the NJ cases were dismissed for not depositing challans. Similarly exhibit 19(122), 19(123), 19(124) does not disclose deposit of challans. In such a situation the tenant petitioner ought not to have been held to be liable for such dismissal of the NJ Cases. The First Appellate Court ought to have allowed the said petition under Order 41 Rule 27 of the CPC and directed the concerned dealing assistant and the sheristadar of the said court of Munsiff No.1 for placing the procedure they maintained while passing necessary order in various NJ Cases before the appellate court for its scrutiny. For the failure on the part of the said officials, the tenant ought not be held responsible and suffer. This, the First Appellate court failed to consider and as such rejection of the said petition under Order 41 Rule 27 of the CPC is not proper. Assailing the judgment of the courts below Mr. Sahewalla further took a dig on the findings with regard to bonafide requirements. Pointing to the statements made CRP 258 of 2016 Page No.7 in the present revision petition that the original land lady Lt. Anandi Devi Jalan died in the year 2002 and his son is now aged about 72 years old and living a retired life residing in his house since last 10 years and he is not in a position to do any business on that premises which was required for doing business by Biswanath Jalan. The grandson of Anandi Devi Jalan has a well established business of duplex steel furniture with a factory situated at Fatasil, Guwahati. Such subsequent fact ought to be considered by this Court while scrutinizing the finding of the bonafide requirement. It is further submitted that the suit premises is only 360 square feet which is an old Assam type house and the same is not suitable for the business of the grand son Rohit Jalan. In support of his submission that subsequent events must be considered while deciding bonafide requirement of landlord, Mr. Sahewalla relies Ram Kumar Barnwal Vs Ram Lakhan reported in 2007 (5) SCC 660. Similarly he relies Kedar Nath Agarwal and another Vs. Dhanraji Devi and another reported in 2004 (8) SCC 76. In support of the said claim he also relies Umadutt Jhunjhunwala Vs. Suraj Kr. Longani reported in 2005 (4) GLT 102. Accordingly by making such submission Mr. Sahewalla seeks for consideration of the submission and allow the revision petition.
10. Mr. Mazumdar, learned senior counsel for the respondents submits that appointment of the receiver is subsequent to filing of the suit for ejectment. The judgment and decree were passed prior to the initiation of the proceeding before the Debt Recovery Tribunal at Kolkata. Pressing Section 64(2) of the CPC, Mr. Mazumdar submits that as the judgment and decree was passed prior to the ejectment, so the execution of decree for enforcement of an interest of the respondent/decree holder over the tenanted premises by ejecting the petitioners/tenants shall not in any way be barred owing to the attachment. It is further stated that once the decree of ejectment is passed, the tenant under the Rent control Act ceased from being entitled for protection of his tenancy, rather after the decree the status of a tenant converts to an unauthorized occupier. On the date of attachment the status of present tenant/petitioners were unauthorized occupants of the suit premises in view of the CRP 258 of 2016 Page No.8 judgment and decree passed in the Title Suit No.238/1996(new), 50/85(old). In support of his submission, Mr. Mazumdar relies M.A. Srimankar Vs. A.P. Enterprises passed by the High Court of Bombay in its original jurisdiction in summary suit No.4113/1997 reported in 2002 O Supreme (MHA) 722.
11. The second submission of Mr. Mazumdar is with regard to the rejection of the petition under Order 41 Rule 27 of the CPC filed by the petitioners before the Appellate court for adducing additional evidence. Referring to the findings of the trial court while deciding issue No.4, it is submitted that there is specific finding that the tenant/petitioner failed to deposit the rent as per the requirement stipulated under Section 5(4) of the Assam Urban Areas Rent Control Act, 1972. The findings are specific that owing to non deposit of challans, some of the N.J. Cases were dismissed and the trial court held that non deposit of paid up rent challans indicated that no rent was deposited in respect of the said cases which amounts to default in payment of rent. Mr. Mazumdar submits that petitioners/tenants without raising any objection before the trial court with regard to the procedure adopted by the dealing staff of NJ Cases in the court of Munsiff No.1, sought the said dealing staff to be examined by adducing additional evidence. Referring Surajit Singh and others Vs Gurwant Kaur and others Reported in (2015) 1 SCC 665, Mr. Mazumdar submits that in the present case in hand the appellate court had come to a conclusion that the petitioners sought to re- open the case by shifting the blame upon the Ministerial staff of the court of Munsiff No.1. The appellate court found that such evidence was not required to pronounce the judgment and as such findings are proper and just and there is no failure on the part of the appellate court in exercising its jurisdiction while rejecting the petition for additional evidence.
12. Finally, Mr. Mazumdar referring to the submission of Mr. Sahewalla with regard to consideration of subsequent events, submits that in the present facts and circumstances the same cannot be considered. The bonafide requirement was held to be genuine after it was CRP 258 of 2016 Page No.9 proved by leading cogent evidence. Thus, Mr. Mazumdar submits that the revision petition is liable to be dismissed.
13. Considered the submissions of both the learned counsels. Perused the judgment and record of Title Suit No. 238/1996(new), 50/85(old). Before entering into the submission made by the learned counsels let us look into the jurisdiction this Court as the revisional court under Section 115 of the CPC can exercise. In Yunis Ali vs Khurshed Alan reported in AIR 2008 SC 2607 the Hon'ble Apex Court held as follows:
" It is well settled position of law that under Section 115 of the Code of Civil Procedure the High Court cannot re-appreciate the evidence and cannot set aside the concurrent findings of the courts below by taking a different view of the evidence. The High Court is empowered only to interfere with the findings of fact if the findings are perverse or there has been a none appreciation or none consideration of the material evidence on record by the courts below. Simply because another view of the evidence may be taken is no ground by the High Court to interfere in its revisional jurisdiction."
14. During the pendency of this revision application, the petitioner No.2 filed an affidavit on 09.11.2016 and as aforesaid brought the fact of attachment and appointment of Receiver by the Debt Recovery Tribunal, Kolkata in O.A. No.26/2001 of properties including the suit premises. The said Receiver had already taken the symbolic possession and as such the decree of attachment cannot be executed.
15. The Title Suit No. 50/1985 (old) / 238/96(new) was decreed on 26.02.2010. By the said decree it is held that the present respondents are entitled to get khas possession of the suit premises by evicting the petitioners or any person claiming under them with a further direction to the present petitioners to deliver khas possession of the suit premises within a period of two months from the date of decree. The said decree was upheld by the Appellate Court on 22.04.2016 where after the present revision petition is filed. It is seen that on the date of appointment of the receiver, there was a decree drawn in favour of the respondent. The suit property is under custodia legis which amounts to attachment of the same. Section 64 of the CPC is reproduced below:
CRP 258 of 2016 Page No.10 "64. Private alienation of property after attachm ent to be void.- (1) Where an attachment has been made, any private transfer or delivery of the property attached or of any interest therein and any payment to the judgment debtor of any debt, dividend or other moneys contrary to such attachment, shall be void as against all claims enforceable under the attachment.
(2) Nothing in this section shall apply to any private transfer or delivery of the property attached or of any interest therein, made in pursuance of any contract for such transfer or delivery entered into and registered before the attachment. Explanation : For the purposes of this section, claims enforceable under an attachment include claims for the rateable distribution of assets."
16. In the present case, a decree is already in existence in favour of the respondents on the date of appointment of receiver and on the date of acceptance of symbolic possession by the receiver. The medium of transfer of possession in favour of the respondents, in the event of execution of the decree for ejectment of defendants/petitioners would be through the process of the court as per the decree. Such recovery of possession does not amount to any private transfer rather the same is involuntary in nature. Such involuntary action i.e receiving of possession from the petitioners/tenants in execution of a decree passsed prior to the attachment is not prohibited by Section 64 of the CPC. In the M.A. Shrimankar Vs. A.P. Enterprises (supra) the High Court of Bombay held as follows:
" Section 64 of the CPC does not prohibit involuntary transfers. It does not prohibit the landlord from receiving possession in execution of a prior decree passed against a tenant. If it is to be held that an attachment of tenancy rights, the landlord would be prevented from executing a decree for possession against a tenant, by virtue of section 64 of the CPC then an uncanny tenant may invite a collusive suit against him from a third party and seek attachment of the tenancy rights and thereby prevent a landlord from executing the decree for possession. Such cannot be the interpretation of section 64 of the CPC."
17. In N Gani Vs. K P Ranganathan (supra) the High Court of Madras relying the ratio laid by the Hon'ble Apex Court in Ponnamal (dead) by LRs Vs. N Muthuswamy Chettiar) reported in 1995(1) LW 445 held that the object of appointment of a receiver is to bring the property under custodia legis, once the receiver is discharged the tenancy also must come to an end i.e. the tenancy created by inducting tenant by receiver. In the present case also, a receiver has been appointed and as such the suit premises is under custodia legis and the receiver is appointed to manage the suit property but as Section 64 CPC does not bar CRP 258 of 2016 Page No.11 involuntary transfer, so in the present case in hand, such appointment of receiver shall under no circumstances, could halt the process of the executing court from execution of the decree which was passed prior to the said date of appointment of the receiver. The submission of Mr. Sahewalla, the learned Senior counsel cannot be accepted owing to the discussions made above. The view in M.A. Shrimankar (supra) is also the view of this court.
18. The petitioner filed an application under Order 41 Rule 27 of the CPC with a prayer for allowing the petitioners to adduce additional evidence of dealing assistant of NJ Case records and also the seristader of the court of Munsiff No.1, Guwahati. The grounds for such prayer that most of the NJ Cases does not contain all the pages of the record. In most of the cases orders are not passed with a view to dismiss the NJ Cases for alleged default in taking steps by the tenants. Some of the NJ Cases are dismissed intentionally to make the petitioners defaulter in payment of rent. There was no proper procedure for submitting challans in NJ Cases. The paid up challans are deposited by the tenant in the court leaving it on the table of the dealing assistant. Since challans are kept on table any interested persons may take away the challan for procuring an order of dismissal of the NJ Cases. In such situation a doubt is created in the mind of the petitioners that due to negligent maintenance of NJ Case record, the petitioners as the tenant were put to face irreparable loss and injury
19. The First Appellate Court dismissed the said petition for adducing additional evidence by holding as follows:
" In this backdrop, when the case-record of learned Trial Court does not spell out in no uncertain terms refusal to admit such evidence, the appellant seeks now as additional evidence, in such premises, I do not find merit in the appellant's prayer for allowing adducing evidence at this stage. In my measured opinion, the authoritative pronouncements, relied upon by the learned counsel for the appellant, for the sake of brevity, whose ratios are not reiterated, are not applicable in the given facts and circumstances of this appeal in as much as allowing the appellant's prayer would tantamount to extending indulgence to a party to an untenable plea whenever judgment/decree goes against him thereby resorting to such a blame game. Appellant has failed to fulfill either of the three conditions mentioned in Rule 27 or Order XLI of CPC."
CRP 258 of 2016 Page No.12
20. During trial, the petitioner called for records of NJ Cases for the period w.e.f. July 1984 till the date of cross-examination of the tenant/petitioner No.2. However, all the records of NJ Cases could not be traced out in the office of the court of Munsiff No.1, Guwahati. The counsel of the plaintiff/respondent submitted before the trial court that the case records which could not be traced out, the rents for the said months be deemed to be deposited duly and to that effect an order dated 06.09.2009 was passed by the trial court as per record of the suit. On the basis of the said concession, the trial court held the tenants as not defaulters for such months including July, 1984, the record of NJ Case which could not be traced out in the office. The available NJ case records were exhibited on the own volition of the tenants/petitioners and out of these records, exhibit 19(67), 19(69), 19(74), 19(78) and 19(100) shows that the said NJ Cases were dismissed for non deposit of paid up rent challans.
21. Order 41 Rule 27 CPC stipulates that parties to appeal shall not be entitled, to produce additional evidence in the Appellate court. There are certain exceptions when it may allow such additional evidences. The first exception prescribed in sub Rule 1(a) of Order 41 Rule 27 is that court from whose decree the appeal is preferred, refuses to admit evidence which ought to have been admitted. Second exception as prescribed in sub Rule 1(aa), if it is established by the party seeking to produce additional evidence, notwithstanding the exercise of due diligence such evidence was not within his knowledge or could not be produced by him at the time when the decree appealed was passed. The third exception prescribed in sub Rule1(b), if the Appellate Court requires any document or witnesses to be examined to enable it to pronounce judgment or any other substantial cause. Thus, the language and intent of the provision is for strict compliance of conditions so stipulated and only on fulfillment of conditions so stipulated, additional evidence could be allowed by the Appellate Court and not for any other reasons.
CRP 258 of 2016 Page No.13
22. In the case in hand the case of the petitioner does not fall under any of the exceptions mentioned under Order 41 Rule 27 sub rules 1(a) and 1(aa). Then comes the provision of sub-rule 1(b) wherein discretion of the Appellate Court as to whether additional evidence is required by the court to enable it to pronounce judgment and/or for any other substantial causes.
In Union of India Vs. Ibrahim Uddin and another reported in 2013 AIR SCW 2752, the Hon'ble Apex Court while interpreting the meaning of the words "Substantial cause" as prescribed in Order 41 Rule 27 Sub rule 1(b) CPC, held as follows:
"29. The inadvertence of the party or his inability to understand the legal issues involved or the wrong advice of a pleader or the negligence of a pleader or that the party did not realize the importance of a document does not constitute a "substantial cause" within the meaning of this rule. The mere fact that certain evidence is important, is not in itself a sufficient ground for admitting that evidence in appeal.
30. The words "for any other substantial cause" must be read with the word "requires" in the beginning of sentence, so that it is only where, for any other substantial cause, the Appellate Court requires additional evidence, that this rule will apply, e.g. when evidence has been taken by the lower court so imperfectly that Appellate Court cannot pass a satisfactory judgment."
23. From the record it reveals that NJ Cases which could not be traced out and exhibited as mentioned hereinabove, the counsel for the plaintiff/respondent conceded the rent to be deposited in the court duly for the months specified therein as there is a specific order to that effect by the court below. It can be concluded that the defendants/petitioners did not object to such concession on the part of the counsel of the respondent/plaintiff. Thereafter the defendants/petitioners out of their own volition exhibited the NJ Case records available which were duly considered by the trial court and passed the judgment and decree for ejecment. The grounds mentioned in the petition for adducing additional evidence before the appellate court under no circumstances could be held to be covered by the exceptions stipulated under Order 41 Rule 27 keeping in view the interpretation of the words "substantial causes" as reported in Union of India Vs. Ibrahim Uddin and another (supra). The Appellate Court had rightly rejected the petition inasmuch as the petitioners by way of CRP 258 of 2016 Page No.14 the said petition under Order 41 Rule 27 of the CPC tried to bring fresh evidence having no bearing with the issue involved in the suit. Moreover rejection of the said application indicates that no further evidence is required by the Appellate Court to pronounce judgment.
24. Now coming to the impugned judgment and decree of the Appellate Court it is found that the findings of both the courts below in respect of Issue Nos. 4 and 5 relates to defaultership and bonafide requirement of the plaintiff/respondent. The said findings are concurrent. The issue, whether the petitioners are defaulter is concerned, the findings of both the courts below are clear that there is no valid deposit of rent in the court. The courts below took note of exhibits 19(69), 19(74), 19(78), 19(100) which shows that the said NJ cases were dismissed for none depositing of challans and similar are the reasons for dismissal of the exhibits 19(122), 19(123), 19(124).
25. In Sekhar Chand Swami & Others Vs On the death of Nandalal Agarwalla his heirs and Smti Savitri Agarwalla & Others reported in 1997 1 GLR 5, this Court while discussing the consequence of non deposit of paid up rent challans and process fee under Section 5(4) of the Assam Urban Areas Rent Control Act, 1972 held as follows:
"23. As it is seen it is mandatory and is the obligation of the party concerned to furnish the draft forms of summons or notice to be issued to the other party. Non judicial cases like deposit of rent etc. cannot deviate from this procedure as the consequence of the failure of the petitioner to furnish the draft forms of summons/notices will be that the court will not be in a position to serve notice to the landlord. Sec 5(4) of the Rent Control Act provides that the court shall cause notice of receipt of deposit of rent to be served on the landlord and the landlord shall have the right to withdraw the rent so deposited. If due to the default of the tenant in depositing the rent, in not taking such steps, the court is not in a position to issue notice to the landlord and consequently no deposit within statutory time even if the amount of rent is claimed to be deposited with the application. It is mandatory on the part of the court to issue notice to the landlord informing him about the deposit of rent in court. When the deposit of rent found non deposit for not taking mandatory procedural steps, the court is unable to inform in its statutory obligation to issue notice and in that case court will be justified in dismissing the NJ case resulting non deposit of rent. Apparently, as records shows, the NJ case was dismissed for non deposit of requisites etc. and the judicial and logical inference is that there was no rent deposit by the tenant under the mandatory sections of the Act and therefore the tenant/revision petitioner defaulted the rent for the month of January, 1974 and once the tenant defaulted, he be considered as defaulter, even if he continues to deposit for subsequent months. In the present case, not only written up notices and copies CRP 258 of 2016 Page No.15 were not submitted even the process fee was not paid. I cannot agree with the submission of the learned counsel for the petitioner that rent was deposited and deposit of process fee is not a part of rent."
Accordingly both the courts below had correctly came to the findings with regard to the issue of defaultership and there is no perversity in the findings of the courts below.
26. In respect of the other issue, namely the bonafide requirement of the suit premises, it would be necessary to look into the pleadings of the parties to the suit. In the plaint, the plaintiff, land lady pleaded that she along with her son "(present respondent No.1(a))" are residing in a tenanted premises and the same is also required for the business purpose of the said son. The defence of the defendants/petitioners is total denial. Both the courts below came to the finding that the original plaintiff, Lt. Anandi Devi Jalan, land lady died but still the legal representatives are residing in a rented house which is admitted by the DW- 1(petitioner No.1) in his cross-examination. On such admission, the courts below came to the findings that when the landlord is residing in a rented house there is a need of the land lady to get possession of the suit premises. Accordingly the issue No.5 was decided in favour of the respondents.
27. Mr. Sahewalla submits that the present petitioner in order to take notice of subsequent events by this Court, mentioned in the revision petition that suit was filed in the year 1985. The changed and subsequent events are brought to the notice of this Court in order to show that the requirement of the suit premises by the landlord owing to the subsequent events no longer exists and as such, the findings of issue of bonafide requirements be reversed.
28. Mr. Mazumdar submits that there is still the necessity of the suit premises and the land lord is the best person to decide the requirement of the tenanted premises and the tenant cannot dictate terms to the landlord. The findings in issue No.5 were arrived by the courts below on the basis of evidence on record. Accordingly, the said subsequent events cannot be taken into consideration for reversing the finding of issue No.5. CRP 258 of 2016 Page No.16
29. It is not disputed that the trial of the suit continued till the year 2010 starting from the year 1985. Thereafter, Title Appeal No.36/2010 was also filed which was disposed of vide judgment and decree dated 22.04.2016. There is no endeavor on the part of the present petitioners to bring on record such subsequent events before the courts below though the original plaintiff Lt. Anandi Devi Jalan died in the year 2002. In Kedar Nath Agarwal (dead) and another vs Dhanraji Devi (Dead) and another reported in (2004) 8 SCC 76 in a similar case wherein the issue of the bonafide requirement was decided on the basis of proved facts, the Hon'ble Apex Court refuses to interfere with respect to the said findings. However, considering the subsequent events which was refused to interfere by the High Court, the Hon'ble Apex Court came to the following findings:
" In our opinion, by not taking into account the subsequent event, the High Court has committed an error of law and also an error of jurisdiction. In our judgment, the law is well settled on the point, and it is this: the basic rule is that the rights of the parties should be determined on the basis of the date of institution of the suit or proceeding and the suit/action should be tried at all stages on the cause of action as it existed at the commencement of the suit/action. This, however, does not mean that events happening after institution of suit/proceedings, cannot be considered at all. It is the power and duty of the court to consider changed circumstances. A court of law may take into account subsequent events inter alia in the following circumstances:
(i) The relief claimed originally has by reason of subsequent change of circumstances become inappropriate: or
(ii) It is necessary to take notice of subsequent events in order to shorten litigation: or
(iii) It is necessary to do so in order to do complete justice between the parties."
30. From the ratio laid down in the aforesaid decision a court of law is to take into account the subsequent events under specific circumstances, (1) when the relief claimed originally has by reason of subsequent change of circumstances become inappropriate (2) in order to shorten litigation (3) in order to do complete justice between the parties.
29. In the case of Ram Nibas Gagar (Dead) by L.Rs vs Debojyoti Das & Others reported in AIR 2003 SC 632 the Hon'ble Apex Court while deciding an application to take into consideration the subsequent events in order to mould the relief held as follows:
CRP 258 of 2016 Page No.17 "9. To the extent of the tenants having been inducted during the pendency of the first appeal it is clear that the attention of the First appellate court or of the High Court was not invited to such subsequent events. While dealing with the application filed before the First Appellate Court we have already indicated that the alleged subsequent events sought to be brought to the notice of the First Appellate Court had taken place "during the pendency of the suit" and not during the pendency of the first appeal. The application filed in this court though goes on to say that even subsequent to disposal of the appeal by the Appellate Court new tenants have been inducted by the landlord-respondent but the years of subsequent events as discernible from the map annexed with the application show such events having taken place either in the year 1993 or in the year 1996 or 1997, that is, certainly when the revision was pending in the High Court and the special leave petition was not filed. Here again, the question arises why the attention of the High Court was not invited to such subsequent events by promptly moving an appropriate application.
The application filed in this Court, does not on its face, furnish any explanation for not bringing events to the notice of the Courts as and when they occurred. Yet another infirmity with the application is that here too the application does not make an averment that the premises falling vacant and having been re-let were so suitable as to satisfy the requirements of the landlord so as to be relevant and material subsequent events."
31. From the perusal of the revision petition it is not discernible as to when the said subsequent events took place nor there is any explanation as to why the said facts changing the circumstances which were in existence at the time of filing the suit were not brought before the trial court and/or the First Appellate Court. It is not stated by the petitioners whether the fact of retirement of Biswanath Jalan, for whom the original plaintiff sought for the relief of bonafide requirement to carry on his business is not supported by any cogent evidence. It is not even mentioned in the present petition any explanation for not bringing the changed circumstances before the courts below. Merely stating that the suit premises is an old Assam type house of area measuring 360 square feet and not fit for carrying on business cannot be a ground in order to deny the benefit so derived by the respondents on the basis of a decree passed on proven facts. As the petitioners failed to substantiate the causes as to why the facts of changed circumstances could not be brought to the notice of the courts below, in such a situation, the stand taken by the petitioners to mould the relief could be termed to dislodge the findings of facts concurrently arrived at by the courts below. Accordingly, this Court comes to the finding that the reliefs claimed originally has not CRP 258 of 2016 Page No.18 become inappropriate and substantial justice could be done by upholding the findings of the courts below including the one of the bonafide requirement. Accordingly, this court finds no merit in this revision petition and the same is dismissed by upholding the judgment and decree passed by the courts below.
32. Interim order passed earlier, if any, stands vacated
33. Send back the LCR.
JUDGE Rakhi CRP 258 of 2016