Gauhati High Court
Sandip Kumar De vs Tapan Banerjee And Anr on 25 March, 2019
Author: Prasanta Kumar Deka
Bench: Prasanta Kumar Deka
Page No.# 1/7
GAHC010111882018
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRP 64/2018
1:SANDIP KUMAR DE
S/O- LATE CHITTARANJAN DE, R/O- KHAGESWAR GOHAIN ROAD, P.O-
TINSUKIA, DIST- TINSUKIA, ASSAM, PIN- 786125 REP. BY HIS LAWFUL
ATTORNEY SRI NITAI SAHA, S/O- LATE SURENDRA CHANDRA SAHA, R/O-
NAHARKATIYA MAIN ROAD, WARD NO. 4, NAHARKATIYA TOWN, P.O-
NAHARKATIYA, DIST- DIBRUGARH, ASSAM, PIN- 786001
VERSUS
1:TAPAN BANERJEE AND ANR.
S/O- LATE TEJAN BANERJEE, , C/O- MACHINE HOUSE, NAHARKATIYA
MAIN ROAD, NEAR RAILWAY GATE WARD NO.2, NAHARKATIYA TOWN,
P.O- NAHARKATIYA, DIST- DIBRUGARH, ASSAM, PIN- 786001
2:PRADIP BANERJEE
S/O- LATE TEJAN BANERJEE
C/O- MACHINE HOUSE
NAHARKATIYA MAIN ROAD
NEAR RAILWAY GATE WARD NO.2
NAHARKATIYA TOWN
P.O- NAHARKATIYA
DIST- DIBRUGARH
ASSAM
PIN- 78600
Advocate for the Petitioner : MR A DASGUPTA
Advocate for the Respondent : MR. D DAS (R1, R2)
:: BEFORE ::
HON'BLE MR. JUSTICE PRASANTA KUMAR DEKA
-O R D E R-
Page No.# 2/7 25.03.2019 Heard Mr. B Phukan, learned counsel for the petitioner and Mr. S Khound, learned counsel for the respondents.
2. The present petitioner is the successor of the original plaintiffs in Title Suit 65/2010 in the court of learned Munsiff No. 1, Dibrugarh which was filed against the present landlord respondents as defendants. However, the plaintiff/petitioner referred in this petition shall mean the original plaintiffs in the suit. The plaintiff/ petitioner as tenant in respect of the suit premises started a shop in the year 1950 at a monthly rent of Rs. 7/- under the predecessor- in-interest of the defendants/ respondents. The rent was raised upto Rs. 1150/- per month and on the death of Tejan Banerjee, the predecessor-in-interest, the respondents started collecting the rent. The suit premises is just by the side of main road in Naharkatiya town. The drain and footpath of the said main road were newly constructed in the month of August, 2009 resulting raising of the level of the road by additional 2½ ft. above the earlier level. This resulted water logging in the suit premises and in addition to that owing to bad condition of the CI Sheets there is seepage of rain water from the roof of the suit premises. On 01.02.2010 plaintiff/ petitioner sent a legal notice demanding the defendants/ respondents to repair the shop by raising the plinth. In the alternative the plaintiff/ petitioner undertook to carry out the repair work. Against the said notice it was replied that a new market complex was under contemplation of the defendants/respondents to be constructed after demolishing the suit premises. But there was no assurance for accommodating the plaintiff/petitioner in the said RCC market complex and as such, the suit was filed for declaration that the plaintiff/ petitioner is the lawful tenant and for a permanent injunction not to eject without going through the due process of law. In addition to that, a direction was also sought from the court to repair the tenanted premises.
3. The defendants/ respondents filed their written statement along with the counter claim denying the claim of the plaintiff/ petitioner. It is stated in the written statement that the plaintiff/ petitioner is not entitled to the relief as they are defaulter. Admitting the dilapidated condition of the tenanted premises it was also admitted that they are contemplating to construct a RCC market complex after demolishing the existing premises. Denying further that the plaintiff/ petitioner tendered monthly rent for April, 2010 and the fact of accepting Page No.# 3/7 the same and refusing to issue rent receipt, it was pleaded by the defendants/ respondents that the attorney of the plaintiff/ petitioner sent the rent through money order which was accepted hurriedly as the defendants/ respondents were unaware that the rent would be sent through money order. Alleging that the plaintiff/ petitioner had sublet the suit premises to Nitai Saha who is running the business in the suit premises since 2½ years prior to the institution of the suit, the defendants/ respondents sought for ejectment on the ground of defaulter and violation of tenancy terms by subletting. Notice dated 10.02.2010 was served on the plaintiff/ petitioner requiring them to vacate the suit premises with an intention to demolish the same and construct RCC market complex. Claiming a sum of Rs. 4,600/- as arrear rent, the defendants/ respondents sought for eviction of the plaintiff/petitioner on the ground of bona-fide requirement of the suit premises.
4. In the written statement against the counter claim the plaintiff/ petitioner pleaded that they are not against the demolition and subsequent construction of the RCC market complex but they want assurance to be accommodated in the newly constructed complex. Refuting the allegation of the defendants/ respondents, the plaintiff/ petitioner reiterated that the rent for the month of April, 2010 was tendered which was refused. The rent for April, 2010 was sent by money order which was received by Tapan Banerjee, one of the defendants/ respondents. In the month of May, 2010 when again the rent was sent by money order it was refused by the defendants/ respondents and as such, they started depositing the rent in the court since May, 2010. Fact of subletting the tenanted premises was denied but pleaded that Nitai Sha was authorised to look after the business as the constituted attorney.
5. On the basis of the pleadings, the learned trial court framed the following issues:-
(i) Whether the suit and the counter claim are maintainable?
(ii) Whether the plaintiff is entitle to a declaration that they should not be evicted
from the suit premises without a decree of eviction from the Court of competent jurisdiction?
(iii) Whether the plaintiffs sublet the suit premises without the consent of the defendant?
(iv) Whether the plaintiff is a defaulter of payment of rent since April, 2010?
(v) Whether the suit premises are bona-fide required by the defendants/ counter Page No.# 4/7 claimants?
(vi) To what reliefs the parties are entitled to?
Evidence were adduced by both the parties and the trial court dismissed the suit and decreed the counter claim granting the relief of ejectment along with the arrear rent to the defendants/ respondents.
6. The learned trial court while deciding issue no. 5 considered the evidence of PW 1, Nitai Saha, the power of attorney holder of the plaintiff/petitioner who in his cross examination deposed that he started depositing rent in the court without approaching the landlord and continuously depositing the same in the court. Giving a finding to the procedure and the mode accepted by the parties to the suit, the learned trial court took note of Exhibit 41 which revealed that rent for the month of September, 2010 and October, 2010 were deposited together in the court. The practice was to deposit the monthly rent to the landlord and considering that there was no explanation as to why the said practice of depositing the rent in the court two months at a time the learned trial court held that there was violation of Section 5(4) of the Assam Urban Areas Rent Control Act, 1972 (hereinafter referred to as 'the Act'). Further the learned trial court took note of the fact that the plaintiffs/ petitioners failed to bring to the notice of the court that during the pendency of the suit they deposited the monthly rent in the court as per Section 5(4) of the Act. On the basis of the said finding the learned trial court held that the plaintiffs/petitioners were defaulter in payment of the monthly rent to the defendants/ respondents. The learned trial court also decided the issue no. 5 thereby holding that the suit premises is bona-fide required by the defendants/ respondents. The said judgment and decree of the learned trial court was challenged in Title Appeal No. 39/2013 in the court of learned Civil Judge at Dibrugarh which was dismissed vide judgment and decree dated 09.03.2018.
7. The learned first appellate court after recording the points for determination took the point for determination no. 1 whether the trial court failed to decide the issues of defaulter and bona-fide requirement in accordance with law. The first appellate court perused Exhibit 33, the money order sent by the plaintiff/ petitioner as monthly rent of April, 2010 in favour of the defendants/respondents for a sum of Rs. 1150/- which was duly accepted by the Page No.# 5/7 defendants/respondents on 08.05.2010. The said acceptance was taken note of by the first appellate court which was admitted by the DW 1 in his cross examination though it was stated that the same was accepted without knowledge that the said amount was against the rent. On perusal of Exhibit 35, the first appellate court noticed a remark of the Postmaster, Naharkatia Post Office on the petition dated 03.06.2010 submitted by the tenant, Chittaranjan De requesting the Postmaster to make the remark that the money order was tendered in favour of the defendants/ respondents but they refused to accept the same. Further it was held by the first appellate court that the tenant himself prayed before the Postmaster for issuance of a refusal note by the defendants/ respondents. Holding the said remark of refusal on the money order purportedly the monthly rent of May, 2010, the court below came to the finding that the evidence of the plaintiff/ petitioner that the rent was tendered to the landlord cannot be accepted. Taking further note of the Misc. (NJ) Case No. 62/2010 (Exhibit 47), the court below came to the finding that there was no date mentioning about the tender of the same to the landlord/defendants prior to the deposit in the court. Citing Section 5(4) of the Act, the first appellate court concurred the findings of the trial court. Similarly, it was also concurred with regard to the decision of issue no. 5 in respect of bona-fide requirement of the suit premises by the defendants/ respondents. The first appellate court considered Clause 8 of Exhibit 1, which is the deed of attorney wherein the attorney holder, Nitai Saha was allowed to take loan in running the said business from the suit premises but at own risk of Nitai Saha. Against the pleading of plaintiff/petitioner in the written statement in the counter claim that after the death of Chittaranjan De there was no one to look after the day to day affairs of the business and as such, he was authorised to act on behalf of the legal heirs of the deceased Chittaranjan De in running the business, referring Clause 8 of Exhibit 1, the first appellate court came to the finding that had the pleading been correct regarding the necessity of induction of Nitai Saha, the agent then the responsibility of the loan to be borrowed by Nitai Saha and its responsibility to repay back ought to have undertaken by the legal heirs of Chittaranjan De. On the basis of the said finding and relying on the case law of Flora Elias Nahoum and others v. Idrish Ali Laskar reported in (2018) 2 SCC 485 the first appellate court held that the plaintiff/petitioner had sublet the tenanted premises to the said Nitai Saha. The petitioner being aggrieved filed this revision petition challenging the judgment and decree of the first appellate court.
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8. The findings of the courts below are concurrent. Under Section 115 of the Code of Civil Procedure (for short, 'CPC') the scope of this court is very limited moreso, when the findings are concurrent. Until and unless the petitioner is able to show that any of the findings of the courts below are perverse, this court cannot enter into the evidence led by the parties in the suit. The finding regarding bona-fide requirement of the tenanted premises by both the courts below, in my opinion, requires no interference. It is an admitted fact that owing to construction of the drains after raising the level of the main road abutting the tenanted premises, the suit premises became low lying resulting in water logging in the suit premises. The said fact is admitted by the plaintiff/petitioner. The suit was filed only because of the fact that the defendants/ respondents as the landlord did not assure the plaintiff/ petitioner to accommodate in the newly constructed RCC market complex. In the written statement against the counter claim of the defendants/ respondents, the plaintiff/petitioner failed to bring to the notice of the courts below any protruding facts dislodging the bona-fide and the genuineness of the claim made by the defendants/ respondents requiring the suit premises for reconstruction. In such a situation, mere non-acceptance of any proposal to let out new tenanted premises in the proposed market complex cannot be a ground to obstruct the bona- fide requirement of the landlord.
9. On the other hand, the findings of the courts below with respect to the default in paying the rent by the plaintiff/petitioner are also in my opinion, proper. Admittedly, the mode of payment of the rent is month to month basis. Against that the plaintiff/ petitioner deposited the rent in the court through the constituted attorney, Nitai Saha who in his cross examination deposed that he did not approach the landlord before depositing the rent in the court. There is no pleading as regards any strained relationship between the parties to the suit and established the same by cogent evidence. Under the said factual matrix the plaintiff/ petitioner failed to prove the fact of refusal of the monthly rent tendered to the landlord/ respondents and the same itself is a disqualification under Section 5(4) of the Act to get the protection by the tenant from being ejected of the suit premises. The issue of subletting the tenanted premises also requires no interference inasmuch as the finding of the court below tilts the preponderance of probability in favour of the defendants/ respondents inasmuch as the said Clause 8 of Exhibit 1 has given the liberty to the said attorney holder to manage the Page No.# 7/7 business even by borrowing loan at his own risk and cost. The reasoning of the first appellate court is logical which requires no further interference. Accordingly, I do not find any merit in this revision petition and the same stands dismissed. Interim order passed on 20.06.2018 is accordingly, vacated. No cost.
10. However, 3 (three) months' time shall be granted by the defendants/ respondents in order to vacate the tenanted premises by the plaintiff/petitioner and they are bound to deposit the rent as agreed as per the pleadings for the said extended period of 3 months' stay over the tenanted premises. Failure on the part of the plaintiff/petitioner after completion of the said period of 3 months from today to vacate the tenanted premises, the defendants/ respondents shall have the liberty to go ahead with the execution of the decree passed in the counter claim.
JUDGE Comparing Assistant