Gauhati High Court
Suboth Chandra Deb vs State Of Assam And Ors. on 1 September, 2003
Equivalent citations: (2004)2GLR455
Author: T. Vaiphei
Bench: P.P. Naolekar, T. Vaiphei
JUDGMENT T. Vaiphei, J.
1. By this writ appeal, the appellant is impugning the appellate judgment and order dated 19.7.1999 passed by the Ld. Civil Judge (Sr. Divn.) in his Title Appeal No. 8 of 1996 whereby he upheld the judgment dated 26.8.1996 passed by the learned Munsiff No. 1, Tinsukia decreeing the suit filed by the respondent herein in Title Suit No. 64 of 1986.
2. Before proceeding further a brief history of the case is considered necessary for the sake of clarity. The petitioner had filed second appeal being RSA No. 171/99 before this court challenging the aforesaid appellate judgment dated 19.7.1999. The petitioner, however, withdrew the said Second Appeal and thereafter moved a writ petition being W.P.(C) No. 6230/99 before this court. The Ld. Single Judge by the judgment and order dated 31.5.2000 dismissed the writ petition holding that writ petition did not lie and that only civil revision would lie. It would appear that aggrieved by the judgment and order dated 31.5.2000, the petitioner filed the instant writ appeal before the Division Bench upholding the judgment and order of the Ld. Single Judge.
3. Dissatisfied with the judgment and order of the Division Bench, the petitioner approached the Hon'ble Supreme Court by way of Special Leave Petition. The Apex Court by the order dated 18.3.2002 in SLPC No. 12837/2000 allowed the appeal, set aside the aforesaid judgment of the Division Bench holding, inter alia, that the writ petition is maintainable and remanded the writ appeal to this court for disposal on merit.
4. It would appear that the respondent/opp. Party No. 4 (hereinafter called "the respondent No. 4" for short) thereafter filed T.S. No. 64/86 on 31.8.1996 before the Ld. Civil Judge (Jr. Divn.) No. 1, Tinsukia against the appellant Under Section 5(1)(c) and (e) of the Act for ejecting the appellant and also for recovery of rent arrears on the twin grounds of bona fide requirement of the premises in question by him and also due to default in payment of rent of Rs. 150 due to him from the month of December 1984.
5. The case of the appellant, in brief, is that he was the tenant of one Bhadreswar Dohita, who died in 1991 and was the father of the respondent/opp. Party No. 3, in respect of the shop-cum-residence situated at Tinsukia town at a monthly rent of Rs. 45 payable in the first week of every month of tenancy. The father of the respondent, No. 3, it is further averred, had collected the rent for the month of January 1985 from the appellant in the first week of February 1985 but he refused to accept the rent for the month of February 1985 offered by him for the month of February 1985 in the first week of March 1985. Due to such refusal, he started to deposit the rent in Court from the first week of March 1985 together with the process fee for service of notice every month upon the father of the respondent No. 3 by invoking Section 5(4) of the Assam Urban Areas Rent Control Act, 1972 (hereinafter referred to as "the Act" for short) and therefore can not be held to be a defaulter in payment of rent of the premises. The Ld. Civil Judge (Jr. Divn.), Tinsukia framed as many as 8 issues and gave the findings that the appellant was a defaulter of rent from the month of December 1984 and that the rent was Rs. 150 per month which become due from the appellant with effect from December 1984. On the basis of the above findings, the trial court passed the judgment and decree dated 26.8.1996 decreeing the suit.
6. Aggrieved by the aforesaid judgment of the trial court, the appellant preferred an appeal being T.A. No. 8 of 1996 before the Ld. Civil Judge (Sr. Divn.), Tinsukia. However, by the judgment and order dated 29.7.1996, the Ld. Civil Judge (Sr. Divn.) upheld the findings and "judgment of the trial court and accordingly dismissed the appeal. It was under the aforesaid circumstances the writ petition was ultimately filed before this court.
7. Shri N.N. Karmakar, the learned counsel for the petitioner/appellant submits that the trial court has failed to consider the defence in favour of the tenant laid down in Section 5(4) of the Rent Act, 1972 and Section 50 of the Transfer of Property Act, 1862 (hereinafter called "TPA" for short). His other contention is that the findings of the lower Courts that the petitioner was a defaulter of rent from December 1984 is perverse. He submits that neither the previous landlord was impleaded in the suit nor was he examined as a witness and therefore suit should have been dismissed on the ground of non-joinder of necessary party. Lastly, it is urged that in the absence of attornment, there is no relationship created of landlord and tenant and thus suit as it was filed by the respondent was not maintainable.
8. At this stage, we consider it appropriate to set out the scope of Article 226 of the Constitution in relation to the order or judgment passed by civil court or tribunals. The power of the High Court to interfere with the orders passed by judicial or quasi-judicial authorities is no longer res integra. However, extensive the jurisdiction of the High Court under Article 226 may be, it is not so wide or large as to enable the High Court to convert itself into a court of appeal and examine for itself the correctness of the decisions impugned and decide what is the proper view to be taken or order to be made. In other words, a mere wrong decision without anything more is not enough to attract the jurisdiction of this court under Article 226 of the Constitution. (See Sadhana Lodh v. National Insurance Co. Ltd. in (2003) 3 SCC 524).
9. It is an admitted position that the suit premises was purchased by the plaintiff/respondent No. 4 from (1) Sri Sukheswar Dohotia (2) Sri Bhadreswar Dohotia and (3) Sri Dhzarmeswar Dohotia on 16.1.1985 for a consideration of Rs. 20,000 by means of a registered sale deed. It is, however, the contention of the appellant that he did not have any knowledge of such a sale in favour of the plaintiff; that the rent was Rs. 45 per month and not Rs. 150 per month as claimed by the plaintiff; that he was not a defaulter and that the plaintiff never informed the defendant about the alleged purchase and did not ask for any rent from the petitioner/defendant.
10. At this stage, it is necessary to dispose of the contention of the appellant regarding non-joinder of necessary party. The learned counsel for the petitioner that Sri Bhadreswar Dohotia, the original landlord, was not impleaded as a party in the suit and as such, the suit suffers from non-joinder of necessary party submits it. A necessary party is one without whom no order can be passed effectively and whose presence is necessary for a complete and final decision on the question involved in the proceeding. There is no dispute that the suit premises have already been transferred by him to the respondent No. 4 by a registered sale deed. In other words, the said Bhadreswar Dohotia no longer has any semblance of right or interest over the suit premises. In view of this, we fail to understand in what manner he can still interfere with a decree passed in the instant suit or how his absence would effect the suit from being completely and finally adjudicated. Therefore, the contention of the appellant in this behalf fails.
11. Both the trial court and the appellate court after elaborately appreciating the evidences on record gave concurrent findings that the transfer of the suit premises was known to the appellant after January 1985 but he refused to pay the rent since the plaintiff never made any demand and that the monthly rent was Rs. 150. The trial court categorically gave the finding that notice was properly issued to the appellant vide Ext. 6 intimating him about sale of the suit premises along with the land and demanding payment of due rent with arrear amount. But the appellant refused and as such this refusal amount to service. The appellate court, however, considered this issue redundant in view of the fact that the tenant knew about the fact of transfer of suit premises. Both the court below concluded that the appellant was a defaulter from December 1984. We have anxiously considered the above findings of the courts below and have not found any perversity therein.
12. It is contended by Sri N. N. Karmarkar, that the courts below have failed to consider the defence in favour of Section 5(1)(e) and Section 5(4) of the Rent Control Act and Section 50 of the Transfer of Property Act, 1892. A cursory look at those provisions will show that the aforesaid contention of the Ld. Counsel is misplaced. By virtue of Section 5 of the Assam Urban Areas Rent Control Act, 1972 no suit for ejectment for recovery of any house shall be filed except on the grounds enumerated therein. Clause (e) of Sub-section (1) of Section 5 of the Act provides for ground of ejectment that if the tenant has not paid the rent lawfully due from him in respect of the house within a fortnight of its falling due. There are concurrent findings by both the courts below that the tenant had notice of the transfer of the suit accommodation by the original landlord by registered sale deed dated 16.1.1985. It is also found that the tenant has not paid the amount of rent to the transferee landlord within the fortnight of its falling due. The Courts have also arrived at the findings that the rent of the suit accommodation was Rs. 150 and not Rs. 45 as claimed by the tenant. Under these circumstances, the tenant cannot seek protection given to the tenant from a decree being passed on the ground of default under Clause (e) of Sub-section (1) of Section 5, if he deposits the lawful rent in the Court, on the landlord's refusal to accept the said rent. In the present case, there is no finding in favour of the tenant that in spite of the efforts made by the tenant to pay the rent to the transferee landlord, on his refusal he was required to deposit the said amount in Court. It is not even the case of the tenant that he has approached the transferee landlord for payment of rent and on his refusal the rent was deposited in the Court. In the absence of any evidence to show that the tenant approached to pay the lawful rent to the lawful landlord and his refusal to accept it, the tenant cannot claim protection under Sub-section (4) of Section 5 of the Act. In so far Section 50 of the TPA is concerned, the provision merely protects rents paid bona fide to a holder under a defective title. It is not the case of the/appellant that the plaintiff is the holder under defective title. Consequently, Section 50 of the TPA does not help the case of the appellant.
13. The basis point involved in this case is whether it was obligatory on the part of the new landlord to ask the tenant to attorn his tenancy in respect of the suit premises. The term "attorn" means to acknowledge the relation of a tenant to a new landlord. Therefore, "attornment" by the tenant would mean acceptance of the new owner as landlord and estopping the tenant to dispute the a landlord's title thereafter, - See Mohd. Llyas v. Mohd. Adil reported in AIR 1994 Delhi 212 at para 8. The law relating to attornment in India is governed by Section 109 of the TPA which is quoted hereunder :
"109. If the lessor transfers the property leased, or any part thereof, or any part of his interest therein, the transferee, in the absence of a contract to the contrary, shall possess all the rights, and, if the lessee so elects, be subject to all the liabilities of the lessor as to the property or part transferred so long as he is the owner of it; but the lessor shall not, by reason only or such transfer, cease to be subject to any of the liabilities imposed upon him by the lease, unless the lessee elects to treat the transferee as the person liable to him :
Provided that the transferee is not entitled to arrears of rent due before the transfer, and that, if the lessee, not having reason to believe that such transfer has been made, pays rent to the lessee shall not be liable to pay such rent over again to the transferee .
The lessor, the transferee and the lessee may determine what proportion of the premium or rent reserved by the lease is payable in respect of the so transferred, and, in case they disagree, such determination may be made by any Court having jurisdiction to entertain a wit/or the possession of the property leased."
14. Shri N.N. Karmakar vehemently submits that there is no attornment by the tenant to the transferee and as such there is no tenancy between the plaintiff and the appellant. In other words, his submission is that attornment being necessary and the same not having been done in this case, the plaintiff cannot maintain a suit for ejectment against, and for recovery of arrears of rent, from the petitioner. Consequently, the judgment of the appellate court upholding the decision of the trial court cannot stand.
15. In Hajee K. Assainer & Co. v. Chacko Joseph reported in AIR 1984 Ker. 113, the ground floor of a building which is the subject-matter of the eviction proceedings belonged to the appellant's father Joseph Chako. It was the latter who inducted the appellant as tenant. The landlord, the father, transferred his rights in favour of the son, the respondent therein, under a registered deed Ext. A-1 dated 21.6.1979. The son demanded surrender by a registered notice dated 2.7.1980 (Ext. B-8) alleging bona fide need and thereafter filed the application for eviction. The authorities under the Act have found on the evidence that the respondent is entitled to eviction on the ground of bona fide need. The said decisions was challenged on the ground as namely, (1) there is not subsisting tenancy between the petitioner and the respondent as the petitioner has not attorned to the respondent after the transfer in his favour and (2) the transfer made in favour of the respondent by the father was only a sham document. We are not here concerned with the second contention. After elaborately discussing the case laws including English cases, the Hon'ble High Court held as under :
"Thus, a transferee of the landlord's rights steps into the shoes of the landlord with all the rights and liabilities of the transferor landlord in respect of the subsisting tenancy. The section also protects payment of rent by the tenant to the transferor without notice of the transfer. The section does not insist that the transfer of the landlord's rights can take effect only if the tenant attorns. Attornment by the tenant is unnecessary to confer validity to the transfer to the landlord's rights. This seems to be the correct position, if we delve into the legislative history as well."
In the result the Hon'ble High Court held that attornment being unnecessary in the circumstances, the tenant petitioner cannot dispute the right of the respondent to maintain the application for eviction or to claim rent.
16. In Brij Bihari v. Deoki Devi and Anr. reported in AIR 1978. Patna 117 the plaintiff-respondent filed a suit for eviction against one Bhola Prasad, father of the appellants, from one shop-room situated in Mahalla Chowk Road, Gaya, details whereof have been given in the Schedule attached to the plaint. According to the plaintiff, aforesaid Bhola Prasad had defaulted in payment of rent, and as such a notice under Section 106 of the T.P. Act (hereinafter to be referred to as the Act) was served on him asking him to vacate the premises in question. Thereafter, the suit was filed for eviction as well as for arrears of rent. It was contended by the appellant that the notice issued by the new landlord was in breach of the of the requirement of under Section 106 of the T.P. Act. It was held :
"Whenever there is an assignment of the interest of a lessor or the interest of a lessee in a lease a new relationship comes into existence between the two sets of persons, one of whom was not a party to the original agreement. But in view of Section 109 there is no requirement of attornment by lessee. In view of this provision the assignee of the lessor has against the lessee all the rights that the lessor had and can enforcer not only covenants but even conditions. The right to receive rent in terms of lease is one of such rights which passes to the assignee and a lessee cannot say that he is not bound to pay merely because there is no privity of contract between him and the assignee. The matter would be different if subsequent to the assignment any fresh contract is entered into between the assignee and the lessee altering the terms of the lease including the date of commencement of the lease and the rate of rent payable by the lessee."
17. We are in respect agreement with the proposition of law laid down by their Lordships in the aforesaid two cases. In the instant case also, the appellant cannot claim that there was no subsisting tenancy between him and the new landlord, i.e., the plaintiff as he has not attorned to him after the transfer in his favour. In view of the concurrent findings of the courts below that the appellant is a defaulter of rent, the plaintiff has the right to maintain a suit for ejectment against, and to recover, arrear of rent, from the appellant.
18. In the result, the writ appeal is devoid of merits and is hereby dismissed. However, there shall be no order as to costs.