Gauhati High Court
Pradip Kumar Moral & Anr vs Sambhu Nath Verma & 3 Ors on 20 April, 2017
Author: Kalyan Rai Surana
Bench: Kalyan Rai Surana
IN THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM; NAGALAND; MIZORAM & ARUNACHAL
PRADESH)
CRP 196 OF 2014
1. Sri Pradip Kumar Moral.
2. Ms. Surabhi.
- Petitioners
- Versus -
1. Sri Sambhu Nath Verma.
2. Sri Kailash Verma.
3. Sri Kamal Kishore Verma.
4. Sri Mukesh Verma.
- Respondents
BEFORE
HON'BLE MR. JUSTICE KALYAN RAI SURANA
For the petitioners : Mr. B. Sharma,
Ms. B. Rabha,
Mr. S. Barman.
For the respondents : Mr. P. J. Saikia,
Ms. M. Kechi,
Mr. R. S. Mishra.
Date of hearing : 03.04.2017
Date of judgment : 20.04.2017
JUDGMENT & ORDER (CAV)
Heard Mr. Bipul Sarma, the learned counsel for the petitioners and
Mr. P.J. Saikia, the learned counsel for the respondents.
2) The lower court records had been requisitioned as per order dated
22.07.2016 and the same has been received. Hence, with the consent of the
learned counsel for the parties, the matter has been heard at the admission
stage.
3) This revision by the petitioner/tenant is directed against the
concurrent finding of both the learned courts below and in challenge is the first
appellate judgment and decree dated 19.04.2014 passed by the learned Civil
Judge, Dibrugarh in Title Appeal No. 38/2009, whereby the judgment and
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decree in the original suit dated 18.08.2009 passed by the learned Munsiff
No.2, Dibrugarh in Title Suit No. 117/2005 was upheld.
4) The case in brief is that the petitioner was a monthly tenant under
the predecessor-in-interest of the respondents in respect of a shop room at the
monthly rent of Rs.500/- per month within the 7th day of next English calendar
month as per verbal agreement and the petitioner No.1 was doing his
proprietorship cloth business in the name and style of petitioner No.2
therefrom. However, since the month of July, 1994, the petitioners stopped
paying monthly rent to the respondents. The petitioners started to make
alterations in the suit premises, for which the predecessor-in- interest of the
respondents, namely, Surya Nath Verma instituted Title Suit No. 38/2000, for
declaration of right, title and interest over the suit premises and for permanent
injunction restraining the petitioners herein from making any alteration,
construction and repairing the suit premises. The suit was allowed by judgment
and decree dated 31.07.2004 passed by the learned Civil Judge (Junior
Division) No.1, Dibrugarh. The said judgment and decree had attained finality
as the petitioners herein did not prefer any appeal. During the pendency of the
suit, the predecessor-in- interest of the petitioners had died on 31.03.2002. In
the present suit, the respondents prayed for recovery of possession of the suit
premises by evicting the petitioners and their dependents with their belongings
and for recovery of Rs.18,000/- as arrear rent for last three years, as other
previous claim of money was barred by limitation, and for cost of the suit. The
petitioners denied that the predecessor-in- interest of the respondent was his
landlord and claimed to be the tenant under the Hindu Undivided family of Late
Amir Chand Verma, the father of Late Surya Nath Verma and the rent collected
by Late Surya Nath Verma was as the representative of Late Amir Chand
Verma. It was claimed that on 03.04.1994, after Late Surya Nath Verma, the
predecessor-in- interest of the petitioners refused to accept rent tendered for
the month of March, 1994 the monthly rent for the suit premises was deposited
in court. It was also claimed that the decree passed in T.S. No. 38/2000 was a
nullity and inexecutable an, as such, the same was challenged by the
petitioners by filing TS No. 145/2005.
5) In course of trial, the learned Trial Court framed the following
issues:-
1. Whether there is cause of action in the suit?
2. Whether the suit is maintainable in the present form?
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3. Whether the defendants are tenants under the plaintiff in respect of
the suit premises?
4. Whether the defendants are defaulters to pay the monthly rent to
the plaintiff?
5. Whether the defendants have changed the nature and feature of the
suit premises?
6. Whether the plaintiffs are entitled to decree as prayed for?
7. Whether any other relief or reliefs the parties are entitled to?
6) The respondents/ plaintiffs examined two witnesses and exhibited 4
documents, whereas the petitioners' side examined 4 witnesses and exhibited
112 documents.
7) In respect of Issue No.3, the learned trial Court discussed the
evidence of the witnesses, specifically the evidence of petitioner No.1, who
examined himself as DW-1. The learned Trial Court observed that from the
documents exhibited by the petitioners, it appeared that since April, 1979 all
the rent receipts exhibited by DW-1 was signed by the predecessor-in- interest
of the petitioners or collected on his behalf and not in the name of HUF as
claimed by the petitioners. DW-1 also admitted that despite death of Late Surya
Nath Verma, the predecessor-in- interest of the petitioners, he has continued to
deposit monthly rent in court in the name of the said dead person. The learned
Trial Court on meticulously examining the exhibited documents found that the
monthly rent for several months together was deposited before the Rent
Controller and held that if monthly rent was tendered monthly, the refusal
ought to be monthly and deposit must be regular too. It was also held that
Ext.A55 and Ext.A57 showed that monthly rent was deposited in court without
becoming due. The learned Trial court also held that despite adequate
opportunity being given, the petitioners could not prove the rent deposit
treasury challans and did not prove the payment of process fees for service of
notice upon the landlord. As a result, it was held that the petitioners were
defaulters. Consequently, Issues No.6 and 7 were decided in favour of the
respondents by holding the respondents/ plaintiffs entitled to recovery of
possession of the suit premises by evicting the petitioners/ defendants and their
dependants together with their belongings. The suit was also decreed for
recovery of a sum of Rs.18,000/- as arrear rent. The other issues are not
relevant for the decision in this revision and, as such, the same are not
repeated herein for brevity.
Page No. 4
8) The petitioners assailed the said judgment and decree by filing Title
Appeal No. 38/2009. The learned First Appellate court has reappreciated the
pleadings and evidence on record and heard the appeal on the following Point
for Determination, viz., Whether the judgment and decree passed by the
learned trial court is just and proper or needs any interference in this appeal.
9) The issues No. 1, 2, 4 and 5 are not material for the decision in this
revision and the relevant issues are No.3, 6 and 7, as such, only the said issues
are discussed herein. On the issue No.3 as framed by the learned Trial Court,
the learned first appellate court took the view that as the plea of the petitioners
herein in their written statement was that the property was a HUF property,
there was no logic to deposit the monthly rent in court in the name of
predecessor- in- interest of the petitioners and to continue to make such
deposit in the name of the dead person. Hence, it was held that the petitioners
herein were the tenants under the petitioners/ plaintiff after the death of their
predecessor-in- interest. Hence, the decision on the said issue by the learned
Trial Court was affirmed. In connection with Issue No.4, the learned First
Appellate Court held that certain deposits were made conjointly for some
months which was clear from Ext.A55 and Ext.A57 and it was held that such
deposits were absolutely untenable and no benefit can be claimed by the tenant
for such deposit. It was held that the petitioners did not examine anyone from
the office of the Rent Controller to prove the incidental facts of deposit of rent
in the court and also to prove the subsequent follow-ups. It was also held that
no evidence was led to prove that rent was offered to the landlord and refused
by him and then the same has been deposited in court. Hence, the decision on
the said issue by the learned Trial Court was affirmed. Similarly, in view of
decisions on other issues, Issue No.6 and 7 as framed by the learned Trial
Court was also affirmed by holding that the respondents herein are entitled to
the reliefs as prayed for in the suit. Consequently, the appeal was dismissed on
contest by upholding the judgment and decree passed by the learned Trial
Court.
10) On hearing the learned counsel for the parties and upon perusal of
the materials available on record, before appreciating the concurrent finding of
fact by both the learned courts below, it would be relevant to re-produce the
provisions of section 5(4) of the Assam Urban Areas Rent Control Act, 1972,
which is as follows:
Page No. 5
"5. Bar against passing and execution of decree and orders for ejections
(4) Where the landlord refuses to accept the lawful rent offered by his tenant, the
tenant may within a fortnight of its becoming due, deposit in Court the amount of
such rent together with process fees for service of notice upon the landlord, and on
receiving such deposit, the Court shall cause a notice of the receipt of such deposit
to be served on the landlord, and the amount of the deposit may thereafter be
withdrawn by the landlord on application made by him to the Court in that behalf. A
tenant who has made such deposit shall not be treated as a defaulter under clause
(e) of the proviso to sub-section (1) of this section."
11) The Trial Court records reveal that the rent challan for the months of
March, 2002 to June, 2002 was deposited vide Ext.A80, while the predecessor-
in- interest of the petitioners had died on 31.03.2002. Even thereafter, vide Ext.
A-81 to Ext.A112 rent was deposited in the name of the deceased person.
Thus, it is unbelievable that the petitioners offered and/or tendered monthly
rent to a dead person and on his refusal deposited such monthly rent in court
under the provisions of section 5(4) of the Assam Urban Areas Rent Control Act,
1972.
12) This Court, in the case of Ram Karanji More V. Keshar Deo Jalan,
(1996) 2 GLT 526, has held that when there is no written contract, the tenancy
is always monthly, and the rent is due at the end of the month. In the case of
Smt. Sushila Devi Khemka V. Smti. Sabitri Devi Kejriwal, (2016) 5 GLJ 275, it
has been held by this Court as follows:-
"18. .... A mere deposit of rent in Court would not be a valid
deposit unless the conditions precedent enumerated in section 5(4) of
the Assam Urban Areas Rent Control Act, 1972 are satisfied. Those
requirements are as follows:-
(i) The tenant has to offer the rent to the landlord before deposit;
(ii) Upon such offer, landlord has to refuse to accept the rent;
(iii) The tenant thereafter has to make the deposit in Court within a
fortnight of its falling due; and
(iv) Such deposit has to be of the entire amount of the rent along
with process fee for the service of notice upon the landlord.
In a case, therefore, where the defendant takes the plea that he
is not a defaulter because he has been depositing rent in Court
under section 5(4) of the Act, in that event, burden falls heavily on
such defendant to plead and establish all the aforesaid conditions
precedent. If any of these conditions precedent is not pleaded and
established, in that event, deposit will not be a valid deposit and the
tenant will not get the benefit of section 5(4) of the Act so as to
avoid the rigour of default under section 5(4) of the Act."
Page No. 6
13) In the present case in hand, the said four prerequisites as mandated
by this court as referred above, are neither pleaded in the written statement of
the petitioners nor the same has been proved. Thus, this court finds no infirmity
whatsoever, in the judgment and decree passed by both the learned Trial Court
and the First Appellate Court. This Court also does not find any perversity or
jurisdictional error in both the said judgments, rather, the findings on defaulter
is found to be passed on the basis of materials available in the record. The
concurrent decree for eviction of the petitioner/ defendant, for realization of
arrear rent from the month of February, 2012 onwards and for recovery of suit
premises in favour of the respondents is found fully justified and sustainable
and the same are, accordingly, upheld.
14) That is one additional reason to dismiss the present revision. As per
the plaint, the plaintiff No.1 was Smt. Rukmini Devi, wife of Late Surya Nath
Verma. Her name was arrayed as Respondent No.1 in Title Appeal No. 38/2009.
Hence, in order to find out what happened to her, this court has gone through
the record of the learned Trial Court as well as of the learned First Appellate
Court. On the perusal of the said record, it is seen that in the court attendance
sheet (i.e. Hazira) dated 18.01.2011 (available at pg.58 of the first appellate
court record), it is mentioned that Rukmini Devi (who was plaintiff No.1 in suit
and respondent No.1 in appeal) had since died. It appears that no pain was
taken either by the respondents herein to bring the notice of the learned first
appellate court about the death of respondent No.1 in the said appeal, nor the
petitioners herein filed any application for substitution or for striking out the
name of the deceased respondent, as required in accordance with law. The
petitioners herein appear that have conveniently omitted to array the said Smt.
Rukmini Devi in this revision and has given no explanation for omitting to array
her in this revision despite her name being present in the first appellate decree.
Thus, apart from this revision being without any merit, the present revision is
bad for non-joinder of necessary parties and consequently, the first appellate
judgment is deemed to have attained finality against the said Rukmini Devi. In
the present case in hand, as the respondents have not taken a plea that the
court attendance sheet (i.e. Hazira) dated 18.01.2011 (available at pg.58 of
appellate court record), constituted to be a valid information about the death of
Rukmini Devi (who was plaintiff No.1 in suit and respondent No.1 in appeal),
this court is not inclined to hold that the Title Appeal No. 38/2009 had abated
on her death. Thus, the present revision is held to be not maintainable for non
Page No. 7
impleading of Rukmini Devi (who was plaintiff No.1 in suit and respondent No.1
in appeal).
15) Both the learned courts below have concurrently held that the
petitioners are defaulter and were liable to be evicted from the suit premises
together with their dependents and articles and the respondents were also
found entitled to arrear rent of Rs.18,000/-. Upon perusal of the evidence on
record as discussed above, this court does not find this to be a case where the
learned courts committed any perversity or jurisdictional error or misreading or
misconstruing the pleadings and evidence on record while deciding the said
relevant issues No.3, 4 6 and 7, amongst others. Under such circumstances,
this revisional court is required to be slow in re-appreciating the evidence as in
appeal. In the opinion of this court, on merit, the said relevant issues were
rightly decided by both the learned courts below with its well reasoned
judgment, as such, the same needs no interference. In an additional ground,
this revision is held to be not maintainable for not impleading the original
plaintiff No.1, which would have the effect that both the judgments and decree
passed by the learned Trial Court as well as the First Appellate Court have
attained finality in so far as the right of Rukmini Devi, the plaintiff No.1 is
concerned.
ORDER
16) This revision is found to be without any merit and the same is dismissed. The judgment and decree dated 2nd September, 2009 passed by the learned Munsiff No.2, Dibrugarh in Title Suit No. 117/05 as well as the First Appellate judgment and decree dated 19th April, 2014 passed by the learned Civil Judge, Dibrugarh in Title Appeal No. 38/2009 are upheld. Let the LCR be returned back.
17) As the petitioners have projected that the petitioner No.2 firm, i.e. M/s. Surabhi had been operating in the suit premises since the year 1972, this court is inclined to give 3 (three) months time from today to vacate the suit premises, subject to the following conditions:
a. The petitioners shall deposit the decreetal sum as decreed before the learned Court of Munsiff No.2, Dibrugarh within a period of one month from today;
b. The petitioners shall submit an unconditional undertaking in writing before the learned Court of Munsiff No.2, Dibrugarh within 1 (one) Page No. 8 month from today to vacate the suit premises on or before 31.07.2017;
c. The petitioners shall not hand over the suit premises to anyone other than any one of the respondents herein (plaintiffs No. 2 to 5); d. The petitioners shall henceforth pay monthly rent every month to any one of the respondents herein (Plaintiffs No.2 to 5), which shall not constitute any further tenancy or create any tenancy right in favour of the petitioners.
e. The petitioners shall not cause any nuisance or any other disturbance and/or cause any damage to the suit premises in the meantime.
f. It is made clear that if any of the above five conditions (a) to (e) are not complied with, the respondents herein (Plaintiffs No.2 to 5) shall be entitled to enforce the decree.
JUDGE Kalpana