Gauhati High Court
Niyoti Deb & 6 Ors vs The Ahmed Tea Company (Pvt) Ltd on 11 July, 2017
Author: Kalyan Rai Surana
Bench: Kalyan Rai Surana
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM, AND ARUNACHAL PRADESH)
CIVIL REVISION PETITON NO. 156 OF 2017
Smti. Niyoti Deb, wife of Late Nani Gopal Deb,
Resident of Jyoti Nagar, Near Budha Bihar,
P.O. Dibrugarh, Dist. Dibrugarh, Assam. PIN 786001,
and 6 others.
........ Petitioners
-Versus-
The Ahmed Tea Company (Private) Ltd.,
A Company registered under the Indian Companies Act,
on 17.08.1938 and bearing registration No. 503,
having its registered office at K.N.C.B Path,
Boiragimath, Dibrugarh Town, Dist. Dibrugarh, Assam.
Pin: 786001--represented herein by one of its
Director Afrooza Salima Ahmed.
....... Respondent
BEFORE HON'BLE MR. JUSTICE KALYAN RAI SURANA For the Petitioners : Mr. A. Biswas, Adv.
For the Respondent : Mr. N. Dutta, Senior Adv.
: Mr. B. Talukdar, Adv.
Date of hearing : 13.06.2017.
Date of judgment : 11.07.2017.
CRP 156/2017 Page 1 of 24
JUDGMENT AND ORDER (CAV)
Heard Mr. Arnab Biswas the learned counsel for the petitioner as well as Mr. N. Dutta learned Senior Counsel assisted by Mr. B. Talukdar learned counsel appearing for the respondent.
2) This revision under section 115 of the Civil Procedure Code has been filed by the petitioner/ defendant to challenged the judgment and order dated 08.02.2017 passed by the learned Civil Judge, Dhubri in Title Appeal No. 27/2013, thereby upholding the judgment and decree dated 13.02.2013 passed by the Court of Munsiff No. 1, Dhubri in Title Suit No. 74/2006 for eviction of the defendant petitioner and for recovery of arrear rent.
3) The respondent/ plaintiff is a company registered under the Companies Act, 1956. The respondent/ plaintiff had instituted a suit against the predecessor-in-interest of the present petitioners, Shri Nani Gopal Deb for his eviction on the ground of default as well as on the ground that the suit premises was bona fide required for construction of RCC building for doing business therefrom.
4) The brief case of the parties is that on 01.12.1957, the predecessor in interest of the petitioner was inducted as a tenant in respect of an Assam type house, from where a bakery business was started. Since 1980, the petitioner had been paying monthly rent of Rs.130/- per month for the suit premises. Since the month of December, 1992 the predecessor in interest of the petitioner had failed to pay the monthly rent to the respondent/ plaintiff and, as such, had become defaulter in the eyes of law. It was projected that the suit CRP 156/2017 Page 2 of 24 premises was bona fide required for constructing a RCC building thereon for accommodating their own business for which they had secured permission for construction from the competent authority. Although, the outstanding rent had accumulated to Rs. 36,660/- (Rupees Thirty six thousand six hundred and sixty only) but the suit was filed for recovery of arrear rent from June 2003 to May 2006 only and they had forgone the outstanding rent due from December, 1982 to May 2003. The plaint was filed by the respondent Company through Mrs. Nazrana A. Islam, Director.
5) The petitioner/ defendant contends the suit by filing the written statement and it was projected that after the compromise in the previous suit, fresh arrangement were made by the parties in respect of the tenancy on certain verbal terms and conditions. It was stated that sometimes the respondent used to collect rent monthly and sometimes on a lump-sum on their convenience and, as such, there was no due date for payment of the monthly rent and therefore, the question of refusal to pay the monthly rent never arose and there was no arrear of rent. The petitioner's case was that since December 1982, although they having been paid their rent upto April, 1986 but the plaintiff had stopped issuing rent receipt despite demands. Hence, after 1986, the petitioner could not take any risk and, as such, the petitioner/defendant deposited the rent in Court under the provision of the Assam Urban Area Rent Control Act, 1956 (hereinafter referred to as 'AUARC Act'), with notice to the plaintiff. Hence, no rent is in arrear and the defendant was not a defaulter. Along with the written statements, 46 (forty six) rent deposit Treasury Challans were referred to and filed showing the deposit of rent in Court. The bonafide requirement of the suit premises by the respondent was denied by stating that they had several properties in Dibrugarh and they can CRP 156/2017 Page 3 of 24 carry out their business from any other premises and that the suit premises was their only source of livelihood. Hence, the petitioner/ defendant claimed for the dismissal of the suit.
6) In course of trial, the learned Court of Munsiff No. 1, Diburgarh, on the basis of pleading, framed the following 6 issues in the suit:-
i. Whether there is cause of action for the suit?
ii. Whether the suit is maintainable in law and facts?
iii. Whether the defendant is a defaulter in respect of payment of
monthly rent for the suit premises to the plaintiff? iv. Whether the suit premises are bonafide required by the plaintiff?
v. Whether the plaintiff is entitled to a decree as prayed for? vi. Whether the parties are entitled to any other relief?
7) On the basis of pleadings and evidence, the learned trial court decided all the aforesaid issues in favor of the plaintiff by holding that
(i) there was cause of action for the suit, (ii) the suit was maintainable and there was no irregularity in the presentation of the suit by Mrs. Nazrana A. Islam, (iii) the defendant had defaulted the payment of the monthly rent to the respondent/plaintiff, (iv) the claim for bona fide requirement of the suit premises was held to be genuine, (v) the plaintiff was held to be entitled to get relief of decree of eviction of the defendant from the suit premises and recovery of khas possession and for recovery of arrear rent. On the basis of the said judgment, the decree was drawn up.
8) Aggrieved by the response a decree was passed by the learned Trial Court, the petitioner herein had filed an appeal, which CRP 156/2017 Page 4 of 24 was registered as Title Appeal No. 27/2013 and heard by the learned Court of Civil Judge, Jorhat.
9) The learned first appellate Court on the basis of materials available on record formulated the following point of decision:-
"Whether the learned Munsiff No. 1, Dibrugarh, rightly passed the judgment and order dated 13.02.2013 in Title Suit No. 74/2006 for the same requires interference by the Court?"
10) The learned First Appellate Court on the issue of maintainability raised by the petitioner herein referred to the Board resolution (Ext.1), authorizing Smt. Nazrana A. Islam to represent the Company in the suit and held that the contention of the appellant that the suit was not properly instituted was not tenable. On the basis of writing dated 01.12.1957 (Exhibit-6) by Nani Gopal Deb, whereby he agreed to pay monthly rent in the first week of every month, joint petition dated 30.11.1966, filed in the previous T.S. 117/1963 (Ext. 9) and rent receipts (Ext. 10 to 20), held that the petitioner was a defaulter. On the basis of permission for construction (Ext.30), held that the suit premises was a bona fide required by the respondent. Accordingly, the appeal was dismissed by judgment and decree dated 08.02.2017, passed by the learned Civil Judge, Dibrugarh in Title Appeal No. 27/2013. The aforesaid concurrent finding of fact of default and bonafide requirement is in challenge in the present revision.
11) The learned counsel for the petitioner had submitted that once he had raised a plea pursuant that Smt. Nazrana A. Islam, the person who had filed the suit had no competence to do so, the burden shifted on the respondent/plaintiff to prove the said fact. It is further, submitted that as the said person did not prove her locus, but did not CRP 156/2017 Page 5 of 24 produce the copy of the Memorandum of Association and the Articles of Association, the burden of proof never shifted on the petitioner/ defendant to prove the said particular fact.
12) The learned Trial Courts below, specially the First Appellate Court had held the petitioner to be a defaulter from the year 1982. Hence, the cause of action for determination of the tenancy of the defendant arose in the year 1982. Therefore, the present suit instituted on 31.05.2006 was clearly barred by Article 67 of the Schedule appended to the Limitation Act, 1963 and, as such, it was submitted that the issue of maintainability was wrongly decided by both the Courts below. It is submitted that once the suit is not maintainable, no other issues including the issue of defaulter or bona fide requirement could not have been gone into and decided by both the Courts below.
13) In support of the aforesaid contention, the learned counsel for the petitioner has placed reliance on the case of Smt. Shakuntala S. Tiwari Vs. Hem Chand M. Singhania, reported in Manu/ SC/0815/1987, wherein the Hon'ble Apex Court had discussed the provision of Article 67 of the Schedule appended to the Limitation Act. In the said case it was held that the limitation under article 67 was 12 years. It is submitted above on the basis of the said citation that in the present case in hand, the cause of action for determination arose in the year 1982 and, as such, the suit, instituted after 12 years from the date of cause of action was barred by limitation. It was also submitted as the question of limitation was raised before all the Courts including the present revision. Hence, the learned Trial Court and the First Appellate Court were obliged under the provision of Section 3 of the Evidence Act to answer the plea taken by the petitioner in connection with the statutory provision of Article 67 of the Schedule appended to the Limitation Act. In support of his arguments, the learned counsel for the CRP 156/2017 Page 6 of 24 petitioner has relied on the case of State of Gujarat Vs. Kothari and Associates, reported in Manu/ SC/1207/2015.
14) It is submitted that in the said Board resolution, there is no mention that Smt. Nazrana A. Islam (N.A. Islam in short mentioned there) was a Director, or the Principal Officer, or the Secretary of the Company. Hence, the suit was not maintainable and therefore, the decree passed by both the courts below was not sustainable. On the issue of maintainability, the learned counsel for the petitioner has referred to the provision of Rule 1 of Order 29 of the Civil Procedure Code and he has submitted that only the Director, Secretary or the Principal Officer of the Respondent could have instituted the suit for the respondent. He has placed reliance on the finding recorded in paragraph 10 of the judgment passed by the learned First Appellate Court, wherein the Board resolution dated 14.06.2005 of the respondent was extracted.
15) On the issue of defaulter, the learned counsel for the petitioner has made the following submissions. Firstly, the non- issuance of rent receipts from December, 1982 to April, 1986 had amounted to refusal to accept the lawful rent tendered to the respondent. Therefore, the evidence of DW-2, that the deposit of rent was made a measure on abundant caution ought to have been accepted. Secondly, the extracts from the books of account produced by the respondent did not satisfy the test of Section 34 of the Evidence Act and therefore, these books of accounts were incorrectly accepted by the learned Court below to prove the issue of default. Thirdly, as there was a demand and refusal by the respondent to issue rent receipt, the petitioner became entitled to deposit rent before the Rent Controller under the provision of Section 5(4) of the AUARC Act.
CRP 156/2017 Page 7 of 2416) Per contra, the learned Senior Counsel for the respondent has submitted that from the arguments advanced by the learned counsel for the petitioner, it would be deemed that the issue of bona fide requirement has been given-up. It is submitted that if action of the respondent is contrary to the settled position of law on the issue of bona fide requirement, the petitioner may explore the possibility available to him under the provisions of the AUARC Act. It is submitted that it is a well settled position of law that the landlord is the best judge for his bona fide requirement of a particular premises for his own use and it is not open for the petitioner/tenant to suggest to the respondent where they should be doing business. Reliance is placed on the permission for construction (Ext. 30) and therefore, the concurrent finding of fact recorded by both the courts below ought not to be disturbed. It is further submitted that under the scheme of the AUARC Act, notwithstanding whether the issue of defaulter was proved or not, if the bona fide requirement for the suit premises is proved, the same is sufficient to evict the petitioner from the suit premises.
17) On the issue of defaulter, the learned Senior Counsel for the respondent has relied on the provisions of section 5(1)(e) and section 5(4) of the AUARC Act. It is submitted that owing to the language used by the landlord in section 5(4) of the said Act, the petitioner was duty bound to tender monthly rent to the respondent on each and every month and only on the event of refusal could a right accrue for depositing monthly rent in Court. It is submitted that the requirement of the steps and process fees in contained in the said AUARC Act is to issue a notice on the landlord to intimate him about the rent deposited in Court so as to enable him to withdraw the money deposited in the Court on account of rent. In support of his submissions, the learned Senior Counsel for the respondent has relied on the case of (i) Bansal CRP 156/2017 Page 8 of 24 Traders and others Vs. Nandalal Gattani, 2006 (3) GLT 715, (ii) Abdul Matin Choudhury & others Vs. Nilayananda Dutta Banik, 1997 (2) GLT 590, and (iii) Rameshwarlal Chaudhury Vs. Ram Niranjan Mour, (1995) Supp 3 SCC 44. It is submitted that unless the pre-condition and requisites of depositing of rent is adhered to, which was mandatory in nature, the rent cannot be said to be validly deposited as per the requirement of Section 5(4) of the Act. The learned Senior Counsel for the respondent has produced a copy of the evidence of the Evidence- on- Affidavit and cross examination of the witnesses of the parties. By referring to the cross-examination of DW-1 and DW-2, he has submitted that both the witnesses have admitted that they did not tender monthly rent to the landlord before depositing the same in Court.
18) It was further submitted that as there was an admission in the written statement as regard the verbal arrangement to create the tenancy. Hence, a tenancy which is not in written form, was a monthly tenancy within the meaning of Section 106 of the Transfer of Properties Act, 1882. It is submitted that in the case of a monthly tenancy, rent become the rent at the end of each month and therefore, each default in payment of monthly rent for each month would constitute a valid cause of action for the landlord to institute the suit for eviction.
19) On the issue arising out of filing of the plaint by Smt. Nazrana A. Islam, the learned Senior Counsel for the respondent has produced the certified copy of the Board Resolution (Ext.1), which shows that the said Mrs. Nazrana A. Islam had attended the meeting as a Director. By referring to the provisions of section 266-A and section 266-E of the Companies Act, 1956 it was submitted that every CRP 156/2017 Page 9 of 24 Director is required to have a Director Identification number (DIN), and the said DIN can be verified from the website of the Ministry of Corporate Affairs, Govt. of India and also from the jurisdictional Registrar of Companies and therefore, the information as to whether a person is Director or not, is no longer a private information of the parties concerned, but such information is available in the public domain and anyone interested can identify a Director of a Company registered under the Companies Act, 1956 through his Director Identification Number. It is further submitted that in the cause-title of the plaint, in paragraph 1 of the plaint, in the verification appended to the plaint and in the affidavit filed in support of the plaint, it has been stated that said Mrs. Nazrana A. Islam was the Director. The statement made in paragraph 6 of the written statement, which was in response to statements made in paragraph 1 of the plaint, was read to show that the issue now being raised was not even pleaded in the written statement, for which no issue was framed by the learned Trial Court on the competence of said Smt. Nazrana A. Islam to represent the Company and therefore, at this revisional stage, the respondent cannot be non-suited on a issue which was not specifically raised before the Trial Court. It is further submitted that as the respondent had pleaded about the incompetence of Smt. Nazrana A. Islam to institute the suit, as such, after the initial burden was discharged by the respondent, the burden to disprove the same was on the petitioner and the same was not discharged.
20) In response to the plea raised by the learned counsel for the petitioner on Article 67 of the Schedule appended to the Limitation Act, 1963 the learned Senior counsel for the respondent has submitted that in the present case the respondent did not take the plea for determination of the tenancy, but the right and cause of action to evict CRP 156/2017 Page 10 of 24 the tenant arose on the ground of the petitioner being a defaulter and on the bona fide requirement of the suit premises. Hence, the provision of Article 67 of the Schedule to the Limitation Act, 1963 was not at all attracted. He submits that the said provision is attracted only if a point of determination is raised within the meaning of Section 111 of the Transfer of Property Act, 1882.
21) In support of his argument on the issue of defaulter, the learned Senior Counsel for the respondent has referred the following case citations:-
i. Rameshwarlal Chaudhury Vs. Ram Niranjan Mour, (1995) Supp 3 SCC 44.
ii. Bansal Traders and others Vs. Nandalal Gattani, 2006 (3) GLT 715.
iii. Abdul Matin Choudhury & others Vs. Nilayananda Dutta Banik, 1997 (2) GLT 590.
22) Having heard the learned counsel for the parties, the following points of determination are formulated by this Court:
i. Whether Smt. Nazrana A. Islam, had duly instituted the suit or whether a suit was not maintainable on account of the non-compliance of the provisions of Order XXIX Rule 1 of the CPC?
ii. Whether the suit filed and instituted by the plaintiff on 31.05.2006, was barred as per Article 66 and 67 of the Schedule appended to the Limitation Act, 1963?
iii. Whether the rent was validly tendered and deposited before the Rent Controller as per Section 5(4) of the Assam Urban Areas Rent Control Act, 1972?
iv. Whether the concurrent findings by both the Courts below are vitiated by exercise of jurisdiction material irregularly?
CRP 156/2017 Page 11 of 2423) In respect of the first point of determination as formulated above, it would be pertinent to quote Ext.1, which is the Minutes of the Meeting of the Board of Directors of the Respondent Company dated 14.07.2005, which is quoted below:
"Minutes of the Meeting of the Board of Directors at the office of the plaintiff's Company held on 14.07.2005. Present in the Meeting"-
Mr. Nazimuddin Ahmed Mrs. Afrooza Salima Ahmed.
Mrs. Nazrana Ahmed Islam Mr. Nazimuddin Ahmed was voted to the Chair.
The Minutes of the last Board Meeting were read out and confirmed. The Notice convening the Meeting is read out. The following Resolution is adopted.
"After protracted discussion it was Resolved that a trade centre for the company's business needs be constructed in the land of Dag No. 38 and 36 of PP. No. 66 Graham Bazar Ward, Mouza, Dibrugarh Town, Dist. Dibrugarh, after demolition of the existing houses thereon, which were constructed in 1950 by the company. These houses can no longer be repaired inspite of spending huge amounts on their upkeep annually and the tenants thereon are also not paying their due rents to the company. The meeting therefore further authorise Smti. N.A. Islam to file suits against these and take all necessary steps therefore."
Passed unanimously.
There being no other matters this Meeting is terminated with a vote of thanks to the chair.
Chairman Board of Directors The Ahmed Tea Co. Pvt. Ltd."
24) The aforesaid minutes containing the extract of Board resolution leaves this Court with no doubt that Mrs. Nazrana Ahmed Islam was one of the Board of Directors of the respondent Company, which is evident from her presence recorded in the meeting and the CRP 156/2017 Page 12 of 24 said resolution, giving the authority to take necessary steps for filing suits. The cause-title of the plaint, the verification and the affidavit in support of the statements made in the plaint leaves no room for any doubt that Nazrana A. Islam was one of the Directors of the respondent and therefore, both under the Companies Act, 1956 and under Rule 1 of the Order XXIX of the Civil Procedure Code, she was authorized to file the suit, which is inclusive of empowerment to sign the pleadings, to verify the plaint and to swear and file affidavit in support of the plaint. This Court has to agree to the arguments advanced by the learned Senior Counsel for the respondent that a Director of a Company can be identified by his unique "Director Identification Number" (DIN for short), which can be found out by visiting the website of the Ministry of Corporate Affairs, Govt. of India. Therefore, notwithstanding that this issue was not raised by the petitioner, they did not prove this information to disprove that Smt. Nazrana A. Ahmed was not the Director of the respondent Company and therefore, the plea of someone had unauthorizedly filed by the plaint cannot is not found sustainable.
25) In the considered opinion of this Court, the language used in Exhibit-1 i.e., the Minutes of the Board of Directors meeting dated 14.07.2005 is self-explanatory. The content of the said exhibit is sufficient to prove that Smt. Nazrana A. Islam was indeed authorized to take steps to file suits. Therefore, the provision of Section 94 of the Evidence Act, 1872 is found to apply accurately to the existing facts and therefore, the respondent/plaintiff was not required to give any further evidence on the same. Under such circumstances, the respondent-plaintiff is found to have duly discharged their burden of proof as required under section 101 of the Evidence Act. Hence, by proving the Board Resolution (Ext.1), while the respondent-plaintiff CRP 156/2017 Page 13 of 24 had discharged their burden, the onus of disproving the said fact would then shift to the petitioner/defendant. In view of the discussion above, this Court has no hesitation to hold the fact that the suit was maintainable and did not suffer from being not duly verified in accordance with law. Accordingly, the first point of determination that whether Smt. Nazrana A. Islam, had duly instituted the suit is answered in affirmative and in favor of the respondent/ plaintiff. It is held that the suit was duly filed and verified in accordance with the provisions of Rule 1 of Order XXIX CPC and, as such, the suit was maintainable.
26) On the aforesaid point, this Court has revisited the written statement filed by the petitioner/defendant. There is no specific statement therein to the effect that Mrs. Nazrana A. Islam was not the Director of the respondent /plaintiff Company. There is no averment that the statements made in the cause-title, verification and the affidavit of the plaint had an incorrect statement that Smt. Nazrana A. Islam was one of the Directors of respondent/ plaintiff Company. There is even no statement to the effect that the verification and affidavit appended to the plaint was signed by an unauthorized person. Moreover, going by the issues framed by the learned Court, it would be apparent that the said issue was not raised before the learned trial court.
27) This leads to another corollary issue of what would be the effect of not raising any issue at the time of trial? In this regard, before venturing to answer this, it would be pertinent to refer to the decision by the Hon'ble Division Bench for this Court in the case of Dr. Dwijendra Mohan Lahiri Vs. Rajendra Nath, AIR 1971, GAU 143: 1971 0 Supreme (Gau) 47. Paragraph 10 of the said judgment (from 1971 0 Supreme (Gau) 47) is quoted below:-
CRP 156/2017 Page 14 of 24"We may observe that a court should decline to frame an issue as to mainÂtainability of a suit in absence of specific averment in the written statement as to how and in what circumstances the same is not maintainable in law. A mere vague recital in the written statement, without anything more, cannot be the basis for raising such an issue. Issues are framed for a right decision of the case with an object to pinpoint the real and substantial points of difference between the parties specifically and unambiguously emerging out of the pleadings. Vague issues, suggested in a mechanical way, should not be framed to keep the door open for astute casuistry as a suit proceeds at different levels leading inevitably to the law's delay. The court has to own its own responsibility in framing issues."
28) If the provision of Order XVIII Rule 2 (1) of the Civil Procedure Code is seen, one will find that it prescribes that a party having the right to begin shall state his case and produce his evidence in support of the issues which he is bound to prove. Therefore, if the ratio of the aforesaid judgment of Dr. Dwijendra Mohan Lahiri (supra) as extracted above is conjointly read with the provision of Order XVIII Rule 2 (1) of the Code it can be concluded that a party is not obliged to lead evidence on any point on which an issue is not framed by the Trial Court. In other words, if no issue was framed, then one party would have a bona fide cause to argue that he was prevented to lead any evidence to prove such point. In the present case in hand, the petitioner/ defendant did not make any statement denying that Smt. Nazrana Ahmed Islam was a Director of the respondent/ plaintiff Company. Therefore, in the absence of denial, a statement made in CRP 156/2017 Page 15 of 24 the plaint becomes admitted under the principles of non-traverse as per the provisions of Section 58 of the Evidence Act, 1872.
29) Hence, on the aforesaid view of the matter the petitioner/ defendant fails on the first point of determination. It is held that there is no infirmity in the plaint being signed and verified by Smt. Nazrana A. Islam in accordance with the provisions of Order XXIX Rule 1 of the CPC, as such, the suit was maintainable. This point is decided in the favour of the respondent/ plaintiff.
30) On the second point of determination as to whether the suit filed by the plaintiff, instituted on 31.05.2006, was barred as per Article 67 of the Schedule appended to the Limitation Act, 1963, it is seen that in the written statement, the petitioner/ defendant had taken a specific stand that they never failed to pay any rent from the month of December, 1982. It was claimed that the plaintiff through his persons had collected and accepted the monthly rent from the defendant but it had allegedly stopped issuing rent receipts from the said month of December, 1982. It was stated that there was no due date for paying rent and that the plaintiff collected monthly rent as per their convenience. It was further stated that after April, 1986 after demanding monthly rental receipt, when the plaintiff failed to issue monthly rent receipt, the petitioner/ defendant had started to deposit monthly rent in Court under the provisions of the AUARC Act.
31) The submission of the learned counsel for the petitioner is that the suit was barred by limitation as prescribed under Article 67 of the Schedule appended to the Limitation Act. As per the provisions of the Article 67 of the Schedule of the limitation Act, 1963, the period of limitation of 12 years begins to run for the landlord to recover possession from a tenant from the period when the tenancy is CRP 156/2017 Page 16 of 24 determined. It was argued that as per the statements made in paragraph 11 of the plaint, the date of cause of action is mentioned as 01.12.1957 and that as per the statement made in paragraph 4 of the plaint, it was stated that the petitioner/ defendant had failed to pay rent due from the month of December 1982. Therefore, it is projected that the tenancy became determined in the month of December, 1982 and therefore, the present suit filed 31.05.2006 was beyond the prescribed period of limitation prescribed under Article 67 and, as such, the suit was hopelessly barred by limitation. In support of his contention, the learned counsel for the petitioner has relied on the case of Smt. Shakuntala S. Tiwari (supra). The said judgment was in case of eviction of a tenant under section 12 and 13 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as "1947 Act". The provision of Section 12 of the said 1947 Act contains the heading of "12. No ejectment ordinarily to be made if tenant pays or is ready and willing to pay standard permitted increases." The provision of section 13 contains the heading "13. When landlord may recover possession." The provisions of Section 13 (1) provides that a landlord shall be entitled to recover possession of any premises if the court is satisfied that a tenant has committed and act contrary to provision or clause (a) of Section 108 of the Transfer of Property Act 1882 or that (b) the tenant has without the landlord's consent given in writing, erected on the premises any permanent structure. However, there are no para-materia provisions like the same in the AUARC Act. Moreover, there is no statement made in the plaint of the present case that the tenancy between the parties had been determined and there is also no prayer for declaring the tenancy to have been determined owing to any defaults committed by the tenants. In the opinion of this Court, under the AUARC Act, even a single default on part of the tenant to pay rent on time to the landlord CRP 156/2017 Page 17 of 24 gives rise to a right landlord to evict a tenant from the tenanted premises. Therefore, in respect of the tenancy under the AUARC Act, this Court has treated a defaulting tenant under the principle of "once a defaulter always a defaulter". Therefore, I have no hesitation to hold that the Hon'ble Apex Court had decided in the case of Smt. Shakuntala S. Tiwari (supra) under a different law and different context, by holding in that case that the tenant was not entitled to possession under section 12 and 13 of the 1947 Act as the tenant had violated the terms of tenancy by erecting super structures on the suit premises, for which Article 113 of the Schedule to the Limitation Act, 1963 would not apply and either of the provisions of Article 66 or 67 of the Schedule of the Limitation Act, 1963 would apply.
32) With reference to the aforesaid context, it would be appropriate to refer to the relevant provisions of section 5 (1)(e) of the AUARC Act, 1947, which is quoted below:
"5. Bar against passing and execution of decree and orders for ejection:-
1. No order or decree for the recovery of possession of any house shall be made or executed by any Court so long as the tenant pays rent to the full extent allowable under this Act and performs the conditions of the tenancy:
Provided that nothing in the sub-section shall apply in a suit or proceedings for eviction of the tenant from the house:-
a). xxxxx
b). xxxxx
c). xxxxx
d). xxxxx
e). where the tenant has not paid the rent lawfully due from him in respect of the house within a fortnight of its falling due, or
f). xxxxx."CRP 156/2017 Page 18 of 24
33) It is seen that the learned First Appellate Court has referred to the writing by Nani Gopal Deb (Ext.6), wherein he had undertaken to pay monthly rent in the first week of every month. This indicates a monthly tenancy. Therefore, in the absence of any particular pleading in the written statement, there is no material available before this Court that the petitioner-defendant was not a monthly tenant in respect of the suit premises under the respondent /plaintiff. It is a well settled law that if one is a monthly tenant, then there is no escape from the fact that rent would fall due on the last day of each month.
Hence, monthly rent was payable by the petitioner to the respondent on month to month basis within a fortnight on its following due. Therefore, each default on part of the petitioner to tender monthly rent to the respondent would give rise to a separate cause of action for filing a suit for ejection of the petitioner, as such, the present suit cannot be said to be barred by limitation under Article 66 and/or Article 67 of the Schedule of the Limitation Act, 1963, as the said Articles do not apply in the fact situation in hand.
34) For the foregoing reasons, the ratio of the judgment in the case of Smt. Shakuntala S. Tiwari (supra) is not applicable under the distinguishable facts of this case because in the said case, the Hon'ble Apex Court was not considering the provisions of the AUARC Act, but the law of limitation was tested in the light of the provisions of Section 12 and 13 of the 1947 Act. As mentioned hereinbefore, the provisions of section 12 and 13 of the 1947 Act is not found to be para -materia to any of the provisions of the AUARC Act.
35) Hence, the second point of determination is also answered in the negative and against the petitioner by holding that the suit filed by the plaintiff on 31.05.2006, was not barred as per Article 67 of the Schedule to the Limitation Act, 1963.
CRP 156/2017 Page 19 of 2436) Coming to the third issue of defaulter, it is seen that in paragraph 7 of the written statement the petitioner/defendant has stated that the rent was fixed at Rs.130/- per month. In support of the contention that rent was deposited in Court, the petitioner/defendant has given a chart of 46 treasury challans (Defendant Documents No. 27 to 72) in paragraph 14 of the written statement. A perusal of the said statement and chart would show that none of the 46 rent payment Treasury Challans is for a sum of Rs.130/- as deposit of rent in the Court. Those challans are for a sum of Rs.520/-, or Rs.650/-, or Rs.390/-, or Rs.780/-. These are sufficient to show that instead of making monthly deposit of rent in Court, the petitioner was depositing rent for a few consecutive months together. Thus, in the opinion of this Court, the petitioner/ defendant is deemed to have admitted:-
a. That rent from month to month was not tendered to the respondent; and b. Monthly rent on month to month basis was not deposited within a fortnight of its following due.
37) It is well settled law that Section 5(4) of the AUARC Act, casts a duty upon the tenant to first tender monthly rent to the landlord. However, if the landlord refuses to accept the lawful rent offered by his tenant, only then a tenant may within a fortnight of its following due, deposit in the Court the amount of such rent together with process fees for service of notice upon the landlord. Subject to above, the said provisions further prescribe that 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 Section 5 of the Act.
38) Therefore, on the basis of the statements made in the paragraph 14 of the written statement, even without going to the CRP 156/2017 Page 20 of 24 evidence on record, this Court has no hesitation to say that both the Courts below had correctly held the petitioner to be a defaulter and the said concurrent finding of fact is not liable to be disturbed. This view is supported by the various judgments rendered by this Court as well as the Hon'ble Apex Court. Few of such cases are (i) Bansal Traders (supra), (ii) Abdul Matin Choudhury (supra), and (iii) Ramehswar Lal Chaudhury (supra), on which the learned senior counsel for the respondent has relied upon. I need not burden this judgment with the relevant extract of those citations.
39) Hence, the third point of determination is decided in the affirmative and against the petitioner by holding that the tenant is a defaulter, having deposited rent irregularly in Court without first offering it to the respondent and such deposit of rents in Court where contrary to the requirement of section 5 (4) of the Assam Urban Areas Rent Control Act 1972.
40) As regards the fourth point of determination carried by this Court in view of the discussions made therein before this Court finds that while the concurrent finding of fact were two-fold, the first being that the petitioner herein was a defaulter, which is a valid ground for evicting a tenant and the second concurrent finding of fact by both the Courts below was that the suit premises was bona fide required by the respondent for construction of a RCC building thereon, for which the respondent had procured a permission for construction from the authorities, which was extended by the respondent during the pendency of the suit. Even at this revisional stage, when the scope for re appreciating evidence on record is limited, yet from the materials available on record it could not be demonstrated that the requirement of the suit premises by the respondent was not bona fide on in other words not genuine. It may be pertinent to refer to the case of Anil CRP 156/2017 Page 21 of 24 Bajaj and another V. Vinod Ahuja, (2014) 15 SCC 610, wherein the Hon'ble Apex Court has held that - "... It would hardly require any reiteration of the settled principle of law that it is not for the tenant to dictate to the landlord as to how the property belonging to the landlord should be utilized by him for the purpose of the business. Also, the fact that the landlord is doing business from various other premises cannot foreclose his right to seek eviction from the tenanted premises so long as he intends to use the same tenanted premises for his own business."
41) On a careful scrutiny of the judgments of both the Courts below, there is no material available to show that the decision was vitiated by any misreading of the pleadings or the misreading or misconstruction of any evidence on record. It also does not disclose that the Courts below had exercised a jurisdiction not vested by law. It could not be demonstrated that the Courts below had failed to exercise a jurisdiction so vested by law. Moreover, from the discussion made above it cannot be accepted that the Courts below had exercised its jurisdiction illegally or with material irregularity. Rather, this Court is of the view, the statements made in the written statement prima facie does not disclose that the monthly rent was offered to the respondent on month to month basis and on refusal to accept such rent, the rent for each month was deposited in Court within the fortnight of its following due. Hence, this Court does not find even a prima facie case requiring the fresh appreciation of the evidence recorded by the learned Trial Court.
42) It is no longer res integra that in exercise of revisional powers, a revisional Court is not to act like a court of Appeal and it could interfere only if the existence of the grounds prescribed in Section 115 of the Civil Procedure Code can be successfully CRP 156/2017 Page 22 of 24 demonstrated, which is found to be absent in the present case in hand.
Therefore, the concurrent finding on the issues of (i) bona fide requirement of the suit premises, and (ii) the petitioner is a defaulter, as held by the learned Courts below are not liable to be dislodged.
43) In view of the foregoing discussion, having not found any infirmity in the appreciation of facts by both the Courts below, this revision is not liable to be admitted and the same is dismissed.
44) The parties are left to bear their own costs. 45) As the petitioner has been in the tenanted premises
described in Schedule of the plaint since 01.12.1957, this court is inclined to give time till 31.10.2017 from today to vacate the suit premises, subject to the following conditions:
a. The petitioner shall bind himself and shall also deposit the decreed arrear rent together with pendente lite monthly rent within a period of one month from today before the learned Court Trial Court; and b. The petitioner shall submit an unconditional undertaking in writing before the learned Trial Court, i.e. Court of Munsiff No.1, Dibrugarh, within 1 (one) month from today, binding himself to vacate the suit premises on or before 31.10.2017; and c. The petitioner shall bind himself not to sub-let or part with the possession of the suit premises or any part thereof to any other third party and/or to hand over the suit premises to anyone other than any one of the respondent herein (i.e. Plaintiff), who on receiving vacant and khas possession CRP 156/2017 Page 23 of 24 thereof would issue a receipt, which would be counter- signed by the petitioner.
d. Taking judicial notice of the sky-high market rent now prevailing, and as laid down by the Hon'ble Apex Court in the case of Rattan Arya V. State of Tamil Nadu, AIR 1986 SC 1444: (1986) 3 SCC 385, the petitioner shall bind himself to henceforth from 01.07.2017 to 31.10.2017, pay monthly rent of Rs.2,000/- per month every month to the respondent/ Plaintiff, who on accepting such rent would issue rent receipt, which shall not constitute any further tenancy or create any right whatsoever in favour of the petitioner. e. The petitioner shall bind himself not to cause any nuisance or any other disturbance and/or cause any damage to the suit premises in the meantime.
46) It is made clear that if any of the petitioner does not give an undertaking to bind himself on any of the above five conditions (a) to
(e) and if any of those conditions are violated or not complied with, the respondent/ Plaintiff shall be entitled to enforce the decree.
JUDGE Mks/ CRP 156/2017 Page 24 of 24