Tripura High Court
Smt. Puspa Rani Dey vs Sri Ashish Dasgupta on 3 January, 2019
Author: S. Talapatra
Bench: S. Talapatra
HIGH COURT OF TRIPURA
AGARTALA
CRP No.98 of 2016
1. Smt. Puspa Rani Dey,
wife of late Shib Sankar Dey
2. Smt. Dipali Dey (Debroy),
wife of Sri Biswajit Debroy,
daughter of late Shib Sankar Dey
-both are residents of H.G. Basak Road, Joynagar
(Battala), P.O. Agartala, P.S. West Agartala,
District: West Tripura
----Petitioner(s)
Versus
Sri Ashish Dasgupta,
son of late Chitta Rn. Dasgupta,
resident of H. G. Basak Road,
Joynagar (Battala), P.O. Agartala,
District: West Tripura
----Respondent(s)
For Petitioner (s) : Mr. D. R. Choudhury, Adv.
Mr. D. Deb, Adv.
For Respondent(s) : Mr. S. M. Chakraborty, Sr. Adv.
Ms. P. Sen, Adv.
Date of Hearing : 15.06.2018
Date of delivery of
Judgment and Order : 03.01.2019
Whether fit for
Reporting : YES
HON'BLE MR. JUSTICE S. TALAPATRA
Judgment & Order
This is a petition under Article 227 of the Constitution of India questioning the judgment and order dated 14.06.2016 delivered in RCC (Revision) 5 of 2013 on Page 2 of 28 affirmance of the judgment and order dated 11.09.2013 delivered in RCC (A) No.1 of 2013 by the Rent Control Appellate Authority [the civil Judge, Senior Division, Court No.1] West Tripura, Agartala. By the said judgment dated 11.09.2013 the Rent Control Appellate Authority reversed the judgment and order of eviction dated 05.01.2013 delivered in RCC 33 of 2005 by the Rent Control Court [the court of the Civil Judge, Junior Division, Court No.1], Agartala, West Tripura.
02. A petition under Section 12(2)(b)(3) of the Tripura Buildings (Lease & Rent Control) Act, 1995, in short the RCC Act for eviction of the tenant, the respondent herein, from the proceeding premise was instituted by the original petitioner who has been substituted by the present petitioners [on his death] for getting the vacant possession on two grounds viz: (i) for default of payment of rent and (ii) for bonafide need of the petitioners. In addition thereto, relief for deposit of the rent, with arrear and interest @ 6%, was sought by the petitioners.
03. Briefly stated, the petitioners have averred that the respondent was inducted in the proceeding premises on the basis of an unregistered deed for a period of three years with effect from 01.07.1999 to 13.06.2002 on monthly rent of Rs.900/- per month. A sum of Rs.30,000/- was however deposited by the respondent to the original landlord namely Shib Sankar Dey as security on condition that on expiry of Page 3 of 28 the 'lease period' [be read as the tenancy period] the respondent will vacate the suit premise and the landlord will return the security deposit. But after expiry of the tenancy period since the respondent did not hand over the proceeding premise the original landlord repeatedly requested him to vacate the premise as his daughter was unemployed and she would start a business in that premise. That apart, the original landlord was scheduled to retire on 01.08.1991. Thus he had plan to utilise the proceeding premise by doing the business. The respondent assured to vacate the same, but ultimately did not vacate. Even he did not pay any rent for continuance in the tenancy.
04. Being vexed by the conduct of the respondent, the notice to vacate the proceeding premise was issued on 06.10.2004 providing a period of one month for vacating the premise. At the time of filing this petition, the respondent was defaulter of non-payment of a sum of Rs.31,500/- for 35 (thirty five) months. Later on, after death of the original landlord petitioner, the petitioners herein, amended the petition and inserted some additional facts that on the death of the original landlord. The petitioners have inserted that their right on the proceeding premise is undisputed as they have purchased the share of the brother of the original landlord, namely Narayan Chandra Dey, by dint of the registered sale deed dated 04.12.2010.
Page 4 of 28
05. The respondent has contested the suit by filing the written objection on denying all the grounds and contending that the case of the original landlord is not maintainable for the reason that initially on 24.10.1981, the respondent was inducted as the monthly tenant on payment of Rs.50/- per month. At that time, Narayan Chandra Dey used to collect the rent and the respondent paid the full rent till 31.05.1986 to Narayan Chandra Dey and thereafter the rent was increased to Rs.100/- with effect from 04.06.1986 to 30.10.1992. The original landlord petitioner [since deceased] and Narayan Chandra Dey had further increased the rent and collected the rent through the original landlord petitioner. It has been also claimed by the respondent that an advance of Rs.70,000/- was deposited by him in terms of the agreement. A sum of Rs.400/- was supposed to be adjusted from the said sum of Rs.70,000/- as deposited by the respondent herein. However, the respondent used to pay Rs.800/- as the monthly rent. After adjustment by means of the said process, the security deposit came down to Rs.30,000/-. From 01.01.1998 to 30.12.1998, the monthly rent was settled at Rs.800/- per month and the balance amount of Rs.30,000/- was duly fixed as the security. From 01.07.1999 to 30.06.2002, the monthly rent was increased at Rs.900/- and thereafter from 01.07.2002 to 01.06.2007 the monthly rent was settled at Rs.900/- per month. Page 5 of 28
06. The respondent has further stated that Narayan Chandra Dey used to collect of Rs.950/- per month in the period which has been shown to be the period of default and as such the respondent was not at default. Further, it has been asserted by the respondent that the business carried on from the proceeding premise was the only source of his livelihood whereas the original landlord had the income from monthly tenants of other shop premises. That apart, he used to get the pension.
07. On the basis of the rival pleadings as stated, as many as 8(eight) issues were framed for adjudication, inter alia, whether the petitioners are entitled to get recovery of arrears of monthly rent from the tenant-respondent and whether the petitioners have the bonafide need for the suit premise. By the judgment dated 05.01.2013, the RCC court has observed that the petitioners are entitled to get the arrears of monthly rent. From the RCC court did not believe the evidence of the respondent to come to an inference that the business carried out from the proceeding premise was the only source of income of the respondent. Having observed thus the order of eviction was passed directing that the proceeding premise as described in the schedule to the judgment be handed over to the petitioners within a period of sixty days from the date of judgment.
08. Being aggrieved by that judgment and order of eviction, the respondent herein filed an appeal under Section Page 6 of 28 20 of the RCC Act before the Rent Control Appellate Authority being RCC (A) No.1 of 2013 the RCC. The appellate authority after hearing the submission of the learned counsel appearing for the respective parties and on interpreting the provision, particularly the provisions of Section-12 of the RCC Act has reversed the judgment of the RCC court by observing inter alia that there is evidence that Narayan Chandra Dey used to collect the rent from the respondent from the month of July 2005.
09. It has been observed further that the fact that has been admitted is that the petitioners purchased the share of Narayan Chandra Dey and thus the RCC court arrived at a decision that Shibshankar Dey i.e. the original landlord was not the actual owner of the rented shop premises. That apart, it has been observed that the petitioners did not produce any notice which is required by sub-section 2 of Section 12 of RCC Act. It has been observed by the RCC appellate court that the respondent was paying the rent without following the procedure. Thus the tenant-appellant is liable to be evicted. The proper procedure of paying rent was not followed by the tenant (the respondent herein). When circumstances arise that landlord refused to accept the rent, still there is obligation of the tenant either to pay the rent by money order even not being asked by the landlord for depositing the rent. The plea that had been raised by the tenant, the respondent herein, has been dismissed. But on Page 7 of 28 different premise, the appellate authority proceeded to decide the appeal. It has been observed inter alia, by the appellate authority as under:
"It is admitted case of the respondents that the respondent No.1 is a Govt service holder and during the pendency of the eviction petition the son of the original petitioner died even on the death of the original petitioner while the petitioner No.2 was substituted she was married having her separate identity and business in the suit premise which was totally concealed by the original petitioner, even by the present respondents after their substitution even at the time of their filing of their amended petition."
10. Further, it has been also observed that the petitioners have got another one-door rented shop premise which is under litigation and they are also trying to evict that tenant for their bonafide need. So their prayer if the possession of the shop premise in question is given to them they would start a business in that premise for maintenance of the newly married daughter. This aspect was considered by the appellate authority.
11. Having taken this analysis further, the RCC appellate court has observed as under:
"Section 12(3) of Tripura Building (Lease & Rent Control) Act, 1975 says "....Provided that the Rent Control Court shall not give any such direction if the Landlord has any building of his own in his possession in the same town or village except where the rent control Court is satisfied that for special reasons in any particular it will be just and proper to do so:
Provided further that Rent Control Court shall not give any such direction to tenant to put the landlord in possession if such tenant is dependent for his livelihood mainly on the income derived from any trade or business carried on in such building and there is no other suitable building available in the locality for such person to carry on such trade or business.
So, in my considered view Section 12, sub-section 3 of the RCC Act is not in against of the present appellant for his eviction since the appellant has taken the plea that there Page 8 of 28 is no alternative accommodation of him in the locality to carry on such trade or business.
In view of my discussions of the facts and circumstances of the case I am of the view that the eviction order passed against the Appellant on the ground of bonafide need of the respondents is not justified."
12. The revisional authority by the impugned judgment has observed that the revisional authority constituted under Section 22 of the RCC Act is not called upon to minutely or meticulously re-appreciate the evidence for purpose of coming to an alternative inference unless it is shown that a gross illegality or material irregularity or substantive impropriety have been committed by the appellate authority. According to the revisional authority no such illegality, irregularity or impropriety has visited the judgment of the appellate authority. Being aggrieved, the petitioners have challenged the order of the revisional authority dated 14.06.2016, in this petition.
13. According to Mr. D. R. Chowdhury, learned counsel appearing for the petitioners, the finding of the appellate authority is completely a misconstruction of the provision of Section 12(3) of the RCC Act that if the landlord has any building of his own in his possession in the same tenancy or village no eviction order shall ordinarily be passed except where the rent control court is satisfied that for a special reason in particular it would be just and proper to direct the tenant to put the landlord in vacant possession. Further, if the tenant is dependent for his livelihood on the income derived from any trade or business carried on from Page 9 of 28 such building or tenement and there is no suitable building available in the locality for such person to carry on such trade or business, no order for eviction shall be issued.
14. The first appellate court, as Mr. Chowdhury, learned counsel has submitted, has observed that that the finding of the RCC court that how the premise would be utilized either for the bonafide use or for any other commercial activities it will depend on the discretion of the landlord is not sustainable in the circumstances. In this perspective, when the appellate court has observed that it is the admitted case that the eviction procedure was based on the ground of hardship and for bonafide need, besides the ground of default, the appellate court has adopted a pedantic approach and observed that since the original petitioner was a government servant and during pendency of the eviction proceeding his son died, the need has thereby substantially factored by those changes in the circumstances. In the original petition, his wife has been substituted. Even the original petitioner died and he was substituted. The present petitioners claimed their right, ownership and status of the landlord to continue with the proceeding. It has been also asserted by way of amendment in the petition that except the family pension they have no other source of income and as such for their financial security the tenement was required to be demolished for purpose of construction of a multistoried building. The analogy as adopted by the RCC Page 10 of 28 court was not accepted by the appellate court and the revisional court on the ground that there is no evidence that the tenant-respondent had any other source of income. He is dependent on the income derived from the business carried on from the proceeding premise. Hence, the appellate authority had set aside the order of eviction passed by the RCC court. The said finding has been squarely affirmed by the RCC revisional authority.
15. Mr. D. R. Chowdhury, learned counsel appearing for the petitioners has challenged the findings of the appellate authority and the revisional authority as grossly erroneous and unsustainable. According to him, the bonafide need would be determined by the owner not by the tenant. In this regard, he has also contended that even after death of the original petitioner, the substituted legal heirs who were living in the family of the original petitioner can continue the same cause on the same ground of bonafide need. Even there is change in the contour of the need. In this regard he has referred a decision of the apex court in Shantilal Thakordas and Others vs. Chimanlal Maganlal Telwala reported in (1976) 4 SCC 417: AIR 1976 SC 2358 where the apex court has unequivocally observed that the law decided in Phul Rani vs. Naubat Rai Ahluwalia reported in (1973) 1 SCC 688 is not the correct exposition of law. It has been clearly held that the proposition of Phul Rani (supra) cannot be subscribed and carried further in Page 11 of 28 toto. In Phul Rani (supra) it has been observed that on the death of the original landlord during pendency, the bonafide needs also die with him as her legal heirs cannot carry the same ground for purpose of eviction of the tenants. In the case of Shantilal Thakordas (supra) after the death of the original owner during pendency of the appeal, his widow, son and two married daughters and two children of a deceased daughter were allowed to be substituted by the Rent Control Tribunal where the appeal was pending. The case was remanded by the Tribunal and after remand the Additional Rent Controller held that some of the substituted persons require the premise bona-fide for their occupation. The tenant's appeal to the Tribunal failed. The Delhi High Court on a further appeal by the tenant took the view that the right to sue did not survive to the landlord petitioner and on that ground the ejectment application was dismissed. When the case was taken up by the apex court by overruling the proposition of Phul Rani (supra) it has observed as under:
"If the law permitted the eviction of the tenant for the requirement of the landlord "for occupation as a residence for himself and members of his family", then the requirement was both of the landlord and the members of his family. On his death the right to sue did survive to the members of the family of the deceased landlord. We are unable to take the view that the requirement of the occupation of the members of the family of the original landlord was his requirement and ceased to be the requirement of the members of his family on his death. After the death of the original landlord the senior member of his family takes his place and is well competent to continue the suit for eviction for his occupation and the occupation of the other members of the family. Many of the substituted heirs of the deceased landlord were undoubtedly the members of family and the two married daughters and the children of a deceased daughter in the circumstances could not be held to be not members of the family of the deceased landlord."
[Emphasis added] Page 12 of 28
16. Mr. Chowdhury, learned counsel has submitted that the petitioners are the widow and the widow daughter- in-law and their bonafide need exists with the same intensity. Mr. Chowdhury, learned counsel has thereafter placed some decisions of the apex court in respect of the bonafide need and hardship. In Ganga Devi vs. District Judge, Nainital and Others reported in (2008) 7 SCC 770, the apex court had occasion to observe that the comparative hardship, indisputably, is a relevant factor for determining the question as to whether the requirement of the landlord is bonafide or not within the meaning of the provisions of the said act. It is essentially a question of fact and is to be determined on the touchstone of the statutory provisions. A provision pari meteria to Section 12(3) of the RCC Act was considered in that case. Thereafter, it has been observed as under:
"20. There is also nothing on record to show that for the last so many years the appellant had made any effort to find out a tenanted premises for herself so that she can continue with her business. No such material at least has been brought on record. Any subsequent event as regards thereto has neither been pleaded nor proved.
21.The provisions of the statutory rules must be interpreted so as to give effect to the object and purport of the Act. It cannot be applied in a vacuum, as the statute requires comparison of the hardship of both the tenant as also the landlord. It is, therefore, not a case where Rule 16 has any application.
22. The court would not determine a question only on the basis of sympathy or sentiment. Stricto sensu equity as such may not have any role to play."
[Emphasis added]
17. Mr. Chowdhury, learned counsel has further submitted that in Ganga Devi (supra) the apex court on restating the law as declared in Rishi Kumar Govil vs. Page 13 of 28 Maqsoodan reported in (2007) 4 SCC 465 had made reference to Sushila vs. ADJ reported in (2003) 2 SCC 28. The apex court in Sushila (supra) observed as under:
"11. In the case in hand we find that even though the period of tenancy of the respondent is no doubt long but availability of another shop to him where he can very well shift his business as found by the prescribed authority, neutralizes the factor of length of tenancy in the accommodation in dispute. We further find that the landlady has no other shop where she can establish her son who is married and unemployed. There is nothing on the record to indicate that the business of the father of Prem Prakash is so huge or that it is a very flourishing business so as to attract application of Clause (c) of Rule 16(2). As observed earlier it is clear that the length of the period of tenancy as provided under Clause (a) of Sub-rule (2) of Rule 16 of the Rules, 1972 is only one of the actors to be taken into account in context with other facts and circumstances of the case. It cannot be a sole criterion or deciding factor to order or not the eviction of the tenant.
Considering the facts in the light of Rule 16 pressed into service on behalf of the respondent, we find that according to the guidelines provided therein balance tilts in favour of the unemployed son of the landlady whose need is certainly bonafide and has also been so accepted by the respondent before us."
18. Mr. Chowdhury, learned counsel has also referred to the decisions of the apex court in Prativa Devi vs. T.V. Krishnan reported in (1996) 5 SCC 353, R.C. Tamrakar vs. Nidi Lekha reported in (2001) 8 SCC 431, Ram Nath vs. Rajender Pershad reported in (2003) 12 SCC 127, Mohd. Ayub and Anr. vs. Mukesh Chand reported in AIR 2012 SC 881. In Mohd. Ayub (supra) the apex court has observed as follows:
"15. It is also important to note that there is nothing on record to show that during the pendency of this litigation the Respondent made any genuine efforts to find out any alternative accommodation. We specifically asked Learned Counsel for the Respondent to point out any evidence to establish that the Respondent made any such genuine efforts. He was unable to answer this query satisfactorily.
16. In the ultimate analysis, we are of the view that the perverse findings of the courts below on the aspect of comparative hardship must be set aside. The High Court has rightly found the need of the Appellants to be bonafide. It has however, fallen into an error in directing the Respondent to handover only one room to the Appellants. In our opinion, the hardship Appellants would Page 14 of 28 suffer by not occupying their own premises would be far grater than the hardship the Respondent would suffer by having to move out to another place. We are mindful of the fact that whenever the tenant is asked to move out of the premises some hardship is inherent. We have noted that the Respondent is in occupation of the premises for a long time. But in our opinion, in the facts of this case that circumstance cannot be the sole determinative factor. That hardship can be mitigated by granting him longer period to move out of the premises in his occupation so that in the meantime he can make alternative arrangement."
[Emphasis added]
19. Having relied on the said decision, Mr. Chowdhury, learned counsel has submitted that the bonafide need would be determined by the landlord. If the contrary plea is taken meaning that the landlord does not have the bonafide need such plea has to be supported by the adequate evidence by the tenant. Similarly if the plea of non- availability of the suitable accommodation is taken by the tenant, in that case, the burden shifts upon the tenant to prove the non-availability and to show that he was diligent to find out such accommodation. That apart, in Satya Kumari Kamthan vs. Noor Ahmad and Others reported in (2013) 9 SCC 177 and Sarala Goel and Others vs. Kishan Chand reported in (2009) 7 SCC 658 the apex court has culled out the law very clearly. In Sarala Goel (supra) in particular, the apex court has affirmed the law as decided in Atma Ram vs. Shakuntala Rani reported in (2005) 7 SCC 211 where the apex court has held that if the tenant wishes to take advantage of the beneficial provisions of the Act, he must strictly comply with the requirements of the Act. If any condition-precedent is to be fulfilled before the benefit can be claimed, he must strictly comply with that condition. If he Page 15 of 28 fails to do so he cannot take advantage of the benefit conferred by such a provision. This has been commented upon in the background of the default in payment of the rent.
20. Mr. Chowdhury, learned counsel appearing for the petitioner on contemplation that the plea may be raised in respect of scope and ambit of the jurisdiction of this court under Article 227 of the Constitution of India in interfering with the concurrent finding of the Rent Control Revisional Authority and in respect of doing substantive justice or the absence of proper relief. Those might come in the way of the petitioner. Mr. Chowdhury, learned counsel has emphatically submitted that the pleadings may be considered to pass the judgment on granting some relief even in absence of specific prayer for such relief. In this regard Mr. Chowdhury, learned counsel has referred a decision of the apex court in Raptakos Brett & Co. Ltd. vs. Ganesh Property reported in (1998) 7 SCC 184.
21. On reading of the said decision this court has failed to understand why this decision has been relied by Mr. Chowdhury, learned counsel in this context. Apparent it is that in the present petition, this court has not been called upon to give meaning of any covenant or the ambit and scope of Section-69 of the Indian Partnership Act. The other aspect, dwelled upon there by the apex court, does not have even remote connection with the present controversy. Page 16 of 28 Similarly, the decision as referred by Mr. Chowdhury, learned counsel in Saleem Bhai and Others vs. State of Maharashtra and Others reported in AIR 2003 SC 759 does not have any direct nexus with the present controversy except for the proposition that the trial court can exercise the power under Order VII Rule 11 of the CPC at any stage of the suit before registering the plaint or after issuing summons on the defendant before the conclusion of trial. For purposes of deciding an application under clauses (a) and (d) of the Rule 11 of the Order VII of the CPC the averments in the plaint are germane, the pleas taken by the defendant in the written statement would be wholly irrelevant at this stage. Therefore, a direction to file the written statement without deciding the application under Order VII Rule 11 of the CPC cannot but be the procedural irregularity touching exercise of jurisdiction by the trial court. This has been referred in respect of the amendment that has been carried out by the petitioner and casually considered by the first appellate authority.
22. On the scope and ambit of the jurisdiction conferred by Article 227 of the Constitution of India Mr. Chowdhury, learned counsel has submitted that in Shamim Akhtar vs. Iqbal Ahmad and Another reported in (2000) 8 SCC 123 the apex court had occasion to hold that the respondent-tenant having denied the title of the landlady was liable to be evicted. Having observed thus, even the Page 17 of 28 order of remand issue by Allahabad High Court was reversed and the eviction was issued by the apex court. In Palani Ammal vs. Viswanatha Chettiar & Ors. reported in AIR 1998 SC 1309, the apex court in a similar context has observed thus:
"Once it is held that determination of tenancy agreement as envisaged by Section 2 sub-section (4)(ii)(a) of the Protection Act does not contemplate determination of lease under Section 111(g) of the T.P. Act there would remain no occasion to even invoke Section 112 of the T.P. Act as tried to be pressed in service by learned senior counsel for the defendant. The reason for the said conclusion is obvious. Section 112 of the T.P. Act was never pressed in service by the defendant before the Trial Court, the Appellate Court or the High Court. Even that apart Section 112 clearly refers to forfeiture under Section 111(g). Once that provision does not get attracted under the scheme of the Protection Act, as seen above, it has to be held that Section 112 as a corollary to Section 111(g) also would not get attracted to the facts of the present case. But even otherwise on a mere reading of the plaint filed by the plaintiffs against the defendant and to which our attention was invited by learned senior counsel for the defendant it could not be said that the plaintiffs especially plaintiff no.3 had waived the forfeiture on the part of the defendant. In the plaint of O.S.No. 453 of 1982 filed by the plaintiffs against the defendant it has been averred in paragraph 7 as under :
"VII. The lease period was over on 6 1969 and t he continuation of the lease was with the consent of Plaintiffs 1 an d 2. But the defendant did not act as per terms and conditions of the lease agreement. The defendant had agreed to obtain Municipal and other Licences in the name of the Plaintiffs the terms of Agreement. Further in her notice she had denied the Plaintiff of Plaintiff 1 and 2 by saying that the vacant site belonged to the Government and hence a road Poramboke. Hence the defendant had clearly denied the title of the Plaintiffs. For the above said reasons the defendant had forfeited her right to continue as tenant nor she is entitled to continue in possession of the suit property. The plaintiffs also sent a second notice dated 7-7-82 by narrating the facts and later developments which was acknowledged by the defendant on 17.7.82 demanding the arrears of rent accrued upto date and also for vacant possession but the same was not complied with so far. Hence this suit."
Consequently even if arrears of rent are prayed for at the rate of Rs. 50/- per month from 01st April 1981 to 01st September 1982 amounting to Rs. 1,000/- and even if court fees are paid under Section 22of the Court Fees Act on the basis of the monthly rent it could not be said that the plaintiffs had waived the forfeiture incurred by the defendant so as to attract Section 112 of the T.P. Act even independently of the moot question whether Section 112 could ever be invoked when Section 111(g) itself is Page 18 of 28 not attracted on the facts of the present case as seen earlier."
23. In Kasthuri Radhakrishnan and Others vs. M. Chinniyan and Another reported in (2016) 3 SCC 296 the apex court has restated the limit of exercising the revisional jurisdiction by the High Court while hearing the revision petition arising out of eviction matter, holding that question remains no more res integra and stands settled by the Constitution Bench judgment in Hindustan Petroleum Corporation Ltd. vs. Dilbahar Singh reported in (2014) 9 SCC 78 where it has been held that none of the Rent Control Acts entitles the High Court to interfere with the findings of fact recorded by the first appellate court/first appellate authority on re-appreciation of the evidence, even if its view is different from the court/authority below. Appreciation of the evidence by the High Court in the revisional jurisdiction under these Acts is confined to find out whether the finding of facts recorded by the courts/authority below is according to law or does it suffer from any error of law. A finding of fact recorded by the court/authority below, if is found perverse or has been arrived at without consideration of the material evidence or such finding is based on no evidence or misreading of the evidence or is grossly erroneous then, if allowed to stand, it would result in gross miscarriage of justice, thus would be open to correction because it is not treated as the finding according to law. In that event, the High Court in exercise of its revisional jurisdiction under the Page 19 of 28 above Rent Control Acts shall be entitled to set aside the impugned order as being not legal or proper. The High Court is entitled to satisfy itself as to the correctness or legality or propriety of any decision or order impugned before it as indicated above. However, to satisfy itself asto the regularity, correctness, legality or propriety of the impugned decision or the order, the High Court shall not exercise its power as an appellate power to re-appreciate or reassess the evidence for coming to a different finding on facts. The revisional power is not and cannot be equated with the power of reconsideration of all questions of fact as a court of first appeal. Where the High Court is required to be satisfied that the decision is according to law, it may examine whether the order impugned before it suffers from procedural illegality or irregularity.
24. In Kamleshwar Prasad vs. Pradumnju Agarwal reported in (1997) 4 SCC 413 where the apex court had clearly re-stated the law as regards the exercise of power of superintendence under Article 227 of the Constitution, the High Courts by taking into account the subsequent event may reach to its own inference without inhibition. It has been observed in Kamleshwar Prasad (supra) as follows:
"....the fact that the landlord needed the premises is question for starting a business which fact has been found by the appellate authority. In eye of law, it must be that on the day of application for eviction which is the crucial date, the tenant incurred the liability of being evicted from the premises. Even if the landlord died during the pendency of the Writ petition in the High Court the Page 20 of 28 bonafide need cannot be said to have lapsed as the business in question can be carried on by his widow or any elder son. In this view to the matter, we find no force in the contention of Mr, Manoj Swarup, learned counsel appearing for the appellant and we do not find any error in the impugned judgment of the High Court under Article 136 of the Constitution. The appeal, accordingly, fails and is dismissed but in the circumstances without any order as to costs."
[Emphasis added]
25. Finally Mr. Choudhury, learned counsel has relied on a decision in Harin Chandra Das and Ors. vs. Pradip Chowdhury and Ors. reported in (1996) 3 GLR 334 where it has been held by Gauhati High Court that the issue of bonafide requirement of the landlord is attended by his necessity to have the suit premise for business purpose for his growing and employed son. In the plaint as well as in the deposition, the plaintiff had categorically stated that the suit house is needed for bonafide requirement. The settled position of law is that one family may have more than one business and one landlord may select any business for expansion of his business and to add income to his family. It is certainly the prerogative of the landlord to expand the business and for that requirement he can claim back the suit premises. Therefore, the bonafide requirement of the suit premises for the business expansion of his son separately from the existing one is cogent. It cannot be allowed to hold that the suit house is situated away from the present room occupied by the landlord and therefore the expansion of business is not feasible.
26. In response to the submission made by Mr. Chowdhury, learned counsel appearing for the petitioners, Page 21 of 28 Mr. S. M. Chakraborty, learned senior counsel appearing for the tenant-respondent has submitted that there is no perversity or there is no subversion of the process of law in arriving at the finding returned by the Rent Control Appellate Authority that the petitioners have failed to establish their requirement or that the eviction order can be passed by the Rent Control Court in the given circumstances.
27. Having referred to the finding of the Rent Control Appellate Authority Mr. Chakraborty, learned senior counsel has submitted that even the petitioners have failed to produce any notice which is required by sub-section 2 of Section 12 of the Tripura Building (Lease and Rent Control) Act, 1975. Thus, in absence of the proof that there was a demand, the element of default cannot be legally established. That apart, it has been admitted by the petitioners that the petitioner No.1 was in Government service and during the pendency of the eviction petition, the son of the original petitioner died. Even on the death of the original petitioner, the petitioner No.2 has been substituted but she was married having her separate identity and business in the suit premise. Those facts were totally concealed by the original petitioner, even by the petitioners after their substitution. Even no attempt has been made in this regard, at the time of their filing the amendment petition.
Page 22 of 28
28. There is no dispute however that the petitioners were substituted by the order dated 25.02.2006 and filed the amendment petition and in para-8 of the amended petition they have stated that on the death of the original petitioner namely Shib Sankar Dey they, became the joint owner of the said property by inheritance, and in requirement to have the proceeding premise back. They have also asserted that they have purchased the share of the land of Narayan Dey by the registered sale-deed dated 04.12.2010 and requested the tenant-appellant to vacate the suit premise for construction of multi-storied building. It has been also stated that the petitioners have no other source of income except the pension that the petitioner No.1 was receiving for her retirement from the service. They have also pursuing the eviction proceeding against another tenant to restore the peaceful possession of that shop.
29. According to Mr. Chakraborty, learned senior counsel, Section 12(3) of Tripura Building (Lease and Rent Control) Act, 1975 clearly provides that the Rent Control Court shall not give any such direction if the landlord has any building of his own in his possession in the same town or village except where the Rent Control Court is satisfied that for special reasons, any in particular, it will be just and proper to do so, provided further that Rent Control Court shall not give any such direction to the tenant to put the landlord in possession if such tenant is dependent for his Page 23 of 28 livelihood mainly on the income derived from any trade or business carried on from such building and there is no other suitable building available in the locality for such person to carry on such trade or business. Simply because the tenant- respondent has taken a plea that he has no other alternative accommodation for him in the locality to carry the business or trade, by virtue of that provision the eviction order was interfered by the appellate authority and as stated earlier, the RCC Revisional Authority has declined to interfere the said finding on the ground that the revisional authority had a very limited jurisdiction to look into the fact. Mr. Chakraborty, learned senior counsel has submitted that in the face of the said record, this court may not interfere with the concurrent finding of the revisional authority neither should give any order of eviction of the tenant-respondent.
30. Having appreciated the records as well as the rival pleas raised by the learned counsel for the parties, this court is of the view that the finding of the RCC Appellate Authority is grossly erroneous and perverse as the manner in which the law has been appreciated to determine the bonafide requirement and non-availability of accommodation in the locality for carrying on the trade and business is palpably in- appropriate. The aspect of the default has been rejected casually without having considered its bearing to derive the advantage as provided by the law.
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31. It is apparent from the petition filed under Section 12 (b) (3) of the Tripura Building (Lease and Rent Control) Act, 1975 that the tenant-respondent became defaulter inasmuch as the entire rent for the month of January, February, March, April of 2002 was paid on 10.05.2002. That apart, in para-8 of the said petition it has been asserted that From July 2002 till the day of filing the petition the tenant- respondent has not paid any rent. The agreement that was entered between the original petitioner and the tenant- respondent had expired on 30.06.2002 and there was no renewal of the said agreement to legally allow the tenant- respondent to continue in the proceeding premise. There is no act to constitute sufferance. Expiry of the agreement followed by non-renewal has given the cause of action to the original petitioner. Thus, on the day of filing the petition the tenant-respondent was defaulter in respect for non-payment to rent for of 35 (thirty five) months. The arrear rent is accounted for Rs.31,500/-. In para-6 of the petition for eviction it has been categorically stated that by the petitioner that on 06.10.2004 due notice was issued demanding vacation within one month by the registered post with A/D. In para-9 of the written objection the tenant-respondent has categorically admitted its receipt by stating as under:
"The notice has been issued by the petitioner has got no legal at all as the petitioner is not a land lord of the answering respondent O.P."Page 25 of 28
This statement has not been considered by the appellate authority in the light of Section 58 of the Evidence Act, 1872 inasmuch as in writing the tenant-respondent has admitted the fact of receiving notice under Section 12(2) of the said Act. Hence, the finding that the requirement has not been completed by the petitioner is absolutely perverse.
32. It has been asserted by the tenant-respondent that one Narayan Dey used to collect the rent since 01.07.2002 to 01.06.2007. But he has not explained how without paying to the original petitioner he could pay the rent to one Narayan Dey even if he was the full blood brother, as the original agreement for purpose of tenancy was entered with the original petitioner and in that respect, there is no controversy. Even the tenant-respondent has questioned the authority of the original petitioner in respect of creating the tenancy on the ground that the said property was joint ancestral property. Such conduct of the tenant is grossly malafide and this ground is enough to evict him from the proceeding premise.
33. For coming to this conclusion this court has examined the agreement of tenancy [Exbt.2] and finds that the tenant-respondent has clearly admitted the original petitioner (Shibsankar Dey, since deceased) as the land-lord. It appears that the first appellate court without any objection has raised the issue of issuing notice claiming the arrears rent. The ground in this case is fundamentally for eviction of Page 26 of 28 the tenant on the ground of bonafide need on termination of the tenancy agreement. After appreciating the evidence and the pleadings this court is of the view that the original petitioner has projected the bonafide need for eviction of the tenant from the proceeding premises. But during pendency of the said eviction proceeding, the original petitioner died and thereafter the present petitioners had been substituted. By carrying out amendment in the pleading, they have clearly stated why they also urgently need the said premise.
34. This court is of the view primarily on appreciating the testimonies of PWs 1, 2, 3 and 4 that it has surfaced very clearly that the petitioners need the premise for their well being and to take advantage out of their properties. It has been well settled now that the bonafide need has to be seen from the perspective of the landlord's requirement as it is found that the petitioners' need is to survive a decent life. That apart, the tenant-respondent has failed completely to prove that the plea of bonafide need is without substance or malafide and tailored. On the contrary, the tenant- respondent has failed to show that he did not locate any accommodation for continuance of his trade or business in the same locality despite due diligence exercised.
35. This court has time and again observed that this obligation completely lies on the tenant, not on the landlord. Since the tenant has completely failed to establish that fact of non-availability, this court is unable to hold the findings of Page 27 of 28 the appellate authority as tenable. On the contrary, those are grossly erroneous and perverse. Hence these findings are interfered with and set aside.
36. Having held so the impugned judgment and order dated 14.06.2016 delivered in RCC (Revision) 5 of 2013 by the Rent Control Revisional Authority [the Addl. District Judge, Court No.2, West Tripura Agartala] are set aside and quashed. For the same reason, the judgment dated 11.09.2013 delivered in RCC Appeal No.01 of 2013 passed by the Rent Control Appellate Authority stands set aside and quashed. It is further noted that it has been established by the evidence that the Rent Control Authority has committed serious mistake in accepting the plea that to whom the rent has to be given, there was serious dispute. But in this regard no evidence has been led by the tenant-respondent. The reason that has been given that since the original petitioner died during the proceeding the bonafide need of the substituted petitioners is of no concern for their separate identity and business is grossly erroneous and unacceptable. It is further observed by this court that inasmuch as the agreement of tenancy had expired, by implication and by force of the covenant, the tenant-respondent was liable to be evicted. The petitioners were entitled to get back the said premise. As such the judgment dated 05.01.2013 delivered in RCC 33 of 2005 is affirmed. The tenant-respondent is directed to vacate the proceeding premise as described in Page 28 of 28 the schedule herein below within a period of six months from today. Considering the hardship that may entail, a longer time frame is being given by this court for vacating the premise.
Schedule Within the West Tripura District, Pargana- Agartala, Mouja
- Agartala, Sheet No.5, of Joynagar, Battala H.G. Basak Road (Northern side) holding Jote No.2254 under Khatian No.1616, C.S. Plot No.3996 bounded by:
North: own house stead of landlord.
South: H. G. Basak Road.
East: Bishnu Deb (tenant) West: Own land Within this boundary 10' x 6'' x 11'' pacca dokan viti with corrogated tin shed consist of two doors rented shop premises.
In the result, this petition succeeds and is accordingly allowed.
In the context of the case, there shall be no order as to costs.
JUDGE Moumita