Gauhati High Court
Sanjoy Mitra vs Bhupendra Nath Bhattacharjee on 29 March, 1993
Equivalent citations: AIR 1994 GAUHATI 31, 1994 (1) CURCC 317, (1993) 1 GAU LR 443, (1994) 1 CIVILCOURTC 617
Author: S.N. Phukan
Bench: S.N. Phukan
ORDER S.N. Phukan, J.
1. This petition u/Section 115 read with Section 151, C.P.C. is directed against the judgment and order dated 22-1-92 passed by the learned Addl. District Judge, Kamrup at Gauhati in Tital Appeal No. 1/90. By this impugned judgment and order, the learned lower appellate court set aside the decree passed by the learned Asstt. District Judge No. 2, Gauhati in Title Suit No. 13/84 and remanded the case for trial after framing necessary issues.
2. Briefly stated the facts are as follows :--
The plaintiffs who are the present petitioners laid the Title Suit No. 13/94 against the opp. parties for their ejectment on various grounds including the construction of the house as it is in dilapidated condition, bona fide requirement, default and nuisance was also pleaded. It is not necessary to state fully the grounds for which the decree for ejectment was prayed. The suit was contested by defendant-opp. parties denying the allegations of defaulter, bona fide requirement, unauthorised construction, nuisance and that the house is not in a dilapidated condition. There was a prayer by the plaintiffs for decree for arrear of rent and other reliefs.
3. On the pleadings the learned trial court framed as many as 7 issues which are as follows:--
1) Whether the suit is maintainable in law?
2) Whether the plaintiffs have cause of action for the suit against the defendant?
3) Whether the relationship of landlord and tenant exist between the parties to the suit premises?
4) Whether the defendant is liable for ejectment from the suit premises as claimed by the plaintiffs?
5) Whether the arrear rent as claimed by the plaintiffs is due and unpaid?
6) Whether the plaintiff is entitled to the relief claimed to the suit against the defendant?
7) What relief or reliefs are the parties are entitled to?
4. The learned trial court decreed the suit which was set aside by the impugned judgment. The learned lower appellate court remanded the case for re-trial after framing issues on the question of defaulter (2) dilapidated condition; (3) nuisance; (4) bona fide requirement and (5) unauthorised construction. Parties are also allowed to adduce further evidence. It may be stated that the original plaintiff No. 1 was the mother of the plaintiff No. 2 and during the pendency of the present petition she died and by order of this court her name was struck off.
5. I have heard Mr. B.K. Das, learned Sr. counsel for the petitioner and Mr. B.K. Goswami, learned counsel for the opp. parties.
6. It may be stated that during the pendency of the present petition there was subsequent change of circumstances and as such an affidavit was filed. A counter to that affidavit has also been filed by the tenant-opp. parties. I shall deal with these affidavits at the appropriate place.
7. According to Mr. Das in view of the subsequent change of circumstances this revisional court can decide the matter finally and pass a decree for ejectment. In this connection, learned counsel has placed reliance in a decision of the apex court in Ramesh Kumar v. Kesho Ram, AIR 1992 SC 700. On the other hand Mr. Goswami has urged that the revisional court may not pass a decree acting as a first appellate court and that apart learned counsel has urged that there was dispute regarding subsequent change of circumstances. Regarding change of circumstances after the decree was passed, in the affidavit filed by the land lord-petitioner it has been alleged that the suit premises has been kept vacant by the tenant as he has taken a separate house on rent from the month of April, 1992 by paying a monthly rent of Rupees 3,500/-. Mr. Das drawing my attention to Clause (5) of the lease agreement entered into by the landlord and the tenant executed on 30th day of October, 1968 has urged that it was agreed to by the parties that no trade or business shall be carried on in the said house and premises and the same shall be used as a private dwelling house only by the opposite party. The said agreement has been marked as Ext. 3 by the learned trial Court. In reply Mr. Goswami has urged that in the counter, circumstances compelling the tenant to vacate the suit premises have been explained. In this connection, learned counsel has urged that in the counter it has been specifically stated that the tenant was forced to leave the house, inasmuch as, supply of electricity and water was disconnected. That apart, according to learned counsel though the tenant has taken a separate house it would not mean that the possession of the suit premises has been given up and as such it cannot be deemed that a lease does not exist between the parties. In other words, according to Mr. Goswami, only because another house was taken on lease it cannot be deemed that the tenant has surrendered possession of the house. Regarding possession, learned counsel has drawn attention to a decision of the apex Court in Smt. Bimala Devi v. 1st Addl. Distt. Judge, AIR 1984 SC 1376 wherein the apex Court held that by the words "possession" and "occupation" mean the same thing and that even keeping the household articles by the owner in a house amounts to occupation. There is no dispute that as the suit house has been locked and as alleged by the tenant in the counter the actual possession of the suit premises is with the tenant.
8. In Ramesh Kumar (AIR 1992 SC 700) (supra) the apex Court held that when subsequent events are pleaded in Court of an appeal or proceedings of revision, the Court may, having regard' to the nature of allegations of fact on which the plea is based, permit evidence to be adduced by means of affidavits and Court may treat any affidavit filed in form of pleadings as one under provisions of Rule (1) Order 19, C.P.C. and call upon the opposite party to traverse it. According to their Lordships if it finds that having regard to the nature of the allegation, it is necessary to record oral evidence tested by oral cross-examination may have recourse to that procedure. It may record the evidence itself or remit the matter for an enquiry and evidence. All these depend upon the factual characteristic of each case. The apex Court also held that Court can take into consideration subsequent events if such events or material are necessary to decide the question in dispute. Thus from the above ratio laid down by the apex Court I am of the opinion that even a revisional Court can give relief in a case provided the subsequent facts are not disputed. In that case before the apex Court I find that there was increase in family members of the landlord and as such the relief was granted. But in the case in hand there was a dispute as to whether the house has actually been vacated or not. I do not want to express any opinion on this point as this has to be decided in the appropriate forum.
9. Coming to the impugned judgment it has been urged by Mr. Goswami that the order of remand was passed on the concession given by the learned counsel for the landlord. To appreciate this point I would like to quote the relevant portion of the judgment.
"The learned counsel for the appellant submitted that although the learned Court below gave its findings particularly on defaulter, bona fide requirement, nuisance, unauthorised construction and dilapidated condition of the suit houses but no issue to those facts were framed. So the learned counsel has challenged the validity of the findings of the learned Court below and submitted that the judgment and decree upon such findings are liable to be set aside. The learned counsel for the respondent conceded that submission."
Therefore, it is difficult for me to accept that contention that concession was only in respect of non-framing of issue and not for validity of the finding of the learned Court below.
10. The suit was filed in the year 1981 and is pending for about decade. The law is well settled that non-framing of issues may not be fatal if both the parties go into trial knowing the case of each other. That being the position I am of the opinion that the learned lower appellate Court, which was the final Court of fact, could have entered into the merit of the case and decided the dispute. Probably it was not done in view of the above concession. But considering the fact that the matter has been pending for a long time, I am of the opinion that if the entire matter is remanded to the trial Court it will take time. Therefore, I remand the case to the learned lower appellate Court to decide the matter. The learned lower appellate Court shall determine the points for determination on the basis of the pleadings as issue No. 4 may be wide enough to decide the present dispute. The learned lower appellate Court may allow the parties to adduce evidence and fix a firm date and on that date if any party fails to produce any witness no time shall be granted and evidence of that party shall be closed and thereafter allow the other party to adduce evidence. If the other party also fails to adduce evidence on that date, 'the evidence of that other party shall also be closed and the matter shall be decided on the basis of the material on record. The Court shall take into consideration, the subsequent events as recorded in this judgment on the basis of affidavit filed by the parties and may allow the parties to adduce evidence on this ppoint. The entire process shall be completed within a period of 2 months and thereafter the judgment shall be delivered within a period of one month. Both the parties are directed to appear before the learned lower appellate Court viz. Addl. District Judge, Gauhati on 5th April for obtaining orders and for fixing a date for evidence. If on that date if any party fails to appear before the Court, the Court shall proceed in absence of that party.
In the result, the petition is allowed by setting aside the impugned judgment and decree. The petition is disposed of with the above direction. No costs.