Gauhati High Court
Ashit Dey Sarkar vs Sunil Kr. Datta on 23 March, 2017
Author: Kalyan Rai Surana
Bench: Kalyan Rai Surana
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)
C.R.P. NO. 381/2011
Sri Ashit Dey Sarkar ... Petitioner
-Vs-
Sri Sunil Kumar Dutta ... Respondent
For the petitioner: Mrs. R. Choudhury,
Ms. A. Begum, Advs.
For the respondent: Mr. S. Dutta, Sr. Adv.
Mr. C. Sarma,Advs.
BEFORE
HON'BLE MR. JUSTICE KALYAN RAI SURANA
Date of hearing : 14-03-2017
Date of Judgment : 23-03-2017
JUDGMENT & ORDER (CAV)
Heard Mrs. R. Choudhury, the learned counsel for the petitioner and Mr. S. Dutta, the learned senior counsel for the respondent.
By filing this revision under section 115 of the Civil Procedure Code, the petitioner has assailed the first appellate judgment and decree dated 12.07.2011 passed by the learned Civil Judge No.1, Cachar, Silchar, in Title Appeal No. 44/2009, thereby dismissing the appeal filed by the petitioner and upholding the judgment and decree dated 17.08.2009 passed by the learned Munsiff No.1, Cachar, Silchar, in Title Suit No. 135/2007, filed for ejection of the petitioner as the tenant-defendant and for recovery of arrear rent.
CRP No.381/2011 Page 1 of 62) The case of the respondent in the suit was that the petitioner took the suit room morefully described in the plaint from the respondent on rent for doing business, for which a 'bharanama' dated 22.12.1994 was executed between the parties. The tenancy commenced from 01.01.2005 to 31.12.2009 and the monthly rent was fixed at Rs.600/- per month, payable on or before 5th of the following English calendar month. An advance rent of Rs.40,000/- was given to the respondent, out of which Rs.300/- was to be paid in cash and Rs.300/- was to be adjusted against advance rent. After expiry of the term of the said agreement, the petitioner did not come for execution of a fresh agreement, nor delivered the possession of the suit room to the plaintiff despite demand. The monthly rent was paid by the petitioner upto December, 2000 against receipt. However, no monthly rent was paid thereafter and, as such, the petitioner became a defaulter. The monthly rent was thereafter fully adjusted against the balance advance rent and, as such, from January, 2003 to June, 2007 a sum of Rs.32,000/- had accumulated as arrear monthly rent recoverable from the petitioner @ Rs.600/- per month for 53 months plus Rs.200/- being the outstanding amount after adjustment of advance rent with the monthly rent payable for the month of January, 2003. It was also projected that the respondent required the suit room bona fide for extension of his pharmacy under the name and style of M/s. Suruchi Medicos.
3) The petitioner contested the suit by filing his written statement took three self-contradictory stands in paragraph 13 and 14 thereof and took another diametrically opposite stand in paragraph 17 of his written statement. In paragraph 13 and 14, on one hand, it was denied that the advance rent was not fully adjusted against monthly rent before January, 2003 and on the other hand, it was claimed that even after January, 2003 advance rent had remained unadjusted against the monthly rent and on yet another hand, it was denied that no arrear rent of Rs.32,000/- is due from January, 2000 to June, 2007 @ Rs.600/- per month for 53 months plus Rs.200/- being outstanding after adjustment of advance amount with the rent of January, 2003 and the respondent herein is not entitled to realize the said amount of Rs.32,000/- from the petitioner herein through court. In paragraph 17 it was submitted that the petitioner never stopped payment of monthly rent on and from January, 2003 and the respondent realized Rs.300/- per month against advance rent of Rs.40,000/- even after expiry of period of agreement. In paragraph 18 and CRP No.381/2011 Page 2 of 6 19 of the written statement it was sated that respondent realized rent till June, 2007 and the rent for the month of July, 2007 was deposited in court vide Misc. (R/C) Case No. 422/07 after respondent refused to accept rent.
4) The learned counsel for the petitioner has submitted that it is permissible to take contradictory pleadings in written statement. She further argued that nevertheless, in his Evidence-on- affidavit, the petitioner has stated that the respondent issued rent receipt upto the month of December, 1999. Thereafter, in the month of January, 2000, the respondent assured that he would not demand for khas possession of the suit room till the advance rent would be fully adjusted against the monthly rent @ Rs.600/- per month, as such, he paid rent upto the month of December, 2000. It was stated that the advance rent of Rs.40,000/- has not been fully adjusted against monthly rent before January, 2003 and it remains to be adjusticed even after January, 2003. He further stated that he paid monthly rent upto June, 2007 without insisting on printed receipts. Hence, he was not a defaulter.
5) As stated above, the stand taken by the petitioner is self-
contradictory. However, let it be assumed that out of advance rent of Rs.40,000/-, a sum of Rs.300/- is to be adjusted against advance. Then to adjust the advance of Rs.40,000/- it would require 133.33 months to clear the advance [to round up, it would be Rs.300/- X 133 months (or 11 year 1 month) = Rs.39,900/-]. Thus, in other words, as tenancy was created from January, 1995, the 11 year 1 month would expire in January, 2006. Hence, full rent would become payable from the month of February, 2006. However, as per the admission of the petitioner, he started to deposit full monthly rent in court on and from July, 2007 and, as such, even as per the calculation shown by the petitioner, he is a defaulter in payment of monthly rent from February, 2006. Nonetheless, in the present case in hand, the petitioner has not been able to show any materials to enable this court to disbelieve the concurrent findings of facts by both the learned courts below. Hence, the decree for Rs.32,000/- as arrear monthly rent from the month of January, 2003 to June, 2007, as passed by the learned Trial Court is upheld.
6) That apart, in his cross examination, the Petitioner, who was examined as DW-1, categorically admitted that he did not submit any documents in CRP No.381/2011 Page 3 of 6 court that he had paid rent to the respondent after the year 2000. He stated that he did not remember when advance money of Rs.40,000/- had been fully adjusted. He admitted that there is no statement that he offered rent to the respondent and the respondent refused the same. He also admitted that Suruchi Medicos shop of the respondent is situated in the western side of the suit room and there are huge customers in the shop. He also stated that he started to deposit rent in court after institution of the suit. Hence, from the cross examination of the petitioner, it has been proved that the petitioner does not know when his advance rent would become fully adjusted. Moreover, it has been established that the deposit of rent in court was not made in accordance with the provisions of section 5(4) of the Assam Rent Control Act, 1972, which mandates the tenant to first tender or offer rent to the landlord on month to month basis and only on refusal of the landlord to accept the same, can the tenant deposit rent in court. The monthly rent having not been tendered to the respondent- landlord, the petitioner has become a defaulter under the said Act and is liable to be evicted. It has further been proved that the respondent bona fide needs the suit room to expand his business.
7) The learned trial court had framed as many as 6 issues in trial, out of which the relevant issues were issues No.4 and 5. Issue No.4 was whether the petitioner herein was a defaulter and in respect of the said issue it was held that the petitioner could not prove that he was not a defaulter. Hence, the said issue No.4 was decided in the affirmative and decided against the petitioner. Issue No.5 framed in the suit was whether the suit premises was bona fide required by the respondent and in this regard, it was held after discussing the decision of the Hon'ble Supreme Court of India in Ragavendra Kumar V. Firm Prem Machinery & Co., (2000) 1 SCC 679, that it is the settled position of law that the landlord is the best judge of his requirement for residential or business purpose and he has got complete freedom in the matter and accordingly, it was held that the respondent herein bonafide required the suit room and the issue was decided in the negative and in favour of the respondent. The first appellate court while approving the judgment and decree passed by the learned trial court painstakingly re-appreciated the entire evidence of the parties and arrived at an independent conclusion that the petitioner herein was a defaulter and the respondent bona fide required the suit premises.
CRP No.381/2011 Page 4 of 68) Having arrived at the aforesaid findings, it is impossible for this court to interfere with the concurrent finding of (i) bona fide requirement of suit room by the respondent, and (ii) the petitioner being a defaulter in paying monthly rent to the respondent, as those findings are based on evidence as well as the admission by the petitioner in course of his cross examination. Even, in the pleadings made in the written statement, as mentioned herein before, the petitioner has admitted himself to be a defaulter. It is seen that both the trial courts and the first appellate courts have independently evaluated the evidence on record and arrived at a same conclusion. This court has also arrived at the same conclusion that the petitioner could not disprove that he was a defaulter in paying the agreed monthly rent to the respondent and it was duly proved in course of trial that the respondent had bona fide requirement of the suit room to extend his pharmacy business.
9) Resultantly, the revision is found to be devoid of any merit and, as such, the same is dismissed.
10) As an alternative prayer, the learned counsel for the petitioner had submitted that the petitioner is a poor person and his livelihood and well-being of his family and employees are dependent on the income derived out of his small business being carried out from the suit room and, as such, prays to grant at least 2 years time to the petitioner to make alternative arrangement. However, as the present suit is of the year 2007 and more than 10 years has passed by this three stages of prolonged litigation and, as such, this court is inclined to give time to the petitioner to vacate the suit room and to hand over vacant, khas and peaceful possession of the suit room to the respondent within a period of 3 months from today ending on 30.06.2017, failing which the respondent shall become entitled to execute the decree as passed by the learned trial court and upheld by the first appellate court and sustained in revision by this court. However, as a precondition to continue to use the tenanted suit rooms for the said 3 (three) months upto 30.06.2017, as allowed by this court, the petitioner shall tender monthly rent for the said period within 30th day of each current month against receipt. It is clarified that issuance of money receipt in terms of this judgment and order by the respondent would not cause any prejudice whatsoever to the right to evict the appellant in terms of the decree, which has CRP No.381/2011 Page 5 of 6 already accrued in favour of the respondent as it would not be deemed to constitute a fresh tenancy in favour of the petitioner.
11) As indicted above, this revision is dismissed and the first appellate judgment and decree dated 12.07.2011 passed by the learned Civil Judge No.1, Cachar, Silchar, in Title Appeal No. 44/2009, as well as the judgment and decree dated 17.08.2009 passed by the learned Munsiff No.1, Cachar, Silchar, in Title Suit No. 135/2007 are both upheld. The parties are left to bear the cost of this revision.
JUDGE MKS CRP No.381/2011 Page 6 of 6