Gauhati High Court
On The Death Of Nopatrai Khemka His Legal ... vs Sabitri Devi Kejriwal & Anr on 21 April, 2016
Author: N. Chaudhury
Bench: N. Chaudhury
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
PRINCIPAL SEAT AT GUWAHATI
(CIVIL REVISIONAL JURISDICTION)
CRP No. 342 of 2008
On the death of Nopatrai Khemka
his legal heirs, Sushila Devi Khemka (wife)
and others.
... ... ... Petitioners
-Versus-
Smt. Sabitri Devi Kejriwal & another
... ... ... Opposite parties.
BEFORE
HON'BLE MR. JUSTICE N. CHAUDHURY
For the petitioners : Mr. M. Z. Ahmed, Sr. Advocate.
Mrs. B. Dutta, Advocate.
Mr. A. Dutta, Advocate.
Mr. D. Choudhury, Advocate.
For the Opp. parties : Mr. G. N. Sahewalla, Sr. Advocate.
Ms. B. Sarma, Advocate.
Ms. R. Jain, Advocate.
Dates of hearing : 20.04.2016 & 21.04.2016.
Date of Judgment : 21.04.2016.
JUDGMENT & ORDER (Oral)
1. In this revision petition preferred by tenants the concurrent
findings of learned two courts below have been challenged. The
eviction suit filed by the landlord was decreed by the learned trial
Page 1 of 26
court by judgment and decree dated 13.12.2006 in Title Suit
No.70/2002 and Title Appeal No.4/2007 filed there against by the
tenants was dismissed by the learned First Appellate Court on
16.07.2008.
2. It is necessary to narrate the brief facts as pleaded by the
parties in the present proceeding. The plaintiffs, namely, Smti. Savitri
Devi Kejriwal and Smti. Gita Devi Thard, instituted Title Suit
No.70/2002 in the court of learned Civil Judge (Junior Division) No.1
at Dibrugarh against as many as 13 defendants out of which 12 are
principal defendants and one is proforma defendant. It is stated in
the body of the plaint that Late Madanlal Khemka being Karta of
M/s Nopatrai Ramavatar, a Hindu Undivided Family, came to
occupy the suit premises under the proforma defendant No.13 as a
tenant agreeing to pay Rs.130/- per month at the end of each
month as per English calendar and also agreeing to pay the
municipal taxes regularly. Upon death of Madanlal Khemka
tenancy devolved on his legal heirs. On the death of his two
daughters, namely, Maina Devi and Kanta Devi her tenancy rights
devolved on the defendant Nos.5 and 6 and 7 to 10. Wife of
Madanlal Khemka thereafter died and thus the sons and the legal
heirs of the daughters were the tenants. The proforma defendant
No.13 executed a registered sale deed dated 01.06.1978 in favour
of the plaintiffs and thus the present plaintiffs stepped into the shoe
Page 2 of 26
of the landlord as against the principal defendants but they did not
attorn the plaintiffs and did not pay rent since the month of June,
1978 even after being communicated about the same. The
proforma defendant by his letter dated 11.09.1978 informed the
defendant No.1 about the transfer of title of the suit premises and
thereby requested him to attorn the plaintiffs as their landlords. The
plaintiffs thereafter by executing a registered general power of
attorney on 14.06.1979 appointed Sri Bajrang Lal Kejriwal as
constituted attorney. This constituted attorney is none other than the
husband of the plaintiff No.1 and younger brother of plaintiff No.2.
The attorney was authorized to do all acts, deeds, things and
matters in respect of the suit premises in their name and on behalf
of plaintiffs. A copy of the general power of attorney was also
annexed to the plaint as document No.1. The plaintiffs further
stated that the defendants though have been using and enjoying
the suit premises without paying rent to the plaintiffs since the month
of June, 1978, they had become defaulter and are liable to be
evicted from the suit premises. Besides, the suit premises is also
required bona fide for the following four reasons :-
(a) the husband of the plaintiff No.1, who has been
suffering from osteoarthritis and being under treatment
of Dr. Bipul Borthakur, has difficulty to attend his
chamber at the first floor of the building for which he
Page 3 of 26
wanted to shift to the ground floor but there was no
space in the ground floor unless the eviction is made;
(b) Sri Ramesh Kejriwal, son of the plaintiff No.1 has been
doing the business under the name and style of M/s
Sabitri Drugs in a rental house and he has been served
with eviction notice by the landlord and so he is also
required to be accommodated at the ground floor;
(c) another son of the plaintiff No.1, Kamal Kejriwal, does
not have any formal business of his own and so he is
also in need of being accommodated for the purpose
of running the business; and
(d) lastly, there is lack of sufficient space in the present
residence of the plaintiff No.1 and the two would be
daughters-in-law.
The further allegation is that although under the terms of the
tenancy the defendants were liable to pay municipal taxes of the
suit premises but since the year 1982-83 they have failed to do so for
which the plaintiffs were compelled to make payment of the entire
municipal taxes. Apart from that, the defendants also illegally and
unauthorisedly made conversion of the suit premises by covering
front verandah and otherwise damaging the suit premises. The
plaintiffs, therefore, served notice on the defendants through their
learned counsel but the defendants did not pay any heed to it for
which the suit had to be instituted not only for recovery of khas
Page 4 of 26
possession of the suit premises by evicting the defendants and their
dependants and others but also for recovery of Rs.5580/- as arrear
rent in addition to pendentelite and future compensation at the
rate of Rs.50/- per day since 19.08.2002 till the eviction.
3. On being summoned, the defendant Nos.1 to 4 appeared
and submitted written statement denying the allegations levelled in
the plaint but tenancy under Late Madanlal Khemka was admitted.
However, it was stated that M/s Brahmadutt Gajanand, a Hindu
Undivided Family (hereinafter for short HUF), came to occupy the
premises when it was owned by M/S Rampatdas Rameswar at an
annual rent of Rs.130/- sometimes in the year 1943. Subsequently, in
the year 1946 Madanlal Khemka separated from the HUF and he
constituted his own HUF as Brahmadutt Madanlal which was
subsequently renamed as M/s Nopatrai Ramavatar for
convenience. The family of Madanlal Khemka retained the HUF of
Brahmadutt Gajanand which was subsequently renamed as M/S
Khemka Brothers and following separation of their business both
Nopatrai Ramavatar and Khemka Brothers amicably shared the
tenanted premises between them but the tenants paid rents jointly
to the then landlord. In the meantime, the HUF of Rampatdas
Rameswar was also dissolved and some of their members
constituted M/s Bhagwandas Deokinandan. The aforesaid tenanted
premises came under the ownership of the members of M/s
Page 5 of 26
Bhagwandas Deokinandan. In the year 1962 Bhagwandas
Deokinandan through Mrs. Gangabai executed a deed of
exchange and a sale deed thereby transferring the southern part of
the said tenanted premises to M/S Khemka Brothers by partitioning
the tenanted premises and this is how it came under the exclusive
possession of Khemka Brothers. Of course, the northern part of the
premises remained under exclusive possession of M/S Nopatrai
Ramavatar. Thereafter, as per the fresh arrangement, M/s Nopatrai
Ramavatar continued to pay a monthly rent of Rs.75/- to the said
landlord who used to collect rent sometimes monthly and
sometimes for a few months together as per their convenience
through one of their Munibs and the landlord used to issue receipts
thereafter. The monthly rent was subsequently enhanced to Rs.130/-
from April, 1976. After death of Madanlal Khemka, the answering
defendants succeeded to the properties of the said firm. However,
the defendants No.11 and 12, who were married away to different
families, did not have any subsisting interest in the tenanted
premises after their marriage. Defendants, however, admitted that
in the year 1977 the defendants No.1 and 2 received registered
letter dated 09.06.1977 issued by Deokinandan Agarwalla falsely
incorporating himself as the karta of the firm M/s Bhagawandas
Deokinandan informing that he intended to sell the tenanted
premises within a week against cash payment and very vaguely
asked the defendants to quote their offer and to pay the amount at
Page 6 of 26
a time within a week if accepted. However, by the time the letter
was received, the stipulated period has been over and thereafter
the defendants approached Shri Bhagwandas Agarwalla who
pleaded ignorance of the letter. The defendants, therefore,
became suspicious about possible foul play of the landlord and
hence, they started voluntarily tendering rent which were received
by Shri Deokinandan Agarwalla till May, 1978 but receipts were not
given on various pleas. But when rent for the month of June, 1978
was tendered in the early part of July, 1978, the same was tactfully
avoided by the landlord and under such circumstances the rent
was deposited in court. Even thereafter, in the beginning of the
month of August and September, 1978, defendant No.1 similarly
tendered rent but the same was refused by the landlord. Being
compelled the defendant No.1 had to deposit the rent in court. By
the middle of September, 1978 the defendant No.1 came to know,
for the first time, from the letter dated 11.09.1978 issued by the
landlord that the suit premises had already been sold to the
plaintiffs in the month of June, 1978 itself. It was falsely claimed in
the said letter that the defendants were in arrear of rents. The
defendants were verbally requested to attorn the plaintiffs as their
landlord. The answering defendants sent a reply on 26.09.1978
refusing the allegations and furnished the details of deposit of rents
in court and they intimated that they had already attorned the
plaintiffs as their landlord.
Page 7 of 26
4. Coming to the question of default, the defendants pleaded
that the plaintiffs became entitled to monthly rent only since June,
1978. The earlier landlord entered into collusion with the plaintiffs
and refused to receive the rent due for June, 1978 compelling the
defendants to deposit the same in court and so they are not
defaulters. The defendants denied the bona fide requirement and
liability to pay municipal taxes. With these averments the
defendants prayed that the suit of the plaintiffs be dismissed with a
cost of Rs.5000/-.
5. The learned trial court after consideration of the aforesaid
pleadings of the parties framed as many as nine issues which are
quoted below :-
"1. Whether the suit is maintainable in law and facts?
2. Whether the suit is barred by limitation?
3. Whether the suit is bad for misjoinder and non-joinder of
necessary parties?
4. Whether the plaintiffs have right to sue?
5. Whether the defendants are the monthly tenants under
the plaintiffs?
6. Whether the defendants are defaulters in payments of
rent and violated the terms of tenancy?
7. Whether the suit premises is bonafide required by the
plaintiffs?
8. Whether the plaintiffs are entitled for the decree as
prayed for?
9. To what relief/reliefs, the parties are entitled to ?"
Page 8 of 26
6. In course of trial plaintiffs examined two witnesses, viz., Shri B.
L. Kejriwal (PW 1) and Shri K. L. Kejriwal (PW 2). The defendants, on
the other hand, examined Shri Ramavatar Khemka as DW 1.
Plaintiffs adduced as many as 60 documents which are numbered
as Exts-1 to 60 and the defendants exhibited as many as 125
documents numbered as Exts- 1 to 125. The learned trial court
decreed the suit by his judgment and decree dated 13.12.2006
deciding all the issues in favour of the plaintiffs. Issue No.1 was in
regard to maintainability. The learned trial court held that PW 1 who
was the constituted attorney of the plaintiffs was really husband of
the plaintiff No.1 and younger brother of the plaintiff No.2. He acted
on behalf of the plaintiff No.1, his wife, and so in view of the
provision of Section 120 of the Indian Evidence Act no presumption
under Section 114(g) of the Evidence Act could be taken up for
non-examination of the plaintiff No.1. He was an Advocate by
profession and constituted attorney of plaintiff No.1 apart from
being her husband and so there was no defect insofar as
maintainability of the suit is concerned. Accordingly, Issue No.1 was
decided in favour of the plaintiff.
7. Issue No.6 was in regard to default. The learned trial court
found after perusal of Ext-21 (letter dated 09.06.1977) that the
defendants voluntarily started tendering rent monthly which were
received by Shri Deokinandan Agarwal till May, 1978 but receipts
Page 9 of 26
were not given on various pleas but when the landlord avoided to
receive rent due for June, sometime in early part of July, 1978, the
defendants claimed to have suspected foul play. Holding that it
was a month to month tenancy the learned trial court further held
on perusal of Exts-35 to 47, 49, 50, 53 and 54 that there was no
mention of offering of rent to the plaintiffs and their subsequent
refusal to accept. However, in Exts-48 and 55 such statement as to
offer and refusal was there. Perusing Exts-59 of the plaintiffs and Ext-
29 of the defendants the learned trial court held that rents were
deposited in court in the joint name of the previous landlord as well
as the present landlord and thereupon relying on the judgment of
this Court in the case of Roy & Company vs. Basanti Devi Somani
reported in 2005 (1) GLJ 417, the learned trial court held that such
deposit of rent was not valid. Ultimately, noticing that defendants
failed to pay process fee along with the rent in Misc. N.J. Cases vide
Exts- 35(a), 40(a), 41(a), 42(a), 43(a), 44(a), 45(a), 46(a), 47(a), 48(a)
and 49(a) the learned trial court held that all these rent deposits
were not valid for non-payment of process fee. Moreover, DW 1
admitted in his cross-examination that wrong address of landlord
was mentioned in rent deposit cases vide Exts-50, 51 and 52. With
these findings the learned trial court held the defendants to be
defaulters.
8. Bona fide requirement of the plaintiffs were decided under
Issue No.7 by the learned trial court in favour of the plaintiffs. It was
Page 10 of 26
observed that PWs 1 and 2 duly corroborated the pleaded case of
the plaintiffs that husband of the plaintiff No.1 was suffering from
osteoarthritis and he was under treatment of Dr. Bipul Barthakur who
had advised him to avoid staircase. His residence and chamber is in
the first floor and he wanted to shift in the ground floor but there
was no space. The defendants No.1 to 4 denied the plea of bona
fide requirement in the written statement but in view of
documentary evidence like Exts- 31, 32, 33 and 34 the medical
condition of the husband of the plaintiff No.1 was established.
Having gone through various judgments of this High Court as well as
the Hon'ble Supreme Court in regard to the law of bona fide
requirement the learned trial court ultimately decided the Issue No.7
in favour of the plaintiffs. Thus, having found both the grounds of
default and bona fide requirement in favour of the
landlord/plaintiffs, the suit for eviction was decreed along with a
decree for recovery of Rs.5580/- on account of arrear rent. The plea
of the plaintiffs for compensation at the rate of Rs.50/- per day since
19.08.2002 was not decreed by the learned trial court.
9. The aforesaid judgment and decree dated 13.12.2006 was
challenged before the learned Civil Judge at Dibrugarh in Title
Appeal No.4/2007. The learned First Appellate Court, though did not
frame any point for determination, proceeded to decide the issues
afresh on the basis of the materials available on record. The learned
Page 11 of 26
First Appellate Court upheld the findings of the learned trial court in
regard to Issues No.1, 6 and 7. Considering the judgment of the
Hon'ble Supreme Court in the case of Janki Vashdeo Bhojwani and
another vs. Indusind Bank Ltd. and others, reported in (2005) 2 SCC
217 and the judgment of the Bombay High Court in the case of Oil
and Natural Gas Commission vs. Off Shore Enterprises Inc, reported
in AIR 1993 Bombay 217 the learned First Appellate Court upheld
the decision of the learned trial court holding that a constituted
attorney can depose as a witness in regard to the matters where he
has personal knowledge. The PW 1 being a blood relation of plaintiff
No.2 and husband of plaintiff No.1 his deposition cannot be ignored
although he is a constituted power of attorney. Accordingly, the
inference was drawn that learned Munsiff No.2 had correctly
decided Issue No.1 in favour of the plaintiffs. Apart from deciding in
favour of the plaintiffs, the learned First Appellate Court held that
there was landlord and tenant relationship between the plaintiffs
and the defendants and that the defendants were defaulters in
payment of rent since June, 1978. DW 1 clearly stated in his
evidence that they did not pay rent in respect of the premises to
the plaintiffs since the month of June, 1978. He admitted that they
had paid rent for September, 1978 in the joint names of the previous
landlord and the present landlord and on several occasions they
had paid rent in advance. The learned First Appellate Court
perused Exts-35 to 47, 49, 50, 53 and 54 and held that nowhere in
Page 12 of 26
these documents there was any mention as to offer of rent and
refusal by landlord and the same was admitted by the DW 1 in
course of his cross-examination. With these findings it was held that
since the defendants were not paying rent and were found to be
defaulters in respect of the suit premises from the month of June,
1978 the learned trial court did not commit any error in holding
them as defaulters.
10. Issue No.7 was also independently considered by the learned
First Appellate Court and considering the Exts-31 to 34 in addition to
the oral evidence of PWs 1 and 2 it was held that the plaintiffs bona
fide required the suit premises for their own use and occupation.
Thus, having found that there is subsisting landlord and tenant
relationship between the parties and that defendants were
defaulters in payment of rent since June, 1978 and also that the suit
premises were required bona fide by the plaintiffs the learned First
Appellate Court dismissed the first appeal by his judgment and
decree dated 16.07.2008 and thereby upheld and confirmed the
judgment and decree of eviction of the learned trial court.
11. The aforesaid two judgments and decrees have been
brought under challenge in the present revision petition. According
to the revision petitioners, the power of attorney holder could not
have appeared to adduce evidence on behalf of the plaintiffs. He
violated the provision of Section 4 of the Indian Bar Council Act,
Page 13 of 26
1926, as he is a lawyer himself. The plaintiffs thus not having stepped
into the witness box to state their own case presumption ought to
have been taken by the learned courts below against the plaintiffs
and after all a constituted attorney cannot depose instead of
plaintiffs/principal. The learned courts below committed error in not
rejecting the plaint on the ground of non-joinder, misjoinder etc.
Transfer of property made by Deokinandan Agarwalla in favour of
the plaintiffs was not a due and proper one and all the members of
the HUF have right, title and interest with respect to the suit property.
A challenge has also been made that the findings in regard to
default and bonafide requirement are not valid and correct.
12. I have heard Mr. M. Z. Ahmed, learned senior counsel assisted
by Mr. D. Choudhury and Mr. A. M. Dutta, learned counsel
appearing for the petitioners and Mr. G. N. Sahewalla, learned
senior counsel assisted by Ms. R. Jain, learned counsel appearing for
the respondents. I have perused the pleadings of the parties and
the evidence led by them, both oral and documentary. I have particularly perused the exhibits which are mentioned in both the judgments of the learned courts below.
13. Mr. M. Z. Ahmed, learned senior counsel for the petitioners, vehemently argued that PW 1 is an advocate by profession. He not only acted as an advocate in this case but he has also discharged the dual functions as a constituted attorney of the plaintiffs. He Page 14 of 26 being husband of plaintiff No.1 and younger brother of plaintiff No.2 could not have accepted the brief and conducted the case as a lawyer which is in violation of the provisions of the Bar Council Rules. The suit, therefore, ought to have been dismissed at the threshold. If the suit itself is not maintainable, in that event, there is no question of deciding the issues on bona fide requirement and so both the judgments and decrees passed by the learned courts below are liable to be set aside and the suit is liable to be dismissed. However, the learned senior counsel could not put forward any convincing argument against the concurrent findings of the learned courts below in regard to issues on bona fide requirement and default. Exts-35 to 40 were brought to the notice of the learned senior counsel to show that in all these rent deposit cases the defendants did not pay process fee for which the rent deposit cases were dismissed. Under such circumstances, deposits vide these exhibits were no deposit of rent within the meaning of Section 5(4) of the Assam Urban Areas Rent Control Act, 1972. These questions appear to have been posed to the DW 1 in the course of his cross- examination and he candidly admitted the facts that the rent deposit cases were dismissed for non-taking of steps. Thus, even from the argument of the learned senior counsel appearing for the petitioners, it is clear that the findings in regard to default could not be anyway shown to be perverse or untenable. Similarly, the findings in regard to bona fide requirement are also not only based Page 15 of 26 on documentary evidence like medical certificate, prescriptions etc. as well as oral evidence and so the learned senior counsel could not explain as to how the findings of the learned courts below in regard to the issue of bona fide requirement can be held as perverse or untenable.
14. Per contra, Mr. G. N. Sahewalla, learned senior counsel appearing for the opposite parties, strongly urged that the PW 1, the constituted attorney, is the husband of plaintiff No.1. Plaintiff No.2, on the other hand, is the elder sister of the constituted attorney and so this constituted attorney deposed as PW 1 in regard to the facts within his knowledge. A constituted attorney can very well depose in court so as to prove the facts which are in his personal knowledge. Here, in the present case, the PW 1 may be a lawyer but at the same time he is the husband of PW 1 and he has every liability and responsibility to discharge as a husband of PW 1. This he did by participating in the proceeding and deposing as a witness. He has not committed any misconduct under the Advocates Act or the Bar Council Rules and even if there is any such misconduct that cannot be subject matter of the present proceeding and can only be adjudicated by appropriate forum in appropriate proceedings. In the case in hand, it is to be decided as to whether there is landlord and tenant relationship between the parties and whether the tenants have defaulted in payment of rent and that the Page 16 of 26 landlord required the premises bonafide. Relying on the judgment of this Court in the case of Samiran Paul vs. Anubha Banik and others, reported in 2007 (4) GLT 484, the learned senior counsel has argued that the rent deposit cases having been dismissed the defendants automatically became defaulter as their deposits became invalid and under such circumstances the learned courts below has not committed any error in adjudicating the tenants as defaulters. There is ample evidence on record to show that the plaintiffs bona fide required the suit premises. He has drawn the attention of the Court to the medical certificate, prescriptions and other documents in addition to the oral statement of PWs 1 and 2 to show that the PW 2 being son of PW 1 required the premises for his business purpose. Similarly, PW 1 himself required the ground floor for running his chamber as he is under medical advice to avoid staircase. With these arguments Mr. Sahewalla prayed that the revision petition be dismissed in entirety.
15. The submission in regard to maintainability of the suit has been made on the ground that PW 1 is an advocate by profession. He is bound by the provisions of the Advocates Act and the Bar Council Rules. He could not have accepted the brief on behalf of his wife and his sister and at best he could have become a witness on their behalf or their constituted attorney. Whether the PW 1 committed any professional misconduct cannot be subject matter Page 17 of 26 before a civil court particularly when it is in regard to eviction of a tenant. An eviction suit under Section 5 of the Assam Urban Areas Rent Control Act, 1972 is to be decided on the basis of the provisions of Section 5 of the said Act only. The section provides that so long as the tenant continues to pay rent he cannot be evicted by passing a decree of eviction and such a decree can be passed only if the preconditions like default in payment of rent, bonafide requirement, violation of the terms of tenancy, sub-letting etc. are made out. In the case in hand, the plaintiffs pleaded that the defendants did not pay rent since June, 1978 and the suit premises were bonafide required by the plaintiffs for their own use. Logically, it was required for the court below to decide as to whether there was landlord and tenant relationship between the parties and if so whether the tenants defaulted in payment of rent as alleged in the body of the plaint and whether the suit premises were required bonafide by the plaintiffs. In so doing the learned trial court was required to consider the pleadings of the parties and the evidence brought on record by them. The issue as to whether there was professional misconduct on the part of the PW 1 was never an issue before the learned courts below and even if it is presumed that PW 1 being an Advocate committed error in accepting the brief, in that case also the suit of the plaintiff cannot be thrown away on that ground. The learned courts below considered the judgment of the Hon'ble Supreme Court in the case of Janki Vashdeo Bhojwani Page 18 of 26 (supra) where it has been held that under Order III Rule 1 and 2 of the Code of Civil Procedure the holder of a power of attorney is empowered to act on behalf of the principal and these acts are confined to only in respect of acts done by the power of attorney holder in exercise of power granted by the instrument. If the power of attorney holder has rendered some acts in pursuance of power of attorney he may depose for the principal in respect of such acts but he cannot depose for the principal for the acts done by the principal and not by him. Similarly, he can depose on behalf of the principal for which he has personal knowledge and if it is the principal who has personal knowledge then the principal has to be examined in respect of such subject matter as the principal alone can be cross-examined on the personal knowledge. Therefore, it appears that the constituted attorney is not totally and absolutely debarred from deposing in court on behalf of the principal. Here, in the present case, vide Ext-1 the plaintiffs authorized the PW 1 to take all necessary actions to recover khas and vacant possession of the suit properties and to recover all arrear rents and compensation. He has been authorized to initiate ejectment proceeding and to execute the decree and to take delivery of khas possession on their behalf. The deed of general power of attorney has been exhibited in original and the contents thereof have been proved by examining the PW 1. There is no doubt that PW 1 was authorized by both the plaintiffs to institute the proceeding and to do all acts Page 19 of 26 which are necessary for getting the decree of eviction against the defendants and also to execute the decree thereafter. Institution of the suit by the power of attorney holder, therefore, cannot be said to be illegal or untenable.
16. From the deposition of DW 1 and more particularly the finding of the learned trial court that on receipt of letter dated 11.09.1978 the defendants met Shri B. L. Kejriwal, the attorney of the plaintiffs, to tender the rent for the month of September, 1978 and he refused to accept the rent whereupon the rent was deposited in court, it is clear that PW 1, Shri B. L. Kejriwal, was personally involved in the matter. Deposition of DW 1 shows that it is this PW 1 who was approached by the defendants attorning as landlord and also offering rent. The defendants on their own showing established that PW 1 being husband of the plaintiff No.1 was the de facto landlord. The definition of landlord under Section 2(c) of the Assam Urban Areas Rent Control Act, 1972 is wide. It means that landlord is not only the owner of the property but also any person who is for the time being receiving or entitled to receive rent. Section 2(c) of Assam Urban Areas Rent Control Act, 1972 is quoted herein below for ready reference.
"2. Definitions.-- In this Act, unless there is anything repugnant in the subject or context --
(c) "landlord" means any person who is, for the time being receiving or entitled to receive rent in respect of Page 20 of 26 any house whether on his own account, or on account, or on behalf, or for the benefit of any other person, or as a trustee, guardian or receiver for any other person;
and includes in respect of his sub-tenant, a tenant who has sub-let any house and includes every person not being a tenant who from time to time derives title under a landlord;"
17. Besides the definition clause, the defendants themselves having stated that they contacted this PW 1 for the purpose of offering rent, they cannot turn around and say that PW 1 does not have any personal knowledge. PW 1 had personal knowledge about the tenancy, offering of rent and refusal of the rent and when an allegation has been made that it is this PW 1 who has refused to accept rent on being tendered, it cannot be said that PW 1 could not have been examined as witness in the present case. The PW 1 being the de facto landlord and being the man responsible for maintaining the tenancy, for realization of rent and for institution of suit for recovery of khas possession has locus standi and has personal knowledge about the matters and so his deposition cannot be brushed aside by saying that he is merely a constituted attorney. Here, in this case, plaintiffs are house wives. Plaintiff No.1 is the wife of the PW 1 and PW 1 used to look after the tenancy on behalf of his wife. This being an admitted fact deposition of PW 1 cannot be ignored. The learned courts below considered this factual aspect of the matter and by taking a Page 21 of 26 pragmatic view held that the suit instituted by PW 1 on behalf of the plaintiffs on the basis of the general power of attorney was maintainable. The concurrent findings of the learned courts below on Issue No.1, therefore, do not require any interference as there is no perversity or illegality therein.
18. Coming to the question of jurisdictional facts like default by the tenant, as has been pointed out above, the defendants pleaded and sought to prove that they continued depositing rent in court after refusal by the landlord. Though the learned trial court has pointed out from perusal of Exts-35 to 47, 49, 50, 53 and 54 that in these rent deposit cases the defendants did not claim to have offered rent to the landlord and did not allege that the landlord had refused to accept the rent thereupon, having perused these exhibits the finding of the learned trial court is found to be correct. A mere deposit of rent in court would not be a valid deposit unless the conditions precedent enumerated in Section 5(4) of the Assam Urban Areas Rent Control Act, 1972 are satisfied. These requirements are as follows :-
(i) The tenant has to offer the rent to the landlord before deposit;
(ii) Upon such offer, landlord has to refuse to accept the rent;Page 22 of 26
(iii) The tenant thereafter has to make the deposit in court within a fortnight of its falling due; and
(iv) Such deposit has to be of the entire amount of the rent along with process fee for the purpose of service of notice upon the landlord.
In a case, therefore, where the defendant takes the plea that he is not a defaulter because he has been depositing rent in court under Section 5(4) of the Act, in that event, burden falls heavily on such defendant to plead and establish all the aforesaid conditions precedent. If any of these conditions precedent is not pleaded and established, in that event, deposit will not be a valid deposit and the tenant will not get the benefit of Section 5(4) of the Act so as to avoid the rigour of default under Section 5 of the Act. In Exts-35 to 47, 49, 50, 53 and 54 the defendants admittedly failed to make necessary pleadings in regard to the first two conditions precedent enumerated herein above. I have perused Exts- 35(a), 40(a), 41(a), 42(a), 43(a), 44(a), 45(a), 46(a), 47(a), 48(a) and 49(a) and found that all these rent deposit cases were dismissed for default by the court as the tenant did not take steps for issuance of notice. As pointed out above, mere deposit of rent is not valid deposit unless process fee is paid along with it. The process fee is required because otherwise notice cannot be served on the landlord for withdrawal of the rent from the court. If the deposits are not valid Page 23 of 26 deposits in that event tenant becomes a defaulter. In view of above and on the basis of Exts- 35(a), 40(a), 41(a), 42(a), 43(a), 44(a), 45(a), 46(a), 47(a), 48(a) and 49(a) the defendants having pleaded that they deposited rent in court failed to prove that those deposits are valid deposits and so the learned courts below have not committed any error in holding that the tenants are defaulters.
19. Under the provision of the Assam Urban Areas Rent Control Act, 1972 if any of the clauses like (a), (b), (c), (d), (e) and (f) of Section 5(1) of the Act is satisfied a decree of eviction can be passed by a court. It is not necessary that all the clauses are to be satisfied. As pointed out above, the findings of the learned courts below in regard to Section 5(1)(c) of the Act has been duly arrived at on proper appreciation of the evidence on record. The decree of eviction could have been passed on that ground alone. However, in this case, the learned courts below have also found that the plaintiffs required the suit premises bonafide. As has been pointed out above, the PW 1 has been advised by his attending physician to avoid staircase and he has been residing in the first floor of the building. His need to get the suit premises vacated as the same is situated in the ground floor cannot be held to be a mere desire. He is under pressing need under medical advice to make arrangement at the ground floor and so the learned courts below having relied on the documentary evidence and having Page 24 of 26 thereupon arrived at the finding that requirement of the PW 1 to shift to the ground floor is a genuine and pressing need, such a finding cannot be interfered with on the mere ipse dixit of the petitioners. The PW 2 is the son of PW 1 and he requires the ground floor for his own business purpose. He has been running his business in a rented house where he has been served with eviction notice already. The defendants did not cross-examine PW 2 effectively to show that such pleaded case of the plaintiffs is far from being genuine, the learned courts below have not committed any error in holding that the suit premises is required bona fide by the plaintiffs. Thus, Section 5(1)(c) of the Assam Urban Areas Rent Control Act, 1972 has also been satisfied in the present case.
20. As the findings of the learned courts below on the issue of default and bona fide requirement are found to be passed on the basis of materials available on record and these findings are not perverse in any way and moreover since it has been found that the suit of the plaintiffs is maintainable in law for eviction of the defaulter tenants, there is no scope to interfere with the concurrent findings of the learned courts below in the present case.
21. The revision is devoid of any merit. It is accordingly dismissed. No order as to cost. Stay order passed earlier shall stand automatically vacated.
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22. At this stage, Mr. M. Z. Ahmed, learned senior counsel for the petitioners, urged that since the present petitioners are old tenants and they have been running their business in the suit premises for their means of livelihood, some reasonable time may be granted to them for the purpose of making alternative arrangement. Mr. G. N. Sahewalla, learned senior counsel for the opposite parties, in his usual fairness, does not dispute the above prayer. Considering the facts and circumstances, it is provided as follows :-
1) The petitioners/defendants shall submit an undertaking in writing before the learned trial court within a period of two months from today so as to vacate the suit premises on or before 31.10.2016;
2) The petitioners shall not hand over the suit premises to anybody else other than the present plaintiffs or their constituted attorney;
3) The petitioners shall deposit the rent every month in court at the present rate but in the name of the plaintiffs and not in the name of the previous landlords; and
4) The petitioners shall not cause any nuisance or any other disturbance and/or cause any damage to the suit premises in the meantime.
JUDGE T U Choudhury Page 26 of 26