Gauhati High Court
Page No.# 1/17 vs Narayan Kejriwal And Anr on 5 May, 2025
Author: Devashis Baruah
Bench: Devashis Baruah
Page No.# 1/17
GAHC010276512024
2025:GAU-AS:5464
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRP/45/2025
DIPAK SANYAL
S/O LT DILIP KUMAR SANYAL R/O HOUSE NO. 6 1ST BYELANE AMAR
PATH ZOO NARENGI ROAD GUWAHATI 781024 KAMRUP METRO ASSAM
VERSUS
NARAYAN KEJRIWAL AND ANR.
S/O LT MATADIN KEJRIWAL R/O RITURAJ ENCLAVE MRD ROAD
SILPUKHURI PS CHANDMARI GUWAHATI 781003 ALTERNATE ADD-
KUBER BOOK STALL PANBAZAR COLLEGE HOSTEL ROAD GUWAHATI
781001
2:MOUSUMI KEJRIWAL
W/O NARAYAN KEJRIWAL R/O RITURAJ ENCLAVE MRD ROAD
SILPUKHURI PS CHANDMARI GUWAHATI 781003 ALTERNATE ADD-
KUBER BOOK STALL PANBAZAR COLLEGE HOSTEL ROAD GUWAHATI
78100
Advocate for the Petitioner : Mr. A. M. Dutta, Advocate
Advocate for the Respondents : Mr. S. Sattar, Advocate
BEFORE
HONOURABLE MR. JUSTICE DEVASHIS BARUAH
Date of Hearing : 05.05.2025
Date of Judgment : 05.05.2025
Page No.# 2/17
JUDGMENT AND ORDER (ORAL)
Heard Mr. A. M. Dutta, the learned counsel appearing on behalf of the petitioner and Mr. S. Sattar, the learned counsel appearing on behalf of the respondents.
2. This is an application filed under Section 115 of the Code of Civil Procedure, 1908 (for short, 'the Code') read with Section 151 of the Code challenging the judgment and decree dated 30.08.2024 passed by the Court of the learned Civil Judge (Senior Division) No.2, Kamrup (M) at Guwahati (for short, 'the learned First Appellate Court') in Title Appeal No.10/2022 by which, the judgment and decree dated 22.03.2022 passed by the Court of the learned Munsiff No.2, Kamrup (M) at Guwahati (for short, 'the learned Trial Court') in Title Suit No.242/2014 was affirmed.
3. For the purpose of deciding as to whether this Court should exercise its revisional jurisdiction against the impugned judgment and decree, this Court finds it relevant to refer to the judgment of the Supreme Court wherein the scope of the revisional jurisdiction was explained. In the case of Hindustan Petroleum Corporation Ltd. Vs. Dilbahar Singh, reported in (2014) 9 SCC 78, the Supreme Court in paragraph 43 observed as under:
"43. We hold, as we must, that none of the above Rent Control Acts Page No.# 3/17 entitles the High Court to interfere with the findings of fact recorded by the first appellate court/first appellate authority because on reappreciation of the evidence, its view is different from the court/authority below. The consideration or examination of the evidence by the High Court in revisional jurisdiction under these Acts is confined to find out that finding of facts recorded by the court/authority below is according to law and does not suffer from any error of law. A finding of fact recorded by court/authority below, if 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 that, if allowed to stand, it would result in gross miscarriage of justice, is open to correction because it is not treated as a finding according to law. In that event, the High Court in exercise of its revisional jurisdiction under the 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 to 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 reappreciate or reassess the evidence for coming to a different finding on facts. 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 Page No.# 4/17 before it suffers from procedural illegality or irregularity."
4. In the backdrop of the above proposition of law settled by the Supreme Court, a question arises as to whether this Court should exercise its revisional jurisdiction. For that purpose, this Court finds it relevant to take note of the facts which led to the filing of the instant application.
5. For the sake of convenience, this Court would refer to the parties in the same status as they stood before the learned Trial Court.
6. The respondent Nos.1 & 2 herein as plaintiffs had instituted a suit being Title Suit No.242/2014 before the learned Trial Court against the petitioner herein/defendant seeking ejectment and recovery of khas possession of the suit premises.
7. The case of the plaintiffs is that the plaintiffs along with the two others, namely, Shri Pranab Kumar Saha and Shri Sudip Saha vide the registered Sale Deed No.3873/11 dated 09.05.2011 became the absolute owners and possessors of a plot of land admeasuring 17 lechas covered by Dag No.3297(old)/269(new) of KP Patta No.6(old)/86 (new) of village Sahar, Guwahati-5, part of Mouza- Ulubari, Guwahati along with an old RCC building. The said property has been duly described in Schedule-A to the plaint. The petitioner herein who was the Page No.# 5/17 defendant was a monthly tenant of the vendors of the plaintiffs in respect of a shop room described in Schedule-B to the plaint and the vendors of the plaintiffs vide the letter dated 06.06.2011 had duly informed the defendant about the intention to sell the property described in Schedule-A to the plaintiffs and two others. The defendant on receipt of the said communication informed to one of the vendors of the plaintiffs, namely, Mr. K. C. Sirkar vide the communication dated 10.06.2011 about his intention to pay the rent to the plaintiffs and sought information as to whom the said rent is required to be paid. It was stated in the plaint that the defendant upon being communicated some time in the month of June, 2011, he started paying the rent to the plaintiff No.1 from the month of June, 2011 in the first week of every succeeding English calendar month @ 2,450/- per month. In the meanwhile, the other two purchases of the Schedule-A property, namely, Shri Pranab Kumar Saha and Shri Sudip Saha in the year 2014, decided to sell their shares pertaining to the Schedule-A property in favour of the plaintiff Nos.1 & 2, and as such, in furtherance to their decision, they executed a registered Deed of Sale bearing Deed No.2816 dated 15.03.2014 in favour of the plaintiff Nos.1 & 2, and since then, the plaintiffs have become the absolute owners of the Schedule-A property which included the Schedule-B premises.
Page No.# 6/17
8. It is the further case of the plaintiffs that the defendant paid his rent regularly to the plaintiff No.1 upto the month of August, 2012, but all of a sudden, without assigning any reasons, the defendant stopped making payment of the rent from the month of September, 2012. It is the further allegation in the plaint that the defendant instead of paying the monthly rent to the plaintiff No.1 and/or depositing the same in the Court, kept silence for a period of 15 months and never tendered the rent to the plaintiff No.1, but thereafter wrote another letter to one Shri Pranab Kumar Saha on 07.12.2013 and 06.01.2014 alleging inter-alia that the rents were not received and hence the rents from the month of November, 2013 by way of cheque No.224607 and the rent for the month of December, 2013 by way of cheque No.224616 dated 04.01.2013 were enclosed and if the same was not received then the defendant has no alternative but to deposit in the Court. It was also alleged that for the period from 01.09.2012 to 31.08.2014, the defendant did not pay the rent, and as such, there was an arrear of Rs.58,800/-. Therefore, on the ground of default in payment of rent, the suit was filed by the plaintiffs seeking ejectment of the defendant and for recovery of arrear rent. It is also relevant to mention that at paragraph Nos.12 & 14 of the plaint, the plaintiffs also stated that the suit premises was required for expansion of the business Page No.# 7/17 of the plaintiffs which was carried out in the name and style of "Kuber Book Stall".
9. The defendant filed the written statement raising various preliminary issues as regards the maintainability of the said proceedings. It was mentioned in paragraph No.10 of the written statement that the suit premises was taken on rent by Late Dilip Kumar Sanyal, the father of the defendant on rent from Shri Khitish Chandra Sirkar and the book shop under the name and style of "Assam Publishing Company" was established. It was denied in the said paragraph that the Schedule-A property was purchased by the plaintiffs and Shri Pranab Kumar Saha and Shri Sudip Saha with prior information to the defendant. It was also mentioned that after the sale of the Schedule-A property by the registered Deed dated 12.05.2011, the said vendors of the plaintiffs vide letter dated 06.06.2011 had informed the defendant about the sale that the entire land and the building had been sold to the plaintiffs and Shri Pranab Kumar Saha and Shri Sudeep Saha and hence the defendant was directed to pay the monthly house rent to the said persons or their authorized representatives for the month of May, 2011. It was also mentioned that the defendant vide letter dated 10.06.2011 wrote letter to the plaintiff No.1 as well as the others that the defendant has attarned to the plaintiff No.1 as well as the three Page No.# 8/17 other joint owners of the property as his landlord and asked the plaintiff No.1 to inform him as to whom should the defendant tender the monthly rent as the rented premises were sold to four persons.
At paragraph No.12 of the written statement, the defendant denied the statement made in paragraph No.4 of the plaint to the effect that the defendants started making payment of the rent from the month of June, 2011 onwards to the plaintiff No1. It was stated that the Defendant had attarned to all the four new purchasers as the new owners of the rented premises and had recognized each of them as a landlord.
In paragraph No.15 of the written statement, it was stated that as the plaintiffs have refused to accept the rent from the month of September, 2012 inspite of the rent was duly tendered by the defendant to the plaintiff No.1. The defendant vide the letter dated 14.10.2012 paid the rent for the month of September, 2012 to Shri Pranab Kumar Saha who was also a landlord by the cheque No.857994 and thereafter the rent for the period from October, 2012 to July, 2014 were regularly paid by the defendant to Shri Pranab Kumar Saha. The defendant further gave details as to how the rents were paid for the period from October, 2012 to July, 2014 and the cheque numbers at paragraph No.15 in detail. It was also mentioned that although Page No.# 9/17 the rent for the month of August, 2014 was tendered to Shri Pranab Kumar Saha by the defendant vide letter dated the 03.09.2014, but the same was returned back to the defendant as Shri Pranab Kumar Saha had refused to accept the rent. As such, the defendant was left with no other option but to deposit the rent from the month of August, 2014 before the Court as per the provisions of the Assam Urban Areas Rent Control Act, 1972 (for short, 'the Act of 1972'). On the basis of the above, the defendant therefore claimed that the defendant was not a defaulter in payment of the rent.
At paragraph Nos.19 and 20 of the written statement, the defendant denied that the plaintiffs had bonafide requirement of the suit premises. However, there is no mention in the pleadings by the defendant that he had made searches for alternative places but could not find.
10. On the basis of the pleadings, the learned Trial Court framed as many as six Issues initially, and subsequently, an additional Issue was framed. The Issues as well as the Additional Issue are reproduced herein under:-
I. Whether there is any cause of action in this suit?
II. Whether the suit is maintainable in its present form?
III. Whether the defendant is a defaulter in payment of Page No.# 10/17 monthly rent from the month of September, 2012 till the month of August, 2014?
IV. Whether the plaintiff is entitled to recover the arrear rent along with the future rent from the defendant?
V. Whether the defendant is liable to be evicted from the rent premises?
VI. Whether the plaintiff is entitled to the decree and other relief/reliefs as prayed for?
Additional Issue:-
VII. Whether the suit premise is bonfidely required by the plaintiff?
11. On behalf of the plaintiffs, the plaintiff No.1 examined himself as plaintiff witness and exhibited various documents which were marked as Exhibit-1 to Exhibit-11. On behalf of the defendant, the defendant examined himself as the DW1 and exhibited various documents from Exhibit A to Exhibit AB. This Court during the course of hearing the counsel for the petitioner enquired as to whether the petitioner who was the defendant in the suit though had exhibited various documents to show that letters were issued to Shri Pranab Kumar Saha along with the cheques but did the defendant adduced any evidence to show that the cheques were encashed. The learned counsel for the Page No.# 11/17 petitioner submitted that no such evidence was adduced.
12. The learned Trial Court vide the judgment and decree dated 22.03.2022 decreed the suit in favour of the plaintiffs.
13. The learned Trial Court dealt with the Issue No.III as to whether the defendant was a defaulter in payment of monthly rent from the month of September, 2012 till the month of August, 2014 and observed that the defendant was not a defaulter for the period from September, 2012 to August, 2014 on the ground that there was no iota of evidence to indicate that from September, 2012 to July, 2014, Shri Pranab Kumar Saha refused to accept the rent. It was observed that till July, 2014, the defendant being ignorant of the fact that that Shri Pranab Kumar Saha had sold his share in the property in the month of March, 2014, had paid the rent.
The learned Trial Court however came to a finding that during cross-examination of the DW1, i.e. the defendant deposed that he paid the rent due in the month of August, 2014 vide Exhibit AD(1) for which the Challan was passed on the 24.09.2014 and the amount was deposited in the bank on 07.10.2014, i.e. after a lapse of the due date. The learned Trial Court further came to a finding that in respect to the month of September, 2014, the Challan was passed on 28.10.2014 and the Page No.# 12/17 amount was deposited in the bank on 04.11.2014 vide Exhibit AB(2). The learned Trial Court further came to a finding that vide Exhibit AD(37), the rent for the month of September, 2017 was deposited before the same had fallen due and vide Exhibit AD(51), the rent for the month of November, 2018 was deposited on 19.01.2019, i.e. after the lapse of the due date. The learned Trial Court further taking into account Section 5(4) of the Act of 1972 as well as Section 5 (i) (e) of the Act of 1972 opined that the defendant was a defaulter as the rent was not paid for the months of September, 2014; September, 2017 and November, 2018 as per the provisions of Section 5(4) of the Act of 1972.
14. This Court further finds it relevant to take note of that in respect to the Issue No.VII which pertains to bonafide requirement of the plaintiffs, the learned Trial Court taking into account that the plaintiffs being the landlords were the best judge as to how to use and utilize their own property for their own good and the defendant was not in a position to raise any objection without any cogent reasons, concluded that the plaintiffs had bonafide use for expansion of the existing business of book store.
15. On the basis of the above, therefore the learned Trial Court vide the judgment and decree held that the defendant was liable to be evicted from the suit premises including his men, materials;
Page No.# 13/17 the plaintiffs were entitled to get khas possession and vacant possession of the Schedule-B premises and further that the plaintiffs were entitled for recovery of arrear rent for the month of November, 2019 till recovery of the Schedule premises @ Rs.2450/- per month from the defendant.
16. It is seen that the defendant being aggrieved preferred an Appeal before the learned First Appellate Court which was registered and numbered as Title Appeal No.10/2022. The learned First Appellate Court in terms with Order XLI Rule 31 of the Code duly considered the grounds of objections; recorded what were the points for determination and thereupon affirmed the judgment and decree passed by the learned Trial Court vide its judgment and order dated 30.08.2024. It is however very pertinent to take note of that the learned First Appellate Court while deciding the Issue No.III came to an opinion that the defendant was not only a defaulter in payment of rent for the months of September, 2014; September, 2017 and November, 2018, but was also a defaulter in payment of rent for the month of September, 2012 till the month of August, 2014. On the Issue No.VII which pertained to bonafide requirement, the learned First Appellate Court came to a finding that the plaintiffs could not prove the bonafide requirement of the suit premises.
17. It is also relevant to take note of that pursuant to the Page No.# 14/17 judgment and decree dated 30.08 2022, passed in Title Appeal No.10/2022, the plaintiffs filed an application under Sections 152 and 151 of the Code for correction of certain typographical errors in the judgments. The said application was allowed vide the order dated 19.08.2024. It is under such circumstances, the present revision application has been filed.
18. This Court has duly heard the learned counsels appearing on behalf of the petitioner as well as the respondents and has duly perused the judgment and decree passed by the learned Trial Court as well as the learned first Appellate Court.
19. The question which arises before this Court is as to whether in the present facts, this Court should exercise its revisional jurisdiction under Section 115 of the Code or for that matter whether the learned First Appellate Court had failed to exercise the jurisdiction vested upon it by law or had exercised its jurisdiction illegally and with material irregularity.
20. The learned counsel appearing on behalf of the petitioner who was the defendant could not place before the Court any material on the basis of which this Court could arrive at a different conclusion that the jurisdiction so exercised while deciding the Issue No.III calls for any interference. There is a complete failure on the part of the petitioner to show that there Page No.# 15/17 is any perversity in the findings. This Court had already in the previous segments of the instant judgment opined that though the petitioner herein who was the defendant had claimed that the rent was tendered to Shri Pranab Kumar Saha by issuance of cheques for the period from September, 2012 to August, 2014, but there was no iota of any evidence to show that those cheques in question were at all encashed. It may have been possible that the defendant did not notice for one or two months that the cheques were not encashed but for a period of almost two years, the same cannot be presumed that the defendant was not aware that the cheques were not encashed. This Court further finds it apposite to observe that though the defendant tried to prove that the cheques were issued with office copies of the cheques and letters written to Shri Pranab Kumar Saha, but there was no attempt made to show that the cheques were received by Shri Pranab Kumar Saha also. The best witness of the defendant would have been Shri Pranab Kumar Saha or for that matter the bank statement of the defendant proving that the rents were duly deposited into the account of Shri Pranab Kumar Saha. However, there was no evidence. The learned First Appellate Court was therefore justified in arriving at the opinion that the defendant was a defaulter for the period from September, 2012 to August, 2014. Furthermore, both the Courts Page No.# 16/17 had categorically observed that the defendant could not have taken benefit under Section 5 (4) of the Act of 1972 as the rent for the months of September, 2014; September, 2017 and November, 2018 were not deposited as per the mandate of law. These findings of facts therefore cannot be reopened in a proceedings under Section 115 of the Code sans any perversity, which the petitioner failed to show.
21. Under such circumstances, the findings so arrived at by the learned First Appellate Court to the effect that the defendant was the defaulter for the period from September, 2012 to July, 2014 as well as by the learned Trial Court cannot be interfered with.
22. This Court further finds it relevant to take note of that the paragraph Nos.12 and 14 of the plaint wherein the plaintiffs had claimed that they required the suit premises for expansion of their business. This Court has duly perused the written statement filed by the defendant wherein he has though stated that irreparable loss and injury would be caused to the defendant if the suit is not dismissed and the defendant would face the closure of the business, but there is no mention in the written statement or even in the instant proceedings that the defendant during this long drawn legal battle had made attempts to look for alternative places for carrying out his business and the defendant Page No.# 17/17 could not find any. This factor is a very relevant factor while deciding the question of bonafide requirement of the landlords. This aspect of the matter can be seen from a recent judgment of the Supreme Court in the case of Murlidhar Aggarwal (D) through his Lrs. Vs. Mahendra Pratap Kakan (D) his LRs. , reported in 2025 SCC OnLine SC 915. In the opinion of this Court, though the learned First Appellate Court had arrived at the finding that the plaintiffs did not have a bonafide requirement of the suit premises, but this very essential factor was not taken into consideration. In the opinion of this Court, therefore, the findings so arrived at by the learned Trial Court in respect to the Issue No.VII was correct based upon the established principles of law.
23. Considering the above, this Court finds no ground to interfere in exercise of its revisional jurisdiction for which the instant petition stands dismissed.
24. However, in the facts of the instant case, this Court is not inclined to impose any cost.
JUDGE Comparing Assistant