Gauhati High Court
Dilip Chowdhury vs The Ahmed Tea Company Pvt. Ltd on 14 September, 2022
Author: Devashis Baruah
Bench: Devashis Baruah
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GAHC010234772017
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRP/127/2017
DILIP CHOWDHURY
S/O- LATE SATISH CHANDRA CHOWDHURY, AT ROAD, GRAHAM BAZAR,
DIBRUGARH TOWN, P.O,P.S AND DIST- DIBRUGARH, ASSAM
VERSUS
THE AHMED TEA COMPANY PVT. LTD
KNCB PATH BAIRAGIMOTH, DIBRUGARH TOWN, DIST- DIBRUGARH,
ASSAM
Advocate for the Petitioner : Mr. D. Mazumdar, Senior Advocate.
: Mr. S. Biswas, Advocate.
Advocate for the Respondents : Mrs. S. Sharma, Advocate.
BEFORE HONOURABLE MR. JUSTICE DEVASHIS BARUAH Date of Hearing : 28.07.2022 Date of Judgment : 14.09.2022 JUDGMENT AND ORDER (CAV) Heard Mr. D. Mazumdar, the learned senior counsel assisted by Mr. S. Biswas, the learned counsel for the petitioner and Mrs. S. Sharma, the learned counsel appearing on behalf of the respondent.
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2. This is an application under Section 115 read with Section 151 of the Code of Civil Procedure, 1908 (for short, the Code) challenging the judgment and decree dated 22.12.2016 passed by the learned Civil Judge, Dibrugarh in Title Appeal No.61/2012 whereby the appeal was dismissed and the judgment and decree passed by the Court of the Munsiff No.2, Dibrugarh in Title Suit No.116/2006 dated 23.08.2012 was affirmed.
3. Before entering into the facts of the case, it would be relevant to note that the Petitioner herein have invoked the revisional jurisdiction under Section 115 of the Code. It is no longer res-integra that the revisional jurisdiction is limited in scope inasmuch as the said jurisdiction cannot be exercised to correct error of facts. However gross or even errors of law unless the said errors have relation to the jurisdiction of the Court to try the dispute itself. A plain reading of Sub-Clauses (a) and (b) of Section 115 of the Code is in reference to the exercise of jurisdiction by the Court not vested in the Court by law or has failed to exercise jurisdiction so vested in Court. Clause (c) is in relation to exercise of jurisdiction illegally and with material irregularity. Therefore, under Section 115 of the Code a jurisdictional question may arise not only where the Court acts solely without jurisdiction but also in a case where jurisdictional errors are committed while exercising jurisdiction. There may be various facets of jurisdictional error for example the findings arrived at is perverse, based on no evidence or misreading of evidence or such findings have been arrived at by ignoring or overlooking material irregularities or such findings so grossly erroneous that if allowed to stand would occasion miscarriage of justice. In other words, interference with an incorrect finding of fact recorded by the Court below for the purpose of exercising revisional jurisdiction must be understood in the context, where such findings are perverse or has been arrived at without consideration of material evidence or such finding is based on no evidence or misreading of evidence or is grossly erroneous that if allowed to stand it would occasion gross miscarriage of justice, is open to correction because it is not treated as a finding according to law. In the judgment of the Constitution Bench of the Supreme Court Page No.# 3/10 rendered in the case of Hindustan Petroleum Corporation Ltd. Vs. Baharsingh reported in (2014) 9 SCC 70, the Supreme Court observed that the Court while exercising jurisdiction under Section 115 of the Code is required to satisfy itself as regards the regularity, correctness, legality or propriety of the impugned decision or the order and cannot exercise its power as an Appellate Court to re-appreciate or reassess the evidence to a different finding of fact. It is also made clear that this Court while exercising the revisional jurisdiction is not and cannot be equated with the power of re-consideration of all questions of facts as the Court of First Appeal.
4. In the backdrop of the above, let this Court take into consideration the facts of the instant case. For the purpose of convenience, the parties herein are referred to in the same status as they stood before the trial court.
5. The plaintiff is a company registered under the provision of the Companies Act and has its registered Office at K.N.C.B. Path, P.O. - Bairagimoth, Dibrugarh Town, P.S. - Dibrugarh in the district of Dibrugarh, Assam. The plaintiff is the owner of an Assam Type premises with asbestos roofing, wooden and pucca walls consisting of several rooms (originally one room) measuring approximately 12 ft X 66 ft including the separate room of Public Call Office (for short, PCO) therein being Municipal Holding No.273 (old) and 299 (new) of Grahambazar, Ward No.No.17 of Dibrugarh Municipality covered by Periodic Patta No.66 (new), Dag No.36 & 38 of Dibrugarh Town. The said premises have been most specifically described in the Schedule to the plaint, and for the sake of convenience, it hereinafter referred to as suit premises.
6. The case of the plaintiff is that the defendant came to occupy the tenanted premises at a monthly rent according to the English Calendar month for doing bi-cycle repairing business at an initial monthly rent of Rs.50/- and agreed to pay the monthly rent within the first week of every succeeding month; to use the premises only for commercial use as a shop house; to keep the premises clean and carry out repairing at his own cost; not to sub-let the suit premises or part thereof to anyone else and to vacate the premises as Page No.# 4/10 and when asked for by the landlord. The said monthly rent was increased from 01.02.1980 from Rs.50/- to Rs.60/- on the existing terms and conditions. It was alleged that the defendant failed to adhere to the terms of the said monthly tenancy and neglected in payment of the monthly house rent every month for the suit premises. Under such circumstances, the arrear rent accumulated from the month of March, 1983 onwards. A notice was issued asking the defendant to vacate and deliver khas possession of the suit premises on expiry of 31.01.1999 and pay the arrear rent of Rs.11,340/-, being outstanding dues from March, 1983 till November, 1998. The said legal notice was denied by a reply dated 01.03.1999 stating inter-alia that there was no default in payment of rent and the defendant has been depositing the same into the court. It was also alleged that the defendant had partitioned the suit premises and had sublet the partitioned part as a PCO. It was also averred in the plaint that the plaintiff had bonafide requirement of the suit premises as the plaintiff has been facing hardship in providing accommodation for its own business and had secured permission for such construction of accommodation from the concerned authority. It is under such circumstances that Title Suit No.116/2016 was filed praying inter-alia for recovery of khas possession of the suit premises by evicting the defendant, its dependants, its sub-lessees and its agents therefrom; for release of Rs.2,160/- as arrear rent; for compensation in the form of mense profit etc.
7. The defendant filed his written statement taking various preliminary objections. It was stated inter-alia that the defendant was not a defaulter in payment of rent as he had never neglected to pay the monthly rent but the plaintiff refused to accept the rent on one pretext or the other. It has been mentioned that when the plaintiff had demanded enhanced rent from the defendant to which the defendant did not agree and there was a refusal on the part of the plaintiff to accept the rent, the defendant deposited the rent in the court. It is however relevant to mention that in the written statement so filed by the defendant, he had in paragraph No.14 given the details of deposit of rent in the court. A Page No.# 5/10 perusal of the said details would show that the defendant has been depositing the rent in the court at his wish and convenience for months together, which was not in conformity with the provisions of Section 5 (4) of the Assam Urban Areas rent Control Act, 1972 (for short, the Act of 1972).
8. On the basis of the pleadings, as many as five issues were framed which were:
I. Whether the suit is maintainable in law?
II. Whether the defendant is liable to be evicted for alleged violation of the agreed terms and conditions?
III. Whether the suit premise is bonafide requirement by the plaintiff?
IV. What reliefs the plaintiff is entitled to?
V. Whether the defendant is defaulter in paying his monthly due rent?
9. On behalf of the plaintiff, one witness adduced evidence whereas on behalf of the defendant there were five witnesses who adduced evidence. Both sides produced various documentary evidence in support thereof.
10. The trial court by the judgment and decree dated 23.08.2012, decreed the suit in favour of the plaintiff. The Issue No.III which pertains to as to whether the plaintiff has bonafide requirement, the trial court held that the plaintiff had bonafide requirement of the suit premises. In respect to Issue No.V which related to the question of default in payment of rent, the trial court held that the defendant was defaulter in payment of rent on the ground that the defendant had deposited the rent without first tendering the rent before the landlord and subsequent refusal thereof for which the same cannot be treated to be a due deposit in accordance with the mandate of Section 5(4) of the Act of 1972. On the basis of the above decision, the suit was decreed in favour of the plaintiff thereby holding that the plaintiff is entitled to recover possession of the suit premises by evicting the defendant and its dependants; that the plaintiff is entitled to recover the arrear rent of Rs.2,160/- and that the plaintiff was entitled to recover mense profit at the rate of Rs.60/-
Page No.# 6/10 per month till recovery of suit premises subject to payment of additional court fee on the same.
11. Being aggrieved and dissatisfied, the defendant filed an appeal before the Court of the Civil Judge, Dibrugarh which was registered and numbered as Title Appeal No.61/2012. The First Appellate Court, after taking into consideration the grounds taken in the Memo of Appeal, framed a point for determination which is as under:
Whether the judgment and decree passed by the learned court below is just and proper or needs any interference in this appeal?
12. The First Appellate Court vide the judgment and decree dated 22.12.2016 dismissed the appeal and upheld and confirmed the judgment and decree passed by the trial court. In doing so, the First Appellate Court came to a finding that the deposit of rent in the court by the defendant was not in accordance with law and as such it amounts to illegal deposit of rent. Accordingly, the defendant was held as a defaulter. On the question of bonafide requirement, the First Appellate Court came to a finding that the plaintiff has established that the suit premises is required for establishing a new business for them or for expanding their business accommodation and as such the plaintiff has bonafide requirement of the suit premises. Primarily on the basis of the Issue Nos.3 & 5, the First Appellate Court affirmed and upheld the judgment and decree of the trial court.
13. Being aggrieved and dissatisfied, the instant application has been filed under Section 115 of the Code challenging the judgment and decree dated 22.12.2016, passed in Title Appeal No.61/2012.
14. This Court has already observed herein above that the jurisdiction under Section 115 of the Code is limited and can be exercised when there is a jurisdictional error or the findings arrived at suffer from perversity which has occasioned failure of justice.
15. I have heard the learned counsel for the parties and also perused the materials on record.
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16. Let this Court first take into consideration as to whether the defendant was a defaulter in payment of rent. From a perusal of the written statement itself it would be seen that it is an admitted fact that the defendant has deposited the rent at his convenience for months together. It is a finding of fact of both the courts below that the defendant has not tendered the rent to the plaintiff before depositing the same in the court.
17. In the backdrop of the above, let this Court take into consideration the provision of Section 5 (4) of the Act of 1972. Section 5 (4) is a deeming provision when a tenant who had made the deposit in terms with said Section shall not be treated as a defaulter under Clause (e) of the proviso to sub-section (1) of Section 5 of the Act of 1972. Section 5 (4) of the Act of 1972, being relevant, is quoted herein below:
"5. Bar against passing and execution of decree and orders for ejections (4) Where the landlord refuses to accept the lawful rent offered by his tenant, the tenant may within a fortnight of its becoming due, deposit in Court the amount of such rent together with process fees for service of notice upon the landlord, and on receiving such deposit, the Court shall cause a notice of the receipt of such deposit to be served on the landlord, and the amount of the deposit may thereafter be withdrawn by the landlord on application made by him to the Court in that behalf. A tenant who has made such deposit shall not be treated as a defaulter under clause (e) of the proviso to sub-section (1) of this section."
18. From a perusal of the said Section, it would be seen that exercise of the right by the tenant to deposit the rent in the court is subject to fulfillment of the condition that the landlord refuses to accept the lawful rent offered by the tenant. Therefore, unless there is the tendering of the lawful rent by tenant, Section 5 (4) does not have any application. Further to that, it would be seen that only upon the landlord refusing to accept the lawful rent offered, the tenant has the option within a fortnight of it becoming due to deposit in the court the amount of such rent together with process fee for service of notice upon the landlord and on receiving such deposit, the court shall cause a notice of the receipt of Page No.# 8/10 such deposit to be served on the landlord and the amount of the deposit made thereafter be withdrawn by the landlord on application made by him to the court in that behalf. It is only upon the fulfillment of the said condition that a tenant shall not be treated as a defaulter under Section 5 (1) (e) of the Act of 1972.
19. In the instant case, it would be seen that the defendant had admittedly made certain deposits in the court which under no circumstances can be construed to be in compliance of Section 5 (4) of the Act of 1972 in as much as it is only the lawful rent which is to be deposited within a fortnight of its falling due. Further to that, it being an admitted fact that the defendant had not tendered the rent prior to deposit of the rent before the Court, the pre-condition for exercise of the option by the tenant under Section 5 (4) of the Act of 1972 being not fulfilled, the same cannot under any circumstances be said to be a valid deposit in terms with Section 5 (4) of the Act of 1972. Furthermore, the defendant had deposited the rent for months together as would be seen even from a perusal of paragraph No.14 of the written statement. This cannot be said to be in consonance with the provisions of Section 5 (4) of the Act of 1972 which mandates depositing only the lawful rent subject to refusal of the landlord to accept the lawful rent. The deposit of rent for months together clearly shows that there was no tendering of lawful rent for each month.
20. Both the courts below have rightly, therefore, come to a conclusion that the defendant was a defaulter in payment of rent.
21. The next question which arises is as regards the bonafide requirement of the plaintiff over the suit premises. Both the courts below have concurrently come to a finding that the plaintiff had bonafide requirement of the suit premises. This is a finding of fact which cannot be interfered with by this Court in exercise of jurisdiction under Section 115 of the Code sans any perversity being shown. However, the learned counsel appearing on behalf of the petitioner/defendant has completely failed to show any perversity in the findings arrived at by both the courts below as regards the bonafide Page No.# 9/10 requirement of the plaintiff over the suit premises. Consequently, this Court upholds the said findings by both the courts below on Issue No. III thereby holding that the plaintiff has bonafide requirement over the suit premises.
22. In that view of the matter, it is not a fit case for interference under Section 115 of the Code and thereby the judgment and decree dated 22.12.2016 passed by the learned Civil Judge, Dibrugarh in Title Appeal No.61/2012 is upheld which confirms the judgment and decree dated 23.08.2012 passed by the Court of the Munsiff No.2, Dibrugarh in Title Suit No.116/2006.
23. Taking into consideration that the defendants have been carrying on their business since long and Mr. D. Mazumdar, the learned senior counsel appearing for the petitioner/defendant submitted that if the defendant is immediately evicted, serious irretrievable injury would be caused as it would be very difficult to immediately find an alternative location for carrying out its business. Taking into consideration that the defendant has been carrying on his businesses in the suit premises for more than a decade, it would be just and reasonable to grant him six months of time to vacate the suit premises provided that he submits an undertaking before the Trial Court within 29.09.2022 to the effect that he shall vacate the suit premises within a period of six month from the date of the instant judgment i.e. on or before 13.03.2023. Failure to submit the undertaking within the period, the plaintiff shall be entitled to initiate execution application for evicting the defendant.
24. It is clarified that during this period of six months the defendant shall continue to make payment of amount of Rs. 60/- per month in the form of compensation to the plaintiff.
25. It is further observed that granting of extension of the period of six months subject to filing undertaking as aforesaid and the payment of compensation of Rs. 60/- per month during this period of six months shall not create any right or interest in favour of Page No.# 10/10 the defendant in respect to the suit premises. It is also clarified that during this period, the defendant shall remain in possession of the suit premises as the custodian of the plaintiff and shall not do any act or acts which may effect the rights of the plaintiff over the suit premises in any manner whatsoever.
26. The respondent herein shall be entitled to rent for the period of the eviction proceedings either through adjustment from the rent already deposited in the Court or by making an application before the Executing Court to decide on his entitlement of the rent during the pendency of the eviction proceedings and the Executing Court would permit the tenant/petitioner herein to controvert the allegations of non-payment of rent during the pendency of the eviction proceedings and thereupon decide in accordance with law.
27. With the above observation and direction, the instant petition stands dismissed.
28. Send back the LCR.
JUDGE Comparing Assistant