Gauhati High Court
Rama Shankar Singh vs Smt. Krishna Devi Sharma Badhai And 6 Ors on 1 November, 2022
Author: Devashis Baruah
Bench: Devashis Baruah
Page No.# 1/25
GAHC010015032017
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRP/84/2017
RAMA SHANKAR SINGH
S/O LT. SITTAL KOIRI, R/O OPP. SARVAJANIN KALI BARI, A.T. ROAD,
TINSUKIA TOWN, P.O. and P.S. and DIST- TINSUKIA, ASSAM, PIN- 786125
VERSUS
SMT. KRISHNA DEVI SHARMA BADHAI and 6 ORS.
W/O LT. MAHABIR PRASAD BADHOI, R/O SARAB BHATI ROAD, HIJUGURI,
TINSUKIA, P.O. and P.S. and DIST- TINSUKIA, ASSAM, PIN- 786192
2:ANUP KUMAR DAS
S/O LT. S. DAS
R/O OPP. SARVAJANIN KALI BARI
A.T. ROAD
TINSUKIA TOWN
P.O. and P.S. and DIST- TINSUKIA
ASSAM
PIN- 786125
3:SHIV KUMAR SHARMA
4:UMESH KUMAR SHARMA
5:MANISH KUMAR SHARMA
ALL ARE S/O LT. MAHABIR PRASAD SHARMA
6:SUMAN KUMARI SHARMA
D/O LT. MAHABIR PRASAD SHARMA
7:STAYA NARAYAN BADHAI
Page No.# 2/25
S/O LT. SUKHDEO BADHAI
ALL ARE R/O SARAB BHATI ROAD
HIJUGURI
TINSUKIA
P.O.
PS. and DIST- TINSUKIA
ASSAM
PIN- 78619
Advocate for the Petitioner : MR.A SATTAR
Advocate for the Respondent : MR.B J MUKHERJEE(R-1)
BEFORE
HONOURABLE MR. JUSTICE DEVASHIS BARUAH
JUDGMENT & ORDER (ORAL)
Date : 01/11/2022 Heard Mr. A. Sattar, the learned counsel for the petitioner and Mr. S.Khound, the learned counsel for the respondent No.1.
2. This is an application under Section 115 of the Code of Civil Procedure, 1908(for short the Code) challenging the judgment and decree dated 24/1/2017 passed by the learned Court of the Civil Judge, Tinsukia in Title Appeal No.15/2013 whereby the appeal was dismissed and the judgment and decree dated 26/8/2013 passed by the learned Court of the Munsiff No. 1, Tinsukia in Title Suit No. 26/2008 was upheld.
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 Page No.# 3/25 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 Page No.# 4/25 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 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. For appreciating as to whether the jurisdiction under Section 115 of the Code can be exercised in the instant case, it would be relevant to take note of the facts involved. For the purpose of convenience, the parties herein are referred to in the same status as they stood before the Trial Court. The respondent No. 1 herein as a plaintiff had instituted a suit being Title Suit No. 26/2008 before the Court of the Munsiff at Tinsukia. In the said suit, it is the case of the plaintiff that in respect to a plot of land measuring 2 kathas 2 lechas situated at Sheet No. 8, Tinsukia town, there are two pattas and dags i.e. Periodic Patta No. 1084 and 2116 and Dag Nos. 3333 and Dag No. 3187 Page No.# 5/25 respectively. Out of the aforesaid plot of land measuring 2 kathas 2 lechas, land measuring 1 katha 1 lecha covered by Periodic Patta No. 1084 comprising Dag No. 3333 is owned and possessed by the Plaintiff and the Proforma Defendant Nos. 4,5, 6 and 7. The remaining land measuring 1 katha 1 lecha covered by Period Patta No. 2116 comprising of Dag No. 3187 is owned and possessed by the Proforma Defendant No. 8 in his individual capacity. It has been further stated in the plaint that in the land measuring 2 katha 2 lechas there are 12 numbers of shops standing thereon and the same have been let out to different persons on monthly rental basis and at present the shop houses standing and constructed on the land of the Plaintiff and the Proforma Defendant No. 4, 5, 6 and 7 have been lying in the ownership of the Plaintiff and the Proforma Defendant Nos. 4, 5, 6 and 7 without any interference and ownership of the Proforma Defendant No. 8 over the same. Similarly there are 6 shops standing over the land, which is land measuring 1 katha 1 lecha, which is under the ownership of the Proforma Defendant No. 8 over which the Plaintiff and the Proforma Defendant Nos. 4, 5, 6 and 7 have no link, connection and authority over the same. It has been further mentioned that there were certain disputes and differences between the Plaintiff and the Proforma Defendant Nos. 4,5,6 and 7 and the Proforma Defendant No. 8 in the matter in respect to realizing and collecting of rent from some of the tenants for which a Title Suit being Title Page No.# 6/25 Suit No. 73/2005 was instituted before the Court of the Civil Judge, Tinsukia against the Plaintiff and the Proforma Defendant Nos. 4, 5, 6 and 3. During the pendency of the aforementioned Title Suit, the Plaintiff including the Proforma Defendant Nos. 4, 5, 6 and 7 and the Proforma Defendant No. 8 entered into a deed of family settlement dated 21/11/2007 whereby all the disputes and differences were settled. On the basis of the said deed of Settlement, the Title Suit No. 73/2005 was compromised by an order dated 18/12/2007. In terms with the said compromise petition dated 18/12/2007, the Plaintiff became the absolute owner of the shop premises occupied by the different tenants including the shop premises in occupation of the Proforma Defendant Nos. 4 and 5 as mentioned in the joint compromise petition as well as in the Deed of Family Settlement. On the basis of the said Compromise Petition, it was alleged in the plaint that the Defendant Nos. 1 and 2 became the tenants under the Plaintiff and the shop houses occupied by them was owned by the Plaintiff and accordingly the said Defendants were liable and responsible to pay the monthly rent amount of the shop houses @ 100/- per month. It was mentioned that the Defendant No. 1 became liable and responsible to pay the monthly rent amount to the Plaintiff @ Rs. 100/- per month to be payable from month to month within the 1st week of every succeeding month as per the English calendar month and the said Defendants had deliberately failed and intentionally Page No.# 7/25 neglected to pay the monthly rent for the shop premises in spite of several approaches, repeated request and demands of the Plaintiff. Further to that, it was mentioned that the Defendant No. 1 failed to pay the rent from the month of April 2001 to November 2005 i.e. an amount of Rs.5,500/-. Apart from the above, the Plaintiff has also stated that the Defendant No. 2 violating the terms and conditions of the tenancy had sub-let a part of the suit house by making a partition in that regard to the Defendant No. 3 and the Defendant No. 3 has been carrying and running a book stall under the name and style of "M/S Variety Corner", Tinsukia for the last more than 5 years. It has been also alleged that the Defendant No. 2 by sub-letting a part of the suit house to the Defendant No. 3 has been realizing a sum of Rs. 800/- per month from the Defendant No. 3 whereas he has been intentionally neglected and defaulted in paying the monthly rent of Rs. 100/- per month of the suit premises to the plaintiff. It has also been mentioned that the said Proforma Defendant No.6 namely, Manish Sharma who was aged about 27 years at the time of filing of the suit was an educated and unemployed youth and the said suit house was bonafidely required by the Plaintiff for his son to start a business thereon for his employment and callings. Further to that, it has also been mentioned that the suit premises which was rented out to the Defendant No. 1 for use only for business purposes has been used as shop house for the residence in addition to Page No.# 8/25 carrying out his business therein. It is under such circumstances that the said suit was filed for a decree for ejectment of the Defendants from the suit premises by removing all their belongings and dependants; for recovery of arrear rent; for recovery of future rent as well as for realization of compensation @ Rs. 10,000/- from the Defendants for their occupying the suit premises even after becoming a defaulter in respect to the monthly rent.
5. The Defendant Nos.1,2 and 3 jointly filed a written statement. In the said written statement there were various preliminary objections being taken. In paragraph No. 16 of the written statement, it has been admitted that the Defendant No.1 is the tenant in respect to the suit premises at a monthly rent of Rs. 100/- per month, but it was denied that the monthly rent is payable from month to month within the 1st week of each succeeding month as per the English calendar month and the Defendant No. 1 had deliberately failed and intentionally neglected to pay the monthly rent in respect to the suit premises since the month of November, 2007 in spite of several approaches, repeated request and demands of the Plaintiff. It has been further stated that the monthly rent of the suit premises is payable in lump sum and no fixed due date of payment has been settled/fixed in between the landlord and tenant since the day of inception of the tenancy and that the rent of the suit premises upto the Page No.# 9/25 month of November,2007 had been received by the Plaintiff and the Proforma Defendant No. 8 jointly. Further to that, for the rent from the month of December 2007 to July 2008 had been collected by the Plaintiff in lump sum. It was further mentioned that as per the usual practice, there was no rent receipt being issued by the landlord to any of the tenants including the Defendant No. 1 though demand was made for the same. Further to that, in paragraph No. 18 of the written statement, it has been mentioned that the rent upto the month of November, 2007 has been paid to the Plaintiff and the Proforma Defendant No. 8 jointly and the rent for the month of December 2007 to July 2008 amounting to Rs. 800/- @ Rs. 100/-- per month have been paid to the plaintiff which was collected by the son of the Plaintiff i.e. Umesh Kr. Sarma in lumpsum but no rent receipt was issued by him. Further to that, it was mentioned that on 7/9/2008, the Defendant No. 2 on behalf of the Defendant No. 1 tendered the rent for the month of August and September 2008 amounting to Rs. 200/- to the Plaintiff and her son Umesh Kumar Sarma but they refused to accept the rent and made a demand of rent of Rs. 500/- per month as monthly rent instead of the previous rate of rent @ 100/- per month and as such the rent for the month of August 2008 and September, 2008 amounting to Rs. 200/- was deposited by the Defendant No 1 through his son/the Defendant No. 2 vide treasury challan No. 2657 dated 10/9/2008 in Misc. Rent Case No.432/2008. It was further Page No.# 10/25 mentioned that on 7/11/2008, the Plaintiff and her son again refused to accept the rent for the month of October, 2008, and as such through treasury challan deposited the rent for the month of October and November, 2008 in the Court vide Misc. Rent Case No.525/2008. As regards the allegation of sub-letting of the suit premises, in paragraph 19 of the written statement, it was stated that the suit premises is a shop-cum -residence since long and the Defendant No. 2 who is the son of the Defendant No. 1 being unemployed was running the book stall in the name of "Variety Corner" and the Defendant No. 3 is employed to look after the business as an employee by the Defendant No. 2. On the question of bonafide requirement, the Defendants in paragraph No. 20 of the written statement had stated that the son of the Plaintiff, Sri Manish Sarma is running a Typing School in the name and stile of "Tinsukia Commercial" and it is totally false that he is an unemployed youth. It is on the basis of that, the written statement was filed praying inter alia for the suit be dismissed with compensatory cost of Rs.15,000/- The Proforma Defendant Nos. 5,6 and 7 had also filed the written statement supporting the case of the Plaintiff.
6. On the basis of the pleadings, as many as 8 issues were framed which for the sake of convenience are reproduced hereinbelow:-
(1) Whether the suit is maintainable ?
(2) Whether there exists a relationship of landlord and tenant Page No.# 11/25 between the plaintiff and the defendant Nos. 1 and 2 ? (3) Whether the defendant Nos. 1 and 2 are defaulter in respect of the payment of rent of the suit premises ? If so, what is the arrear of rent ?
(4) Whether the defendant Nos. 1 and 2 in violation of the terms of tenancy inducted the defendant No.3 as sub-tenant in respect of the suit premises ?
(5) Whether the suit premises is bonafidely required by the plaintiff ?
(6) Whether the judgment and order dated 18/12/2007 passed in T.S. No. 73/05 is binding on the defendant Nos. 1 and 3 ? (7) Whether the plaintiff is entitled to the reliefs as prayed for ? (8) To what other relief (s), if any, the parties are entitled to ?
7. On behalf of the Plaintiff, she examined herself as the sole witness and exhibited 7 documents which were the certified copy of the jamabandi(Ext.1); the Land Revenue Paying Receipt (Ext.2);Municipal Holding Paying Receipt(Exts.3 & 4); copy of the jamabandi(Ext.5); Joint Compromise Petition in Title Suit No. 73/2005(Ext. 6); a copy of the order passed in Title Suit No. 73/2005(Ext.7). On behalf of the Defendants, they adduced the evidence of 4 witnesses including the Defendant Nos. 1, 2 and 3. In support of their oral evidence, the Defendants also adduced various documents.
8. The Trial Court vide a judgment and decree dated 26/8/2013 decreed the suit in favour of the Plaintiff holding inter alia that the Plaintiff is entitled to recover the arrear rent of the suit premises from the Defendant Nos. 1 & 2 Page No.# 12/25 jointly or severally w.e.f from the month of November, 2007 @Rs.100/- till recovery of the suit premises from the Defendants; that the Plaintiff is entitled to get recovery of the possession of the suit premises by way of eviction of the Defendants with their belongings including by way of breaking lock of the suit premises, if any, found in the suit premises as well as the cost of the suit.
9. The Trial Court while passing the said judgment held that the Defendant No. 1 and 2 were defaulters in payment of rent on the ground that the defendants failed to prove that they had tendered the rent to the Plaintiff in accordance with law and the depositing of the rent in the Court was nothing but a plea to create the defence in the suit to protect the right of tenancy. On the issue as to whether there was a sub-letting by the Defendant Nos. 1 and 2 the Trial Court came to a finding that there was a sub-letting by the Defendant Nos. 1 & 2 to the Defendant No. 3 which also violates the terms of the tenancy. On the question of bona fide requirement of the Plaintiff, the Trial Court after taking note of the evidence came to a finding that the Plaintiff had bona fide requirement of the suit premises.
10. Being aggrieved and dissatisfied, the Defendant Nos. 1 and 2 as Appellants preferred an appeal before the Court of the Civil Judge at Tinsukia, which was registered and numbered as Title Appeal No. 15/2013. The First Page No.# 13/25 Appellate Court after taking note of the various grounds of objections taken in the Memo of Appeal framed 4 points of determination. The first point of determination was as to whether there was a landlord-tenant relationship between the Plaintiff and the Defendant Nos. 1 and 2, which was held in the affirmative in favour of the Plaintiff thereby upholding the findings of the Trial Court as regards issue Nos. 1 and 6. As regards the second point of determination which pertains to whether the Defendant Nos. 1 and 2 were defaulters in payment of rent, the First Appellate Court after taking note of the evidence on record came to a finding that the Defendant Nos. 1 and 2 were defaulters in payment of rent, however, held that as the Plaintiff became the owner of the suit premises w.e.f. December, 2007, for which the Plaintiff would be only entitled to recover rent from December, 2007. On the point of determination No. 3 as to whether there was a violation of the terms of tenancy by inducting the Defendant No. 3 as a sub-tenant in respect to the suit premises, the First Appellate Court taking into account the evidence on record, came to an opinion that the shop "Variety Corner" is of the Defendant No. 3 and is run by him independently having a trade license thereof thereby negating the claims of the defendants that the defendant No. 3 is only the employee of the Defendant No. 2. On the point of determination No. 4 as to whether there was a bona fide requirement of the suit premises, the First Appellate Court came to a Page No.# 14/25 finding that there was a bona fide requirement of the suit premises. The First Appellate Court also took into consideration that there was no cross-examination of the Plaintiff's witness on the aspect of bona fide requirement to test the veracity of her statement to the effect that her son Manish Sarma at the time of filing of the suit was an educated unemployed youth and the shop premises was bonafidely required for her son to start a business thereon for his self- employment and earnings. It was also taken note of that there was no suggestion even put to the PW-1 in that respect, which amounts to an admission on the part of the Defendant that the son of the Plaintiff, Manish Sarma at present is an unemployed youth and the suit premises was bonafidely required for her son. It is on the basis of the decision as regards the points of determination so framed, the appeal of the Defendant Nos. 1 & 2 was dismissed thereby affirming the judgment and decree passed by the Trial Court subject to the modification that the Plaintiff would be entitled to recover the arrear rent w.e.f. December, 2007.
11. Being aggrieved and dissatisfied, the present application has been filed under Section 115 of the Code challenging the concurrent findings of fact arrived at by both the Courts below. As already noted hereinabove, the scope of jurisdiction under Section 115 of the Code is limited and it is only on jurisdictional issues where this Court can interfere with the findings arrived at by Page No.# 15/25 both the Courts below.
12. In the backdrop of the above facts. let this Court take into consideration the contentions raised by the parties.
13. Mr. A. Sattar, the learned counsel appearing on behalf of the Petitioner had submitted that both the Courts below had committed jurisdictional error in deciding the issue Nos. 3, 4 and 5 inasmuch, as the jurisdiction so exercised by the Courts below, was exercised illegally and with material irregularity. He submitted that the findings that the Defendant Nos. 1 & 2 were defaulters were on the face of it perverse taking into consideration that there was no due date fixed and the Defendant Nos. 1 and 2 had duly tendered and paid the rent upon coming to learn that the Plaintiff is the owner of the suit premises and in that regard the Plaintiff through her son had duly accepted the rent for 8 months and it is only when the Plaintiff through her son raised rent and refused to accept the existing rent, the Defendants had deposited the same before the Court and as such, the Defendants were entitled to the benefit of Section 5(4) of the Assam Urban Area Rent Control Act, 1972 (for short the Act of 1972) and could not have been deemed to be defaulters in terms with Section 5 (1) (e) of the Act of 1972. He further submitted that the findings arrived at by the Courts below that there was a sub-tenancy in favour of the Respondent No. 3 created Page No.# 16/25 by the Defendant Nos. 1 and 2 suffers from perversity and as such it cannot be said to be a finding in accordance with law. The learned counsel further submitted that the Courts below also have not decided the issue pertaining to bona fide requirement in the right earnest inasmuch as it was a matter of record that Sri Manish Sarma, the son of the Plaintiff was having a business of his own and as such, he could not have been said to be unemployed, for which the requirement of the suit premises by the Plaintiff was merely a desire and not a necessity.
14. On the other hand, Mr.S. Khound, the learned counsel appearing on behalf of the Respondents had submitted that from the evidence of the Plaintiff, it was clear that there was a due date within which the payment ought to have been made. He further submitted that the Defendants have duly admitted in their written statement that they are monthly tenants and sans any proof being shown that the payment could have been paid in lump sum, the rent was therefore required to be paid every month. The learned counsel drew the attention to the pleadings of the Defendants to show that it is an admitted fact that they have claimed to have paid rent for 8 months together which violates the mandate of Section 5(4) of the Act of 1972 for which the Defendants are not entitled to the benefit of Section 5 (4) of the said Act. On the question of sub-letting, the learned counsel by drawing to the reference to the cross-
Page No.# 17/25 examination of the Defendant No. 1 had submitted that it was an admitted fact that the Defendant No.2 did not have any trade license and it was only the Defendant No. 3 who had the trade license and under such circumstances, the stand of the Defendants that the Defendant No. 3 was an employee of the Defendant No.2 is completely false. He submitted that from the evidence on record, it is clear that the Defendant No. 2 had sub-let a part of the suit premises to the Defendant No.3 for setting up his business in the name and style of "Variety Corner" and as such it amounted to violation of the terms of the tenancy, for which both the Courts below have concurrently come to a finding that there was a sub-letting by the Defendant Nos.1 and 2 in favour of the Defendant No. 3. On the question of whether there was bonafide requirement of the suit premises, the learned counsel for the Respondents has submitted that the Courts below have rightly come to a finding that there was a bona fide requirement of the suit premises. Referring to the judgment of the Supreme Court rendered in the case of Mehmooda Gulshan Vs.Javaid Hussain Mungloo reported in (2017) 5 SCC 683, the learned counsel had submitted that the expression "bona fide requirement" would mean that it is always the prerogative of the landlord that if he requires the premises in question for his bona fide use for expansion of business and it is not for the tenant who can dictate the terms to the landlord and advise him what he should Page No.# 18/25 do and what he should not. He further submitted that what is required is that it must be something more than a mere desire but need not certainly be a compelling or an absolute dire necessity. As per the learned counsel a bona fide requirement is something in between a mere desire or wish on one hand and the compelling or dire or absolute necessity on the other hand. The learned counsel further drawing the attention to the evidence on affidavit of the Plaintiff and the cross-examination of the Plaintiff submitted that there is not even a single question being put to the Plaintiff's witness on the aspect of bona fide requirement and as such it should be deemed that the same had been duly admitted by the Defendants. He therefore, submitted that this is a fit case where this application under Section 115 of the Code be dismissed by imposing exemplanary cost.
15. I have heard the learned counsel for the parties and have also perused the materials on record.
16. Let this Court take into consideration as to whether on the basis of the materials on record and the contentions so raised, there is any jurisdictional error thereby calling for interference under Section 115 of the Code. As already stated hereinabove, the scope of consideration is only to take note of as to whether there is any perversity in the satisfaction recorded by the Courts below Page No.# 19/25 and in that light as to whether the First Appellate Court had considered the aspect in the background of the evidence to arrive at a consideration to its satisfaction. The re-appreciation of the evidence in a civil revision petition to indicate that another view is possible does not arise.
17. In the backdrop of the above, if this Court takes the first contention made by the learned counsel for the petitioner on the issue as regards the payment of rent, it would be seen that both the Courts below have concurrently come to a finding that the petitioner herein is a defaulter in payment of rent. It is also seen from the pleadings as well as the evidence on record that the petitioner have not been able to state as to when the petitioner have allegedly paid rent for 8 months together to the respondent's son. The Petitioner also could not prove that there was tendering of rent to the Plaintiff or his son who refused to accept the rent and sought for increase of the rent to Rs.500/-. The petitioner have also failed to prove that the rent was to be paid in lump sum and not monthly as pleaded and proved by the Plaintiff. Under such circumstances, deposit of rent in the manner in which it has been done i.e. after every 2 months cannot be a valid deposit in terms with Section 5(4) of the Act of 1972.
18. I have also perused the various Exhibits of the Defendants whereby rent cases were exhibited. There is no mention on which dates, the Petitioner had Page No.# 20/25 approached the Defendants to tender rent except on 06/09/2008 in all the rent cases.
19. Taking into consideration that as the petitioner has failed to prove that rent was not to be paid every month as alleged and the alleged deposit of rent as admitted by the Petitioner was made for 8 months together and thereupon the depositing of rent every 2 months before the Court below, this Court is of the opinion that both the Courts below did not commit any jurisdictional error in coming to a finding that the Petitioner is a defaulter in payment of rent.
20. The next contention is as regards sub-letting made by the Defendant No. 2 to the Defendant No. 3 in respect to a part of the suit premises. There is concurrent finding of fact of both the Courts below that the Defendant No. 2 had sub-let a part of the suit premises to the Defendant No. 1 which is in violation of the tenancy. The learned counsel for the Petitioner have not been able to show any perversity in those findings, for which this Court under Section 115 of the Code cannot interfere with the said findings of fact.
21. The 3rd contention relates to bonafide requirement of the suit premises. In respect to this aspect also, both the Courts below have concurrently come to a finding that there is a bonafide requirement of the suit premises by the Plaintiff as the said suit premises is required for engaging the son of the plaintiff Page No.# 21/25 in some business as he is an educated unemployed youth.
22. At this stage, this Court would like to refer to a judgment of the Supreme Court rendered in the case of Mehmooda Gulshan Vs.Javaid Hussain Mungloo reported in (2017) 5 SCC 683 and more particularly the paragraph 20 which is reproduced herein below.
"20. Thus, the question is whether there is a reasonable requirement by the landlord of the premises. This would depend on whether the landlord has been able to establish a genuine element of need for the premises. What is a genuine need would depend on the facts and circumstances of each case. Merely because the landlord has not examined the member of the family who intends to do business in the premises, he cannot be non- suited in case he has otherwise established a genuine need. The need is a matter of appreciation of evidence, and once there is no perversity in the appreciation of evidence on the need, the said finding of fact cannot be reopened. It may be crucially relevant to note that the eviction is not sought on the last limb of Section 11(1)(h) of the Act, namely, "for the occupation of any person for whose benefit the house or shop is held". The premises sought to be evicted is not held for the benefit of the son alone, but the whole family. It is for the own occupation of the landlord. It has been established in the facts of this case that the landlord was not happy and content with the paltry rent received from the premises. The landlord intended to engage her son in the business at the premises. It is for the landlord to decide as to the best use the premises should be put to. There is nothing wrong on the part of a landlord in making plans for a better living by doing business engaging her son. Having regard to the background of the son who is unemployed and undereducated, the appellant was able to establish that business was the available option and the tenanted premises was the only space available. Thus, the genuine need for the premises has been established. Unfortunately, the High Court has missed Page No.# 22/25 these crucial aspects.
23. From a reading of the above quoted paragraph, it would be seen that the question as to whether there is a bona fide requirement of the suit premises by the landlord would depend on whether the landlord has been able to establish a genuine element of need for the premises and what is a genuine need would depend on the facts and circumstances of each case. It was observed that when the landlord intends to engage her son in the business at the premises, it is for the landlord to decide as to the best use the premises should be put to and there is nothing wrong on the part of the landlord in making plans for a better living by doing business engaging her son. It was also observed that having regard to the background of the son, who is an unemployed and undereducated, the appellant therein was able to establish that the business was available option and the tenanted premises was the only space available for which genuine need of the premises have been established.
24. In the backdrop of the above, if this Court takes into consideration the pleadings and evidence of the Plaintiff, it would be seen that it is the specific stand of the Plaintiff that the Proforma/Defendant No. 6 is an educated and unemployed youth and there is no cross-examination being made on that aspect of the matter to test the veracity of the Plaintiff's witness. The Courts below therefore, taking into consideration the evidence on record have come to Page No.# 23/25 an opinion that there is a bonafide requirement of the suit premises by the Plaintiff and there being no perversity shown to the said findings of fact, this Court under Section 115 of the Code cannot interfere with the said findings. Under such circumstances, the judgment and decree dated 24/1/2017 passed in Title Appeal No. 15/2013 whereby the judgment and decree dated 26/8/2013 passed by the Court of the Munsiff No. 1, Tinsukia was affirmed does not call for any interference.
25. Taking into consideration that the defendants/petitioner had been carrying on their business since long and Mr. A. Sattar, the learned counsel appearing for the petitioner submitted that if the defendants are immediately evicted, serious irretrievable injury would be caused as it would be very difficult to immediately find an alternative location for carrying out their business. Taking into consideration that the defendant/petitioner had been carrying on his businesses in the suit premises since long time, it would be just and reasonable to grant them six months of time to vacate the suit premises provided that he submits an undertaking before the Trial Court within 16/11/2022 to the effect that they shall vacate the suit premises within a period of six month from the date of the instant judgment i.e. on or before 30/04/2023.
26. It is clarified that during this period of six months the Page No.# 24/25 Defendant/Petitioner shall continue to make payment of amount of Rs. 100/- per month in the form of compensation to the plaintiff.
27. 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. 100/- per month during this period of six months shall not create any right or interest in favour of the defendant/petitioner in respect to the suit premises. It is also clarified that during this period, the defendant/petitioner 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.
28. The respondent No.1 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 their 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 being Title Execution Case No. 6/2017 pending before the Court of Munsiff No.1, Tinsukia and thereupon decide in accordance with law.
29. With the above observation, the instant petition stands dismissed.
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30. Return the LCR JUDGE Comparing Assistant