Gauhati High Court
Md. Rafiuddin Ahmed vs Sri Munindra Sen Deka on 3 February, 2020
Author: Achintya Malla Bujor Barua
Bench: Achintya Malla Bujor Barua
Page No.# 1/3
GAHC010218822019
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : RSA 3/2020
1:MD. RAFIUDDIN AHMED
S/O- MOHIN AHMED, R/O- SARU MOTORIA, DISPUR, GUWAHATI- 781006,
KAMRUP(M), ASSAM.
VERSUS
1:SRI MUNINDRA SEN DEKA
S/O- LATE PADMA SEN DEKA, R/O- MANDALOR CHOWK, BELSOR,
NALBARI, DIST.- NALBARI, ASSAM, PIN- 781304.
Advocate for the Petitioner : S ALI
Advocate for the Respondent : MR. A DAS
BEFORE
HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA
ORDER
Date : 03-02-2020 Heard Mr. S. Ali, learned counsel for the appellant. Also heard Mr. C. Choudhury learned senior counsel for the respondent.
Appeal stands admitted.
Issue notice, returnable within four week.
Extra copies be served upon the respondent.
2. The appellants instituted Title Suit No. 85/2011 in Court of the Munsif No. 1 Kamrup Metro Guwahati, praying for a decree declaring that the plaintiff has a right to run his Page No.# 2/3 business from the suit premises; a decree of permanent injunction restraining the defendant from disturbing and causing any annoyance to the plaintiff; and a decree of permanent injunction restraining the defendant from evicting and dispossessing the plaintiff by force.
3. In the plaint, plea had been taken that initially there was an oral agreement between the parties in the year 2003 in respect of suit land purportedly under the Assam Non Agricultural Urban Areas Tenancy Act, 1955 (in short, Act, 1955). Subsequently, an agreement dated 29.12.2007 was entered between the parties in respect of the Tenancy concerned.
4. A permanent construction was admittedly made in the year 2009-10. In the circumstance, the plaintiffs take recourse to the provisions of Section 5 of Act, 1955, which inter-alia provides that in the event a permanent construction is made with the acquiescence and knowledge of landlord, the tenant shall not be ejected except on the ground of the non payment of rent.
5. In the suit, a counter claim was also made by the defendant for dismissing the suit and further for declaring the deed of lease agreement as null and void and also for recovery of possession.
6. By the judgment dated 31.10.2017, the Title Suit No. 85/2011 of the plaintiff stood dismissed and the counter claim was allowed. On appeal, the order of the Trail Court was affirmed, consequent thereof, the regular second appeal had been preferred.
7. One of the grounds taken in the regular second appeal is that the defendants having instituted the counter claim for eviction of the plaintiff also on a ground other than for arrear rent, Section 11 of the Act, 1955, would be applicable and the counter claim proceeding would be without jurisdiction.
8. Mr. C. Choudhury, learned senior counsel for the respondents on the other hand Page No.# 3/3 contends that at the time when the counter claim was instituted the plaintiff was not a tenant under the Act, 1955, and hence, its provisions would not be applicable and hence, the question of bar of Section 11 would also be inapplicable.
9. The substantial question of law is framed as under:
a. In a circumstance, where apart from the plea of non-payment of arrear rent, there are also pleading that the tenancy agreement dated 29.12.2007, which had been relied upon by the plaintiff to establish their right is to be declared as null and void, whether the counter claim would be considered to be a claim under the Assam Non Agricultural Urban Areas Tenancy Act 1955, and if yes, whether the bar of Section 11 of the Act would be applicable in respect of counter claim.
10. Call for the LCR of Title Suit No. 85/2011 from the Court of learned Munsiff No. 1, Kamrup (M) and Title Appeal No. 64/2017 from the Court of the Civil Judge No. 2 Kamrup (M) Guwahati.
11. List the matter on 23.03.2020 for further consideration.
12. It is stated that the defendant for the present is not pursuing with the execution of the decree in the counter claim and therefore, interim order would not be required. If any further substantial question of law is available, the same would also be considered.
JUDGE Comparing Assistant