Gauhati High Court
Page No.# 1/9 vs Deepa Newar on 18 January, 2021
Author: Kalyan Rai Surana
Bench: Kalyan Rai Surana
Page No.# 1/9
GAHC010196902019
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRP/112/2019
DEEPAK BORTHAKUR AND ANR.
S/O- LT BIRENDRA NATH SARMA BORTHAKUR, R/O- JAKHALABANDHA
TOWN, MOUZA- CHATIAL, P.S. JAKHALABANDHA, DIST- NAGAON,
ASSAM, PIN- 782136
2: BINA BORTHAKUR
W/O- LT BIRENDRA NATH SARMA BORTHAKUR
R/O- JAKHALABANDHA TOWN
MOUZA- CHATIAL
P.S. JAKHALABANDHA
DIST- NAGAON
ASSAM
PIN- 78213
VERSUS
DEEPA NEWAR
S/O- LT SHER BAHADUR NEWAR, R/O- JAKHALABANDHA TOWN, MOUZA-
CHATIAL, P.O. AND P.S. JAKHALABANDHA, DIST- NAGAON, ASSAM, PIN-
782136
Advocate for the Petitioner : MR. A J SARMA
Advocate for the Respondent : MR K K MAHANTA
BEFORE
HONOURABLE MR. JUSTICE KALYAN RAI SURANA
ORDER
Date : 18.01.2021 Page No.# 2/9 Heard Mr. S.K. Ghosh, learned counsel for the petitioners. Also heard Mr. K.K. Mahanta, learned Senior Counsel, assisted by Mr. K.M. Mahanta, learned counsel for the respondents.
2) The petitioners are the plaintiff in TS No. 15(K)/2012, which was filed against the respondent and tried in the Court of learned Munsiff, Kaliabor, Nagaon. The suit contained the following prayers:
a) A decree for ejectment of the defendant from the schedule (A) from the houses and premises removing the belonging of the defendant there from and to deliver vacant and Khas possession of the same to the Plaintiffs and;
b) a decree for arrear rent as shown and described in Schedule (B) to also be passed against the defendant and in favour of the Plaintiffs and the said amount be allowed to run with interest @Rs.12% per annum from the date of institution of the suit till realization and;
c) a decree be passed for removing illegal construction either permanent or semi permanent nature as described in Schedule (C) below made by the defendant and;
d) a decree for pendence arrear rent be passed on payment of further court fee payable by the plaintiffs and;
e) all cost for the suit also be declared in favour of the plaintiffs and against the defendant.
3) On contest, the said suit was decreed by judgment and decree passed on 18.07.2014. The learned counsel for the petitioners has submitted that although in respect of issue no. 7, it was held that the petitioners are entitled to a decree for arrear rents from respondent and also a decree for eviction of the respondent from the suit house along with cost of the suit. At the order's part of the judgment, the petitioners were held to be entitled to recovery of arrear rents of Rs.67,500/- being the monthly rent @ Rs.7,500/- from Page No.# 3/9 December, 2011 to August, 2012. It is submitted that said decree was challenged by the respondent by filing TA No. 34/2014, which was dismissed by the learned Civil Judge, Nagaon by judgment and decree dated 12.06.2015. The aggrieved respondent had filed RSA 11/2016 before this Court and this Court by order dated 29.01.2016, permitted the prayer of the respondent to withdraw the second appeal with liberty to file civil revision petition by holding that the first appellate judgment and decree was not appealable as the same was one under Section 5 of the Assam Urban Areas Rent Control Act, 1972. Accordingly, the respondent's side had filed CRP 170/2016. Thereafter, the maintainability of the CRP 170/2016 was questioned and on the basis of submission made by the petitioners herein, the said revision petition was again converted to second appeal and the same was registered as RSA 145/2017.
4) In course of the proceeding, as per order dated 27.07.2017, the learned counsel for the respondent sought adjournment to take instruction on the proposal made by learned counsel for the petitioners that the petitioners were agreeable to extent his stay by eight months to accommodate him to shift his business and the matter was thereafter listed on 11.08.2017, on which date, the following orders was passed:
"Heard Mr. P Upadhyay, learned counsel for the appellant and Mr. SK Ghosh, learned counsel for the respondents. On the basis of the order passed by this Court on 27.07.2017, Mr. Upadhyay, learned counsel for the appellant, fairly submits that the appellant has accepted the proposal as placed before this court by the respondents through their learned counsel. Accordingly, this second appeal is allowed to be withdrawn subject to the condition that the respondents shall not execute the decree for the next 9 (nine) months from today. However, the respondents are at liberty to go ahead with the execution of the said decree for ejectment of the appellant/ defendant in the event the appellant/ defendant does not vacate the suit premises after 9 (nine) months. As a good gesture of the respondents/ plaintiffs during the period of 9 months from today the appellant/ defendant shall pay Rs. 5000/- (Rupees five thousand) as the monthly rent during his stay of his next 9 months. This Page No.# 4/9 arrangement is purely a temporary arrangement without affecting the right of the plaintiffs/ respondents to carry out execution in the event of violation of any of the terms so agreed today. Further the claim of arrear rent will be satisfied and if not, then the respondents/ plaintiffs are at liberty to go ahead with the execution for the claim of the arrear rent.
Accordingly, this second appeal is dismissed on withdrawal."
5) The period of nine months was extended by another three months from 11.05.2018 by order dated 23.05.2018 in I.A.(C) 1633/2018 in RSA 145/2017 by providing that earlier terms and conditions would remain the same and on failure of vacating the premises the petitioners herein shall be at liberty to go ahead with execution proceedings. The respondent thereafter filed a review petition, which was registered as Review Petition no. 145/2018 on the ground that there was no instruction to the counsel for out of Court settlement and therefore, on the said ground, the respondent had sought for review, which was dismissed by order dated 29.04.2019.
6) The respondent had vacated the suit premises on 20.05.2019 and sought for some time to make deposit of the house rent and the learned executing Court by order dated 23.05.2019 recorded that the petitioners had got physical possession of the decreetal premises and land in terms of the decree and it was directed that the petitioners were entitled to decreetal amount of Rs.67,500/- and a further amount of Rs.10,016/- aggregating Rs.77,516/- and it was provided that in terms of order dated 04.05.2019, a total amount of Rs.77,516/- shall be paid to the petitioners by UBI, Jakhalabanda Branch from the bank guarantee issued on 15.01.2018 as satisfaction of the decree and the Branch Manager of the said bank was directed to submission compliance report within fifteen days, further, the petitioners were permitted to intimate the Court if the said direction was not carried out and the execution petition, being T. Ex. Case No. 4(K)/2014 was disposed of.
7) Thereafter, in connection with the said execution proceeding, the petitioners had Page No.# 5/9 filed petition no. 453/2019 dated 20.06.2019 under Section 152 read with Section 152 CPC, seeking a sum of Rs.7,25,016/- recoverable towards arrear rent amount and decreetal rent and the prayer was made to pass necessary orders for recovery of the said amount. The said petition was rejected as not maintainable on the ground that the petitioners had filed the petition for recovery of an amount which is not covered by the decree and that too for an amount in respect of which this Court had no pecuniary jurisdiction. In the said order, it has been mentioned that the learned Court had enquired from the petitioners as to whether the order dated 23.05.2019 was carried out by the concerned bank and the petitioners had submitted that they had not approached the bank and had not submitted the bank account etc. and that their learned counsel had submitted before the Court that the petitioners were not willing to receive the decreetal amount if the amount sought for vide petition no. 453/2019 was not paid to him by the respondent.
8) Assailing the said order, the learned counsel for the petitioners has submitted that while deciding issue no. 7, the learned trial Court found the petitioners to be entitled to arrear rent along with relief for eviction of the respondent along with cost of the suit. Hence, it is submitted that the decree of Rs.67,500/- as monthly rent @ Rs.7,500/- per month from December, 2011 to August, 2012 was an error apparent on the face of the order, which can be set right by permitting appropriate corrections in the order portion of the judgment and decree passed on 18.07.2014 by the learned trial Court. It is submitted that notwithstanding that the said petition was filed before the learned Munsiff at Kaliabor in connection with T. Ex. Case No. 4(K)/2014, but the same Court was the Court which have passed the judgment and decree in TS 15(K)/2012, the said learned Court had jurisdiction to amend the order and it is submitted that the error which has crept in the order of the judgment and decree passed in the suit was a clerical error. In support of his submissions, the learned counsel for the petitioners has referred to the case of K. Rajamouli Vs. A.V.K.N. Swamy, AIR 2001 SC 2316.
9) Per-contra, the learned Senior Counsel for the respondent has submitted that there was no error in the judgment and decree passed by the learned trial Court and that the said Page No.# 6/9 learned Court had decreed the suit for recovery of arrear rent and not the pendente lite or future rent and, as such, there was no clerical or arithmetical error in the judgment and, as such, the provision of Section 152 CPC was not attracted. It is also submitted that the decree was never put to challenge by the petitioners by filing any cross objection in appeal and the said decision had attained finality. It is submitted that moreover, as by the order dated 23.05.2019, the learned executing Court had closed the execution proceedings, the said learned Court would become functus officio and had no jurisdiction to alter the judgment and decree after the closure of the execution petition on satisfaction.
10) On a perusal of the prayers made in the plaint, as reproduced herein before, it is seen that while there was a specific prayer for decree for lis pendens arrear rent but there was no prayer in the plaint for a decree for future rent. The prayers were only limited to decree for arrear rent as shown and described in Schedule-B, claiming interest @ Rs.12% per annum from the date of institution of the suit till realization. Therefore, the Court is unable to accept the argument made by the learned counsel for the petitioners that the learned trial Court while deciding issue no.7 had decreed future rent. Rather, in the judgment passed by the learned trial Court, while deciding issue no.7, the petitioners were held to be entitled to decree for arrear rents, which cannot be read and/or understood as if by granting decree for arrear rent, the learned trial Court had either decreed pendente lite or future rent.
11) This Court in the case of Keshab Ch. Singha Vs. Moulvi Abdul Matin Choudhury & Ors., (2006) 2 GLT 731, had held, inter alia, that if the Court finds that a tenant has defaulted in payment of rent during the pendency of the ejectment suit, the Court would be within its jurisdiction to pass an order of ejectment treating the tenant as a defaulter and that the landlord cannot be subjected to file successive suits for ejectment of tenant on each occasion of default by the tenant. However, no authority has been cited by the learned counsel for the petitioners that even if only arrear rent is decreed, the landlord would still not be required to file a fresh suit for recovery of monthly rent that has become due and receivable after the period for which decree for recovery of arrear rent was granted.
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12) In light of the specific prayers made in the plaint and resultant decree granted, the Court is unable to accept that non-granting of either pendente lite or future rent was either a clerical or an arithmetical error in drawing up the decree.
13) Moreover, the judgment and decree was passed by the learned trial Court on 18.07.2014, which was to the effect of granting arrear rent of Rs.67,500/-, being monthly rent @ Rs.7,500/- per month from December, 2011 to August, 2012. It is seen that prior to filing of petition no. 453/2019, the petitioners had not made any attempt to claim pendente lite monthly rent from the month of September, 2012 till 18.07.2014, i.e. the date of decree.
14) The petition no. 453/19 was filed by the petitioners on 20.06.2019. However, the learned counsel for the petitioners has also not made any attempt to address the Court as to whether or not the claim of the petitioners for pendente lite and future rent prior to three years i.e. upto 19.06.2016 had become barred by limitation as on 20.06.2019. Having regard to the provisions of section 3 of the Limitation Act, 1963, it is too well settled that regardless of whether plea of limitation has been raised or not, Court should satisfy itself that the suit (claim in this case) is not barred by limitation and that the question of limitation can be raised even in the Court of last resort. If one needs an authority on the point, the case of State of Gujarat Vs. Kothari and Associates , reported in (2016) 14 SCC 761: (2015) 0 Supreme(SC) 961 may be referred to. Thus, although in the present case, the question of limitation never cropped up, but the Court, while dealing with the claim of the petitioners, is required to examine whether by interfering with the order impugned herein, an apparently time barred claim would be allowed to be brought on board.
15) On facts, the cited case of K. Rajamouli (supra) can be distinguished from the facts of the present case in hand. In the said case, in connection with a partnership dispute, the Arbitrator passed an award of Rs.7.00 lakh against the appellant to be paid to the respondent in three installments. The respondent filed a civil suit, numbered as Suit No. 137/1987 against Page No.# 8/9 the arbitrator and the appellant. The prayer in the suit was for a decree in terms of the arbitration award. The suit was decreed for Rs.6,50 lakh without pendente lite interest. The decree was put to execution along with interest @ 24%, and the claim for interest was rejected by the executing Court. The respondent had filed revision before the High Court, which was dismissed. Thereafter, the respondent had filed a petition under section 152 CPC for amendment of the decree and to grant pendente lite interest, which was rejected. The respondents then filed a revision petition before the High Court, which was allowed, thereby granting interest to the respondent by amending the decree. The appellant filed a review petition before the High Court and also moved the Supreme Court of India by filing SLP, which was dismissed. The review petition was also dismissed by the High Court. Against the rejection of review application, the appellants filed a SLP, which was converted into civil appeal. The Supreme Court of India formulated a question as to whether omission of pendente lite interest to the decree by the trial Court was an accidental or clerical omission and relying on the ratio of the case of Dwaraka Das Vs. State of M.P. & Anr., (1999) 3 SCC 500 to the effect that the omission in not granting the pendente lite interest could not be held to be accidental omission or mistake and therefore neither the trial Court nor the appellate Court has power to award pendente lite interest under section 152 CPC, it was held in the cited case that the said ration was squarely applicable. Reference was also made to the case of Janakiramma Iyer Vs. Nilakanta Iyer, (1962) Suppl. (1) SCR 206 , where the trial Court had awarded mesne profit, however, in the decree it was written as net profit, as such, by applying section 152 CPC, the word "net" was amended to " mesne" profit, being typographical mistake. Therefore, the cited case, rather, goes against the interest of the petitioners. Hence, based on the ratio laid down in the cited case of K. Rajamouli (supra), the present case is found without any merit as non-granting of decree for pendente lite and future rent would not amount to an accidental omission or clerical mistake as projected by the petitioners, as such, this revision deserves to be dismissed, which the Court hereby does.
16) Resultantly, it is held that the order impugned herein does not suffer from any jurisdictional error, warranting interference by this Court in exercise of superintending jurisdiction of this Court under Article 227 of the Constitution of India.
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17) This revision, being devoid of any merit, stands dismissed, leaving the parties to bear their own cost.
JUDGE Comparing Assistant