Gauhati High Court
Page No.# 1/13 vs On The Death Of Biswanath Sharma His ... on 25 March, 2025
Author: Devashis Baruah
Bench: Devashis Baruah
Page No.# 1/13
GAHC010201262024
2025:GAU-AS:3811
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRP/100/2024
GURUDEV SINGH
S/O SARDAR HARDIP SINGH,
RESIDENT OF ADA GODOWN, KALAPAHAR, GUWAHATI OFFICE ADDRESS
S.N SHARMA BUILDING, OHID MARKET, NEAR URVASHI CINEMA HALL
GUWAHATI 781001M DIST KAMRUP M ASSAM
VERSUS
ON THE DEATH OF BISWANATH SHARMA HIS LEGAL HEIRS SHANTI DEVI
SHARMA AND 6 ORS
W/O LATE BISWANATH SHARMA,
RESIDENT OF OHID MARKET, OHID MARKET, NEAR URVASHI CINEMA
HALL GUWAHATI 781001M DIST KAMRUP M ASSAM
2:SRI AMAR KUMAR SHARMA
S/O LATE BISWANATH SHARMA
RESIDENT OF OHID MARKET
OHID MARKET
NEAR URVASHI CINEMA HALL GUWAHATI 781001M DIST KAMRUP M
ASSAM
3:SMTI ANJU SHARMA @ RATAWA
D/O LATE BISWANATH SHARMA
RESIDENT OF OHID MARKET
OHID MARKET
NEAR URVASHI CINEMA HALL GUWAHATI 781001M DIST KAMRUP M
ASSAM
4:SRI PRASHANT SHARMA
S/O LATE BISWANATH SHARMA
Page No.# 2/13
RESIDENT OF OHID MARKET
OHID MARKET
NEAR URVASHI CINEMA HALL GUWAHATI 781001M DIST KAMRUP M
ASSAM
5:SRI SEKHAR SHARMA
S/O LATE BISWANATH SHARMA
RESIDENT OF OHID MARKET
OHID MARKET
NEAR URVASHI CINEMA HALL GUWAHATI 781001M DIST KAMRUP M
ASSAM
6:MISS NIDHY SINGH
D/O LATE VIJAY KUMAR JAJODIA
RESIDENT OF OHID MARKET
OHID MARKET
NEAR URVASHI CINEMA HALL GUWAHATI 781001M DIST KAMRUP M
ASSAM
7:MISS SWEETY JAJODIA
D/O LATE VIJAY KUMAR JAJODIA
RESIDENT OF OHID MARKET
OHID MARKET
NEAR URVASHI CINEMA HALL GUWAHATI 781001M DIST KAMRUP M
ASSAM
8:MASTER MANAV JAJODIA
S/O LATE VIJAY KUMAR JAJODIA
RESIDENT OF OHID MARKET
OHID MARKET
NEAR URVASHI CINEMA HALL GUWAHATI 781001M DIST KAMRUP M
ASSA
Advocates for the petitioner(s) : Mr. S Ali
Advocates for the respondent(s) : Mr. Z Mukit
Page No.# 3/13 Date of hearing & judgment : 25.03.2025 BEFORE HON'BLE MR. JUSTICE DEVASHIS BARUAH JUDGMENT & ORDER(ORAL) Heard Mr. S Ali, the learned counsel appearing on behalf of the petitioner. Mr. Z Mukit, the learned counsel appears on behalf of the respondent/claimants Nos. 1(a) to 1(h).
2. The present application is filed by invoking the revisional jurisdiction of this Court under Section 115 of the Code of Civil Procedure, 1908 (for short, the Code) challenging the judgment and decree passed by the learned Additional District Judge No.2, Kamrup (M) at Guwahati (hereinafter to be referred to as the learned First Appellate Court) dated 09.07.2024 in Title Appeal No.37/2022 whereby the appeal so filed was dismissed thereby affirming the judgment and decree dated 18.03.2014 passed by the learned Civil Judge No.2, Kamrup (M) at Guwahati (hereinafter to be referred to as the learned Trial Court ) in Title Suit No.173/2003.
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 Page No.# 4/13 78, the Supreme Court in paragraph 43 observed as under:
"43. We hold, as we must, that none of the above Rent Control Acts 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 before it suffers from Page No.# 5/13 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. A three-storied RCC house popularly known as the " S.N. Sharma Building"
at Ohid Market, near Urvashi Cinema Hall, Fancy Bazar, Guwahati is the suit premises in question as described in the Schedule to the plaint. The suit premises originally belonged to one Satya Narayan Sharma. Upon the demise of the said Satya Narayan Sharma, the suit property devolved upon the plaintiff, his mother and his three brothers. The plaintiff was carrying on a Hotel business in the said suit premises in the name and style of " Hotel Manjushree". The said Hotel business, however, did not fair well. The defendant on coming to learn about the closing down of the Hotel business of the plaintiff approached the plaintiff to let out the suit premises on rent @ Rs.18,000/- only per month as per the English calendar month. On the basis thereof, a tenancy agreement was entered into on 29.11.1995 by and between the plaintiff and the defendant effective from 01.01.1996. At the time of entering into the said agreement, the plaintiff was paid an amount of Rs.2,50,000/- by two separate cheques, both dated 27.11.1995. Another post-dated cheque was issued on 07.07.1996 of an Page No.# 6/13 amount of Rs.50,000/- which was, however, not encashed. The said tenancy agreement was for a period of 3(three) years and accordingly the said agreement was to expire on 31.12.1998. It is the case of the plaintiff that for the months of November and December 1998, the rent @ Rs.18,000/- fixed per month was not paid by the defendant. It is the further case of the plaintiff that the defendant ought to have come for renewal of the said agreement, but the defendant did not renew the agreement. In terms with Clause 4 of the agreement dated 29.11.1995, the rent was required to be increased by 10% after 3(three) years and accordingly w.e.f. 01.01.1999, till 31.12.2001, the rent ought to have been Rs.19,800/- per month. Thereupon w.e.f. 01.01.2002 onwards, the rent ought to have been Rs.21,780/- However, the plaintiff did not make any payment of the said rent and as on the date of filing of the suit, the plaintiff was entitled to an amount of Rs.4,47,560/-. In paragraph 16 of the plaint, the plaintiff had further stated that he has a bona fide requirement of the suit premises for his own use and occupation as well as the occupation of his grown up children to start their own business. It was mentioned that the defendant was apprised of the said aspect and was requested to quit and vacate the premises. But the defendant not only failed to pay the rent, but also did not vacate the suit premises. It was also mentioned that the plaintiff was ready to return the security deposit of Rs.2,50,000/- to the defendant on the very date of vacation of the suit premises in favour of the plaintiff. On the basis of the above, the plaintiff, therefore, sought for ejection of the defendant on the ground of being a defaulter in payment of rent as well as on the ground of bona fide requirement of the Schedule premises. The plaintiff has also sought for realization of an amount of Rs.4,47,560/- along with future rent w.e.f. 01.06.2003 and the details of the amount have been given in the plaint. In Page No.# 7/13 addition to that, the plaintiff has also sought for an interest @ 18% per annum on the amount of arrear rent.
7. Upon filing of the suit, which was registered and numbered as Title Suit No.173/2003 and upon receipt of the summons by the defendant, a written statement was filed by the defendant. In the said written statement, the defendant denied that the defendant was a defaulter in payment of rent. It was the stand of the defendant that the different legal heirs of Late S N Sharma were collecting the rent from the defendant, but without issuance of any receipt. It was stated that as soon as Late S N Sharma died, the terms and conditions of the agreement dated 29.11.1995 became automatically extinct, and, as such, the question of paying of the enhanced rent does not arise at all. It was also stated that the heirs of Late S N Sharma never approached the defendant for execution of any fresh agreement.
8. In the said written statement, it was further stated that the defendant had a discussion with the plaintiff in the early part of October 2002. The plaintiff had asked the defendant to stop his business for the time being as the plaintiff shall start renovation/repairing of the suit building. On such verbal discussion with the plaintiff, the defendant was asked not to pay the monthly rent till the opening of the Hotel. It was also stated that the defendant, therefore, closed his Hotel business from the month of October, 2002 and reopened the same on 3 rd October 2003.
9. It is the further case of the defendant that the plaintiff did not go ahead Page No.# 8/13 with the renovation and the defendant, therefore, carried out the repair/renovation by himself with the condition that the defendant would deduct Rs.5000/- per month from the month of opening of the Hotel. It was also mentioned that in that regard, the defendant had incurred an expense of Rs.5,00,000/-.
10. On the basis of the said pleadings, the learned Trial Court had framed 7(seven) issues. The said issues are reproduced hereinunder:
(i). Whether the plaintiff alone has right to sue?
(ii). Whether the defendant has paid a sum of Rs.3,00,000/- as security deposit to the father of the plaintiff?
(iii). Whether the defendant has spent Rs.5,00,000/- in repair/renovation of the suit building?
(iv). Whether the defendant is a defaulter? (v). Whether the suit premises required bona fide by the plaintiff for his own use and occupation of his children as well? (vi). Whether the plaintiff is entitled to the decree as prayed for? (vii). To what other relief/reliefs parties are entitled?
11. On behalf of the plaintiff, the plaintiff adduced himself as witness and exhibited various document. On behalf of the defendant, the defendant adduced himself as witness and exhibited certain documents. The learned Trial Court while deciding the Issue No.4 came to a categorical finding on the basis of the evidence that the defendant defaulted in payment of his rent for the months of Page No.# 9/13 November and December 1998. In respect to the issue as to whether the plaintiff had bona fide requirement of the suit premises, the learned Trial Court came to a categorical finding on the basis of the evidence on record that the plaintiff had a bona fide, requirement of the suit premises. On the question of arrear rent, the learned Trial Court held that the plaintiff would be entitled to arrear rent from the period of June 2000 @ Rs.18000/- per month, minus the payment of rent already received on payment of the appropriate Court fees.
12. The learned Trial Court, therefore, decreed the suit holding, inter alia, that the plaintiff is entitled to get vacant possession of the suit premises from the defendant or any person claiming under him. The defendant was directed to deliver vacant possession of the suit premises within 2(two) months. It was also decreed that the plaintiff would be entitled to arrear rent from the month of June 2000 @ Rs.18000/- per month, minus the payment of rent already received on payment of the appropriate Court fees. It was also held that the defendant is also entitled to refund of the security deposit of an amount of Rs.2,50,000/- as well as the un-encashed cheque of Rs.50,000/- from the plaintiff.
13. Being aggrieved, the defendant preferred an appeal before the learned First Appellate Court, which was registered and numbered as Title Appeal No.37/2022. The learned First Appellate Court by taking note of the evidence on record affirmed the judgment of the learned Trial Court and dismissed the appeal. It is under such circumstances, the present revision application is before this Court.
Page No.# 10/13
14. I have heard the learned counsels appearing on behalf of the parties and have perused the materials on record.
15. From a perusal of the materials on record, it is seen that both the learned Trial Court as well as the learned First Appellate Court after examining the evidence of the witnesses and taking into account the documents exhibited had come to a categorical finding of fact that the plaintiff herein was a defaulter in payment of rent. The findings of fact so arrived at in respect to Issue No.4 which pertains to whether the Defendant was a defaulter being based upon evidence do not call for any interference in exercise of the revisional jurisdiction of this Court. No perversity in that regard was shown by the Defendant/petitioner herein during the course of hearing.
16. This Court had also taken note of the decision of the learned Trial Court in respect to Issue No.5 as to whether the plaintiff had bona fide requirement of the suit premises and it is seen from the evidence on record as well as the discussions so made by the learned Trial Court as well as the learned First Appellate Court that both the Courts had on the basis of the evidence arrived at the finding that the plaintiff had bona fide requirement of the suit premises. The said findings under no circumstances can be said to be perverse.
17. Considering the above, this Court does not find the instant application to be a fit case for exercise of the revisional jurisdiction under Section 115 of the Code.
Page No.# 11/13
18. Mr. S Ali, the learned counsel appearing on behalf of the petitioner submitted that the petitioner is presently carrying on business in the suit premises and it would be difficult on the part of the defendant/petitioner, if the decree is enforced immediately. He therefore, submitted that the petitioner would require time to vacate and look for some alternative premises for shifting of his business and for which, some time may be granted to the petitioner to vacate the tenanted premises. On such terms and conditions as this Court may deem proper.
19. Mr. Z Mukit, the learned counsel appearing on behalf of the legal heirs of the original plaintiff submitted that the plaintiff had been occupying the suit premises despite being a defaulter in payment of rent to the utter prejudice of the respondents. He submitted that the plaintiff in view of the present Litigation have deprived the Respondents for almost two decades the right to enjoy the suit premises for which severe prejudice have been caused to the Respondents.
20. This Court had given anxious consideration to the respective submissions made. This Court is not unmindful of the fact that the Respondents have been deprived of the enjoyment of the suit premises even after the fact that they had proved that they have bona fide requirement of the suit premises. On the other hand, the plaintiff had been running a business establishment and naturally if the plaintiff is ousted immediately, it would result in great difficulties. In the opinion of this Court, the Plaintiff can be granted 6(six) months time for shifting its business from the suit premises subject, however, to giving certain undertaking before the learned Trial Court. Accordingly, this Court observes that the plaintiff can be granted time to occupy the suit premises till 30.09.2025, Page No.# 12/13 subject to filing undertaking before the learned Trial Court on or before 07.04.2025, which should contain the following:
a). That the Defendant/Petitioner shall vacate the suit premises described in the Schedule to the plaint on or before 30.09.2025.
b). That the Defendant/Petitioner would not create any third party rights or do any act which would impact/prejudice the rights of the Plaintiff/Respondents herein in respect to the suit premises.
c). The Defendant/Petitioner shall pay in the form of compensation an amount of Rs.18,000/- per month to the Respondents. This payment under no circumstances shall create any right and interest over the suit premises and shall also not create any land-lord tenant relationship.
21. It is observed that if the undertaking is not filed before the learned Trial Court by the Defendant/Petitioner on or before 07.04.2025, the Respondent herein shall be entitled to proceed with the execution.
22. It is also observed that the undertaking submitted before the learned Trial Court on the basis of the leave so granted would be construed as undertaking filed before this Court. Under such circumstances, if the terms of the undertaking are violated, it would not only entail consequences before the learned Executing Court, but also would amount to contempt of the order(s) passed by this Court.
23. This Court further observes that the Respondents herein would be entitled to recovery of the rent for the period from the date of filing of the suit till Page No.# 13/13 07.04.2025. For that purpose, the Respondents herein would be at liberty to approach the learned Executing Court. The learned Executing Court shall by giving opportunity to both side decide on the entitlement after taking into consideration, how much amount had been deposited by the Petitioner/Defendant during the trial of the suit and till date before the Court. It shall be the burden of the Defendant/Petitioner to prove the amount deposited.
24. This Court further finds it relevant to take note of that the respondent herein, who is the plaintiff had been unnecessarily deprived of the enjoyment of the tenanted premises and on account of the various judicial proceedings there has been a considerable delay. Under such circumstances, as the instant petition is completely vexatious and meritless, this Court imposes a cost of Rs.30,000/-, (Rupees Thirty Thousand) only upon the petitioner.
25. Interim order, if any, stands vacated in view of the directions as given hereinabove.
26. Revision petition, accordingly, stands dismissed subject to the observation(s) as made hereinabove.
27. LCR be returned back.
JUDGE Comparing Assistant