IN THE GAUHATI HIGH COURTghconline.gov.in/Judgment/CRP1562017.pdf · 2017-07-26 · IN THE GAUHATI...
Transcript of IN THE GAUHATI HIGH COURTghconline.gov.in/Judgment/CRP1562017.pdf · 2017-07-26 · IN THE GAUHATI...
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IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM, AND ARUNACHAL PRADESH)
CIVIL REVISION PETITON NO. 156 OF 2017
Smti. Niyoti Deb, wife of Late Nani Gopal Deb,
Resident of Jyoti Nagar, Near Budha Bihar,
P.O. Dibrugarh, Dist. Dibrugarh, Assam. PIN 786001,
and 6 others.
…….. Petitioners
-Versus-
The Ahmed Tea Company (Private) Ltd.,
A Company registered under the Indian Companies Act,
on 17.08.1938 and bearing registration No. 503,
having its registered office at K.N.C.B Path,
Boiragimath, Dibrugarh Town, Dist. Dibrugarh, Assam.
Pin: 786001—represented herein by one of its
Director Afrooza Salima Ahmed.
..….. Respondent
BEFORE
HON’BLE MR. JUSTICE KALYAN RAI SURANA
For the Petitioners : Mr. A. Biswas, Adv.
For the Respondent : Mr. N. Dutta, Senior Adv.
: Mr. B. Talukdar, Adv.
Date of hearing : 13.06.2017.
Date of judgment : 11.07.2017.
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JUDGMENT AND ORDER (CAV)
Heard Mr. Arnab Biswas the learned counsel for the
petitioner as well as Mr. N. Dutta learned Senior Counsel assisted by
Mr. B. Talukdar learned counsel appearing for the respondent.
2) This revision under section 115 of the Civil Procedure Code
has been filed by the petitioner/ defendant to challenged the judgment
and order dated 08.02.2017 passed by the learned Civil Judge, Dhubri
in Title Appeal No. 27/2013, thereby upholding the judgment and
decree dated 13.02.2013 passed by the Court of Munsiff No. 1, Dhubri
in Title Suit No. 74/2006 for eviction of the defendant petitioner and
for recovery of arrear rent.
3) The respondent/ plaintiff is a company registered under the
Companies Act, 1956. The respondent/ plaintiff had instituted a suit
against the predecessor-in-interest of the present petitioners, Shri Nani
Gopal Deb for his eviction on the ground of default as well as on the
ground that the suit premises was bona fide required for construction
of RCC building for doing business therefrom.
4) The brief case of the parties is that on 01.12.1957, the
predecessor in interest of the petitioner was inducted as a tenant in
respect of an Assam type house, from where a bakery business was
started. Since 1980, the petitioner had been paying monthly rent of
Rs.130/- per month for the suit premises. Since the month of
December, 1992 the predecessor in interest of the petitioner had failed
to pay the monthly rent to the respondent/ plaintiff and, as such, had
become defaulter in the eyes of law. It was projected that the suit
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premises was bona fide required for constructing a RCC building
thereon for accommodating their own business for which they had
secured permission for construction from the competent authority.
Although, the outstanding rent had accumulated to Rs. 36,660/-
(Rupees Thirty six thousand six hundred and sixty only) but the suit
was filed for recovery of arrear rent from June 2003 to May 2006 only
and they had forgone the outstanding rent due from December, 1982
to May 2003. The plaint was filed by the respondent Company through
Mrs. Nazrana A. Islam, Director.
5) The petitioner/ defendant contends the suit by filing the
written statement and it was projected that after the compromise in
the previous suit, fresh arrangement were made by the parties in
respect of the tenancy on certain verbal terms and conditions. It was
stated that sometimes the respondent used to collect rent monthly and
sometimes on a lump-sum on their convenience and, as such, there
was no due date for payment of the monthly rent and therefore, the
question of refusal to pay the monthly rent never arose and there was
no arrear of rent. The petitioner’s case was that since December 1982,
although they having been paid their rent upto April, 1986 but the
plaintiff had stopped issuing rent receipt despite demands. Hence,
after 1986, the petitioner could not take any risk and, as such, the
petitioner/defendant deposited the rent in Court under the provision of
the Assam Urban Area Rent Control Act, 1956 (hereinafter referred to
as ‘AUARC Act’), with notice to the plaintiff. Hence, no rent is in arrear
and the defendant was not a defaulter. Along with the written
statements, 46 (forty six) rent deposit Treasury Challans were referred
to and filed showing the deposit of rent in Court. The bonafide
requirement of the suit premises by the respondent was denied by
stating that they had several properties in Dibrugarh and they can
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carry out their business from any other premises and that the suit
premises was their only source of livelihood. Hence, the petitioner/
defendant claimed for the dismissal of the suit.
6) In course of trial, the learned Court of Munsiff No. 1,
Diburgarh, on the basis of pleading, framed the following 6 issues in
the suit:-
i. Whether there is cause of action for the suit?
ii. Whether the suit is maintainable in law and facts?
iii. Whether the defendant is a defaulter in respect of payment of
monthly rent for the suit premises to the plaintiff?
iv. Whether the suit premises are bonafide required by the
plaintiff?
v. Whether the plaintiff is entitled to a decree as prayed for?
vi. Whether the parties are entitled to any other relief?
7) On the basis of pleadings and evidence, the learned trial court
decided all the aforesaid issues in favor of the plaintiff by holding that
(i) there was cause of action for the suit, (ii) the suit was maintainable
and there was no irregularity in the presentation of the suit by Mrs.
Nazrana A. Islam, (iii) the defendant had defaulted the payment of the
monthly rent to the respondent/plaintiff, (iv) the claim for bona fide
requirement of the suit premises was held to be genuine, (v) the
plaintiff was held to be entitled to get relief of decree of eviction of the
defendant from the suit premises and recovery of khas possession and
for recovery of arrear rent. On the basis of the said judgment, the
decree was drawn up.
8) Aggrieved by the response a decree was passed by the
learned Trial Court, the petitioner herein had filed an appeal, which
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was registered as Title Appeal No. 27/2013 and heard by the learned
Court of Civil Judge, Jorhat.
9) The learned first appellate Court on the basis of materials
available on record formulated the following point of decision:-
“Whether the learned Munsiff No. 1, Dibrugarh, rightly
passed the judgment and order dated 13.02.2013 in Title
Suit No. 74/2006 for the same requires interference by the
Court?”
10) The learned First Appellate Court on the issue of
maintainability raised by the petitioner herein referred to the Board
resolution (Ext.1), authorizing Smt. Nazrana A. Islam to represent the
Company in the suit and held that the contention of the appellant that
the suit was not properly instituted was not tenable. On the basis of
writing dated 01.12.1957 (Exhibit-6) by Nani Gopal Deb, whereby he
agreed to pay monthly rent in the first week of every month, joint
petition dated 30.11.1966, filed in the previous T.S. 117/1963 (Ext. 9)
and rent receipts (Ext. 10 to 20), held that the petitioner was a
defaulter. On the basis of permission for construction (Ext.30), held
that the suit premises was a bona fide required by the respondent.
Accordingly, the appeal was dismissed by judgment and decree dated
08.02.2017, passed by the learned Civil Judge, Dibrugarh in Title
Appeal No. 27/2013. The aforesaid concurrent finding of fact of default
and bonafide requirement is in challenge in the present revision.
11) The learned counsel for the petitioner had submitted that
once he had raised a plea pursuant that Smt. Nazrana A. Islam, the
person who had filed the suit had no competence to do so, the burden
shifted on the respondent/plaintiff to prove the said fact. It is further,
submitted that as the said person did not prove her locus, but did not
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produce the copy of the Memorandum of Association and the Articles
of Association, the burden of proof never shifted on the petitioner/
defendant to prove the said particular fact.
12) The learned Trial Courts below, specially the First Appellate
Court had held the petitioner to be a defaulter from the year 1982.
Hence, the cause of action for determination of the tenancy of the
defendant arose in the year 1982. Therefore, the present suit instituted
on 31.05.2006 was clearly barred by Article 67 of the Schedule
appended to the Limitation Act, 1963 and, as such, it was submitted
that the issue of maintainability was wrongly decided by both the
Courts below. It is submitted that once the suit is not maintainable, no
other issues including the issue of defaulter or bona fide requirement
could not have been gone into and decided by both the Courts below.
13) In support of the aforesaid contention, the learned counsel
for the petitioner has placed reliance on the case of Smt. Shakuntala S.
Tiwari Vs. Hem Chand M. Singhania, reported in Manu/ SC/0815/1987,
wherein the Hon’ble Apex Court had discussed the provision of Article
67 of the Schedule appended to the Limitation Act. In the said case it
was held that the limitation under article 67 was 12 years. It is
submitted above on the basis of the said citation that in the present
case in hand, the cause of action for determination arose in the year
1982 and, as such, the suit, instituted after 12 years from the date of
cause of action was barred by limitation. It was also submitted as the
question of limitation was raised before all the Courts including the
present revision. Hence, the learned Trial Court and the First Appellate
Court were obliged under the provision of Section 3 of the Evidence
Act to answer the plea taken by the petitioner in connection with the
statutory provision of Article 67 of the Schedule appended to the
Limitation Act. In support of his arguments, the learned counsel for the
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petitioner has relied on the case of State of Gujarat Vs. Kothari and
Associates, reported in Manu/ SC/1207/2015.
14) It is submitted that in the said Board resolution, there is no
mention that Smt. Nazrana A. Islam (N.A. Islam in short mentioned
there) was a Director, or the Principal Officer, or the Secretary of the
Company. Hence, the suit was not maintainable and therefore, the
decree passed by both the courts below was not sustainable. On the
issue of maintainability, the learned counsel for the petitioner has
referred to the provision of Rule 1 of Order 29 of the Civil Procedure
Code and he has submitted that only the Director, Secretary or the
Principal Officer of the Respondent could have instituted the suit for
the respondent. He has placed reliance on the finding recorded in
paragraph 10 of the judgment passed by the learned First Appellate
Court, wherein the Board resolution dated 14.06.2005 of the
respondent was extracted.
15) On the issue of defaulter, the learned counsel for the
petitioner has made the following submissions. Firstly, the non-
issuance of rent receipts from December, 1982 to April, 1986 had
amounted to refusal to accept the lawful rent tendered to the
respondent. Therefore, the evidence of DW-2, that the deposit of rent
was made a measure on abundant caution ought to have been
accepted. Secondly, the extracts from the books of account produced
by the respondent did not satisfy the test of Section 34 of the Evidence
Act and therefore, these books of accounts were incorrectly accepted
by the learned Court below to prove the issue of default. Thirdly, as
there was a demand and refusal by the respondent to issue rent
receipt, the petitioner became entitled to deposit rent before the Rent
Controller under the provision of Section 5(4) of the AUARC Act.
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16) Per contra, the learned Senior Counsel for the respondent
has submitted that from the arguments advanced by the learned
counsel for the petitioner, it would be deemed that the issue of bona
fide requirement has been given-up. It is submitted that if action of the
respondent is contrary to the settled position of law on the issue of
bona fide requirement, the petitioner may explore the possibility
available to him under the provisions of the AUARC Act. It is submitted
that it is a well settled position of law that the landlord is the best
judge for his bona fide requirement of a particular premises for his own
use and it is not open for the petitioner/tenant to suggest to the
respondent where they should be doing business. Reliance is placed on
the permission for construction (Ext. 30) and therefore, the concurrent
finding of fact recorded by both the courts below ought not to be
disturbed. It is further submitted that under the scheme of the AUARC
Act, notwithstanding whether the issue of defaulter was proved or not,
if the bona fide requirement for the suit premises is proved, the same
is sufficient to evict the petitioner from the suit premises.
17) On the issue of defaulter, the learned Senior Counsel for the
respondent has relied on the provisions of section 5(1)(e) and section
5(4) of the AUARC Act. It is submitted that owing to the language used
by the landlord in section 5(4) of the said Act, the petitioner was duty
bound to tender monthly rent to the respondent on each and every
month and only on the event of refusal could a right accrue for
depositing monthly rent in Court. It is submitted that the requirement
of the steps and process fees in contained in the said AUARC Act is to
issue a notice on the landlord to intimate him about the rent deposited
in Court so as to enable him to withdraw the money deposited in the
Court on account of rent. In support of his submissions, the learned
Senior Counsel for the respondent has relied on the case of (i) Bansal
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Traders and others Vs. Nandalal Gattani, 2006 (3) GLT 715, (ii) Abdul
Matin Choudhury & others Vs. Nilayananda Dutta Banik, 1997 (2) GLT
590, and (iii) Rameshwarlal Chaudhury Vs. Ram Niranjan Mour, (1995)
Supp 3 SCC 44. It is submitted that unless the pre-condition and
requisites of depositing of rent is adhered to, which was mandatory in
nature, the rent cannot be said to be validly deposited as per the
requirement of Section 5(4) of the Act. The learned Senior Counsel for
the respondent has produced a copy of the evidence of the Evidence-
on- Affidavit and cross examination of the witnesses of the parties. By
referring to the cross-examination of DW-1 and DW-2, he has
submitted that both the witnesses have admitted that they did not
tender monthly rent to the landlord before depositing the same in
Court.
18) It was further submitted that as there was an admission in
the written statement as regard the verbal arrangement to create the
tenancy. Hence, a tenancy which is not in written form, was a monthly
tenancy within the meaning of Section 106 of the Transfer of
Properties Act, 1882. It is submitted that in the case of a monthly
tenancy, rent become the rent at the end of each month and therefore,
each default in payment of monthly rent for each month would
constitute a valid cause of action for the landlord to institute the suit
for eviction.
19) On the issue arising out of filing of the plaint by Smt.
Nazrana A. Islam, the learned Senior Counsel for the respondent has
produced the certified copy of the Board Resolution (Ext.1), which
shows that the said Mrs. Nazrana A. Islam had attended the meeting
as a Director. By referring to the provisions of section 266-A and
section 266-E of the Companies Act, 1956 it was submitted that every
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Director is required to have a Director Identification number (DIN), and
the said DIN can be verified from the website of the Ministry of
Corporate Affairs, Govt. of India and also from the jurisdictional
Registrar of Companies and therefore, the information as to whether a
person is Director or not, is no longer a private information of the
parties concerned, but such information is available in the public
domain and anyone interested can identify a Director of a Company
registered under the Companies Act, 1956 through his Director
Identification Number. It is further submitted that in the cause-title of
the plaint, in paragraph 1 of the plaint, in the verification appended to
the plaint and in the affidavit filed in support of the plaint, it has been
stated that said Mrs. Nazrana A. Islam was the Director. The statement
made in paragraph 6 of the written statement, which was in response
to statements made in paragraph 1 of the plaint, was read to show
that the issue now being raised was not even pleaded in the written
statement, for which no issue was framed by the learned Trial Court on
the competence of said Smt. Nazrana A. Islam to represent the
Company and therefore, at this revisional stage, the respondent cannot
be non-suited on a issue which was not specifically raised before the
Trial Court. It is further submitted that as the respondent had pleaded
about the incompetence of Smt. Nazrana A. Islam to institute the suit,
as such, after the initial burden was discharged by the respondent, the
burden to disprove the same was on the petitioner and the same was
not discharged.
20) In response to the plea raised by the learned counsel for the
petitioner on Article 67 of the Schedule appended to the Limitation Act,
1963 the learned Senior counsel for the respondent has submitted that
in the present case the respondent did not take the plea for
determination of the tenancy, but the right and cause of action to evict
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the tenant arose on the ground of the petitioner being a defaulter and
on the bona fide requirement of the suit premises. Hence, the
provision of Article 67 of the Schedule to the Limitation Act, 1963 was
not at all attracted. He submits that the said provision is attracted only
if a point of determination is raised within the meaning of Section 111
of the Transfer of Property Act, 1882.
21) In support of his argument on the issue of defaulter, the
learned Senior Counsel for the respondent has referred the following
case citations:-
i. Rameshwarlal Chaudhury Vs. Ram Niranjan Mour, (1995)
Supp 3 SCC 44.
ii. Bansal Traders and others Vs. Nandalal Gattani, 2006 (3)
GLT 715.
iii. Abdul Matin Choudhury & others Vs. Nilayananda Dutta
Banik, 1997 (2) GLT 590.
22) Having heard the learned counsel for the parties, the
following points of determination are formulated by this Court:
i. Whether Smt. Nazrana A. Islam, had duly instituted the suit
or whether a suit was not maintainable on account of the
non-compliance of the provisions of Order XXIX Rule 1 of the
CPC?
ii. Whether the suit filed and instituted by the plaintiff on
31.05.2006, was barred as per Article 66 and 67 of the
Schedule appended to the Limitation Act, 1963?
iii. Whether the rent was validly tendered and deposited before
the Rent Controller as per Section 5(4) of the Assam Urban
Areas Rent Control Act, 1972?
iv. Whether the concurrent findings by both the Courts below
are vitiated by exercise of jurisdiction material irregularly?
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23) In respect of the first point of determination as formulated
above, it would be pertinent to quote Ext.1, which is the Minutes of the
Meeting of the Board of Directors of the Respondent Company dated
14.07.2005, which is quoted below:
“Minutes of the Meeting of the Board of Directors at the office of the plaintiff’s Company held on 14.07.2005. Present in the Meeting”-
Mr. Nazimuddin Ahmed Mrs. Afrooza Salima Ahmed. Mrs. Nazrana Ahmed Islam
Mr. Nazimuddin Ahmed was voted to the Chair. The Minutes of the last Board Meeting were read out and confirmed. The Notice convening the Meeting is read out. The following Resolution is adopted. “After protracted discussion it was Resolved that a trade centre for the company’s business needs be constructed in the land of Dag No. 38 and 36 of PP. No. 66 Graham Bazar Ward, Mouza, Dibrugarh Town, Dist. Dibrugarh, after demolition of the existing houses thereon, which were constructed in 1950 by the company. These houses can no longer be repaired inspite of spending huge amounts on their upkeep annually and the tenants thereon are also not paying their due rents to the company. The meeting therefore further authorise Smti. N.A. Islam to file suits against these and take all necessary steps therefore.” Passed unanimously. There being no other matters this Meeting is terminated with a vote of thanks to the chair.
Chairman Board of Directors The Ahmed Tea Co. Pvt. Ltd.”
24) The aforesaid minutes containing the extract of Board
resolution leaves this Court with no doubt that Mrs. Nazrana Ahmed
Islam was one of the Board of Directors of the respondent Company,
which is evident from her presence recorded in the meeting and the
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said resolution, giving the authority to take necessary steps for filing
suits. The cause-title of the plaint, the verification and the affidavit in
support of the statements made in the plaint leaves no room for any
doubt that Nazrana A. Islam was one of the Directors of the
respondent and therefore, both under the Companies Act, 1956 and
under Rule 1 of the Order XXIX of the Civil Procedure Code, she was
authorized to file the suit, which is inclusive of empowerment to sign
the pleadings, to verify the plaint and to swear and file affidavit in
support of the plaint. This Court has to agree to the arguments
advanced by the learned Senior Counsel for the respondent that a
Director of a Company can be identified by his unique “Director
Identification Number” (DIN for short), which can be found out by
visiting the website of the Ministry of Corporate Affairs, Govt. of India.
Therefore, notwithstanding that this issue was not raised by the
petitioner, they did not prove this information to disprove that Smt.
Nazrana A. Ahmed was not the Director of the respondent Company
and therefore, the plea of someone had unauthorizedly filed by the
plaint cannot is not found sustainable.
25) In the considered opinion of this Court, the language used in
Exhibit-1 i.e., the Minutes of the Board of Directors meeting dated
14.07.2005 is self-explanatory. The content of the said exhibit is
sufficient to prove that Smt. Nazrana A. Islam was indeed authorized
to take steps to file suits. Therefore, the provision of Section 94 of the
Evidence Act, 1872 is found to apply accurately to the existing facts
and therefore, the respondent/plaintiff was not required to give any
further evidence on the same. Under such circumstances, the
respondent-plaintiff is found to have duly discharged their burden of
proof as required under section 101 of the Evidence Act. Hence, by
proving the Board Resolution (Ext.1), while the respondent-plaintiff
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had discharged their burden, the onus of disproving the said fact would
then shift to the petitioner/defendant. In view of the discussion above,
this Court has no hesitation to hold the fact that the suit was
maintainable and did not suffer from being not duly verified in
accordance with law. Accordingly, the first point of determination that
whether Smt. Nazrana A. Islam, had duly instituted the suit is
answered in affirmative and in favor of the respondent/ plaintiff. It is
held that the suit was duly filed and verified in accordance with the
provisions of Rule 1 of Order XXIX CPC and, as such, the suit was
maintainable.
26) On the aforesaid point, this Court has revisited the written
statement filed by the petitioner/defendant. There is no specific
statement therein to the effect that Mrs. Nazrana A. Islam was not the
Director of the respondent /plaintiff Company. There is no averment
that the statements made in the cause-title, verification and the
affidavit of the plaint had an incorrect statement that Smt. Nazrana A.
Islam was one of the Directors of respondent/ plaintiff Company. There
is even no statement to the effect that the verification and affidavit
appended to the plaint was signed by an unauthorized person.
Moreover, going by the issues framed by the learned Court, it would be
apparent that the said issue was not raised before the learned trial
court.
27) This leads to another corollary issue of what would be the
effect of not raising any issue at the time of trial? In this regard, before
venturing to answer this, it would be pertinent to refer to the decision
by the Hon'ble Division Bench for this Court in the case of Dr.
Dwijendra Mohan Lahiri Vs. Rajendra Nath, AIR 1971, GAU 143: 1971
0 Supreme (Gau) 47. Paragraph 10 of the said judgment (from 1971 0
Supreme (Gau) 47) is quoted below:-
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“We may observe that a court should decline to frame an
issue as to main-tainability of a suit in absence of specific
averment in the written statement as to how and in what
circumstances the same is not maintainable in law. A mere
vague recital in the written statement, without anything
more, cannot be the basis for raising such an issue. Issues
are framed for a right decision of the case with an object to
pinpoint the real and substantial points of difference
between the parties specifically and unambiguously
emerging out of the pleadings. Vague issues, suggested in a
mechanical way, should not be framed to keep the door
open for astute casuistry as a suit proceeds at different
levels leading inevitably to the law's delay. The court has to
own its own responsibility in framing issues.”
28) If the provision of Order XVIII Rule 2 (1) of the Civil
Procedure Code is seen, one will find that it prescribes that a party
having the right to begin shall state his case and produce his evidence
in support of the issues which he is bound to prove. Therefore, if the
ratio of the aforesaid judgment of Dr. Dwijendra Mohan Lahiri (supra)
as extracted above is conjointly read with the provision of Order XVIII
Rule 2 (1) of the Code it can be concluded that a party is not obliged
to lead evidence on any point on which an issue is not framed by the
Trial Court. In other words, if no issue was framed, then one party
would have a bona fide cause to argue that he was prevented to lead
any evidence to prove such point. In the present case in hand, the
petitioner/ defendant did not make any statement denying that Smt.
Nazrana Ahmed Islam was a Director of the respondent/ plaintiff
Company. Therefore, in the absence of denial, a statement made in
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the plaint becomes admitted under the principles of non-traverse as
per the provisions of Section 58 of the Evidence Act, 1872.
29) Hence, on the aforesaid view of the matter the petitioner/
defendant fails on the first point of determination. It is held that there
is no infirmity in the plaint being signed and verified by Smt. Nazrana
A. Islam in accordance with the provisions of Order XXIX Rule 1 of the
CPC, as such, the suit was maintainable. This point is decided in the
favour of the respondent/ plaintiff.
30) On the second point of determination as to whether the suit
filed by the plaintiff, instituted on 31.05.2006, was barred as per Article
67 of the Schedule appended to the Limitation Act, 1963, it is seen that
in the written statement, the petitioner/ defendant had taken a specific
stand that they never failed to pay any rent from the month of
December, 1982. It was claimed that the plaintiff through his persons
had collected and accepted the monthly rent from the defendant but it
had allegedly stopped issuing rent receipts from the said month of
December, 1982. It was stated that there was no due date for paying
rent and that the plaintiff collected monthly rent as per their
convenience. It was further stated that after April, 1986 after
demanding monthly rental receipt, when the plaintiff failed to issue
monthly rent receipt, the petitioner/ defendant had started to deposit
monthly rent in Court under the provisions of the AUARC Act.
31) The submission of the learned counsel for the petitioner is
that the suit was barred by limitation as prescribed under Article 67 of
the Schedule appended to the Limitation Act. As per the provisions of
the Article 67 of the Schedule of the limitation Act, 1963, the period of
limitation of 12 years begins to run for the landlord to recover
possession from a tenant from the period when the tenancy is
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determined. It was argued that as per the statements made in
paragraph 11 of the plaint, the date of cause of action is mentioned as
01.12.1957 and that as per the statement made in paragraph 4 of the
plaint, it was stated that the petitioner/ defendant had failed to pay
rent due from the month of December 1982. Therefore, it is projected
that the tenancy became determined in the month of December, 1982
and therefore, the present suit filed 31.05.2006 was beyond the
prescribed period of limitation prescribed under Article 67 and, as such,
the suit was hopelessly barred by limitation. In support of his
contention, the learned counsel for the petitioner has relied on the
case of Smt. Shakuntala S. Tiwari (supra). The said judgment was in
case of eviction of a tenant under section 12 and 13 of the Bombay
Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter
referred to as “1947 Act”. The provision of Section 12 of the said 1947
Act contains the heading of “12. No ejectment ordinarily to be made if
tenant pays or is ready and willing to pay standard permitted
increases.” The provision of section 13 contains the heading “13. When
landlord may recover possession.” The provisions of Section 13 (1)
provides that a landlord shall be entitled to recover possession of any
premises if the court is satisfied that a tenant has committed and act
contrary to provision or clause (a) of Section 108 of the Transfer of
Property Act 1882 or that (b) the tenant has without the landlord’s
consent given in writing, erected on the premises any permanent
structure. However, there are no para-materia provisions like the same
in the AUARC Act. Moreover, there is no statement made in the plaint
of the present case that the tenancy between the parties had been
determined and there is also no prayer for declaring the tenancy to
have been determined owing to any defaults committed by the
tenants. In the opinion of this Court, under the AUARC Act, even a
single default on part of the tenant to pay rent on time to the landlord
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gives rise to a right landlord to evict a tenant from the tenanted
premises. Therefore, in respect of the tenancy under the AUARC Act,
this Court has treated a defaulting tenant under the principle of “once
a defaulter always a defaulter”. Therefore, I have no hesitation to hold
that the Hon'ble Apex Court had decided in the case of Smt.
Shakuntala S. Tiwari (supra) under a different law and different
context, by holding in that case that the tenant was not entitled to
possession under section 12 and 13 of the 1947 Act as the tenant had
violated the terms of tenancy by erecting super structures on the suit
premises, for which Article 113 of the Schedule to the Limitation Act,
1963 would not apply and either of the provisions of Article 66 or 67 of
the Schedule of the Limitation Act, 1963 would apply.
32) With reference to the aforesaid context, it would be
appropriate to refer to the relevant provisions of section 5 (1)(e) of the
AUARC Act, 1947, which is quoted below:
“5. Bar against passing and execution of decree and orders for ejection:- 1. No order or decree for the recovery of possession of any
house shall be made or executed by any Court so long as the tenant pays rent to the full extent allowable under this Act and performs the conditions of the tenancy:
Provided that nothing in the sub-section shall apply in a suit or proceedings for eviction of the tenant from the house:- a). xxxxx b). xxxxx c). xxxxx d). xxxxx e). where the tenant has not paid the rent lawfully
due from him in respect of the house within a fortnight of its falling due, or
f). xxxxx.”
CRP 156/2017 Page 19 of 24
33) It is seen that the learned First Appellate Court has referred
to the writing by Nani Gopal Deb (Ext.6), wherein he had undertaken
to pay monthly rent in the first week of every month. This indicates a
monthly tenancy. Therefore, in the absence of any particular pleading
in the written statement, there is no material available before this
Court that the petitioner-defendant was not a monthly tenant in
respect of the suit premises under the respondent /plaintiff. It is a well
settled law that if one is a monthly tenant, then there is no escape
from the fact that rent would fall due on the last day of each month.
Hence, monthly rent was payable by the petitioner to the respondent
on month to month basis within a fortnight on its following due.
Therefore, each default on part of the petitioner to tender monthly rent
to the respondent would give rise to a separate cause of action for
filing a suit for ejection of the petitioner, as such, the present suit
cannot be said to be barred by limitation under Article 66 and/or Article
67 of the Schedule of the Limitation Act, 1963, as the said Articles do
not apply in the fact situation in hand.
34) For the foregoing reasons, the ratio of the judgment in the
case of Smt. Shakuntala S. Tiwari (supra) is not applicable under the
distinguishable facts of this case because in the said case, the Hon'ble
Apex Court was not considering the provisions of the AUARC Act, but
the law of limitation was tested in the light of the provisions of Section
12 and 13 of the 1947 Act. As mentioned hereinbefore, the provisions
of section 12 and 13 of the 1947 Act is not found to be para -materia
to any of the provisions of the AUARC Act.
35) Hence, the second point of determination is also answered in
the negative and against the petitioner by holding that the suit filed by
the plaintiff on 31.05.2006, was not barred as per Article 67 of the
Schedule to the Limitation Act, 1963.
CRP 156/2017 Page 20 of 24
36) Coming to the third issue of defaulter, it is seen that in
paragraph 7 of the written statement the petitioner/defendant has
stated that the rent was fixed at Rs.130/- per month. In support of the
contention that rent was deposited in Court, the petitioner/defendant
has given a chart of 46 treasury challans (Defendant Documents No.
27 to 72) in paragraph 14 of the written statement. A perusal of the
said statement and chart would show that none of the 46 rent
payment Treasury Challans is for a sum of Rs.130/- as deposit of rent
in the Court. Those challans are for a sum of Rs.520/-, or Rs.650/-, or
Rs.390/-, or Rs.780/-. These are sufficient to show that instead of
making monthly deposit of rent in Court, the petitioner was depositing
rent for a few consecutive months together. Thus, in the opinion of this
Court, the petitioner/ defendant is deemed to have admitted:-
a. That rent from month to month was not tendered to the
respondent; and
b. Monthly rent on month to month basis was not deposited
within a fortnight of its following due.
37) It is well settled law that Section 5(4) of the AUARC Act,
casts a duty upon the tenant to first tender monthly rent to the
landlord. However, if the landlord refuses to accept the lawful rent
offered by his tenant, only then a tenant may within a fortnight of its
following due, deposit in the Court the amount of such rent together
with process fees for service of notice upon the landlord. Subject to
above, the said provisions further prescribe that 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 Section 5 of the Act.
38) Therefore, on the basis of the statements made in the
paragraph 14 of the written statement, even without going to the
CRP 156/2017 Page 21 of 24
evidence on record, this Court has no hesitation to say that both the
Courts below had correctly held the petitioner to be a defaulter and the
said concurrent finding of fact is not liable to be disturbed. This view is
supported by the various judgments rendered by this Court as well as
the Hon'ble Apex Court. Few of such cases are (i) Bansal Traders
(supra), (ii) Abdul Matin Choudhury (supra), and (iii) Ramehswar Lal
Chaudhury (supra), on which the learned senior counsel for the
respondent has relied upon. I need not burden this judgment with the
relevant extract of those citations.
39) Hence, the third point of determination is decided in the
affirmative and against the petitioner by holding that the tenant is a
defaulter, having deposited rent irregularly in Court without first
offering it to the respondent and such deposit of rents in Court where
contrary to the requirement of section 5 (4) of the Assam Urban Areas
Rent Control Act 1972.
40) As regards the fourth point of determination carried by this
Court in view of the discussions made therein before this Court finds
that while the concurrent finding of fact were two-fold, the first being
that the petitioner herein was a defaulter, which is a valid ground for
evicting a tenant and the second concurrent finding of fact by both the
Courts below was that the suit premises was bona fide required by the
respondent for construction of a RCC building thereon, for which the
respondent had procured a permission for construction from the
authorities, which was extended by the respondent during the
pendency of the suit. Even at this revisional stage, when the scope for
re appreciating evidence on record is limited, yet from the materials
available on record it could not be demonstrated that the requirement
of the suit premises by the respondent was not bona fide on in other
words not genuine. It may be pertinent to refer to the case of Anil
CRP 156/2017 Page 22 of 24
Bajaj and another V. Vinod Ahuja, (2014) 15 SCC 610, wherein the
Hon'ble Apex Court has held that - “… It would hardly require any
reiteration of the settled principle of law that it is not for the tenant to
dictate to the landlord as to how the property belonging to the landlord
should be utilized by him for the purpose of the business. Also, the fact
that the landlord is doing business from various other premises cannot
foreclose his right to seek eviction from the tenanted premises so long
as he intends to use the same tenanted premises for his own
business.”
41) On a careful scrutiny of the judgments of both the Courts
below, there is no material available to show that the decision was
vitiated by any misreading of the pleadings or the misreading or
misconstruction of any evidence on record. It also does not disclose
that the Courts below had exercised a jurisdiction not vested by law. It
could not be demonstrated that the Courts below had failed to exercise
a jurisdiction so vested by law. Moreover, from the discussion made
above it cannot be accepted that the Courts below had exercised its
jurisdiction illegally or with material irregularity. Rather, this Court is of
the view, the statements made in the written statement prima facie
does not disclose that the monthly rent was offered to the respondent
on month to month basis and on refusal to accept such rent, the rent
for each month was deposited in Court within the fortnight of its
following due. Hence, this Court does not find even a prima facie case
requiring the fresh appreciation of the evidence recorded by the
learned Trial Court.
42) It is no longer res integra that in exercise of revisional
powers, a revisional Court is not to act like a court of Appeal and it
could interfere only if the existence of the grounds prescribed in
Section 115 of the Civil Procedure Code can be successfully
CRP 156/2017 Page 23 of 24
demonstrated, which is found to be absent in the present case in hand.
Therefore, the concurrent finding on the issues of (i) bona fide
requirement of the suit premises, and (ii) the petitioner is a defaulter,
as held by the learned Courts below are not liable to be dislodged.
43) In view of the foregoing discussion, having not found any
infirmity in the appreciation of facts by both the Courts below, this
revision is not liable to be admitted and the same is dismissed.
44) The parties are left to bear their own costs.
45) As the petitioner has been in the tenanted premises
described in Schedule of the plaint since 01.12.1957, this court is
inclined to give time till 31.10.2017 from today to vacate the suit
premises, subject to the following conditions:
a. The petitioner shall bind himself and shall also deposit the
decreed arrear rent together with pendente lite monthly rent
within a period of one month from today before the learned
Court Trial Court; and
b. The petitioner shall submit an unconditional undertaking in
writing before the learned Trial Court, i.e. Court of Munsiff
No.1, Dibrugarh, within 1 (one) month from today, binding
himself to vacate the suit premises on or before 31.10.2017;
and
c. The petitioner shall bind himself not to sub-let or part with
the possession of the suit premises or any part thereof to
any other third party and/or to hand over the suit premises
to anyone other than any one of the respondent herein (i.e.
Plaintiff), who on receiving vacant and khas possession
CRP 156/2017 Page 24 of 24
thereof would issue a receipt, which would be counter-
signed by the petitioner.
d. Taking judicial notice of the sky-high market rent now
prevailing, and as laid down by the Hon’ble Apex Court in the
case of Rattan Arya V. State of Tamil Nadu, AIR 1986 SC
1444: (1986) 3 SCC 385, the petitioner shall bind himself to
henceforth from 01.07.2017 to 31.10.2017, pay monthly rent
of Rs.2,000/- per month every month to the respondent/
Plaintiff, who on accepting such rent would issue rent
receipt, which shall not constitute any further tenancy or
create any right whatsoever in favour of the petitioner.
e. The petitioner shall bind himself not to cause any nuisance
or any other disturbance and/or cause any damage to the
suit premises in the meantime.
46) It is made clear that if any of the petitioner does not give an
undertaking to bind himself on any of the above five conditions (a) to
(e) and if any of those conditions are violated or not complied with, the
respondent/ Plaintiff shall be entitled to enforce the decree.
JUDGE
Mks/