Dismissed

Abdul Noor v. Saukat Mazid @ Babul Mazid

Gauhati HC16 Nov 2021CRP/3/2020

Case brief

AI extract

What is this about?

This is a revision petition under Section 115 CPC challenging an eviction decree. The High Court dismissed the petition, holding the finding against the petitioner as non-perverse since he failed to prove rent payment. The Court allowed possession till May 2022 upon undertaking.

What did the court decide?

Petitioner directed to file undertaking to vacate premises by 15/05/2022; possession treated as custodian's holding; execution to proceed if undertaking not filed.

Abdul Noor Vs Saukat Mazid @ Babul Mazid — Landlord and Tenant | Gauhati HC (2021)

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GAHC010003112020

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : CRP/3/2020

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ABDUL NOOR

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S/O- LATE TOTA MIA, R/O- KALIBARI, P.O AND P.S- DIBRUGARH, ASSAM

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VERSUS

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SAUKAT MAZID @ BABUL MAZID S/O- LATE ABDUL MAZID, R/O- PANCH ALI (KUMARPATTY), P.O AND P.SDIST- DIBRUGARH, ASSAM, PIN- 786001

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Advocate for the Petitioner : MR S ISLAM

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Advocate for the Respondent : MR. P J SAIKIA

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BEFORE HONOURABLE MR. JUSTICE DEVASHIS BARUAH

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JUDGMENT & ORDER (ORAL)

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Date : 16-11-2021

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Heard Mr. P.K. Roy Choudhury, the learned counsel appearing on behalf of the petitioner and Mr. PJ Saikia, the learned counsel appearing on behalf of the respondent.

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This is a proceeding under Section 115 of the Code of Civil Procedure, 1908 challenging the judgment and decree dated 08/11/2019 passed in Title Appeal No. 10/2017

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by the Court of the Civil Judge, Dibrugarh, whereby the suit filed by the plaintiff seeking eviction of the defendant was decreed.

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Before embarking upon the merits of the case, it would be relevant to take note of that, that this is a proceeding under Section 115 of the Code of Civil Procedure, whereby the revisional jurisdiction of this Court has been invoked. It must be noted that the Revisionsal Court is not the 2^nd Court of First Appeal and as such, the question of re-appreciating the evidence does not arise. What can be exercised in a proceeding, while exercising the revisional jurisdiction is to look into as to whether there has been an error in exercise of the jurisdiction and/or there has been any illegality or overlooking or ignoring the material evidence altogether, or the finding of the Courts below suffers from perversity, or any such illegality or such finding has resulted in gross mis-carriage of justice. In other words, interference with an incorrect finding of fact for the purpose of exercising revisional jurisdiction must be understood in the context, where such findings is perverse, based on no evidence or mis-reading of evidence, or on the ground of perversity or such findings has been arrived at by ignoring or overlooking the material evidence or such finding is so grossly erroneous, if that is allowed to stand, will occasion in mis-carriage of justice.

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In the backdrop of the above said law and the limits of jurisdiction to be exercised by the Court, the factual matrix of the case is that the respondent as plaintiff instituted a suit being Title Suit No. 48/2012 whereby it was pleaded that the respondent is the landlord of the suit premises and he had let out the suit premises to the petitioner herein at the monthly rent @ Rs. 650 per month, which fell due at the end of every English Calendar month. It is the specific case of the respondent in the suit that the petitioner who is the defendant in the

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suit failed to make payment of the rent since the month of June, 2009, and as such, the petitioner herein is a defaulter in payment of rent. It is also alleged in the plaint that in the month of January, 2010, the respondent came to learn that the petitioner herein was planning to sub-let the suit to one Mr. Karthick Bhumis, which resulted in an altercation between the petitioner and the respondent. It has also been pleaded that the petitioner used to threaten the respondent with filing of criminal case against him and when the respondent requested the defendant to clear the outstanding rent, the defendant replied that he had deposited the rent to the Court. It was only in the month of October 2010, the respondent came to learn that the petitioner had deposited the rent for the month of September, 2010, without tendering the rent to him, to the Court. On the said factual matrix the respondent instituted the said suit seeking eviction of the defendant on the ground that he is a defaulter in payment of rent. The petitioner filed his written statement denying the statements and allegations made in the plaint and for the sake of convenience, paragraph 10 and 14 are quoted here-n-below :-

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“10. That the averments made in the Para 5 of the Plaint are not admitted. It is submitted that no monthly rent till date in stopped for the suit premises for any month in any manner, earlier it was collected from the defendant and paid up to the month of August,2010 but in fact the same is deposited into the Court under Assam Urban Area Rent Control Act to save himself from being a defaulter, on refusal to accept the same by the Plaintiff and the same is paid up to date.

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That the allegation of Para 10 in the Plaint is partly admitted and partly denied.

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It is submitted that it is correct that the rent for the suit premises is regularly depositing into the Court at Dibrugarh in favour of the Plaintiff after his refusal to accept the same, but it is denied that the defendant is a defaulter in payment of the rent for the month of June, 2009.”

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It would reveal from the above statements made in paragraph 10 and 14 of the written statement that it is the specific stand of the petitioner herein that he had been paying rent regularly to the respondents till August 2010 and thereafter the petitioner had been depositing the rent in the Court to save himself from being a defaulter. It is also stated in paragraph No. 14 of the written statement that the petitioner had been regularly depositing the rent in the Court at Dibrugarh after the respondent had refused to accept the same.

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On the basis of the pleadings as many as 4 issues were framed which are quoted herein-below :-

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(i) Whether the suit maintainable ?

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(ii) Whether the defendant is a defaulter of payment of rent for the suit

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premises ?

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(iii) Whether the plaintiff is entitled to the reliefs so claimed for ?

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(iv) To what reliefs the plaintiff is entitled to ?

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Issue No. (ii) is the issue as to whether the petitioner is a defaulter in payment of rent. Although it is the established principle of law that it is the burden of the tenant to prove that he is not a defaulter, the Trial Court by placing the burden upon the landlord held that the respondent, who is the landlord failed to prove the burden that the petitioner is a defaulter in payment of rent. Accordingly, on the basis of the findings in respect to issue No. (ii) the suit

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was dismissed.

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Feeling aggrieved and dis-satisfied with the judgment and decree dated 21/09/2017 passed in Title Suit No. 48/2012, the respondent preferred an appeal before the Court of the Civil Judge at Dibrugarh, which was registered and numbered as Title Appeal No. 10/2017. The First Appellate Court vide the judgment and decree dated 08/11/2019 came to a finding that the petitioner herein was a defaulter in payment of rent and consequently, decreed the suit in favour of the respondent. Against the said judgment and decree dated 08/11/2019 passed in Title Appeal No. 10/2017, the petitioner has approached this Court by invoking the revisional jurisdiction under Section 115 of the CPC.

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In the backdrop of the above, if the facts are looked into, it would be seen that it is an admitted fact that the tenancy was oral and the plaintiff (the respondent herein) has specifically asserted that since June,1999 the defendant/petitioner herein had failed to make payment of the rent. The defendant categorically stated in the written statement that till August, 2010 he had been making payment of the rent directly to the plaintiff and since then he had been depositing the rent to the court on refusal by the plaintiff. On the other hand, if the evidence is looked into more particularly the defendant himself who is the DW -1 categorically admits that he used to pay the rent by going to the house of the plaintiff, who is

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also known as Babul Mazid and used to pay rent within the 1^st week of the succeeding months. He further admits that since August, 2010 he had not been to the house of the plaintiff as the rent has been deposited in the Court. He also stated in his evidence that he deposited the rent for the month of March, 2010 in the Court in Misc. (NJ) Case No. 203/2010 on 18/02/2010 and has been depositing the rent from March 2010 in the Court. When the law

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categorically prescribes that it is the burden upon the tenant to prove that he is not a defaulter in payment of rent and further in order to give benefit under Section 5 of the Assam Urban Areas Rent Control Act, 1972, it is also the mandate of law that provisions of Section 5 (4) is duly complied with. The contradictory stand taken by the tenant i.e. the petitioner herein in his pleadings as well as in his evidence does not inspire the Court to exercise the revisional jurisdiction and consequently as the tenant has failed to discharge his burden as envisaged under the law, I am of the opinion that the judgment and decree passed by the First Appellate Court decreeing the suit in favour of the plaintiff does not call for any interference.

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During the course of hearing, the counsel appearing for the petitioner Mr. PK Roy Choudhury submits that 6(six) months may be granted to the petitioner to vacate the suit premises and to seek for alternative arrangement. Mr. PJ Saikia the learned counsel appearing for the respondent submits that he has no objection if the period of 6(six) months is granted, provided the petitioner vacates the suit premises on or before 15/05/2022. In this regard, he further submits that the plaintiff had already filed a Execution Case being Title Execution Case No. 49/2019 which have been stayed by this Court by an order dated 10/01/2020.

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In view of the above, I think it would be proper to direct the petitioner to file an undertaking before the Executing Court on or before 15/12/2021 to the effect that the petitioner shall be vacating the suit premises on or before 15/05/2022 and failing which the Executing Court shall proceed with the execution of the Decree in accordance with law. It is clarified that the possession of the Petitioner during this period upto 15/5/2022 on the basis of the undertaking so to be submitted, shall be that of custodian of the Respondent in respect of the suit premises and the petitioner shall not do or cause to do anything during this period

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till handing over of possession to the Respondent which might adversely impact and/or effect the rights of the Respondent in respect to the suit premises. It is also clarified that the permission to remain in possession during this period upto 15/05/2022 in terms with the order and on the basis of the undertaking so to be filed, shall not confer any right or interest upon the petitioners in respect to the suit premises.

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It is also observed that if the Petitioner fails to file the undertaking within the time so stipulated herein, the Executing Court shall proceed with the Execution of the Decree.

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With the above observation, the revision petition stands dismissed No costs.

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JUDGE

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Comparing Assistant

Abdul Noor v. Saukat Mazid @ Babul Mazid

Case brief

What is this about?

What did the court decide?

Abdul Noor v. Saukat Mazid @ Babul Mazid

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Statutes considered

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