Dismissed

Utpal Rajbongshi v. M/S Kanta Devi Jain and Anil Kumar Jain and 2 Ors.

Gauhati HC2 Nov 2022CRP/40/2022

Case brief

AI extract

What is this about?

Petitioner assailed concurrent findings below that he was a defaulter and liable for eviction under Section 115 CPC. High Court found no perversity and dismissed the revision petition, but granted six-month time to vacate subject to undertaking and compensation.

What did the court decide?

Six months' time granted to petitioner to vacate premises on condition of undertaking to vacate by 30.04.2023 and continuing payment of Rs. 2,880 monthly as compensation.

Utpal Rajbongshi Vs M/S Kanta Devi Jain and Anil Kumar… — Landlord and Tenant | Gauhati HC (2022)

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Page No.# 1/14

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GAHC010049962021

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

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Case No. : CRP/40/2022

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UTPAL RAJBONGSHI

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S/O- LATE GOLOK RAJBONGSHI, PROPRIETOR OF LAWYERS CONSORTIUM, JAIN HOUSE, G.S. ROAD, DISPUR, GUWAHATI-781005, DIST.- KAMRUP(M), ASSAM. PH. NO.- 9435046755

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VERSUS

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M/S KANTA DEVI JAIN AND ANIL KUMAR JAIN AND 2 ORS. A CO-OWNERSHIP FIRM HAVING ITS OFFICE AT JAIN HOUSE, G.S ROAD, DISPUR, GUWAHATI-781005 AND REPRESENTED BY ITS CO-OWNER PLAINTIFF NO-2 AND 3

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2:SMTI. KANTA DEVI JAIN RESIDING AT JAIN HOUSE G.S. ROAD DISPUR GUWAHATI-781005

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3:ANIL KUMAR JAIN S/O- LATE RATAN KUMAR JAIN RESIDING AT JAIN HOUSE G.S. ROAD DISPUR GUWAHATI-78100

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Advocate for the Petitioner : MR. B K BHAGAWATI

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Advocate for the Respondents : MR. G. Jalan

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BEFORE HONOURABLE MR. JUSTICE DEVASHIS BARUAH

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JUDGMENT AND ORDER (ORAL)

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Date : 02-11-2022

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Heard Mr. B. K. Bhagawati, the learned counsel appearing on behalf of the petitioner and Mr. G. Jalan, the learned counsel appearing on behalf of the respondents.

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This is an application under Section 115 of the Code of Civil Procedure, 1908 challenging the judgment and decree dated 18.07.2019 passed in Title Appeal No.6/2016 by the Court of the Civil Judge No.3, Kamrup (M) at Guwahati whereby the Appeal was dismissed and the judgment and decree dated 24.08.2015 passed in Title Suit No.420/2011 by the Court of the Munsiff No.3, Kamrup (M) at Guwahati was upheld.

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For the purpose of deciding as to whether the jurisdiction under Section 115 of the Code can be exercised in the instant case, it would be relevant to take note of the facts involved in the instant case. The respondents herein as plaintiffs had instituted a suit being Title Suit No.420/2011. It is the case of the plaintiffs that the plaintiff No.2 let out an RCC room to the defendant measuring more or less 550 sq. feet standing over a plot of land measuring 1 Bigha 1 Katha 19 Lecha covered by Dag No.96 of K.P. Patta No.59 of Village Dispur, Mouza Beltola and the said building was covered by Holding No.418 of Ward No. XLIII at a monthly rent of Rs.2,880/- per month. It was specifically mentioned in the plaint that the rent was to be paid within 7^th day of the succeeding month and the tenant was also required to pay electric charges at fixed rate of Rs.500/- per month.

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Page No.# 3/14

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It has also been mentioned in the plaint that there was an amicable settlement between the legal heirs of Late Ratan Kumar Jain for which a deed of agreement was executed on 16.09.2010 wherein it was agreed that all the properties of Late Ratan Kumar Jain shall be owned by both the plaintiff Nos. 2 and 3 and they will form a co-ownership firm in the name and style of “Kanta Devi Jain and Anil Kumar Jain” wherein the plaintiff Nos. 2 and 3 shall be the co-owners and accordingly the firm was constituted and all the properties of Late Ratan Kumar Jain including the suit premises came under the ownership of the said firm i.e. the plaintiff No.1. Soon thereafter, the defendant No.1 vide a letter dated 10.02.2011 was informed about the Deed of agreement arrived at between the plaintiff Nos. 2 and 3 and the defendant was asked to attorn the tenancy with the said co-ownership firm of plaintiff Nos. 2 and 3 and to pay the arrear rent. However, the defendant in spite of receipt of the said letter did not attorn the tenancy with the plaintiffs and sent rent for the month of December 2010 to March 2011 at one go in the name of Kanta Devi Jain alone i.e. the plaintiff No.2 and the said rent was received by her on protest and she asked the defendant to attorn the tenancy with the plaintiffs and to pay the rent in the name of the plaintiffs and on time in future and not to pay the rent to her.

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However, the defendant did not attorn the tenancy with the plaintiffs for which plaintiffs wrote another letter dated 26.07.2011 to the defendant asking the defendant to attorn the tenancy with the plaintiffs and to pay the rent from April 2011 to the plaintiffs along with other charges. It has been further alleged that that the defendant did not come forward to attorn the tenancy with the plaintiffs and to execute a fresh agreement with the plaintiffs but sent a Cheque No. 278623 dated 01.08.2011 for Rs.8640/- as rent for the month of April 2011 to June 2011 at a time and on receipt of the said rent, the plaintiffs wrote a

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Page No.# 4/14

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letter dated 02.08.2011 to the defendant asking once again the defendant to come forward and execute a fresh deed of tenancy on the terms and conditions to be mutually agreed upon and through the said letter, the cheque was returned to the defendant and the said letter was duly received by the defendant. But the defendant neither attorned the tenancy with the plaintiffs nor paid the rent to the plaintiffs and did not come forward to execute a fresh deed of tenancy agreement with the plaintiffs. It has been further alleged that the defendant did not attorn the tenancy with the plaintiffs nor paid the rent from April 2011 to September 2011 to the plaintiffs for which it has been alleged that the defendant was a defaulter in payment of rent and has become liable to be evicted from the tenanted premises and hence the plaintiffs in turn have become entitled to seek the eviction of the defendant from the suit premises.

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It has also been mentioned that the plaintiffs have decided to start a joint business in the name of the plaintiff No.1 and as such, the suit premises was also required by the plaintiffs for their own use and occupation and the need is most urgent, genuine and pressing and the plaintiffs have bonafide need of the same. 7. It is on the basis of the above, the suit was filed seeking ejectment of the defendant from the suit premises for recovery of the arrear rent of Rs.17,280/for the months of April 2011 to September 2011, full cost of the suit etc. 8. The defendant filed his written statement where the defendant denied the pleadings of the plaintiffs and stated that he is not a defaulter in payment of rent. It has been stated that the plaintiff No.2 being the landlady as the owner of the suit premises and the building conveyed by way of lease all that RCC room measuring 25 feet by 15 feet and a bathroom and toilet measuring 4 feet by 6 feet situated in the adjacent corridor of the room at Jain House, at Dispur,

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Guwahati in the District of Kamrup, Assam along with the common right of using the said corridor in favour of “M/S Lawyer’s Consortium”, a partnership firm for a period of 25 years from the date of taking over and the lessee shall have the option of renewing the lease of the said premises for such further period as it may desire after the lapse of initial 25 years of lease by virtue of a registered Deed of Lease No.5437/2003 executed on 18.06.2003 between the parties. It was mentioned that monthly rent of the leased premises was fixed at Rs.1,000/and at the time of filing of the written statement, the rent has been enhanced to Rs.2,880/-.

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Further to that, it has been mentioned that although as per Clause-3 of the aforesaid Deed of Lease, the monthly rent was payable by the firm on or before 7^th day of every English calendar month but in course of time, the mode of payment of rent changed by the conduct of parties. It was also mentioned that initially the plaintiff No.2 herself and subsequently the plaintiff Nos.2 and 3 jointly on behalf of the plaintiff No.1 used to accept the rent for several months together paid by the firm. In that regard, the defendant stated that the firm paid rent together for the month of December 2003 and January 2004 amounting to Rs.4,000/- vide a Cheque No.4878 dated 05.02.2004. Similarly, rent for the month of June and July, 2009 amounting to Rs.4,800/- was paid vide Cheque No.142253 dated 19.08.2009 and so on. It was further mentioned that as the defendant was a tenant under the plaintiff No.2 before the execution of the alleged Deed of Agreement dated 16.09.2010 as such, the Deed of Lease dated 18.06.2003 is binding on the plaintiffs. The various letters by which the plaintiffs have requested the defendant to attorn to the plaintiff No.1 have been said to be void and inoperative in view of the existence of the Deed of Lease dated 18.06.2003. It was also mentioned in paragraph No.10 that upon

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returning the rent for the months of April, May and June, 2011 i.e. an amount of Rs.8,640/- by the plaintiffs to the defendant, the defendant’s firm deposited the rent for the months of April to July 2011 i.e. for 4 (four) months together amounting to Rs.11,520/- before the Court of the Munsiff No.1 vide Misc. (N.J.) Case No.3871/2011 vide challan No.8/9590 for payment to the plaintiffs. It has also been mentioned that subsequently the defendant’s firm have been depositing the rent before the Court by filing various N.J. cases. On the question of bonafide requirement, the same was denied stating inter alia that the plaintiffs are rich persons having huge movable and immovable properties in Guwahati city as well as in other parts of the country and they do not have any necessity to start any other new business for their livelihood. It was also mentioned that on the contrary the Defendant’s firm is running its legal consultancy chamber in the leased premises and the firm has no other place to shift in case a decree for eviction is passed against it. It is on the basis of the same that the defendant has refuted the case of the plaintiffs and sought for dismissal of the suit.

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On the basis of the pleadings, as many as 8 issues were framed which for the sake of convenience are reproduced hereinunder.

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Whether there is cause of action for the suit?

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Whether the defendant is a defaulter in payment of the rent since April 2011?

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Whether the suit premises is required bonafide by the plaintiff?

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Whether the defendant has illegally and without authority put lock and key on the bathroom outside the tenanted premises and has adversely affected the rights of the landlords/plaintiffs?

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Whether the defendant is liable to be evicted from the suit premises? 6. Whether the plaintiff is entitled to the arrear rent of Rs.17,280/- from the

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Page No.# 7/14

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defendant?

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Whether the plaintiff is entitled to a decree as prayed for?

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To what relief/reliefs the parties are entitled to?

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The Trial Court vide a judgment and decree dated 24.08.2015 decreed the suit in favour of the plaintiffs thereby holding that the defendant is a defaulter in payment of rent and as such he was liable to be evicted. It was also held that the defendant has to pay the plaintiffs arrear rent amounting to Rs.17,280/- and further the defendant shall pay the cost. It is relevant to take note of that while deciding as to whether the defendant was a defaulter in payment of rent, the Trial Court duly had taken note of the cross-examination of DW-1 who has deposed that the tenancy is a monthly tenancy and he has not filed any rent receipt or document to show that the rent received for three or four months together at a time. The Court also took into consideration that though the defendants have deposited rents in the Court by filing various rent deposit cases but the defendant has failed to take any steps as the notices were still lying in the records. Further to that the Trial Court also took into consideration that the rent for the month of December 2010 to July 2011 was deposited in the month of August 2011 which was not a deposit of rent due in accordance with Section 5(4) of the Assam Urban Areas Rent Control Act, 1972 (for short the “Act of 1972”). It was also taken note of that the defendant had not exhibited any document or challan as regards payment of rent prior to September, 2011.

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On the issue as regards bonafide requirement, the Trial Court also came to a finding that the plaintiffs had bonafide requirement of the suit premises taking into account the well settled principle of law that the landlord is the best judge of his requirement for residential and business purpose and he has got complete freedom in that matter. Further to that the defendant also deposed that the

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plaintiffs have no other property and he has no knowledge whether all the rooms are let out to some other tenants or not.

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In view of the above, the Trial Court had decreed the suit in favour of the plaintiffs in the manner as already above mentioned.

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Being aggrieved and dissatisfied, the defendant preferred an appeal before the Court of the Civil Judge, Kamrup (M) at Guwahati which was registered and numbered as Title Appeal No.6/2016. The said appeal was endorsed to the Court of the Civil Judge, (Senior Division) No.3, Kamrup (M) at Guwahati for disposal. The First Appellate Court after taking note of the various grounds of objection, framed as many as three points for determination which were as hereinunder:

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Whether the suit of the plaintiff is hit by Section 69 of Indian Partnership Act, 1932?

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Whether the suit of the plaintiff is bad for non-joinder of necessary party?

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Whether the defendant is a defaulter in payment of rent?

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As regards the first point for determination the First Appellate Court held that the suit of the plaintiffs was not hit by Section 69 of Indian Partnership Act, 1932. The second point for determination is as to whether the suit of the plaintiff was bad for non-joinder of necessary party. The First Appellate Court came to a finding that the suit was not bad for non-joinder of the proprietorship firm of the defendant inasmuch as the proprietorship firm of the defendant did not have any separate identity from the proprietor and the proprietor was the defendant in the suit. On the point for determination No.3 as to whether the defendant was a defaulter in payment of rent, the First Appellate Court held that the defendant was a rank defaulter in payment of rent and considering the

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above, the First Appellate Court dismissed the appeal and affirmed the judgment and decree passed by the Trial Court.

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Being aggrieved and dissatisfied, the present application has been filed under Section 115 of the Code challenging the concurrent finding of facts by both the Courts below. Before proceeding, this Court would take note of the scope of jurisdiction under Section 115 of the Code. 17. It is no longer res-integra that the revisional jurisdiction is limited in scope inasmuch as the said jurisdiction cannot be exercised to correct error of facts however gross or even errors of law unless the said errors have relation to the jurisdiction of the Court to try the dispute itself. A plain reading of Sub-Clauses (a) and (b) of Section 115 of the Code is in reference to the exercise of jurisdiction by the Court not vested in the Court by law or has failed to exercise jurisdiction so vested in Court. Clause (c) is in relation to exercise of jurisdiction illegally and with material irregularity. Therefore, under Section 115 of the Code a jurisdictional question may arise not only where the Court acts solely without jurisdiction but also in a case where jurisdictional errors are committed while exercising jurisdiction. There may be various facets of jurisdictional error for example the findings arrived at is perverse, based on no evidence or misreading of evidence or such findings have been arrived at by ignoring or overlooking material irregularities or such findings so grossly erroneous that if allowed to stand would occasion miscarriage of justice. In other words, interference with an incorrect finding of fact recorded by the Court below for the purpose of exercising revisional jurisdiction must be understood in the context, where such findings are perverse or has been arrived at without consideration of material evidence or such finding is based on no evidence or misreading of evidence or is grossly erroneous that if allowed to stand it would occasion gross miscarriage of

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justice, is open to correction because it is not treated as a finding according to law. In the judgment of the Constitution Bench of the Supreme Court rendered in the case of Hindustan Petroleum Corporation Ltd. Vs. Baharsingh reported in ( 2014 ) 9 SCC 70 , the Supreme Court observed that the Court while exercising jurisdiction under Section 115 of the Code is required to satisfy itself as regards the regularity, correctness, legality or propriety of the impugned decision or the order and cannot exercise its power as an Appellate Court to re-appreciate or reassess the evidence to a different finding of fact. It is also made clear that this Court while exercising the revisional jurisdiction is not and cannot be equated with the power of re-consideration of all questions of facts as the Court of First Appeal.

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In the backdrop of the proposition of law as already stated hereinabove, it would therefore be seen that the scope of jurisdiction under Section 115 of the Code is limited and it is only in the case of jurisdictional errors and in cases of perversity when the Court under Section 115 of the Code can interfere with the concurrent findings of facts of the Courts below.

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In the backdrop of the above, let this Court take into consideration the respective contentions of the parties. Mr. B. K. Bhagawati, the learned counsel appearing on behalf the petitioner submits that in view of the registered Deed of Lease bearing No. 5437/2003 executed on 18.06.2003, a right has been created in favour of the defendant for which the suit filed by the plaintiffs was totally misconceived. He further submitted that though Clause-3 of the Deed of Lease stipulated that the payment of rent was to be made on or before the 7^th day of every English calendar month but in course of time the mode of payment of rent had changed and this aspect of the matter was not taken into consideration by both the Courts below which have resulted in perversity in the

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findings of the Courts below. He therefore submitted that the concurrent finding of facts arrived at by both the Courts below on the question of the defendant being a defaulter therefore suffers from perversity and consequently the exercise of jurisdiction was done illegally alongwith material irregularity.

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On the other hand Mr. G. Jalan, the learned counsel appearing on behalf of the plaintiffs/respondents herein submitted that the defendant has duly admitted during his cross-examination that he is a monthly tenant and he did not file any rent receipt document to show that the rent was received for three or four months together at time. He further submitted that taking into account Clause-3 and Clause-4 of the agreement dated 18.06.2003, it was clear that the defendant has to pay the rent within the 7^th day of each succeeding English calendar month. He therefore submitted that the tendering of the rent for a period from April 2011 to September 2011 as well as for a period from December 2010 to July 2011 together amounts to violation of the agreed terms and conditions of payment of rent and as such the defendant was a defaulter in terms with Section 5(1)(e) of the Act of 1972. He further submitted that even the rent deposit cases which have been filed, the deposit of rent have been made for two or three months together and there has been no steps also taken in those cases which would be apparent from a perusal of the Trial Court judgment whereby the evidence have been duly taken note of. Under such circumstances there is no perversity in the findings that the defendant is a defaulter in payment of rent. Further to that he has also submitted that there is finding of bonafide requirement of the suit premises by the plaintiffs which have neither been challenged before the First Appellate Court nor interfered with by the First Appellate Court and as such the exercise of jurisdiction under Section 115 is not called for in the instant suit.

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Having heard the learned counsels for both the parties and also upon perusal of the materials, this Court is of the opinion that petitioner have not been able to point out any perversity in the findings arrived at by the Courts below. I have also perused the judgment of the Trial Court whereby the Trial Court in detail after taking note of the evidence on record have come to a finding that the defendant is a defaulter in payment of rent. It is a well settled principle of law that it is the defendant who is the tenant who has to prove that he is not a defaulter in payment of rent. In the instant case the defendant though have stated in his pleadings that the rent is to be paid in lump sum and not every month although it was a stipulation of the agreement dated 18.06.2003 but the defendant has failed to prove the said aspect of the matter by way of evidence. Under such circumstances there can be seen no perversity in the findings arrived at by both the Courts below that the defendant is a defaulter in payment of rent taking into account that it is an admitted case of the defendant that he paid the rent in lump sum and not as required as per the agreed terms and conditions. Further to that it is also to be seen that the Section 5 of the Act of 1972 stipulates various grounds on which the tenant can be evicted which includes the ground of bonafide requirement. The Trial Court vide its judgment and decree have categorically come to a finding that the plaintiffs have bonafide requirement of the suit premises. The defendant have neither challenged nor the Appellate Court has interfered with the said findings. 22. Consequently, the findings as regards bonafide requirement has attained finality. Under such cirucumstances this Court is of the opinion that this is not a fit case for exercise of jurisdiction under Section 115 of the Code.

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Consequently, the instant petition stands dismissed.

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Before concluding, this Court would also like to take note of the

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submission of Mr. B. K. Bhagawati, the learned counsel for the petitioner who submits that the petitioner is ailing and need some time to vacate. It has been brought to the notice of this Court that the Defendant had filed an application seeking execution which has been registered and numbered as Title Execution Case No.5/2021. Therefore, it would be just and reasonable to grant the defendant six months of time to vacate the suit premises provided that he shall submit an undertaking before the Executing Court within 17.11.2022 to the effect that he shall vacate the suit premises within a period of six month from the date of the instant judgment i.e. on or before 30.04.2023.

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It is clarified that during this period of six months the Defendants shall continue to make payment of amount of Rs. 2,880/- per month in the form of compensation to the plaintiffs.

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It is further observed that granting of extension of the period of six months subject to filing undertaking as aforesaid and the payment of compensation of Rs. 2,880/- per month during this period of six months shall not create any right or interest in favour of the defendants in respect to the suit premises. It is also clarified that during this period, the defendants shall remain in possession of the suit premises as the custodian of the plaintiffs and shall not do any act or acts which may effect the rights of the plaintiff over the suit premises in any manner whatsoever.

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The respondents herein i.e. the plaintiffs shall be entitled to rent for the period of the eviction proceedings either through adjustment from the rent already deposited in the Court or by making an application before the Executing Court to decide on their entitlement of the rent during the pendency of the eviction proceedings and the Executing Court would permit the tenant/petitioner herein to controvert the allegations of non-payment of rent during the pendency

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of the eviction proceedings and thereupon decide in accordance with law.

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28. Send back the LCR.

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JUDGE

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Comparing Assistant

Utpal Rajbongshi v. M/S Kanta Devi Jain and Anil Kumar Jain and 2 Ors.

Case brief

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Utpal Rajbongshi v. M/S Kanta Devi Jain and Anil Kumar Jain and 2 Ors.

Case brief

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