Partly allowed

On the Death of Nawratanmal Bhansali, His Legal Representatives v. Sri Moolchand Kucheria

Gauhati HC3 Nov 2022CRP/64/2021

Case brief

AI extract

What is this about?

This court dismissed a revision petition under Section 115 CPC against eviction orders. Upholding lower court findings on rent default and bona fide requirement, the court granted six months to vacate pending an undertaking and compensation payment.

What did the court decide?

Tenants granted six months to vacate the premises upon execution of an undertaking to vacate by 02/05/2023 and payment of Rs. 1,985 per month as compensation.

On the Death of Nawratanmal Bhansali, His Legal… — Landlord and Tenant | Gauhati HC (2022)

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GAHC010189512021

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

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Case No. : CRP/64/2021

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ON THE DEATH OF NAWRATANMAL BHANSALI, HIS LEGAL REPRESENTATIVES DARJEELING

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1.1: KAMALA DEVI

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W/O LT. NAWRATANMAL BHANSALI R/O NAKODA NOVELTIES 1ST FLOOR METAL MARKET ALU PATTY H.C. ROAD SILIGURI DIST. DARJEELING WEST BENGAL-734404

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1.2: RAJESH BHANSALI S/O LT. NAWRATANMAL BHANSALI R/O NAKODA NOVELTIES 1ST FLOOR METAL MARKET ALU PATTY H.C. ROAD SILIGURI DIST. DARJEELING WEST BENGAL-734404

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1.3: KISHORE BHANSALI

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S/O LT. NAWRATANMAL BHANSALI R/O NAKODA NOVELTIES C.M. COMPLEX KAMARPATTY FANCY BAZAR GUWAHATI-781001 DIST. KAMRUP (M)

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ASSAM

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1.4: PRAKASH BHANSALI

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S/O LT. NAWRATANMAL BHANSALI R/O NAKODA NOVELTIES MAIN ROAD BONGAIGAON TOWN P.O BONGAIGAON 783380 DIST BONGAIGAON ASSA

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VERSUS

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SRI MOOLCHAND KUCHERIA

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S/O LT. BHERUDAN KUCHERIA, R/O MAIN ROAD, BONGAIGAON TOWN P.O. BONGAIGAON, 783380 DIST. BONGAIGAON, ASSAM

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Advocate for the Petitioner : MS. D. BARMAN

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Advocate for the Respondent : MR. R C SANCHATI

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BEFORE HONOURABLE MR. JUSTICE DEVASHIS BARUAH

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JUDGMENT AND ORDER (ORAL)

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Date : 03-11-2022

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Heard Ms. D. Barman, the learned counsel appearing on behalf of the petitioners and Mr. R. C. Sancheti, the learned counsel appearing on behalf of the respondent.

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This is an application under Section 115 of the Code of Civil Procedure, 1908 challenging the judgment and decree dated 07.01.2021 passed in Title Appeal No.06/2008 passed by the Court of the District Judge, Bongaigaon whereby the appeal was dismissed and the judgment and decree dated 18.06.2008 passed in Title Suit No.02/2008 by the Court of the Civil Judge,

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Bongaigaon was affirmed.

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At this stage, it is also relevant to take note of that the First Appellate Court during the pendency of the appeal have permitted the amendment of the plaint thereby to insert the ground of defaulter taking into account that during the pendency of the appeal, there was an allegation of default in payment of the rent. Vide the impugned judgment and decree, the First Appellate Court had also given finding to the effect that the petitioners herein were the defaulters in payment of rent.

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Before entering into the facts of the case, it would be relevant to note that the Petitioner herein have invoked the revisional jurisdiction under Section 115 of the Code. 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 SubClauses (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

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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 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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For appreciating as to whether the jurisdiction under Section 115 of the Code can be exercised in the facts and circumstances of the case, it would be relevant to take note of the brief facts of the instant case. For the purpose of convenience, the parties herein are referred to in the same status as they stood before the Trial Court.

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The respondent herein filed a suit against the predecessor in interest of the petitioners herein seeking eviction. The case of the plaintiff is that he is the owner of a shop premises described in the Schedule to the plaint. The predecessor in interest of the petitioners herein who was the defendant took the suit house on rent from the plaintiff and a tenancy commenced on and from 01.04.1992. An Agreement of tenancy was executed between the plaintiff and

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the defendant on 05.03.2002. It was agreed between the plaintiff and the defendant that the monthly rent shall be Rs.1,501/- and it would be payable within the first week of the succeeding month, according to the English calendar month. It was also mentioned that there was electrical connection to the house and the electricity bill was payable by the defendant according to the reading of the sub-meter installed in the suit house. With mutual consent, the quantum of the monthly rent was increased from Rs.1,501/- to Rs.1985/- per month. It was alleged in the plaint that the plaintiff is a businessman and he has two sons who have independent business. Under such circumstances, the plaintiff had no independent business of his own because of non-availability of space. He also alleged that his grandson one Shri Vandan Kucheria is a graduate and unemployed. Under such circumstances, the plaintiff alleged in the plaint that the plaintiff had a bonafide requirement of the suit premises. In that view of the matter, the plaintiff had requested on various occasions to the defendant to vacate the suit premises. However, the defendant failed to do so for which the suit was filed for eviction of the defendant on the ground of bonafide requirement. The said suit was registered and numbered as Title Suit No.10/2005 before the Court of Civil Judge, (Junior Division), Bongaigaon. 7. The defendant filed the written statement. In the said written statement various preliminary objections were taken as regards the maintainability of the suit. On the question of bonafide requirement, it was alleged in the written statement that the plaintiff was in fact a businessman but for the last many years, he had no independent business except some tenanted premises. It was mentioned that the plaintiff did not have independent business, not on account of non-availability of the space but because of the old age and as such he has been residing at Delhi with his second son who is also doing business there. It

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was denied that the grandson of the plaintiff Shri Vandan Kucheria is unemployed and intended to start business and the plaintiff is also eager to help him financially and otherwise for starting his business. Further to that, it has been mentioned that Shri Vandan Kucheria has been doing business in Delhi and he does not require any accommodation to start his own business and under such circumstances it was denied that the plaintiff have any bonafide requirement of the suit premises. Further to that it was also alleged in the written statement that the plaintiff has one three storied R.C.C. building and another two storied R.C.C. building at Bongaigaon Town which have been let out to different tenants. Apart from these buildings, the plaintiff has also some Assam type houses and some open space to start shopping complex and accommodate his grandson, if necessary. In paragraph No.11 of the written statement, it has been mentioned that the plaintiff had been demanding exorbitant rent of the suit premises from the defendant since January, 2004 and to that effect the plaintiff has given a copy of a draft Lease Agreement dated 03.03.2004 to agree to the exorbitant rate of rent @ Rs.2,800/- per month. It was alleged that the said Agreement which was so given by the plaintiff to the defendant contained various onerous conditions and as the defendant has refused to sign the Lease Agreement and consequently the suit was being filed to evict the defendant. It was also mentioned that the suit premises is the place where the defendant is carrying on his business which is the only source of livelihood of the defendant and his family. It is under such circumstances the defendant prayed for dismissal of the suit.

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On the basis of the pleadings as many as 7 issues were framed which are reproduced hereinbelow.

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Whether there is cause of action in this suit?

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Whether the suit is maintainable in the present form and manner?

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Whether the Plaintiff requires the suit house bonafide?

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Whether the Defendant is liable to be evicted from the suit house?

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Whether the Plaintiff demanded exorbitant rent from the Defendant?

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Whether the Plaintiff is entitled to the relief as prayed for?

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Whether the Plaintiff is entitled to any other or further relief?

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On behalf of the plaintiff, there were 3 (three) witnesses and the plaintiff produced Exhibit-1 which is Identity Card issued to Shri Vandan Kucheria, Exhibit-2 is Unemployed Certificate dated 13.12.2005 issued to Shri Vandan Kucheria. The defendant side examined only one witness and produced ExhibitA which is a copy of the draft Lease Agreement. The Trial Court i.e. the Court of the Civil Judge, (Junior Division) Bongaigaon vide a judgment and decree dated 18.06.2008 decreed the suit in favour of the plaintiff holding that the plaintiff has bonafide requirement of the suit premises.

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Being aggrieved and dissatisfied, the defendant preferred an appeal before the Court of the District Judge, Bongaigaon which was registered and numbered as Title Appeal No.06/2008. During the pendency of the said appeal, the plaintiff taking into account that there was default in payment of rent during the pendency of the eviction proceedings, filed an application seeking amendment of the plaint thereby to include the fact of default in payment of rent during the pendency of the eviction proceedings. Objections were filed against the said application and the said application was rejected by the First Appellate Court vide an order dated 25.04.2012. Thereupon, the plaintiff approached this Court under Article 227 of the Constitution of India against the order dated 25.04.2012 which was registered and numbered as CRP

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No.346/2012. This Court vide an order dated 15.09.2016 allowed the said application thereby permitting the prayer for amendment of the plaint made by the plaintiff with a direction to file the amended plaint within 15 days from the date of the order. Accordingly the plaintiff filed the amended plaint on 30.09.2016.

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It further appears from a perusal of the amended plaint that paragraphs 4(a) and 4(b) was inserted to the original plaint. Vide the said paragraph 4(a) it was alleged that the defendant was allowed to deposit the monthly house rent in respect to the suit premises to the plaintiff through his Savings Bank Account No. 2587 of the Central Bank of India, Bongaigaon Branch, Bongaigaon standing in the name of plaintiff. It was alleged that the defendant defaulted in payment of house rent in respect of the suit premises from 01.11.2007 due to nonpayment of the house rent for the month of October, 2007. It was alleged that one M/S Nakoda Novelties has deposited a Cheque bearing No.012382 dated 04.11.2007 in the aforesaid Savings Bank Account of the plaintiff. But, M/S Nakoda Novelties was not a tenant in respect of the suit premises and as such the Cheque for Rs.2283/- which was deposited in the aforesaid account of the plaintiff by M/S Nakoda Novelties was not valid tender of rent in accordance with law. Moreover, it was also alleged that the defendant paid the monthly rent for the month of March, 2009 on 24.04.2009 by way of depositing the same in the aforesaid account of the plaintiff. Further to that, it has mentioned that from the month of April, 2009 to September, 2016 there was default on the part of the defendant to deposit the rent for which there is an arrear amount of Rs.1,66,740/- for which the defendant is a defaulter in payment of rent. In paragraph No. 4(b) of the amended plaint, the plaintiff stated that as the plaintiff cannot claim arrear rent amount for more than three years and as such

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the plaintiff claims arrear rents for three years only commencing from October, 2013 to September, 2016 at the rate of Rs.1,985/- per month which comes to Rs.71,460/-.

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Pursuant to the filing of the amended plaint, the defendant filed an additional written statement. At this stage, it may be relevant herein to mention that during the pendency of the appeal, the original defendant expired and the present petitioners herein were substituted against the original defendant in the appeal as appellants. One of the petitioners Shri Prakash Bhansali filed an additional written statement wherein at paragraph No.5 of the said additional written statement it was mentioned that after the filing of the suit, the defendant deposited the rent in the bank account of the plaintiff on each and every month through M/S Nakoda Novelties, Bongaigaon which was the trade name of the deceased defendant over business carried out in the suit premises since the day of the shop was taken on rent from the plaintiff. It was alleged that the ignorance of trade name of M/S Nakoda Novelties by the plaintiff is a matter of malafide intention to take a plea of defaulter. Further to that it was mentioned that on some occasion the original defendant due to his illness, handed over the cheques to the plaintiff’s son Shri. Roopchand Kucheria. It was also mentioned that after the death of the original defendant, Shri Prakash Bhansali has been continuously depositing the rent to Shri. Roopchand Kucheria by cash because the plaintiff had informed the defendant that he had closed the earlier bank account and shifted to Delhi and the monthly rent of the suit property should be paid to his son regularly for which the rent is clear up-todate and there is no arrear rent due against the defendant. Further to that, it has been mentioned in paragraph No.6 of the additional written statement that after the death of the original defendant, Shri. Prakash Bhansali has been

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continuously depositing the monthly rent of M/S Nakoda Novelties to Shri. Roopchand Kucheria by cash because the plaintiff informed the defendant that he has closed the earlier bank account and has shifted to Delhi and the monthly rent of the suit premises should be paid to his son regularly, and as such the rent has been paid up-to-date to the defendant. On the basis of the said amendment, two additional issues were framed which were:

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Whether the Appellants were defaulter in respect of the suit premises? 2. Whether the plaintiff is entitled to recover the amended rent as claimed by the plaintiff?

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During the pendency of the appeal, the plaintiff adduced additional evidence. Similarly, the defendant also adduced additional evidence. The First Appellate Court vide a judgment and decree dated 07.01.2021 dismissed the appeal thereby affirming to the judgment and decree passed by the Trial Court. In doing so, the First Appellate Court after taking note of the evidence on record while deciding the additional Issue Nos. 1 and 2, categorically came to a finding that the petitioners herein were unable to show any valid deposit of monthly rent. The First Appellate Court further observed that the additional evidence of PW-3, the then Sheristadar Munsiff Court, Bongaigaon had deposed and confirmed that there was no N.J. Case was pending in respect of tendering the rent by the petitioners herein to the plaintiff in the official records with effect from 01.07.2011 to 22.07.2015. Taking into consideration the additional evidence of PW-4 i.e. the authorized representatives of the Central Bank of India, Bongaigaon Branch who exhibited Exhibit-6 which is the Bank Account No. 2189766633 of the plaintiff, it was observed that there was no deposit of rent as was mandated under law. It is also relevant herein to take note of the additional evidence of PW-1 wherein the plaintiff had categorically stated in his

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evidence on affidavit which could not be dislodged during the cross-examination that the defendants have failed to pay the rent since the month of April, 2009 to September, 2016. The additional evidence of PW-4 Shri. Roopchand Kucheria (PW-5) is also relevant as the same could not be dislodged who had categorically denied that he had the authority to collect the rent on behalf of the plaintiff and he had collected/received any rent from the defendant/petitioners.

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On the issue as regards bonafide requirement, the First Appellate Court after taking note of the evidence on record came to a finding that the plaintiff had bonafide requirement of the suit premises. It would be seen that the First Appellate Court have properly appreciated the evidence of PW-1, PW-2 and PW3 which could not be dislodged during the cross-examination. The First Appellate Court had also taken note of the evidence of DW-1 who during his cross-examination had admitted that he knew nothing as regards any business carried out by Shri. Vandan Kucheria at Delhi and did not submit any document in that respect.

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Being aggrieved, the said judgment and decree dated 07.01.2021 passed by the Court of the District Judge, Bongaigaon has been put to challenge before this Court under Section 115 of the Code.

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I have heard the learned counsels for both the parties and also perused the materials on record.

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Let this Court take into consideration whether on the basis of the materials on record and the contentions so raised there is any jurisdictional error thereby calling for interference under Section 115 of the Code. As already stated hereinabove, the scope of consideration is only to take note of as to whether there is any perversity in the satisfaction recorded by the Courts below and in that light as to whether the First Appellate Court had considered the said aspect

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in the background of the evidence to arrive at the consideration to its satisfaction. The re-appreciation of evidence in a Civil Revision Petition to indicate that another view is possible does not arise.

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From the perusal of the application under Section 115 of the Code and the grounds of objections so taken and also taking into consideration the submissions so made, it appears that the said grounds of objections so taken in the instant application are vague objection without material particulars. The petitioners have not been able to show that there has been any perversity in the findings of the Courts below more particularly the First Appellate Court in arriving at the satisfaction that the petitioners are defaulters in payment of rent and also as regards that the plaintiff has bonafide requirement of the suit premises. Consequently, this Court cannot interfere with the said findings of the fact arrived at by the Courts below on the question of defaulter in payment of rent as well as on the question of bonafide requirement of the plaintiff. This Court is also of the opinion that the First Appellate Court has duly taken into account the evidence on record as already discussed hereinabove and has correctly come to a finding that the defendants are defaulters in payment of rent as the defendants have failed to show that they have paid any rent as required under law since April, 2009 to September, 2016. 19. Furthermore, it is also relevant to take note of that it is a well settled principle of law that bonafide requirement of a suit premises by the landlord would depend on whether the landlord has been able to establish a genuine element of need for the suit premises and what is a genuine need would depend on the facts and circumstances of the each case. The Supreme Court in the case of Mehmooda Gulshan Vs. Javaid Hussain Mungloo reported in (2017) 5 SCC 683 observed that when the landlord intends to engage her son in the

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business and the premises, it is for the landlord to decide as to the best use the suit premises should be put to and there is nothing wrong on the part of the landlord in making plans for a better living by doing business engaging her son. It was also observed that having regard to the background of her son in the said case who was unemployed and undereducated, the appellant therein was able to establish that the business was an available option and the tenanted premises was the only space available for which a genuine need for the premises have been established.

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In the backdrop of the above if this Court takes into account the facts involved as well as the evidence on record, it would be seen that the plaintiff has been able to prove that the suit premises is required genuinely for the purpose of allowing his grandson to carry on his business and this aspect of the matter has been duly proved by the plaintiff on the basis of the evidence of PW1, PW-2 and PW-3.

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Under such circumstances, this Court is of the opinion that the plaintiff has been able to make out a case for eviction of the petitioners herein from the suit premises on the ground of defaulter in payment of rent as well as on the ground of bonafide requirement of the suit premises.

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Considering the above, the learned Trial Court as well as the First Appellate Court, therefore in the opinion of this Court have rightly decreed the suit in favour of the plaintiff. As such the question of interference under Section 115 of the Code does not arise in the facts and circumstances of the case.

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Taking into consideration that the defendants have been carrying on their business since long and Ms. D. Barman, the learned counsel appearing for the petitioners submitted that if the petitioners are immediately evicted, serious irretrievable injury would be caused as it would be very difficult to immediately

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find an alternative location for carrying out of their business. Taking into consideration that the petitioners have been carrying on their businesses in the suit premises since long time, it would be just and reasonable to grant them six months of time to vacate the suit premises provided that they submit an undertaking before the Trial Court within 18/11/2022 to the effect that they shall vacate the suit premises within a period of six month from the date of the instant judgment i.e. on or before 02/05/2023.

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It is clarified that during this period of six months the petitioners shall continue to make payment of amount of Rs. 1,950/- per month in the form of compensation to the plaintiff. 25. 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. 1,950/- per month during this period of six months shall not create any right or interest in favour of the petitioners in respect to the suit premises. It is also clarified that during this period, the petitioners shall remain in possession of the suit premises as the custodian of the plaintiff and shall not do any act or acts which may effect the rights of the plaintiff over the suit premises in any manner whatsoever. An undertaking in that regard should also be given before the Trial Court on or before 18.11.2022.

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The plaintiff/respondent herein 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 tenants/petitioners herein to controvert the allegations of non-payment of rent during the pendency of the eviction proceedings before the Executing Court and the Executing Court

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shall decide the same in accordance with law.

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With above observations and directions, the instant petition stands dismissed.

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Send back the LCR.

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JUDGE

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Comparing Assistant

On the Death of Nawratanmal Bhansali, His Legal Representatives v. Sri Moolchand Kucheria

Case brief

What is this about?

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On the Death of Nawratanmal Bhansali, His Legal Representatives v. Sri Moolchand Kucheria

Case brief

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What did the court decide?

What the court decided

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