Hiralal Sharma vs Harish Kr. Singh

Heard Mr. TJ Mahanta, learned senior counsel assisted by Ms. P Bhattacharjee, learned counsel for the petitioner. Also heard Mr. S K Singh,

learned counsel for the respondent.

The judgment and decree passed in Title Appeal No. 21/2013 by the learned Civil Judge, Jorhat affirming the judgment and decree passed in T.S.

No. 01/2011 by the learned Munsiff No. 1, Jorhat thereby decreeing the suit in favour of the plaintiff/ respondent for ejectment of the defendant/

petitioner from the tenanted premises described in the schedule of the plaint is put under challenge in this Revision Petition. The plaintiff/ respondent in

his plaint pleaded that he is the absolute owner of the suit land and premises mentioned in the schedule of the plaint. The defendant/ petitioner is the

tenant in respect of the tenanted premises bearing holding No. 218 (A) in Jorhat town and the monthly rent was fixed at Rs. 5,000/- and the mode of

payment was Rs. 3,000/- by cheque and Rs. 2,000/- in cash. The plaintiff/ respondent is a native from the State of Bihar who shifted to Jorhat and

asked the defendant/ petitioner to vacate the tenanted premises on the ground that the said tenanted premises along with land were gifted to him by

one Sri Awodh Bihari Singh by way of a registered gift deed. On the request of the defendant/ petitioner the period of tenancy was extended till

March 2010 and thereafter the defendant/ petitioner did not pay the total rent of Rs. 5,000/- but sent Rs. 3,000/- by way of money order in the name

of the elder brother of the plaintiff/ respondent which was refused to accept. On such refusal the defendant/ petitioner started to deposit the rent in the

court but it is the pleading that before depositing the rent in the court the rent was not tendered to the plaintiff/ respondent or to his elder brother.

Notice was issued dated 25.09.2010 requesting the defendant/ petitioner to pay rent from September, 2010 by way of cheque but the same was not

complied rather rent was paid in the court at the rate of Rs. 3,000/. On the said account of defaulter and in addition it was pleaded that the tenanted

premises was required by plaintiff/ respondent for his own use, the suit for ejectment of the defendant petitioner was filed.

The defendant/ petitioner resisted the claim of the plaintiff/ respondent by filing the written statement. It is the defence that the defendant/ petitioner

had all along been under occupation of the tenanted premises since the year 1959. Initially the tenanted premises was chali house with bamboo post

and walls and later the father of the petitioner constructed permanent house. It is stated that the rent was paid regularly in respect of the tenanted

premises and the rent was enhanced from time to time and finally the rent was fixed at Rs. 3,000/- per month at the time of filing the suit. He tendered

rent for the month of March, 2010 by way of cheque to the elder brother which was refused to accept and he started to deposit the rent in the court

by filing various NJ cases. Before depositing the rent in the court the defendant/ petitioner tendered the rent to the elder brother of the plaintiff/

respondent who refused to accept and he complied the requirements U/s 5 (4) of Assam Urban Areas Rent Control Act, 1972 (hereinafter referred to

Act). With the said defence coupled with denial of bonafide requirement the defendant/ petitioner sought for dismissal of the suit.

On the basis of the said pleadings following issues were framed:

“1. Whether there is cause of action for the suit?

Whether the defendant is a defaulter in respect of payment of rent?

Whether the suit premises is bona fide required by the plaintiff?

Whether the defendant raised permanent construction over the suit land?

What other relief (s) the parties are entitled to?

The plaintiff/ respondent in support of his case adduced evidence of three witnesses and exhibited nine documents and on the other hand the

defendant/ petitioner adduced evidence of six witnesses with documents exhibited as Ext. A to S. The learned trial court decided the issues No. 1,2,3

and 5 in favour of the plaintiff/ respondent and the issue No. 4 was decided against the plaintiff/ respondent. On the basis of the said finding the suit

was decreed in favour of the plaintiff/ respondent. Being aggrieved, defendant/ petitioner preferred Title Appeal No. 21/2013 referred hereinabove

before the learned First Appellate Court and after hearing the parties dismissed the same affirming the findings of the learned trial court. The

judgment and decree dated 11.04.2014 passed by the First Appellate Court in T.A. No. 21/2013 is put under challenge in this revision petition.

Mr. Mahanta, learned senior counsel strenuously argued that the finding of the trial court in respect of the issue No. 2 is perverse inasmuch as the

evidence on record was not at all discussed. Referring to the findings of the learned trial court while deciding the issue No. 2, Mr. Mahanta submits

that the learned trial court asked itself certain questions and on the basis of the answers recorded as against the said questions, the learned trial court

came to the conclusion that the defendant/ petitioner failed to deposit the rent fulfilling the requirements U/s 5(4) of the Act. Further, it is contended

that not even a single reference of the evidence led by the defendant/ petitioner is considered and as such the said finding is totally perverse inasmuch

as if the evidence are considered said finding of perversity can be inferred. The learned First Appellate Court affirmed the said finding and

mechanically upheld the findings of the learned trial court.

Referring back to the finding of the learned trial court in issue No. 3, it is the contention of Mr. Mahanta that learned court below failed to examine

the bonafide and genuineness of the claim made by the plaintiff/ respondent in respect of the tenanted premises. The plaintiff/ respondent nowhere in

the plaint pleaded as to why the said tenanted premises was required. Mere pleading of the requirement of the tenanted premises was not sufficient to

examine the bonafide in the claim made by the plaintiff/ respondent but requires the court below to consider the evidence on record. For the said

omission the finding of the First Appellate Court in issue No. 3 is also perverse. Summing up the submission, Mr. Mahanta submits that there are

jurisdictional failures on the part of the court below and as such interference of this court is required.

Countering the submission of Mr. Mahanta, Mr. Singh submits that there is no denial of the practice followed by the parties to the tenancy

agreement inasmuch as the monthly rent is due on the first day of the succeeding month payable within seven days. Further the mode of payment of

the rent was Rs. 3000/- by cheque and another sum of Rs. 2,000/- by cash. The elder brother of the plaintiff/ respondent was authorised to collect the

rent and the rent from March, 2010 was not tendered to the elder brother of the plaintiff/ respondent nor to the plaintiff/ respondent.

The defendant/ petitioner further by way of money order sent rent which is not at all acceptable under the Act. Moreover that was not the practice

followed insofar as the tenancy is concerned. It is further stated that though the defendant/ petitioner paid rent in the court but it was against the terms

stipulated U/s 5(4) of the Act and before depositing the rent in the court the defendant/ petitioner never tendered the rent to the elder brother of the

plaintiff/ respondent and without such tender though the defendant/ petitioner deposited the rent in the court, the same is totally invalid. Referring to

the findings of the First Appellate Court, Mr. Singh submits that the First Appellate Court discussed the evidence on record and came to the

conclusion that there was no tender before depositing the rent in the court by the defendant/ petitioner. So far as the finding in issue No. 3 of the First

Appellate Court is concerned the learned court below is correct inasmuch as the defence of the defendant/ petitioner could not demolish the fact that

bonafide requirement of the premises by the plaintiff respondent was not genuine. Supporting the findings of the learned court below Mr. Singh prays

for dismissal of the revision petition.

I have given due consideration to the submissions made by the learned counsel. The findings are concurrent. However, as submitted by Mr.

Mahanta that the findings are perverse this led me to go through the lower court records more specifically the evidence led by the parties in the suit.

On perusal of the findings by the First Appellate Court in issue No. 2 it is found that the court below came to the findings that the defendant/ petitioner

nowhere disclosed on what date he sent rent by cheque for the month of March, 2010. In his cross-examination also the defendant/ petitioner could

not say the date on which he sent/ tendered rent to Mr. Satish Kumar Singh, the elder brother and the refusal to accept the same of Rs. 3,000/-. In the

evidence of the defence side it is deposed that the sum of Rs. 3,000/- was sent by money order and only on refusal to accept the money order

defendant/ petitioner deposited the rent in the court. The said finding is well supported by the evidence on record and as such the contention of Mr.

Mahanta in respect of perversity cannot be accepted. It is also clarified that the rent tendered by way of money order and refusal to accept the same

is not envisaged u/s 5(4) of the Act in order to deposit the rent by a tenant in the court inasmuch as the said act of sending rent by way of money

order is not at all a valid tender envisaged U/s 5(4) of the Act. Accordingly, I do not find any perversity on the findings in issue No. 2.

While deciding issue No. 3, the learned First Appellate Court considered the defence of the defendant/ petitioner and came to the conclusion that

the defendant/ petitioner did not deny that the plaintiff/ respondent was a resident of district Balihar in the State of Bihar and thereafter shifted to

Jorhat in the year 2009. The land measuring 3 Kathas 18 Lechas upon which the tenanted premises is situated was gifted to the plaintiff/ respondent

by one Sri Awodh Bihari Singh who was the original owner of the land. On the basis of the said gift plaintiff/ respondent decided to carry out

construction over the land covering the tenanted premises and for the said reasons upheld the findings of the learned trial court who held the issue in

favour of the plaintiff/ respondent. Moreover there are no facts pleaded in the defence which the plaintiff/ respondent failed to overcome while

discharging the burden in order to show the bonafide of the requirement of the suit premises by the plaintiff/ respondent. The First Appellate Court

rightly held that the plaintiff/ respondent failed to prove that the monthly rent was Rs. 5,000/- and as such held that the monthly rent was Rs. 3,000/-

which in my considered opinion is proper.

From the overall discussions I do not find any perversity on the findings in issue No. 3 and as per discussions made hereinabove I am of the

considered opinion that there is no jurisdictional failure on the part of the learned court below in exercising its jurisdiction under the Act and I do not

find any merit in this revision petition. However, keeping in view the nature of business carried out by the defendant/ petitioner it would be proper to

give him some time to vacate the tenanted premises before the plaintiff respondent goes for execution of the decree for ejectment of the defendant/

petitioner. Mr. Singh on a specific query submits before this court that three months period may be allowed to the defendant to vacate the tenanted

premises. In my considered view the said three months will not be sufficient and accordingly six months time from today is granted to the defendant/

petitioner to vacate the tenanted premises considering the length of possession and the nature of business as on record. However failure on the part of

the defendant/ petitioner to vacate the tenanted premises on expiry of the stipulated period the plaintiff/ respondent shall be at liberty to go for

execution for ejectment of the defendant/ petitioner by due process of law through the executing court. For the six months period, the defendant/

petitioner shall pay monthly rent of Rs. 3,000/- to the plaintiff/ respondent without any default.

Accordingly this revision petition stands dismissed without any cost. Interim order passed if any, stands vacated. Send back the LCR.