Kanan Bala Banik vs Babul Chandra Deb

H.K.K. Singh, J.—In this application under Article 227 of the Constitution of India the petitioner has prayed for quashing the judgment and order dated 25.11.1999 passed by the learned District Judge, West Tripura, Agartala in R.C. Revision No. 1 of 1999 dismissing the Revision Petition and up-holding the judgment dated 2.12.1998 passed by Civil Judge, SR. Division, Court No. 1, West Tripura, Agartala acting as Appellate Authority in Rent Control Court Appeal No. 5 of 1998 thereby upholding the judgment and order dated 7.7.1998 passed by Civil Judge, Jr. Division, West Tripura, Agartala (Rent Control Court) in R.C.C. 11/81 thereby ordering eviction of the petitioner tenants.

The respondents 1 and 2 who are the landlords and owners of the premises, while they were minors, brought proceedings before the Rent Control Court praying for eviction of the tenants. The present respondents are the legal heirs of the original tenants. The grounds on which the eviction has been sought for are - (i) default in payment of rent, (ii) sub-letting of the suit premises and (iii) bona fide need of the premises by the landlords. The proceedings have chequered history. The proceedings being R.C.C. Case 11/81 was brought through the guardian of the minor landlords on 14.8.1981, and on ground of default in deposit of the arrear and current rents an order was passed for eviction of the tenants on 6.2.1984 and by another order dated 6.4.1984 proceeding was terminated. An application for setting aside the order of eviction dated 6.4.1984 was filed which was registered as Misc. Case No. 83 of 1984, was dismissed by the Rent Control Court under order dated 27.7.1985. Thereafter, a Review Petition being Misc. Case No. 138/85 was filed which was also rejected under order dated 12.8.1985. An appeal was filed being Appeal Misc. (RCC) No. 2/85 which was rejected by the appellate authority under order dated 11.10.1985. A Revision Petition against the order of the appellate authority was also rejected by the District Judge, West Tripura while exercising the power as Revisional authority by order dated 21.11.1985. Thereafter, the tenants filed an application under Article 226 and 227 of the Constitution of India before the High Court, but the said application was also dismissed by the High Court under order dated 23.11.1992. Against the order of the High Court, an SLP was filed before the Hon''ble Supreme Court and under order dated 24.8.1994 the Hon''ble Supreme Court set aside the orders passed by the appellate court and High Court and remitted back to the appellate authority to decide the matter on merit after considering whether on the basis of explanation offered in the application dated 18.4.1984 filed by the tenant, there was sufficient cause within the purview of Section 13(3) of the Tripura Building (Lease and Rent Control) Act, 1975 (hereinafter refers to as the Act). Thereafter, the appellate authority in RCC Appeal No. 22/ 85 allowed the appeal holding that the appellant tenants had shown sufficient cause in their application dated 18.4.1984 for not depositing the rent within time. Again, a revision petition was preferred against the order of the appellate authority which was also rejected. Thereafter, an application under Article 227 of the Constitution was also filed challenging the aforesaid order of the revisional authority and that of the appellate authority which were also ultimately rejected by the High Court under order dated 14.11.1995. Thereafter the proceedings continued before the R.C.C. and by a final order dated 7.7.1998 the Rent Control Court passed an order for eviction of the tenants on the ground of default in payment of rent, sub-letting and bona fide need of the landlords. Appeal carried against the aforesaid order was also rejected by the appellate authority under order dated 31.8.1998 passed in R.C.C. (Appeal) No. 5/98. The Revision Petition being 11/98 which was carried against the order of the appellate authority was also rejected under order dated 25.11.1999. Hence the present application under Article 227 of the Constitution of India.

The relevant provisions for consideration in the present case is Sections 12 and 13 of the Act. The grounds taken by the landlords, as noted above, i.e., default in payment of rent, sub-letting and bona fide need of the landlords are some of the grounds provided for in Section 12 of the Act. Again, u/s 13 of the Act there is specific provisions requiring the tenants to pay to the landlords or deposit with the Rent Control Court or the appellate authority all arrear of rent admitted by the tenants to be due and continues to pay or deposit the same until the termination of the proceedings before the Rent Control Court or the appellate authority as the case may be. In case of failure of the tenants to deposit or make payment of the rent as aforesaid the tenants are prohibited from contesting the proceedings or file appeal against any order passed against them.

Mr. A.K. Bhowmik, learned Sr. Counsel appearing for the petitioner submits that the finding recorded by the Rent Control, appellate court and also the Revisional authority on all the 3 (three) points are all perverse and not tenable in law, and as such an intervention, according to the learned counsel, of this court, is called for. Mr. Sengupta, learned Sr. Counsel appearing for the respondents submits that there is no reason or any ground for interference by this court in exercise of power under Article 227 of the Constitution of India as, according to the learned Sr. Counsel, the authorities, after considering the entire evidence and facts and circumstances of the case, passed the orders according to law.

At the outset Mr. Sengupta, learned Sr. Counsel has drawn my attention to the various decisions of the Apex Court just to show the settled proposition of law that the High Court in exercise of the powers under Article 227 of the Constitution, does not sit as an appellate court nor as revisional court and only in extreme cases where there has been total failure of justice or the authorities have gone beyond the bounds of law, the High Court may interfere.

In the course of hearing learned counsel of the parties have taken me to the relevant provisions of the Act and even to the evidence and judgments of the Rent Control Court and other authorities.

On the point of default of payment of rent, the learned Rent Control Court and also the appellate court came to the conclusion that there was no default in payment of the rent before filing of the case but according to the Rent Control Court and also the appellate authority, there was default in payment/deposit of the rent during the pendency of the proceedings. Here it may be noted that, as noticed earlier, on failure to deposit of the current and arrear rent, the proceedings was stopped and order for eviction was passed on 6.2.1984 and finally the Supreme Court under order dated 4.8.1994 directed the appellate authority to consider whether there was sufficient cause within the meaning of Section 13(3) of the Act for non-payment of rent during the time framed, and as per the records it is found that after the case has been remanded back by the Hon''ble Supreme Court, the appellate court held that sufficient cause was shown and thereafter rent was deposited. Here the Rent Control Court and also the appellate court, after considering all the materials including the statement of accounts maintained by the court, came to the conclusion that there had been delay in making the deposit. Hence, it amounted to failure to make the payment of rent. In this regard Mr. Sengupta has drawn my attention to various decisions of the Supreme Court, viz. Mrs Manju Choudhary and Another Vs. Dulal Kumar Chandra, and Mohd. Basheer Ahmad Vs. Hakeem Noorulla Sheriff, on the proposition that default of the tenant in payment various counts during the continuation of the proceedings, will amount to non-payment of rent which entails eviction. On the other hand, Mr. A.K. Bhowmik has submitted that the matter was concluded by the appellate authority while deciding the sufficiency of the cause for non-payment, as per the direction of the Supreme Court, and as such the matter regarding non-payment and delay in making payment or deposit during the continuation of the proceeding may not be reopened.

Regarding question of sub-letting, the pleaded case of the landlords is that the original tenant, Jatindra Banik was running a firm namely, Narayani Stores in premises and thereafter the premises was let out by the tenant to New Narayani Stores, a partnership firm having three partners of which his wife Kanan Bala, Sri Shanti Bushan Banik are the partners. In this regard, the tenant took the plea that New Narayani Stores was running the business of Narayani Stores on Benami and there was no question of sub-letting.

Mr. A.K. Bhowmik relied upon a case in Resham Singh, Appellant v. Reghbir Singh & another, respondent reported in AIR 1999 SC 3987 wherein the Apex Court held that tenant allowed his brother to look after his shop premises. There was no evidence to show that possession of premises was parted by the tenant and his brother was in exclusive possession of the suit premises. The Apex Court held that there was no relationship of lessee and lessor between the tenant and his brother. Thus the Apex Court held that no case of sub-letting was made out. Here Mr. Sengupta draws my attention to the judgment passed by the learned original court as well as the first appellate court and submits that the findings recorded by the Rent Control Court on the question of fact as to whether the premises was used by the partnership firm for the purpose of its business should not be disturbed or interfered with. Mr. A.K. Bhowmik has again referred to the decision in the case of Kala and Another Vs. Madho Parshad Vaidya, In that case the Apex Court held that mere change of nature of business from selling of cigarettes and bidis during the lifetime of the tenant to selling of sanitary wares is not a ground to infer subletting or delivering possession of premises in favour of the subtenant. Mr. Sengupta, on the other hand, has submitted that the tenant even has taken a plea before the Supreme Court enclosing a copy of the partnership deed of New Narayani Stores to show that the said firm was doing its business in the premises and on perusal of other evidence available on record and the evidence recorded by the Rent Control Court which was affirmed by the appellate authority on the question of facts should not be disturbed.

Now, coming to the point on bona fide need, the case of the landlord is that they have been running business of video cassette in the rented premises and even the landlord has asked them to vacate the premises but they have no other premises for running any business other than the said premises. The two petitioner plaintiffs initiated the proceedings during their minority and they have since come of age. According to them they have no place for their business for livelihood. It was also urged that the tenants can do business in other new and available premises nearby or anywhere. As against this, the case of the tenant is that they have no other place to take on lease and they are not in a position to pay huge amount of money to take a new premises on rent. After appreciating the evidence and considering the facts and circumstances of the case, the Rent Control Court as well as the appellate court came to the finding that need of the petitioners was found proved.

In the case of Ragavendra Kumar Vs. Firm Prem Machinary and Co., the Apex Court held that the statement of the landlord that the suit premises was most suitable for his business should not be interfered with even in the Second Appeal u/s 100 of the CPC and further it was held by the Apex Court that the landlord is the best Judge and has complete freedom in the matter.

In the case of Sarla Ahuja Vs. United India Insurance Company Limited, the Apex Court held that eviction order passed by the Rent Control Court on the ground of bona fide requirement of the landlord is only a question of fact and should not even interfered with by the High Court in exercise of power of revision. Also in the case of Laxmikant Revchand Bhojwani and Another Vs. Pratapsing Mohansingh Pardeshi Deceased through his Heirs and Legal Representatives, the Apex Court held that High Court n exercise of powers under Article 227 of the Constitution should not interfere with the findings recorded by the authorities in a special legislation (Bombay Rents, Hotel and Lodging House Rates Control Act, 1947).

In the recent case reported in Har Narain Daga Vs. Heeralal and Others, the Apex Court also held that bona fide requirement of landlord is essentially a question of fact. Thus, concurrent findings of fact having been recorded by both the lower courts (that tenanted accommodation located on ground floor of respondent landlord''s residential building was required for needs of his growing sons ; also for holding private tuition classes for his students), held. High Court was justified in not interfering and in dismissing appellant tenant''s second appeal.

In Mohan Amba Prasad Aginhotri and Ors., appellants v. Bhaskar Balwant Aher (dead) through L.Rs., Respondents, reported in Mohan Amba Prasad Agnihotri and Others Vs. Bhaskar Balwant Aher (D) Through I.Rs., the Apex Court held that findings of fact recorded by the trial court and the appellate court on the question of facts should not be interfered with by the High Court.

In the case of Sarla Ahuja Vs. United India Insurance Company Limited, the Apex Court, while deciding that reappraisal and reappreciation of evidence by the High Court to reach different findings being not permissible, it was held that the landlord was in possession of another flat in another city, is not a ground to disentitle her to seek recovery of possession of the tenanted premises.

As noted above, eviction has been sought for on three grounds namely, (i) default in payment of rent, (ii) sub-letting and (iii) bona fide need of the landlord. If the landlorad is able to prove any of the grounds, eviction order has to be made. In the present case, on three grounds the trial court and the appellate court, of facts, held that all the three grounds taken by the tenants were found proved and findings were also affirmed by the Revisional Court. On the ground of default in payment, Rent Control Court held that there was no default before filing the eviction case but, there was default on payment/deposit of the arrear and current rent to the Rent Control Court as there was delay in making the payment, and the Rent Control Court held that it amounted to non-compliance of the provisions of Section 13 of the Act. In this regard, the learned counsel on both sides have submitted at the our that no Rule has been framed u/s 33 of the Act. Thus, the manner in which the deposit is to be made u/s 13(1) having not been prescribed by the Rules, the findings recorded by the R.C.C. may not be held to be untenable. Regarding the finding on sub-letting, considering the submission of the learned counsel on both sides and on careful perusal of the various decisions of the Apex Court cited by the parties, my considered view is that in exercise of supervisory jurisdiction under Article 227 of the Constitution High Court may not interfere with the same as those findings are based on evidence. Lastly, regarding the findings on the point of bona fide need of the landlord, there is no reason, or ground whatsoever to interfere with the findings recorded by the Rent Control Court and the appellate authority.

For the aforesaid reasons and conclusion, this writ petition is dismissed. Considering the facts and circumstances, I make no order as to costs.