Page No.# 1/34
GAHC010058862021
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRP/34/2021
MD. NIZAMUDDIN AHMED
S/O LATE SHAH MOHAMMAD, R/O HOUSE NO. 45, SIJUBARI IDGARH
ROAD, P.S. HATIGAON, GUWAHATI 38, DIST. KAMRUP (M), ASSAM.
VERSUS
ON THE DEATH OF AHMED HOSSAIN HIS LEGAL HEIRS HABIBUL NESSA
AND 6 ORS (B)
R/O HOUSE NO. 77 ANUPAM NAGAR, P.S. HATIGAON, GUWAHATI 38, DIST.
KAMRUP (M), ASSAM.
2:FATEMA HASAN
R/O HOUSE NO. 77 ANUPAM NAGAR
P.S. HATIGAON
GUWAHATI 38
DIST. KAMRUP (M)
ASSAM.
3:IBRAHIM HASAN
R/O HOUSE NO. 77 ANUPAM NAGAR
P.S. HATIGAON
GUWAHATI 38
DIST. KAMRUP (M)
ASSAM.
4:IMRAN HASAN
R/O HOUSE NO. 77 ANUPAM NAGAR
P.S. HATIGAON
GUWAHATI 38
DIST. KAMRUP (M)
ASSAM.
Page No.# 2/34
5:UMAR HASAN
R/O HOUSE NO. 77 ANUPAM NAGAR
P.S. HATIGAON
GUWAHATI 38
DIST. KAMRUP (M)
ASSAM.
6:FAUJIA HASAN
R/O HOUSE NO. 77 ANUPAM NAGAR
P.S. HATIGAON
GUWAHATI 38
DIST. KAMRUP (M)
ASSAM.
7:FARHAN HASAN
R/O HOUSE NO. 77 ANUPAM NAGAR
P.S. HATIGAON
GUWAHATI 38
DIST. KAMRUP (M)
ASSAM
Advocate for the Petitioner : MR. S P ROY
Advocate for the Respondent : MR. A IKBAL
BEFORE HONOURABLE MR. JUSTICE DEVASHIS BARUAH JUDGMENT AND ORDER (CAV) Date : 04.03.2022 Heard Mr. S.P. Roy, the learned counsel appearing on behalf of the petitioner, and Mr. A. Ikbal, the learned counsel appearing on behalf of the Respondents.
2. For the convenience of this Court the parties in the instant proceedings are referred to in the same status as they stand before the Trial Court. The brief facts of the instant case is that one Ahmed Hossain (since deceased) who is the Page No.# 3/34 predecessor-in-interest of the Respondent Nos.1 to 7 herein filed the suit being Title Suit No.154/2017 against the Petitioner herein. In the said suit the said Ahmed Hossain claimed to be the owner in respect to premises measuring 20 ft. X 32 ft. standing over a plot of land measuring 1 Katha 5 Lechas covered by Dag No.727/728 included in K.P. Patta No.252 of Village-Borsojai under Mouza- Beltola in the District-Kamrup (M), Assam. The said room has been more specifically described in the schedule to the plaint and for the sake of convenience hereinafter referred to as "the Schedule Premises". The Schedule Premises was rented out initially for a period from 01.01.2012 to 31.12.2012 at monthly rent of Rs.7,100/- and during the pendency of the said lease, an agreement was entered into on 12.03.2012. Due to various ailments of the original plaintiff, he wanted to engage his son in a business for earning livelihood and accordingly a business was set-up on the side of the Schedule Premises. Due to increase in demand and the business having expanded the plaintiff and his son required a larger area for which the plaintiff decided to evict the defendant on the expiry of the tenancy, more so, as the Schedule Premises was a temporary structure which was required to be repaired and the plaintiff had plans to make a permanent structure over the said plot of land. Accordingly, a notice dated 05.12.2012 was issued for vacating the aforesaid schedule premises.
3. Immediately thereupon after receiving the said notice the defendant filed an application under Section 11 of the Arbitration and Conciliation Act, 1996 (for Page No.# 4/34 short 'the Act of 1996') which was registered and numbered as Misc.(R) Case No.549/2012 before the Court of the Additional District Judge No.1. Further to that, the plaintiff also alleged in the plaint that the defendant was a defaulter in payment of monthly rent since February, 2013. On the basis of the said averments the suit was filed for declaration of right and interest over the schedule premises in favour of the plaintiff in terms of tenancy agreement dated 12.03.2012 and for recovery of possession of the suit premises by evicting the defendant from the suit premises. The said suit was filed on 19.04.2013 and was registered and numbered as Title Suit No.154/2013. At this stage it may be relevant to mention that at the time of filing of the suit the Court Fee of Rs.2691.10 was paid. It is also relevant herein to mention that in paragraph 2 of the plaint it has been mentioned that owing to the original plaintiff suffering from various ailments he had appointed his brother one Ahmad Hussain Chawdhury as his lawful attorney for the schedule premises and he was competent to file the plaint on his behalf.
4. The defendant filed the written statement on 09.02.2015. In the said written statement it was contended that in view of the Arbitration Clause in the Tenancy Agreement dated 12.03.2012, the parties are liable to be referred for arbitration. It was also mentioned that initially the tenancy between the parties commenced vide agreement dated 01.02.2011 w.e.f. 01.02.2011 for a period of 11 (eleven) months in respect of a tenanted room measuring 10 ft. X 15 ft. against the payment of monthly rent of Rs.2,500/- payable within the 7th day of Page No.# 5/34 each English calendar month plus electricity charges and pursuant to the agreement dated 01.02.2011, an amount of Rs.1,00,000/- was paid by the defendant to the plaintiff on account of security deposit/advance rent which was refundable upon vacation of the tenanted premises. It was also mentioned that after entering into the Tenancy Agreement dated 01.02.2011 the defendant started his business of office/home furnishing in the tenanted room against payment of the monthly rent and electricity charges to the plaintiff regularly and by obtaining necessary trade licence from the GMC, Guwahati in the name of M/s Nice Furnishing. The defendant had also obtained a credit facility/loan amounting to Rs.7,00,000/- from the United Bank of India which was continued. In paragraph 8 of the written statement it was further mentioned that during the continuance of the tenancy created by Tenancy Agreement dated 01.02.2011 it was verbally agreed between the parties that the plaintiff shall rent out the schedule premises to the defendant for a further period of 1 (one) year w.e.f. 01.01.2012 against the payment of the monthly rent of Rs.7,100/- only payable within the 7th day of each English calendar month plus electricity charges as per meter reading installed in the tenanted premises. The defendant as per the said verbal agreement was required to pay an amount of Rs.2,00,000/- to the plaintiff on account of security deposit/advance rent which was refundable upon termination and/or vacation of the schedule premises after necessary adjustment of dues payable by the defendant to the plaintiff. Accordingly the defendant paid an additional amount of Rs.1,00,000/- totalling Page No.# 6/34 to Rs.2,00,000/- to the plaintiff and has been continuing his business in the Schedule Premises against regular payment of monthly rent and electricity charges. The Agreement of Tenancy dated 12.03.2012 was duly admitted and as per the defendant the said amount of Rs.2,00,000/- was still lying with the plaintiff.
5. As regards the claim of the plaintiff of bonafide requirement, the defendant stated that neither the plaintiff nor any of his sons/daughters are carrying on any business in any room near the schedule premises and therefore, question of increasing demands for his business and/or expansion of the said business did not arise. It was also mentioned that there were three shop rooms including the Schedule Premises which belongs to the plaintiff. Out of the three shop rooms, one shop room is under the occupation of the defendant; another shop room measuring 6 ft. X 21 ft. has been rented out to one Md. Rafique Ali who is running his business in the name of M/s Oigi Choice and the third shop room is presently vacant. It is the contention of the defendant that the plaintiff keeping the third room vacant clearly shows that the plaintiff did not have any bonafide requirement in respect to the schedule premises. Further to that, it was also mentioned that the plaintiff had two daughters and four sons and out of the said six children except one Fatema Khatoon who is 22 years all other children of the plaintiff are minors and as such the question of doing business by the side of the Schedule Premises and/or expansion of the said business either by the plaintiff or by any of the sons or daughters as alleged do not Page No.# 7/34 arise.
6. As regards the question of defaulter, it was mentioned in paragraph 14 of the written statement that the defendant is not a defaulter in payment of the monthly rent since February 2013. It has been mentioned that as per the agreement dated 12.03.2012 the monthly rent of Rs.7,100/- is payable within the 7th day of each English calendar month but the authorized representative of the plaintiff namely Ibrahim Hassan collected the rent as per his convenience as would be evident from the rent receipts dated 12.12.2012 and 08.01.2013. It has also been stated that sometime the plaintiff used to collect the said monthly rent for two or three months at a time through his authorized representative i.e. his son. In the said paragraph it was also mentioned that the plaintiff collected/received the rent for the month of December, 2012 on 08.01.2013 but the plaintiff did not collect/receive the monthly rent for the months of January 2013 and February 2013 even after being tendered by the defendant on it becoming due, to the authorized son by asking the defendant to wait for some time till filing his reply in Misc.(R) Case No.549(K)/2012. It was also mentioned that on 07.04.2013 when the defendant tendered the rent for the months of January, 2013, February, 2013 and March, 2013 amounting to Rs.21,300/-, the plaintiff refused to accept the same and under such circumstances the defendant deposited the rent of Rs.21,300/- in the Court on 12.04.2013 as per the provisions of Assam Urban Rent Control Areas Act, 1972 (for short 'the Act of 1972'). It has also been mentioned that since then the defendant had been Page No.# 8/34 regularly depositing the rent of Rs.7,100/- in the Court till date. At this stage, it may also be relevant herein to mention that there is no pleading that pursuant to the deposit made on 12.04.2013 the defendant had tendered the rent to the plaintiff and thereafter deposited the monthly rent to the Court. It was also mentioned that on 29.06.2013 the plaintiff disconnected the electricity supply to the schedule premises for which the defendant filed an interlocutory application for restoration of the electricity supply to the Schedule Premises which was allowed directing the plaintiff to restore the electricity supply to the Schedule Premises vide an order dated 23.09.2013 and accordingly the electricity supply to the Schedule Premises was restored on 10.12.2013 and since then the defendant is paying the electricity charges regularly to the ASEB directly. Apart from that, it was also mentioned that the security deposit/advance rent of Rs.2,00,000/- paid by the defendant to the plaintiff is still lying with the plaintiff till date without any adjustment and therefore, in view of the same the defendant is not a defaulter in payment of rent as alleged by the plaintiff.
7. Pursuant to the filing of the written statement, the plaintiff had filed an amendment application under Order VI Rule 17 on 27.02.2015 registered as Misc. (J) Case No.77/2015. It also reveals that the defendant had also filed an application under Section 8 of the Act of 1996 for referring the parties to arbitration by dismissing the suit in view of the Clause 14 of the Agreement dated 12.03.2012 entered between the parties to the suit on 09.02.2015 registered as Petition No.248/2015. It may be relevant to mention that the said Page No.# 9/34 application under Section 8 of the Act of 1996 was filed on the date when the written statement was filed. The record further shows that the Defendant till 09.02.2015 never informed the Court that the Defendant would be filing an application under Section 8 of the Act of 1996. The Trial Court vide an order dated 01.03.2016 rejected the said application under Section 8 of the Act of 1996 holding inter alia that an eviction or a tenancy matter is not an arbitrable dispute and in spite of the existence of an arbitration clause the same cannot bar the jurisdiction of the Civil Court to decide the matter arising out of landlord tenancy relationship which is regulated under the provisions of the Act of 1972. At this stage, it is pertinent to note that with effect from 23.10.2015, a new clause being Clause (a) was inserted to Section 37 (1) of the Act of 1996 vide the Arbitration and Conciliation (Amendment) Act, 2015 whereby an appeal was provided in respect to orders passed refusing to refer the parties under Section 8 of the Act of 1996. Admittedly such appeal was not filed against the order dated 1/3/2016.
8. Vide the said amendment application as mentioned herein above, a prayer being (ii)(a) was added and certain amendments were carried out to the description of the schedule premises as described in the schedule to the plaint. Subsequent thereto vide another order dated 30.05.2016 the amendment application was allowed and thereby 02.07.2016 was fixed for filing of the amended plaint. It is relevant herein to mention that the Trial Court while allowing the said amendment application allowed it without any precondition Page No.# 10/34 and thereby the said amendment dates back to the date of filing of the suit. The relevant portion of the said order dated 30/5/2016 passed in Misc. (J) Case No.77/2015 is quoted herein below.
"On perusal of the case-record, it is revealed that the trial has not yet commenced. It is further revealed that it is a landlord-tenant suit. Therefore, as per the provision of Order VI Rule 17 of the Code of Civil Procedure, 1908, this Court can allow the petition for the amendment of the plaint which is necessary for deciding the real questions in controversy. The suit is filed for recovery of arrear rent and bonafide requirement of the suit premises. Therefore, proposed amendment is necessary for deciding the real questions in controversy. There must be specific description of the boundary in the plaint; otherwise the court will face difficulties in the execution of the decree if there is no specific description of the subject matter.
Upon considering all, the petition is allowed.
Accordingly, the Misc.(J) case is disposed of."
9. In the meantime, on 14.06.2016 the original plaintiff expired and accordingly on 28.07.2016 an application was filed for substituting the legal representatives of the original plaintiff which was allowed and the Trial Court thereafter fixed the matter on 12.08.2016 for amended plaint and the said amended plaint was also filed on 12.08.2016 itself. Pursuant thereto on 20.01.2017 the additional written statement was filed.
10. At this stage it may be relevant to mention that prior to the amendment carried out to the plaint on 19.06.2015, four Issues were framed which were -
1. Whether there is cause of action for the suit?
2. Whether the defendant has violated the terms and conditions of the tenancy agreement dated 12.03.2012?
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3. Whether the suit premises is bona fide required by the plaintiff?
4. Whether the plaintiff is entitled to the Decree as prayed for?
Subsequent thereto on 04.03.2017 another issue was framed as an additional issue i.e. whether the defendant is a defaulter under the Assam Urban Areas Rent Control Act, 1972 for having defaulted in paying the monthly rent since the month of February, 2013?
11. The plaintiff adduced evidences of 2 (two) witnesses and exhibited various documents marked as Exhibit-1 to Exhibit-4. The defendant adduced himself as the sole witness and exhibit various documents exhibited as Exhibit-1 to Exhibit-
10.
12. The Trial Court vide the judgment and decree dated 26.06.2018 decreed the suit in favour of the plaintiff. As regards the Issue No.3 which is as to whether the plaintiff had bonafide requirement, the Trial Court after taking into the consideration the evidence of PW-1 and PW-2 and more particularly PW-2 who testified that he does not have any other source of income except his poultry business which is run from the space near the Schedule Premises and the said business is required to be expanded and that the said evidence of the witness could not be shaken during cross-examination and the self admission of the defendant in his cross-examination that there is a bonafide requirement of the schedule premises of the landlord and his family members decided the said issue in favour of the plaintiff holding inter alia that the schedule premises is Page No.# 12/34 bonafide required by the plaintiff.
13. As regards the issue pertaining to defaulter in payment of rent, the Trial Court held that the defendant having self admitted that he had deposited the rent for the month of January, February and March, 2013 amounting to Rs.21,300/- which is not the mandate of the provisions of the Act of 1972, the defendant was a defaulter in payment of the rent. Further to that, the Trial Court also took into account that the defendant in his cross-examination had duly admitted that as per the Clause 12 of the Tenancy Agreement dated 12.03.2012 the rent is to be enhanced @3.34% p.a. and accordingly w.e.f. 01.01.2013 the tenant ought to have paid Rs.7,337/- as monthly rent to the plaintiff and as the defendant himself admitted that he has been depositing Rs.7,100/- per month after 01.01.2013, he was a defaulter in payment of rent. Consequently, on the basis of the decision in respect to the Issue no.3 and Issue No.5 the Trial Court held that the defendant was a defaulter in payment of rent and that the plaintiff required the schedule premises bonafide and accordingly decreed the suit in favour of the plaintiff.
14. Feeling aggrieved and dissatisfied the defendant as appellant preferred an appeal before the Court of Civil Judge No.1, Kamrup (M) at Guwahati and the said appeal was registered and numbered as Title Appeal no.42/2018. A perusal of the Memo of Appeal would disclose that the grounds of objection taken therein were the existence of an arbitration clause which was not taken into consideration while deciding the jurisdiction of the Trial Court; the findings of Page No.# 13/34 the Trial Court were perverse; that the Trial Court committed grave error by holding that the appellant/defendant was a defaulter for depositing the rent in the Court when the lawful rent was refused; that the Trial Court decided the issue of bonafide requirement in favour of the plaintiff without the plaintiff proving their financial capacity or type of business they are planning to start and that the plaintiff did not abide by Clause 14 of the Tenancy Agreement as there was no effort by the plaintiff to settle amicably the dispute/difference/anomalies with the defendant.
15. The First Appellate Court vide the judgment and decree dated 21.12.2020 decreed the suit in favour of the plaintiff. In doing so the First Appellate Court at paragraph 13 of the impugned judgment and decree observed that the point of determination for adjudicating the appeal relates to the Issue No.2, 3 and 5 which pertains to bonafide requirement of the schedule premises and default in payment of rent and accordingly took up the three issues for decision. In deciding the Issue no.2 the First Appellate Court upheld the findings of the Trial Court that before depositing the rent in the Court the defendant did not offer to the plaintiff and there being no refusal by the plaintiff and as such the deposit in the Court is not valid in law and was in violative of the provisions of Section 5(4) of the Act of 1972. It was also observed that though the house rent for the months of January 2013 onwards were deposited in the Court the notice was never issued to the plaintiff informing about the deposit which is a mandatory requirement as per the provisions of the Act of 1972. Further to that the Page No.# 14/34 Appellate Court also took into consideration the admission of the defendant that for the month of September, 2013 he had not deposited the rent in the Court and exhibited a handwritten receipt which had not been proved.
16. While deciding the Issue No.3, the First Appellate Court upon perusal of the materials on record came to a finding that the appellant/defendant could not substantiate their plea that there existed a third room which was vacant and further held that mere existence of another room will not disentitle the plaintiff's bonafide requirement where the plaintiff had been able to show (i) requirement of the additional space on account of expanding of the business and (ii) the other premises being on rent to another tenant. It was also taken note of that the plaintiff could prove that the suit premise is an old one and it requires substantial renovation and construction.
17. As regards the Issue No.5, the defendant in his cross-examination having admitted that as per Clause 12 of the Tenancy Agreement dated 12.03.2012, the rent was to be enhanced @ 3.34% p.a. and accordingly on 31.12.2012 the rent increased to Rs.7,337/- and from 01.01.2013 the defendant was supposed to pay Rs.7,337/- as monthly rent to his landlord and admittedly the defendant had been depositing the monthly rent @ Rs.7,100/- even after 01.01.2013, the First Appellate Court held that the defendant was a defaulter in payment of rent in respect to the suit premises and concluded that the Trial Court had rightly come to the conclusion on the Issue No.3 and 5 and on the basis thereof confirmed the judgment and decree dated 26.06.2018 passed by the Trial Court.
Page No.# 15/34 The First Appellate Court further directed the appellant/defendant to vacate the suit premises within 60 days w.e.f the date of the judgment and to deliver the possession to the plaintiff and in the event of failure by the defendant to vacate the suit premises, the plaintiff was held to be entitled to take delivery of the suit premises through the Executing Court with cost incurred therefore.
18. Feeling aggrieved and dissatisfied with the confirmation of the judgment and decree passed by the Trial Court dated 26.06.2018 by the First Appellate Court by the judgment and decree dated 21.12.2020, the defendant as the Petitioner has filed the instant writ petition under Article 115 of the Code of Civil Procedure.
19. 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 Revisional Court is not the 2nd 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 by 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 miscarriage of justice. In other words, interference with an incorrect finding of fact for the purpose of exercising revisional jurisdiction must be Page No.# 16/34 understood in the context, where such findings is perverse, based on no evidence or misreading 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 miscarriage of justice.
20. In the backdrop of the above, let me take into consideration the contentions raised by the parties before this Court. Mr. S.P. Roy, learned Counsel on behalf of the Petitioner submits that both the Trial Court as well as the First Appellate Court did not take into consideration the existence of the arbitration clause and thereby did not decide the question of the bar under Section 5 of the Act of 1996. He further submitted that the Trial Court pursuant to the amendment carried out vide the order dated 30.05.2016 did not have the pecuniary jurisdiction to decide the suit in as much as, on the date which the amendment was carried out the value of the suit had increased beyond Rs.2,00,000/-. He further submitted that both the Trial Court as well as the First Appellate Court did not take into consideration that an amount of Rs.2,00,000/- was lying as a security deposit/advance in the hands of the plaintiff and as such the defendant cannot be held to be a defaulter unless the defendant was in arrears. He in that regard referred to the agreement dated 12.03.2012 exhibited as Exhibit-2 and more particularly to Clause 2 which stipulates that the tenant has paid an amount of Rs.2,00,000/- as security deposit to the landlord which the landlord duly receipt/acknowledged and admitted the same shall be Page No.# 17/34 refunded at the time of termination and/or vacation of the commercial rented premises. He further contended that in view of the unreported judgment of this Court in the case of Rashmi Deka Baishya vs Tribodh Kumar Das this Court had categorically held that default of the tenant as regards payment of rent in the case of advance lying with the landlord would be when the arrears of the particular period did not cover the advance amount lying with the landlord and upon being adjusted if the tenant is in arrears then the tenant would be regarded as a defaulter in payment of rent. He submitted that allegation in the plaint was that for the month of February 2013 onwards there was no payment of rent and the suit was filed on 19.04.2013 and at that very point of time the rent deposited for the month of January, February, March 2013 were not in accordance with Section 5(4) of the Act of 1972 but in view of the advance lying with the plaintiff, the defendant cannot be held to be a defaulter in payment of rent. He submitted that as the records would show that the plaintiff himself did not file the suit and the suit was filed through his power of attorney agent and even after the death of the original plaintiff and the substitution of the legal representatives of the plaintiff the suit was continued through the power of attorney agent but the evidence given by the power of attorney agent who is the PW-1 could not have been taken into consideration by the Trial Court as it is no longer res integra that a power of attorney agent cannot give evidence except if he has personal knowledge of the facts and the dispute. As regards the question of bonafide requirement he submits that findings of both the Courts Page No.# 18/34 below were perverse as both the Courts below did not take into consideration in the proper perspective that there were three rooms of which one of the room was vacant and as it is the case of the plaintiff/landlord who has to prove bonafide requirement it was burden of the plaintiff to prove that there was no third room which is vacant. He further submitted that both the Courts below did not take into consideration that mere wish of the landlord cannot be construed to be a bonafide requirement in as much as, the materials on record would clearly go to show that the plaintiff's alleged bonafide requirement was nothing but a mere wish to oust the defendant from the tenanted premises.
21. On the other hand, Mr. A Ikbal, learned counsel appearing on behalf of the respondent/plaintiff submits that the bar under Section 5 of the Act of 1996 does not apply to the instant case in as much as the petitioner having filed an application under Section 8 of the Act of 1996 which was dismissed vide Order dated 01.03.2016 and there was no appeal being filed the said aspect of the matter has already attained finality. Further to that he submits that in a recent judgment of the Supreme Court in the case of Vidya Drolia V. Durga Trading Corporation reported in (2021) 2SCC 1 had categorically held that landlord- tenant disputes covered and governed by Rent Control Legislation would not be arbitrable when a specific court or forum has been given exclusive jurisdiction to apply and decide specific rights and obligations. As regards the contention of the petitioner that as on the date on which the amendment was carried out the value of the suit had increased beyond Rs.2Lakhs and therefore beyond the Page No.# 19/34 pecuniary jurisdiction of the Court of the Munsif, the learned counsel submits that such plea has not been taken by the petitioner either before the Trial Court or the Appellate Court. He refers to Section 21 of the Code of Civil Procedure, 1908, wherein sub-Section (2) of Section 21 stipulates that no objection as to the competence of a court with reference to the pecuniary limits of a jurisdiction shall be allowed by any Appellate or Revisional Court unless such objection was taken in the court of the first instance at the earliest possible opportunity, and in all cases, where issues are settled at or before such settlement and unless there has been consequent failure of justice.
22. As regards submission made by the petitioner/defendant to the effect that there was an amount of Rs.2 Lakhs held by the respondent/plaintiff landlord as security deposit and as such the petitioner/defendant cannot be held to be a defaulter, the learned counsel for the respondent/plaintiff, Mr. A. Ikbal submits that a perusal of the agreement exhibited as Exhibit- 2 and more particularly to Clause 2 stipulates that the said amount of Rs. 2 Lakhs shall be returned at the time of termination and/or vacation of the commercial rented premises. He further refers to Clause 12 of Exhibit- 2 and submits that in case of termination of the tenancy agreement before the tenancy period, the landlord would have to return the security money to the tenant and/or return the remaining balance of deposit advance money to the tenant. He further submits that the amount of Rs. 2 Lakhs although not admitted by the respondents/plaintiffs at best is a security money/security deposit which could Page No.# 20/34 be returned only after vacating the scheduled premises. He further submits that the said amount of Rs. 2 Lakhs being received and held on by the landlord is not admitted and this aspect of the matter would be further clear from the cross-examination of the petitioner/defendant who was the sole defendant witness. He refers to the part of the cross-examination wherein the petitioner/defendant had denied that he had paid the amount of Rs. 2 Lakhs to the landlord as security deposit. And as such, the learned counsel submits that in view of the clear admission on the part of the defendant/petitioner, that he had not paid the amount of Rs. 2 Lakhs, the question of the petitioner/defendant claiming that there is an amount of Rs.2,00,000/- lying with the landlord does not arise. He further submitted that it is an admitted fact that with effect from 01.01.2013, the petitioner was required to deposit the enhanced rent of Rs. 7,337 which is duly admitted by the petitioner/defendant during his cross-examination and the petitioner/defendant also having admitted that for the months of January, February and March 2013, he had deposited altogether an amount of Rs. 21,300/- violates the mandate under Section 5(4) of the Act of 1972 on the ground of not depositing the lawful rent which was Rs. 7,337/- with effect from 01.03.2013, as well as also not depositing the rent within a fortnight of its due before the Court. He therefore submits that these factual aspects of the matter have been duly taken into consideration by both the Courts below and accordingly, had come to a finding that the petitioner is a defaulter in payment of rent. As regards the question of bonafide requirement, Page No.# 21/34 the learned counsel for the respondent/plaintiff submits that the plaintiffs/respondents have duly proved that they have bonafide requirement of the suit premises by giving cogent evidence. He submits that when the petitioner has alleged that there exists a third room for which the respondents/plaintiffs did not have a bonafide requirement of the suit premises it was a burden upon the petitioner/defendant to prove the existence of the third room. He further submits that for the purpose of bonafide requirement of a landlord what is required is that it must be something more than a mere desire but must not certainly be a compelling or absolute or dire necessity. A bonafide requirement is something between a mere desire or wish, on the one hand, and a compelling or dire necessity on the other hand. He submits the factual aspects of the matter have been duly taken into consideration by the Courts below and there is a concurrent finding of fact that the plaintiffs/respondents herein has bonafide requirement of the suit premises.
23. I have heard the learned counsels for the parties and given my anxious consideration to the matter. Let this Court first take into consideration the contentions as regards maintainability of the suit and that the Trial Court did not have the pecuniary jurisdiction as raised by the learned counsel for the petitioner/defendant. The first contention so made is that in view of the existence of an arbitration agreement the Court did not have the jurisdiction to entertain the dispute. As has been already noted hereinabove, the petitioner/defendant filed his application under Section 8 on 09.02.2015 at the Page No.# 22/34 time when the written statement was filed. A perusal of the records would show that the petitioner/defendant had time and again only sought time for filing of the written statement. A perusal of Section 8 of the Act of 1996 stipulates that the said application has to be filed not later than the date of submitting his first statement on the substance of the dispute. In the instant case, on 09.02.2015, along with submitting the written statement the petitioner/defendant submitted the application under Section 8 of the Act. The record further reveals that the Trial Court on 01.03.2016 rejected the said application under Section 8 of the Act of 1996 interalia holding that eviction or tenancy matter is not an arbitrable dispute and inspite of the existence of any arbitration clause, the same cannot bar the jurisdiction of the Civil Court to decide the matter arising out of landlord-tenancy relationship which is regulated under the provision of the Act of 1972. Further to that it is also relevant to take note that with effect from 23.10.2015, a new clause being Clause (a) was inserted to Section 37(1) of the Act of 1996 vide the Arbitration and Conciliation (Amendment) Act, 2015, whereby an appeal was provided in respect to orders passed refusing to refer the parties under Section 8 of the Act of 1996. No appeal however was filed against the order dated 01.03.2016, whereby the application under Section 8 of the Act of 1996 was rejected. Moreover, a perusal of the judgment of the Supreme Court in the case of Vidya Drolia (Supra), more particularly paragraph 80 would show that when landlord-tenant disputes are covered and governed by the Land Control Legislation, the same are not arbitrable. Paragraph 80 of the Page No.# 23/34 said judgment is quoted hereinbelow:
"80. In view of the aforesaid, we overrule the ratio laid down in Himangni Enterprises and hold that landlord-tenant disputes are arbitrable as the Transfer of Property Act does not forbid or foreclose arbitration. However, landlord-tent disputes covered and governed by rent control legislation would not be arbitrable when specific court or forum has been given exclusive jurisdiction to apply and decide special rights and obligation. Such rights and obligations can only be adjudicated and enforced by the specified court/forum, and not through arbitration."
24. It would also be relevant herein to mention that on one hand the petitioner seeks to claim benefits under the Act of 1972 which is a Rent Control Legislation on the basis of which the petitioner/defendant is claiming, and on the other hand contends that the dispute in question ought to be decided in terms with the Transfer of Property Act, thereby, the said dispute should be adjudicated by way of arbitration. This dual stance taken by the petitioner cannot be permitted as it would amount to permitting the petitioner/defendant to approbate and reprobate at his own sweet will. Apart from that the Order dated 01.03.2016 having attained finality, the petitioner cannot raise the question that in view of the arbitration Clause, the suit was not maintainable.
25. The second ground which pertains to pecuniary jurisdiction of the Trial Court to the effect that pursuant to the amendment allowed on 30.05.2016, the value of the suit had increased beyond Rs. 2 Lakhs and as such the Court of the Munsif did not have the pecuniary jurisdiction to decide the said dispute. In paragraph 8 of the instant judgment, the fact pertaining to amending the plaint Page No.# 24/34 has been mentioned and the relevant portion of the order dated 30.05.2016 has been quoted. A perusal of the said portion of the order would reveal that the said amendment was allowed without any condition and thereby applying the doctrine of Relation back, the amendment would be deemed to have been made as on the date of filing the suit. In the backdrop of the said, if this Court look into the insertion of the prayer (ii)(a), it would reveal that the decree is for recovery of rent from the month of February 2013 till the date of judgment, and also till the date of realization of the total amount of arrear of house-rent from the petitioner/defendant. As the amendment dates back to the date of filing of the suit, the arrear rent would be calculated from February 2013 till realization and as such the question of the value of the suit exceeding or going beyond Rs. 2 Lakhs does not arise. It would also be relevant to take note that pursuant to the amendment being allowed, and the amended plaint being filed on 12.08.2016, the petitioner/defendant submitted an additional written statement on 20.01.017. In the additional written statement filed on 20.01.2017, there is not a single whisper that the said Court did not have the pecuniary jurisdiction to decide the suit. Record reveals that as many as five issues were framed and the petitioner/defendant did not raise any objection as regards the pecuniary jurisdiction of the Court. Under such circumstances, by virtue of Section 21(2) of the Code of Civil Procedure, it is therefore, the opinion of this Court that the petitioner cannot be permitted to raise such issues on the question of the competence of the Court with respect to the pecuniary limits of the Page No.# 25/34 jurisdiction before this Revisional Court.
26. In the backdrop of the above, let this Court take into consideration as to whether there is any error in exercise of jurisdiction and/or there is any illegality or material irregularity in the exercise of jurisdiction by the Courts below within the limited jurisdiction conferred upon this Court under Section 115 of the Code, in respect primarily, to the two issues so framed as to whether the petitioner/defendant was a defaulter in payment of rent and whether the respondents/plaintiffs had bonafide requirement of the suit premises.
27. First, let this Court take into consideration as to whether both the Courts below had committed any illegality or material irregularity in exercise of its jurisdiction or had committed any jurisdictional error in deciding that the petitioner/defendant is a defaulter in payment of rent. The facts which are necessary to be taken into consideration is that the plaintiffs/respondents allege that from the month of February 2013 no rent has been paid. The petitioner/defendant in his written submission had admitted that for the months of January, February and March 2013, he could not pay the rent as the landlord did not accept it and as such on 12.04.2013 he deposited the rent for the months of January, February and March 2013 amounting to Rs. 21,300/- before the Court. Although the written statement was filed on 09.02.2015 there is no statement in the written statement or even in the additional written statement filed on 20.01.017, that pursuant to 12.04.2013, the defendant/petitioner had tendered the rent to the plaintiffs/respondents and upon refusal had deposited Page No.# 26/34 the monthly rent to the Court. It is the case of the defendant/petitioner that an amount of Rs. 2 Lakhs is lying as security deposit with the landlord. In terms with Clause 2 and Clause 10 of the agreement dated 12.03.2012 marked as Exhibit- 2 it would reveal that the said amount is security deposit and shall be retuned at the time of termination and/or vacation of the suit premises. It was the pleaded case of the defendant that the said amount of Rs. 2 Lakhs was lying as security deposit with the landlord and therefore, the burden lies upon the said defendant/petitioner to prove that the said amount of Rs. 2 Lakhs was lying with the plaintiff/landlord. Though the defendant/petitioner in his written statement had categorically state that the said amount of Rs. 2 Lakhs was lying as security deposit, but as it is well-settled that pleading is not proof, it was necessary for the petitioner to prove that the said amount of Rs. 2 Lakhs was lying with the landlord as security deposit. In the cross-examination of the defendant/petitioner, he had, however, denied that he paid this amount of Rs. 2 Lakhs as security deposit and this aspect of the matter would be clear from the following cross-examination which is quoted hereinbelow:
"It is not a fact that I paid Rs. 1 Lakh which is security deposit to my landlord.
It is not a fact that I paid another amount of Rs. 1 Lakh in total Rs. 2 Lakhs to my landlord Ahmed Hasan as security deposit."
From the above quoted cross-examination it would be clear that the petitioner/defendant had duly admitted that he did not pay the amount of Rs. 2 Lakhs as security deposit. In view of the categorical admission this Court cannot Page No.# 27/34 therefore hold that the amount of Rs. 2 Lakhs was lying as security deposit. Further to that it is also relevant to take note that it is an admitted case as per Exhibit- 2 as well as from the admission made by the petitioner/defendant in his cross-examination that with effect from 01.01.2013, the rent ought to have been Rs. 7,337/-. In this regard, relevant portion of the cross-examination is quoted hereinbelow:
"As per the said agreement dated 12.03.2012, I am possessing the tenant premises till date. The said tenancy agreement expired on 31.12.2012 (Clause '7'). As per Clause '11' of the tenancy agreement dated 12.03.2012, there was a Clause for enhancing of rent at the rate of 3.34% per annum after the expiry of tenancy on 31.12.2012, the rent increased and it became Rs. 7,337/-, so from 01.01.2013, I was supposed to pay Rs. 7,337/- as the monthly rent to pay landlord Ahmed Hasan (since deceased)".
However, it being the admitted case of the petitioner/defendant that for the months of January/February and March, 2013, and thereafter also he has been depositing Rs. 7,100/- per month which cannot be a lawful rent within the meaning of Section 5(4) of the Act of 1972 and consequently, the petitioner is a defaulter in payment of rent. These aspects of the matter have been duly taken into consideration by both the Trial Court and the first Appellate Court while coming to a finding that the petitioner/defendant is a defaulter in payment of rent and this Court, therefore, does not find any perversity in such findings. Accordingly this Court, therefore, affirms both the concurrent findings of facts arrived at by both the Courts below that the petitioner is a defaulter in payment of rent.
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28. The next question which arises is to whether the plaintiffs/respondents had bonafide requirement of the suit premises. The facts in hand shows that apart from pleadings in the plaint that the suit premises was required by the plaintiffs/respondents in order to engage his son in business to earn livelihood as the business was being carried out on the side of the suit premises and in view of the increasing demand in the business requiring a larger space for which the suit premises was urgently required for bonafide purpose and it was also pleaded that the suit premises is a temporary structure/ ekcha house which is urgently required to be repaired and the landlord was planning to make permanent structures over the plot of land. The evidence-in-chief of the PW-2 who was the son of the original plaintiff/respondent and the plaintiff himself after the demise of his father had stated that as his uncle i.e., the PW-1 had engaged him in a poultry business in the premises near the suit premises and due to his hard work and sincerity the business expanded and he was in need of more space to extend his business to augment his income, the suit premise was bonafide requirement. It was also mentioned in his evidence on affidavit by the PW-2 that the suit premises is a temporary structure and in a dilapidated condition and require urgent repair works and as such the PW-1 decided to undertake repair works and make the temporary structure into a permanent structure. The PW-1 had in his evidence affidavit also given evidence in consonance with the statements made by the PW-2. From the cross- examination of the plaintiffs/respondents witnesses it would be seen that their Page No.# 29/34 evidence in so far as the bonafide requirement of the suit premises could not be dislodged.
29. The defendant in his examination-in-chief had stated that there is no bonafide requirement as in the third room, the plaintiff/respondent was running their boiler business and if the plaintiff/respondent wanted to extend their business they should have sought for eviction of the other tenant and not the petitioner. However, in his cross-examination, the defendant duly admits that the plaintiff/respondent and their family members have bonafide requirement and as such they have filed the instant suit for eviction. The relevant portion of the cross-examination is quoted hereinbelow:
"There is a bonafide requirement of the landlord and his family members and as such they have filed the instant writ for eviction"
30. As regards the question as to whether the respondents/plaintiffs were trying to evict the defendant/petitioner on a bonafide requirement of the suit premises or it was their mere wish to evict the defendant/petitioner for reasons other than bonafide, it would be relevant to take note of the judgment of the Supreme Court in the case of Raghunath G. Panghale (dead) by LRS. V. Chaganlal Sundarji and Co. reported in (1999) 8SCC 1 and more particularly to paragraph 9, 10 and 11 which is quoted hereinbelow:
"9. Next comes the decision of this Court in A.K. Veeraraghava Iyengar v. N.V. Prasad, AIR (1994) SC 2357. In that case, this Court observed that the need was bonafide and that the tenant failed to adduce any evidence against the "experience of landlord, his financial Page No.# 30/34 capacity and his readiness and willingness to start jewellery shop". In Vinay Kumar and Ors. v. District Judge, Ghazipur and Ors., [1995] Suppl. 2 SCC 586, it was contended for the tenant that the son of the landlord whose requirement was pleaded, was in government service and, therefore, he could not have any bona fide need to start private practice as a doctor. This contention was rejected. In Rena Drego (Mrs.) v. Lalchand Soni and Ors., [1998] 3 SCC 341 it was observed that in the light of the factual position in that case, "where the (landlady) says that she needs more accommodation for her family, there is no scope for doubting the reasonableness of the requirement" It was held that the circumstances of the case raised a presumption that the requirement was bonafide and that "tenant has failed to show that the demand for eviction was made within any oblique motive". It was held that in the absence of such evidence by the tenant, the presumption of the bona fide need stood unrebutted. In Sarla Ahuja v. United India Insurance Co., [1998] 8 SCC 119 it was again observed that the Court should not proceed on the assumption that the requirement of the landlord was not bona fide and that the tenant could not dictate to the landlord as to how he should adjust himself without getting possession of the tenanted premises. It was stated in Prativa Devi (Smt.) v. T.V. Krishnan, [1996] 5 SCC 353 and in Meenal Eknath Kshirsagar v. Traders and Agencies & Another, [1996] 5 SCC 344, that the landlord was the best judge of his requirement. In Smt. Sheela Chadha and Ors. v. Dr. Accharaj Ram Sehgal, [1990] Suppl. SCC 736, it was held that the landlord had the discretion to determine his need. See also in this connection the judgment of this Court in Shiv Sarup Gupta v. Dr. Mahesh Chand Gupta, [1999] 6 SCC 222. In Raj Kumar Khaitan and Ors. v. Bibi Zubaida Khatun and Anr., [1997] 11 SCC 411, this Court had even stated that it was not necessary for the landlord to state in the pleadings, the nature of the business he proposed to start.
10. In the light of the above principles, we shall now examine the decision of the courts below. In this case, the plaintiff No. 1/3 (one of the legal representative of the deceased plaintiff) came forward with the plea that he was in service of Metal Box Co. and since January 1988, due to lock-out, the company was closed down and he was not having any source of income and therefore, he wanted to earn his livelihood by opening a grocery-shop The trial Court and the first Page No.# 31/34 appellate Court observed that it was necessary that plaintiff should prove that he had lost his job and was unable to maintain his family. This, according to the said courts, was belied by the fact that in the amendment application and affidavit, the plaintiff No. 1/3 described his occupation as `service' and that, therefore his evidence was not acceptable. It was further held that his evidence that he lost his job on 15.1.1958 must also be rejected. The envelope containing notice of lock- out from the company and news item in newspaper would not, it was observed, prove the lock out. The notice showed only an intention to lock-out from 5.2.1988. It was stated that no documentary evidence, was produced to prove that the said plaintiff lost his job. The trial Court in fact went into the definition of `lock-out' in the Industrial Disputes Act, 1947 and held that by a lock-out, the plaintiff would not lose his job permanently and that he would get his wages when the lock-out was lifted. As the plaintiff also admitted that there was a sign board at his house, with the words `Ganesh Water Supply', the plaintiff must be deemed to have started some other business. The plaintiff's evidence that he was maintaining himself by taking loans from friends was not proved by adducing other evidence. He had not taken steps to purchase furniture to furnish the proposed grocery shop and never thought of the capital required for the business. On this material, it was held that no case was made out that he was not able to maintain his family. Yet another reason was that during his father's life time, he, the plaintiff never thought of running a grocery shop. The plaintiff admitted that he did not resign his job. He thus had no intention of permanently running a grocery shop. It was not proved he had knowledge of grocery business. These are the reasons given by the trial court and the first appellate court for rejecting the appellant's case. The High Court rejected the application under Article 227 on the ground that concurrent findings of fact could not be interfered with.
11. It will be seen that the trial Court and the appellate Court had clearly erred in law. They practically equated the test of "need or requirement" to be equivalent to "dire or absolute or compelling necessity". According to them, if the plaintiff had not permanently lost his job on account of the lock-out or if he had not resigned his job, he could not be treated as a person without any means of livelihood, as contended by him and hence not entitled lo an order for possession of Page No.# 32/34 the shop. This lest, in our view, is not the proper test. A landlord need not lose his existing job nor resign it nor reach a level of starvation to contemplate that he must get possession of his premises for establishing a business. The manner in which the courts have gone into the meaning of "lock-out" in the Industrial Disputes Act, 1947 appears to us to be nothing but a perverse approach to the problem. One cannot imagine that a landlord who is in service should first resign his job and wait for the unknown and uncertain result of a long drawn litigation. If he resigned his job, he might indeed end up in utter proverty. Joblessness is not a condition precedent for seeking to get back one's premises. For that matter assuming the landlord was in a job and had not resigned it or assuming that pending the long drawn litigation he started some other temporary water business to sustain himself, that would not be an indication that the need for establishing a grocery shop was not a bona fide or a reasonable requirement or that it was motivated or was a mere design to evict the tenant. It is not necessary for the landlord to adduce evidence that he had money in deposit in a Bank nor produce proof of funds to prove his readiness and willingness as in a suit for specific performance of an agreement of sale of immovable property. So far as experience is concerned, one would not think that a grocery business was one which required extraordinary expertise. It is, therefore, clear that the entire approach of both the Courts was absolutely wrong in law, and perverse on fact. Unfortunately the High Court simply dismissed the writ petition filed under Article 227 stating that the findings were one of fact. That is why we think that this is an exceptional case calling for interference under Article 136 of the Constitution of India."
31. From the above judgment it would be clear that for the purpose of bonafide requirement of a landlord what is required is that it must be something more than a mere desire, it need not certainly be a compelling or dire necessity. A bonafide requirement is something in between a mere desire or wish on the one hand and a compelling or dire or absolute necessity on the other. The findings of both the Courts below would clearly go to show that the Page No.# 33/34 plaintiffs/respondents had bonafide requirement of the suit premises and I do not see any perversity in the findings. Accordingly the concurrent findings of facts arrived at by both the Courts below are hereby affirmed.
32. Taking into consideration that the defendant/petitioner has been carrying on his business of furnishing since long it would be just reasonable to grant the petitioner/defendant six months of time to vacate the suit premises provided the petitioner/defendant submits an undertaking before the Trial Court within 19.03.2022 to the fact that he shall vacate the suit premises within a period of six months from the date of the instant judgment i.e., on or before 03.09.2022. Failure to submit the undertaking within a period as stated herein the plaintiffs/respondents shall be entitled to initiate the execution proceedings for evicting the defendant/petitioner. It is made clear that if the petitioner fails to vacate after giving an undertaking within the period as mentioned hereinabove, the respondents shall not only be entitled to initiate execution proceedings but also shall be entitled to initiate contempt proceedings before this Court. It is also clarified that during this period of six months the defendant/petitioner shall continue to make payment of an amount of Rs. 9,542/- per month in the form of compensation to the plaintiffs/respondents. The said compensation is worked out on the basis of increase in rent by 3.34% per annum as is the admitted case of the parties herein. 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. 9,542/- per month during this period of six months shall Page No.# 34/34 not create any right or interest in favour of the defendant/petitioner in respect to the suit premises. It is also clarified that during this period the defendant/petitioner shall remain in possession of the suit premises as the custodian of the plaintiffs/respondents and shall not carry out/do any act or cause anything to be done in any manner whatsoever which may affect the rights of the plaintiffs/respondents over the suit premises in any manner whatsoever.
33. The respondent/plaintiff shall be entitled to rent for the period of eviction proceedings either through adjustment from the rent deposited in the Court (if any) or by making an application before the executing Court to decide on the entitlement of the rent during the pendency of the eviction proceedings and the executing Court would permit the defendant/petitioner herein to controvert the allegations of non-payment/reduced payment of rent during the eviction proceedings and thereupon decide in accordance with law.
34. With the above observation the instant Petition stands dismissed.
JUDGE Comparing Assistant