Alternative Address vs Sriprakash Tewari
2021 Latest Caselaw 367 Gua

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GAHC010297932019




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

                                   Case No. : CRP/38/2020

            MD. MUHAEDDIN
            S/O- LATE MD. AMIN, R/O- BIRUBARI BAZAR, P.O.- GOPINATH NAGAR,
            GUWAHATI- 781016.

            ALTERNATIVE ADDRESS-
            SHOP NO. 12, 2ND FLOOR, SRI BHAGIRATH TOWER, SRCB ROAD, FANCY
            BAZAR, GUWAHATI- 781001, KAMRUP (M), ASSAM.



            VERSUS

            SRIPRAKASH TEWARI
            S/O- LATE BHAGIRATH TEWARI, BHAGIRATH TOWER, SRCB ROAD,
            FANCY BAZAR, GUWAHATI- 781001, KAMRUP (M), ASSAM.



Advocate for the Petitioner   : MD A SAHAD

Advocate for the Respondent : MR. R K BHUYAN




                                   BEFORE
                   HONOURABLE MR. JUSTICE KALYAN RAI SURANA

                                           ORDER

Date : 04.02.2021

Heard Dr. B. Ahmed, learned counsel for the petitioner- defendant and Mr. R.K. Bhuyan, learned counsel for the respondent- plaintiff.

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2) This revision under section 115 CPC is preferred against the first appellate judgment and decree dated 13.08.2019, passed by the learned Civil Judge No.3, Kamrup (M), Guwahati in T.A. No. 11/2018, by which the appeal filed by the petitioner was dismissed and the judgment and decree dated 15.02.2017, passed by the learned Munsiff No.1, Kamrup (M), Guwahati, thereby decreeing the suit for ejectment and recovery of arrear rent passed against the petitioner herein under the provisions of the Assam Urban Areas Rent Control Act, 1972 was affirmed.

3) In brief, the case of the respondent- plaintiff in the plaint was that the builder had taken interest free security deposit from the petitioner to let out shop room no.12 and subsequently, the respondent as landlord and the petitioner as tenant entered into a unregistered tenancy agreement dated 09.05.2007 for three years, wherein payment of interest free security deposit, not adjustable against rent was acknowledged. The said tenancy agreement, inter alia, contained a stipulation that the tenancy was for a period of three years at the monthly rent at the rate of 1140/- per month, and it was provided that the period of tenancy shall be renewed after every three years on terms actually agreed upon and on enhancement of rent at the rate of 13% on the last rent. Bereft of details, it would be sufficient to indicate that by alleging default in payment of rent, and sub-letting, the respondent had sought to evict the petitioner. The learned counsel for the petitioner has submitted that rent was claimed from 09.05.2007 to 31.05.2010 at the rate of Rs.1,140/- per month, from 01.06.2010 to 31.05.2013 at the rate of Rs.1,288/- per month and from 01.06.2013 to 31.05.2016 at the rate of Rs.1,456.66 per month. The petitioner contested the said suit and claimed that the suit was not maintainable for non- joinder of M/s. Seema Builder as necessary party, and for want of a valid notice terminating tenancy. By denying that the security deposit did not carry any interest it was asserted that interest was payable at the rate of 8% and that such security deposit was adjustable against monthly rent. It was admitted that rent was payable within first week of following next month and that the rent was to be enhanced after three years at the rate of 13% of last rent. It was projected that after receiving monthly rent for the month of March, 2010 in the first week of April, 2010, but postponed issuance of rent receipt and, as such, the petitioner deposited rent in Court till Page No.# 3/7

December, 2013 and caused notice to be served. The petitioner denied that rent was to be enhanced to Rs.1,288.20 per month from 01.06.2010 and to Rs.1,455.66 from 01.06.2013 and it was claimed that the tenancy was extended verbally on same terms and conditions. It was denied that the petitioner had sub-let the tenanted premises.

4) On the basis of pleadings, the learned trial Court framed the following issues, viz., (1) Whether there is any cause of action for the suit?, (2) Whether the suit is maintainable in its present form?, (3) whether the defendant became a defaulter in payment of the monthly rent payable for the suit premises?, (4) Whether the plaintiff is entitled to the reliefs as prayed for?, and (5) Whether the plaintiff is entitled to the decree for eviction of the defendant from the suit premises?

5) Both parties examined themselves as their respective witnesses in trial. The respondent- plaintiff exhibited the following documents, viz., Memorandum of Understanding dated 16.07.2004 (Ext.1), General Power of Attorney (Ext.2), Tenancy Agreement dated 09.05.2007 (Ext.3). The petitioner- defendant had exhibited the following documents, viz., Copy of GMC Trade Licence (Ext.A, B and C), Instalment payment receipt of M/s. Seema Builders [Ext.2(1 to 7)], copy of agreement filed by plaintiff (Ext.3), Copy of payment receipt made to Market Committee (Ext.3), Copy of rent deposit challans [Ext.4(1 to 59)].

6) The learned trial Court had decided issues no.1 and 2 in the affirmative. In respect of issue no.3, it was held that the petitioner could not specify when he had offered rent to the respondent for the month of March, 2010 and that the evidence of the respondent as PW-1 that monthly rent for the month of March, 2010 was not offered could not be shaken. It was held that there was nothing on record to show that the petitioner had deposited the notice along with the process fees for service of notice upon the respondent for deposit of rent in Court as mandated under section 5(4) of the Assam Urban Areas Rent Control Act. It was held that the petitioner had produced 59 numbers of rent deposit challans, but from the cross examination of the petitioner, it was proved that the monthly rent for the months of April 2010, September, 2010, June, 2011, July, 2011, January 2013 to April, 2013 were deposited beyond due date. It was also held that there was no satisfactory evidence Page No.# 4/7

regarding offer of rent to the respondent before depositing rent in Court. Hence, the petitioner was held to be a defaulter. In respect of issue nos. 4 and 5, it was held that claim for rent prior to October, 2010 was time barred and, as such, it was held that the respondent was entitled to monthly rent from the petitioner from October, 2010 till his eviction. Thus, the suit was decreed against the petitioner for his ejectment and for recovery of rent as per calculation made in the judgment, and the respondent was held to be entitled to adjustment of security deposit against arrear rent.

7) As indicated herein before, in the appeal filed by the petitioner, upon hearing the learned counsel for the parties, the learned first appellate Court had formulated three following points of determination, viz., (1) Whether the suit is maintainable in the eye of law?, (2) Whether the defendant/ appellant is a defaulter in payment of rent?, (3) Whether plaintiff/ respondent is entitled to relief as prayed for?

8) In respect of point of determination no.1, it was held that the petitioner was not liable to be evicted till security money is refunded to him in due course of time by following due process of law and it was held that the suit for ejectment and recovery of arrear rent at the said stage was not sustainable in the eye of law. In respect of point of determination no.2, it was held that the petitioner did not pay lawful rent to the respondent, as such, the petitioner was a defaulter and he was liable to be evicted on refund of Rs.1,50,000/- by the respondent. The respondent was held to be entitled to deficit rent from 01.06.2013 to July, 2019 (i.e. lawful rent, less, actual deposit, considering enhancement of 13% rent on the last paid rent at the interval of 3 (three) years. The respondent was permitted to collect the amount of rent deposited in NJ Cases from April, 2013 by holding that rent from March, 2010 to March, 2013 was barred by law of limitation. The decree passed by the learned trial Court, thus, stood modified.

9) Assailing the impugned decree, the learned counsel for the petitioner had earnestly submitted that the petitioner gave the rent deposit money to his learned counsel well before due date, but his counsel had not deposited rent in Court on time. Accordingly, on coming to know about such default and misconduct on part of his counsel, the petitioner had Page No.# 5/7

made a written complaint before the Bar Council of Assam, Nagaland, etc. It is submitted that although the complaint was dismissed, but there was a clear finding of default committed by the counsel of the petitioner. In this regard, it is submitted that the petitioner was not a wilful defaulter. It is submitted that the petitioner had made a prayer to amend the plaint, which was refused by order dated 02.08.2016, and the said aspect was not considered by the learned trial Court as well as the learned first appellate Court, which had vitiated the concurrent finding as not sustainable in law. In order to show that the petitioner was not a wilful defaulter, the learned counsel for the petitioner has referred to bank certificate, annexed to this revision.

10) Per contra, the learned counsel for the respondent has submitted that the order refusing to allow the petitioner to amend the plaint had attained finality and could not be agitated in this revision. It is also submitted that the plea that the counsel for the petitioner had defaulted cannot be heard and decided in the absence of the said counsel as a proper and necessary party in this revision.

11) Both the objections made by the learned counsel for the respondent is required to be sustained. In exercise of revisional jurisdiction, the power of the Court is circumscribed in the provisions contained in section 115 CPC. The order dated 02.08.2016, refusing to allow amendment is not the order impugned in this revision, as such, it cannot be disputed that the said order dated 02.08.2016 has attained finality. Moreover, the learned counsel for the respondent is apparently right in pointing out that the disciplinary proceeding against the counsel for the petitioner was dismissed, which has also attained finality, as such, the plea that the counsel for the petitioner had defaulted cannot be heard and decided in the absence of the said counsel, who is a proper and necessary party in this revision if such plea is to be heard.

12) The moot point of determination in this revision is whether the concurrent finding returned by both the learned Courts below regarding whether the petitioner was defaulter. The said point has been revisited. It is seen that there a finding of fact was returned by the learned trial Court that monthly rent for the months of April 2010, September, Page No.# 6/7

2010, June, 2011, July, 2011, January 2013 to April, 2013 were deposited beyond due date. It is also not disputed that the petitioner did not take steps in course of trial to examine the records of Non- Judicial Cases regarding deposit of rent in Court. Therefore, the petitioner did not prove whether he took proper steps by filing written-up notice and process fees for issuance of notice of deposit of rent in Court. It is no longer res integra that non- proving of taking steps for issuance of notice of deposit of rent in Court is fatal. The learned trial Court had referred to case law on the point, which need not be reiterated again in this judgment. By not proving rent deposit cases, referred to as Non- Judicial Cases, the petitioner had also not proved if such challans were deposited before the Court. Therefore, the Court is constrained to hold that the learned courts below had righty held that the petitioner was a defaulter and no error of facts or law was committed by both the learned Courts below in passing a decree for eviction of the petitioner and for recovery of arrear rent in terms of the decree.

13) Therefore, the petitioner has not been able to show that the learned Courts below failed to exercise jurisdiction vested in it illegally or with material irregularity. It is not the case of the petitioner that the learned Courts below failed to exercise jurisdiction vested in it by law, or that it had exercised jurisdiction not vested in it by law.

14) It would be relevant to refer to the Constitution Bench judgment of the Supreme Court of India rendered in the case of P.D. Chougule V. Maruti Hari Jadav & Ors., AIR 1966 SC 153, wherein it was held that interference was not justified if the error of lower court in question of law was not related to question of its jurisdiction. In the case of Gandhe Vijay Kumar Vs. Mulji @ Mulchand, (2017) 0 Supreme(SC) 1087, the Supreme Court of India had held that in revisional jurisdiction, the Court is expected to see only whether the findings are illegal or perverse in the sense that a reasonably informed person will not enter such finding and it was further held that the High Court should not venture to look into evidence as if in a first appeal and enter a different finding, though another finding might also be possible and that merely because another view is possible in exercise of revisional jurisdiction, the High Court cannot upset the factual finding.

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15) The finding of fact that the petitioner was a defaulter is a concurrent finding, which has been examined as indicated herein before and no perversity was found. Therefore, the judgment and decree as passed by the first appellate Court, thereby affirming the decree passed by the learned trial Court with modification as indicated herein before, does not warrant any interference by this Court in exercise of jurisdiction under Section 115 CPC. Therefore, this revision fails.

16) It is provided that in the event the petitioner submits before the learned trial

Court within 26th February, 2021, a declaration in form of an affidavit, thereby unconditionally undertaking that he would (i) not sublet the suit premises or create any third party interest over the suit premises decreetal premises, (ii) hand over the vacant and khas possession of the decreetal premises to the respondent on expiry of period as allowed by this Court without any damage whatsoever to the suit premises, and (iii) continue to pay compensation to the respondent at the rate of Rs.4,000/- per month for the months of February, 2021 till the end of May, 2021 (i.e. till 31.05.2021), which would not constitute fresh tenancy and shall not confer any right whatsoever in favour of the petitioner in respect of the decreetal shop premises, on such pre-condition, the Court is inclined to grant time till 31.05.2021 to the petitioner to vacate the suit premises. It is made clear that if such condition of submitting a declaration is not complied with, there would be no impediment for the respondent to put the decree passed by the learned Court below to execution. Similarly, if the petitioner violates the undertaking, if submitted, the petitioner would be at liberty to not only put the decree to execution but to pursue remedy against the petitioner for submitting a false declaration in form of affidavit before the Court.

17) This revision stands dismissed. There shall be no order as to cost.

JUDGE

Comparing Assistant