Ramawati Devi Singh vs Bishwajit Choudhury And Anr
2021 Latest Caselaw 1584 Gua

                                                                                Page No.# 1/19

GAHC010171652019




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

                                Case No. : CRP/105/2019

           RAMAWATI DEVI SINGH
           W/O- LATE RAM JANAK SINGH, R/O- BHUTNATH, GUWHATI- 781009, DIST-
           KAMRUP(M), ASSAM



           VERSUS

           BISHWAJIT CHOUDHURY AND ANR
           S/O- LATE KAILASH CHOUDHURY, R/O- BHUTNATH, GUWAHATI- 781009,
           DIST- KAMRUP(M), ASSAM

           2:RAM SANKAR SINGH
            S/O- LATE JAGADISH SINGH
            R/O- BHUTNATH
            GUWAHATI- 781009
            DIST- KAMRUP(M)
           ASSA

                                         BEFORE
                         HON'BLE MR. JUSTICE KALYAN RAI SURANA


      For the petitioner:         Mr. P.K. Kalita, Senior Advocate,
                                  Mr. R. Sarma, Mr. H. Deka,
                                  Mr. D. Hazarika, Mr. A. Hussain, Advocates.
      For the respondent:         Mr. S. Sharma, Mr. S.N. Adhyapak,

Mr. S.S. Yadav, Advocates.

      Date of hearing:            04.03.2021.
      Date of judgment:           14.06.2021.
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                                JUDGMENT AND ORDER
                                            (CAV)

Heard Mr. P.K. Kalita, learned senior counsel assisted by Mr. R. Sarma, learned counsel for the petitioner and Mr. S. Sharma, learned counsel for the respondent.

2) The respondent no.1, as plaintiff had instituted T.S. No. 392/2008 for ejectment of the petitioner and the proforma respondent no.2 from the tenanted premises and for recovery of arrear rent. The said suit was decreed on 07.05.2015 by the learned Munsiff No.3, Kamrup (M), Guwahati in favour of the respondent no.1 and against the petitioner and proforma respondent no.2. The aggrieved petitioner preferred an appeal, which was registered as T.A. No. 33/2015. The said appeal was dismissed vide appellate judgment and decree dated 15.06.2019, passed by the learned Civil Judge No.2, Kamrup (M), Guwahati. Accordingly, the aggrieved petitioner has preferred this revision under Section 115 CPC.

3) Bereft of details, for the purpose of this order, it would suffice to mention that the case of the respondent no.1- plaintiff in the plaint is that she is the owner of an Assam Type house comprising of three rooms measuring (i) 17ft. X 16ft., (ii) 9ft. X 16ft., (iii) 218 sq.ft., morefully described in the plaint, of which the petitioner and the proforma respondent no.2 were the tenants. The suit rooms were initially let out by the respondent no.1 to the husband of the petitioner vide tenancy agreement dated 28.02.1997 at a monthly rent of Rs.2,200/-. By a subsequent agreement dated 29.02.2000, the respondent had let out the suit rooms to the petitioner at a monthly rent of Rs.2,640/-. It was claimed that as per the agreement, inter alia, it was agreed that the monthly rent was payable within 7 days of succeeding month and that after expiry of the tenancy, the parties were required to enter into a fresh tenancy agreement and that in case of extension of the tenancy after three years of the execution of the agreement the rent shall be enhanced by at least 20%. The respondent no.1 had pleaded that although the tenancy agreement was executed between the respondent no.1 and petitioner, but the petitioner was carrying on joint family business from the tenanted premises and subsequently, there was a family settlement between the Page No.# 3/19

petitioner and proforma respondent no.2 and accordingly, one room was occupied by the proforma respondent and two rooms were occupied by the petitioner. On and from the month of September, 2003, the petitioner had not paid rent to the respondent no.1 in spite of requests and demand. Moreover, it was claimed that on expiry of the term of the agreement dated 29.02.2000, the rent for the suit premises had automatically got enhanced to Rs.3,168/-, and that the petitioner never came forward to renew the tenancy agreement. It was stated that from T.S. No. 299/2003 filed by the petitioner and proforma respondent no.2 as plaintiffs, the respondent no.1 came to know that the petitioner had been depositing rent in Court although he was always ready to accept rent. The respondent no.1 also claimed that he was carrying on business of renting out VCD films and PCO from a small shop of about 100 sq. feet, which was insufficient and that his two sons were unemployed and as such the suit premises was bona fide required for them to start their own business. It was also stated that the petitioner no.1 had his own land at a distance of about 100-150 meters from where he can do his business. It was also stated that the suit rooms were taken on rent for running a tea stall, but the petitioner was now doing business of restaurant and is selling sweets, meal (rice, paratha, etc.), using firewood, coal and gas as fuel and as such, it was claimed that the house of the respondent no.1 remained in smoke and gas pollution which was a health hazard. Accordingly, by mentioning some dates on which cause of action had allegedly arisen, the suit was filed for eviction, recovery of possession, recovery of arrear rent, and other reliefs as prayed for.

4) The petitioner and proforma respondent no.2 had filed their joint written statement on 19.06.2009. Bereft of details, in their written statement, while denying that the respondent no.1 was the owner of the suit premises, it was pleaded that one Prashant Choudhury was also the owner of the suit premises. It was stated that in the year 1977 the husband of the petitioner, Ram Janak Singh was inducted into the suit premises at monthly rent of Rs.425/- per month. It was stated that from the suit premises which was then of thatched house, the husband of the petitioner started his tea stall with sweet workshop (karkhana) in one room, grocery shop in another room and one pan shop in gumti. The respondent no.1 and Prashant Choudhury had requested the husband of the petitioner to construct an Assam Type house by demolishing the existing thatched house at his own cost, Page No.# 4/19

which was to be reimbursed from house rent and accordingly, the constructed was made by incurring an expenditure of Rs.91,215/-, which was made known to the petitioner by letter dated 28.02.1997. Thereafter, on 28.02.1997, an agreement was made between the respondent no.1 with Prashant Choudhury and the petitioner with respect to the newly constructed Assam Type houses consisting of two big rooms and one gumti at a monthly rent of Rs.2,200/, thereby agreeing for adjustment of a sum of Rs.1,100/- towards cost of construction. It was agreed that tenancy would be further renewed after every three years from 01.03.1997 with enhancement of rent which would not be more than 20% of rent. It was stated that the agreement for tenancy was executed by the husband of the respondent no.1 but the proforma respondent no.2 was also doing business of tea stall, grocery shop and workshop in the suit premises with the husband of the petitioner with the knowledge and consent of the respondent no.1. It was stated that on 30.10.1993, there was a family settlement amongst the husband of the petitioner, the proforma respondent no.2 and Rabindra Singh, one of the brother of proforma respondent no.2 where the respondent no.1 and his brother Prashant Choudhury were witnesses and accordingly, the husband of the petitioner got the tea stall and the pan shop and the proforma respondent got the grocery shop. Under these aforesaid circumstances, the petitioner denied the correctness of statement made in the plaint that tenancy agreement between the respondent no.1 and husband of petitioner. It was denied as incorrect that rent was to be paid within seven days of succeeding month or that rent was to be compulsorily enhanced by 20% after every three years. It was denied that the petitioner had not been paying rent and that as per agreement dated 29.02.2000 rent was to be automatically enhanced by 20% on and from 01.03.2003. It was stated that rent was paid upto September, 2003 but the respondent no.1 did not issue rent receipt by stating that it would be sent later. Thereafter, when rent for the month of October, 2003 was offered but the respondent no.1 refused to accept by enhancing rent to Rs.10,000/- and that when Rs.3,000/- was offered as rent, the respondent no.1 threatened to dispossess the petitioner, as such, since the month of October, 2003, rent was deposited in Court in favour of the respondent no.1 and his brother Prashant Choudhury. It has been stated that on 31.10.2003 at about 5.00 p.m., there was an attempt to illegally dispossess the petitioner from the suit premises and as such, an FIR was lodged, which was registered as Bharalumukh P.S. Case No. 275/2003 under sections 447/325/427/506/34 IPC. The petitioner then filed TS 299/03, wherein an ad interim injunction was passed by the learned trial Court Page No.# 5/19

which was made absolute. In the written statement it was denied that the suit premises was bona fide required by the respondent no.1 or for his two sons. It was also denied that there was any smoke or gas pollution in the suit premises. Accordingly, prayer was made for dismissal of the suit with cost.

5) On the basis of pleadings, the following issues were framed for trial:-

1. Whether the defendants are defaulters in payment of rent to the plaintiff in respect of the suit premises?

2. Whether the plaintiff is in bona fide requirement of the suit premises?

3. Whether the plaintiff is entitled to the decree for recovery of arrear rent as prayed for in the plaint?

4. Whether the plaintiff is entitled to eviction of the defendants from the suit premises?

5. Whether the plaintiff is entitled to get a decree as prayed for in the plaint?

6. To what relief/ reliefs the parties are entitled to?

6) The respondent no.1- plaintiff had examined three witnesses, viz., Bishwajit Choudhury (PW-1) (also spelt elsewhere as Bishyajit Choudhury), Rakesh Choudhury (PW-2), and Manohar Choudhury (PW-3) and exhibited the following documents, viz., Agreement for house rent dated 28.02.1997 (Ext.1), Agreement for house rent dated 29.02.2000 (Ext.2), Copy of cross examination of Ram Shankar Singh in TS 299/2003 (Old)/TS 31/2007 (New) (Ext.3), Misc.(N.J.) Case No. 561/2003 for deposit of Rs.2,640/- as rent for the month of October, 2003 (Ext.4), Misc. (N.J.) Case No. 146/2004 for depositing rent for the month of February, 2004 (Ext.5), Misc. (N.J.) Case No. 409/2004 for depositing rent for the month of June, 2004 (Ext.6), Misc. (N.J.) Case No. 461/2004 for depositing rent for the month of July, 2004 (Ext.7). As defendants, the petitioner no.1 and the proforma respondent no.2 had examined the proforma respondent no.1 as DW-1 and the DW-1 was allowed to be re- examined to exhibit the Misc.(N.J.) Case records and challans. The DW-1 had exhibited the following documents, viz., Notice of demand by GMC for the assessment of the suit premises for the year 1980-81 to 1983-84 (Ext.A), Notice of demand by GMC for the assessment of the suit premises for the year 1984-85 [Ext.A(1)], Deed of family settlement (Ext.B), Agreement dated 28.02.1997 (Ext.C), Agreement dated 29.02.2000 (Ext.D), GMC Trade Licence for the Page No.# 6/19

period from 1994-95 and 1995-96 (Ext.E), GMC Trade Licence for the period from 1996-97 to 1997-98 (Ext.F), GMC Tax payment receipt (Ext.G), Letter dated 28.02.1997 from DW-1 to respondent no.1 mentioning about expenses of Rs.91,125/- (Ext.H), Certified copy of judgment in TS 31/2007 (Ext.I), Application calling for record of Misc. (N.J.) Cases (Ext.J), Report dated 18.06.2012 of Court of Munsiff No.1 (Ext.K), Copies of rent deposit challans in the Court of Civil Judge No.1, Guwahati [Ext.L to Ext.L(27)], Copies of rent deposit challans in the Court of Munsiff No.1, Guwahati [Ext.M to Ext.M(69)].

7) In the plaint, it was further stated that on 26.03.2006, the respondent no.1 had requested the petitioner to vacate the suit premises, and on refusal, the respondent no.1 had instituted T.S. 392/2008. It was also stated that in the meanwhile, on contest, the herein before referred T.S. 299/2003 (Old)/TS 31/2007 (New) was decreed in favour of the petitioner and proforma respondent no.2.

8) In respect of the issue no.1, the learned trial Court after discussing the evidence of the witnesses, arrived at a conclusion that there was nothing in the record which can establish the claim of the petitioner and proforma respondent no.2 that the respondent no.1 had refused to accept rent. It was also held that as per the deposition of DW-1, he had not deposited rent challans for the months of August, 2009, September, 2009 and April, 2010. It was held that Ext.5 and Ext.6 reflects that Misc. (N.J.) Case No. 409/2004 and Misc. (N.J.) Case No. 461/2004 were dismissed as rent deposit challans were not submitted. Accordingly, the learned trial Court had held that the petitioner and proforma defendant no.2 were defaulters. In respect of issue no.2, the respondent no.1 and his two sons for whom the suit premises was required had given their evidence and relying upon evidence of the PWs, and cross examination of DW-1, wherein he was ignorant of the nature of business run by PW-2 and PW-3, it was held that the respondent no.1 had bona fide requirement of the suit premises for his use and occupation. In respect of issue no.3, it was held that the rent was never enhanced by the respondent no.1 and, as such, the respondent no.1 was held to be entitled to unenhanced arrear rent from October, 2003 till execution of the decree. In view of the finding in respect of issue nos. 1 and 2, the issue nos. 3, 4 and 5 were decided in favour of the respondent no.1 and against the petitioner. Accordingly, the suit was decreed for Page No.# 7/19

eviction.

9) The aggrieved petitioner and respondent no.2 preferred an appeal, which was registered and numbered as Title Appeal No. 33/2015 and was heard before the learned Civil Judge No.2, Kamrup (M), Guwahati. The learned first appellate Court though did not frame any point of determination, but the issues as decided by the learned trial Court was re- examined. In respect of issue no.1, relying on the ration of the cases of (1) Abdul Matin Choudhury & Ors. Vs. Nityananda Dutta Banik, (1997) 2 GLT 590; (2) Sudhir Chandra Deb & Anr. Vs. Parsuram Prasad Verma, (1992) 1 GLR 250; (3) Urmila Jain & Ors. Vs. Ambica Prasad, 2017 (1) GLT 678, it was held that rent was not deposited on refusal of the landlord to accept rent and as such the deposit was not in terms of Section 5(4) of the Assam Urban Areas Rent Control Act, 1972 as it was not preceded by a valid tender of monthly rent. Moreover, it was held that as per Ext.2, which is the rent agreement dated 29.02.2000, it was between the respondent no.1 (landlord) and the petitioner (tenant) and as such Prashant Choudhury was not a party to the said agreement, but on the perusal of rent deposit challans, the rent was deposited in the names of the respondent no.1 and his brother Prashant Choudhury and accordingly, it was held that the petitioner could not prove that the rent was tendered to the landlord and it was held that the petitioner was a defaulter. In respect of issue no.3, on light of the ration of the case of M/s. Central Tobacco Co. Vs. Chandra Prakash, C.A. No. 1175 of 1969, decided on 23.04.1969, it was held that the evidence of PW-1 that the proforma respondent no.2 had own land and building in the same locality and he can do business from there remained un-rebutted and, as such, it was held that the suit premises was bona fide required by the respondent no.1. In respect of issue no.3, referring to the evidence of PW-1, PW-2 and PW-3, it was held that the respondent no.1 was receiving rent at the rate of Rs.3,000/- per month after expiry of agreement (Ext.2) till September, 2003. Accordingly, it was held that the respondent no.1 was entitled to receive rent at the rate of Rs.3,000/- per month from October, 2003 till the petitioner and proforma respondent no.2 vacated the suit premises. In respect of issue of No.4, on the basis of decision on issue nos. 1, 2 and 3, it was held that the issue was rightly decided by the learned trial Court and resultantly the appeal was dismissed by affirming the decree passed by the learned trial Court.

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10) The learned senior counsel for the petitioner has assailed the finding of both the Courts below, broadly on four points, being (i) non-framing of point of determination as required under Order XLI Rule 31(a) CPC, (ii) mis-joinder of two separate causes of action as two separate suits was required to be filed, (iii) defaulter, and (iv) bona fide requirement. It has been submitted that non-compliance of the provisions of Order XLI Rule 31(a) of not framing point of determination had vitiated the first appellate judgment and in this regard, reliance was placed on the following cases, viz., (1) Lakshmi Ram Bhuyan Vs. Hari Prasad Bhuyan & Ors., (2003) 1 SCC 197; (2) Vishwas Balu & Ors. Vs. Ghasiram Ramratan Jajum & Ors., AIR 1975 Bom 278; (3) Darshan Singh Vs. Parag Gogoi, (2018) 5 GLJ 297: (2019) 2 GLR 727. It is submitted that there were two separate tenancy, one with the petitioner and the other with proforma respondent no.2 and as such the respondent was required to file two separate suits, instead only one suit was filed for which the suit was not maintainable. It is further submitted that in the previous suit, i.e. TS 299/2003 (Old)/ 31/2007 (New), it was held that the petitioner and his brother Prashant Choudhury were landlord of the petitioner and proforma respondent no.2. On the point of defaulter, it is submitted that on the basis of surmises and conjectures, the first appellate court had arbitrarily held the rent due to be Rs.3,000/- per month, whereas as per Ext.2, the rent was fixed at Rs.2,640/- per month and there was no agreement for payment of enhanced rent. It is submitted that there was bad relationship between the landlord and the tenants and therefore, offering rent to the petitioner no.1 would be a mere formality. In this regard, the learned senior counsel for the petitioner has placed heavy reliance on the following cases, viz., (1) Dr. Brahmanand Vs. Kaushalya Devi & Anr., AIR 1977 SC 1198; (2) Muhit Kumar Deb Roy & Ors. Vs. Gaurangalal Roy, (1986) 1 GLR 442; (3) Swapan Kumar Saha Vs. Biswa Nath Sureka, (2014) 2 GLR 180 . Accordingly, it is submitted that on rent being deposited in Court, the learned Courts below had erred on facts and in law in holding the petitioner to be a defaulter. In connection with the issue of bona fide requirement, it is submitted that in course of cross examination, the PW-1 had admitted that the suit premises was not required for his sons. It is also submitted that the learned first appellate Court had wrongly shifted the burden of disproving bona fide requirement on the petitioner. Accordingly, it is submitted that the finding by the learned Courts below were not sustainable and were liable to be interfered with. Apart from herein Page No.# 9/19

before referred cases, the learned senior counsel for the petitioner has placed reliance on the following cases, viz., Anil Rishi Vs. Gurbaksh Singh, (2006) 5 SCC 558; Hasmat Rai & Anr. Vs. Raghunath Prasad, AIR 1981 SC 1711; Variety Emporium Vs. VRM Mohd. Ibrahim Naina, AIR 1985 SC 207; Kali Charan Vs. Ganesh Prasad & Anr., AIR 1971 All 501 .

11) The learned counsel for the respondent no.1 has made his submissions in support of the concurrent finding by both the learned Courts below. It has been submitted that in his cross-examination, the DW-1 had admitted that vide Ext.L(5), the rent for the month of September and October, 2004 were deposited together in Bank on 13.10.2004 which included rent for the month of October, 2004 in advance and it was also admitted that that vide Ext.M(65), the rent for the month of August and September, 2006 were deposited together in Bank on 20.09.2006. It was submitted that the DW-1 had also stated that rent deposit challans were not submitted for the months of August, 2009, September, 2009 and April, 2010. It was also submitted that in all N.J. Cases, the date when rent was offered was not mentioned. It is submitted that the DW-1 was cross examined in TS 31/2007 as PW-1, which was exhibited as Ext.3, and upon cross-examination of DW-1 on Ext.3, he had admitted his statement in Ext.3 that he had deposited rent in court without offering rent to the landlord for the month of November and December, 2008. By referring to Ext.3 it is submitted that the DW-1 had categorically deposed in his cross examination that " the son of my landlord had called me to meet his father, but since I was busy in my shop I could not meet his father. On that day no discussion for enhancement of rent took place, nor was there any threatening for my eviction." It is also submitted that in his cross- examination, the DW-1 had admitted that "Prashant Choudhury never demanded rent from me. My landlord plaintiff used to take rent from me." Accordingly, it is submitted that there was no merit in this revision.

12) From the above, it is seen that the following points arise for determination in this revision:

I. Whether for non-compliance of the provisions of Order XLI, Rule 31 CPC, the first appellate judgment is sustainable or not? If the appellate judgment is not sustainable, what can be done by this revisional court under the circumstances of this case?

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II. Whether the suit was bad for mis-joinder of two separate causes of action?

III. Whether the decision by both the learned courts on the issue of defaulter and bona fide requirement is vitiated by perversity?

IV. Whether the petitioners are entitled to any relief?

13) The Point of determination No. I relating to non- compliance of the provisions of Order XLI, Rule 31 CPC is taken up first. There is no doubt that the provisions of Order XLI, Rule 31 CPC mandates that the appellate judgment shall state the points of determination and also the decision thereon. In this regard, the learned senior counsel for the petitioner has referred to the case of Darshan Singh (supra). It is true that in the present case in hand, the learned First Appellate Court had not formulated any points of determination. Hence, following the ratio of the case cited above, this Court is of the unhesitant opinion that the learned first appellate Court had committed grave jurisdictional error of not formulating any points of determination while deciding the appeal. The same is in total disregard to the provisions of Order XLI, Rule 31 CPC. However, considering the fact that this proceeding arises out a suit which was filed on 17.11.2008, i.e. about 13 years ago, and TA 33/2015 was filed on 08.06.2015, i.e. 6 years ago, it is deemed appropriate that the merit of the judgment and decree be re-appreciated as if deciding an appeal, instead of remanding the appeal back to the learned first appellate court. However, this endeavour by this Court is not to be treated as a precedent. Point of determination No.(I) is answered accordingly.

14) The point of determination no. (II) is now taken up. In this regard, on a perusal of Ext.I, i.e. judgment dated 23.08.2010 in TS 31/2007 it is seen that issue no.3 therein was "Whether the plaintiff No. 2 (i.e. Ram Shankar Singh) is a stranger to the suit premises and has no relationship of landlord and tenant with the defendant no.1 ." While deciding the said issue, the learned trial Court had held, inter alia, that it was an admitted position that the proforma respondent no.2 was occupying one of the three rooms in the schedule premises and that the proforma respondent no.2 was the brother of the husband of the petitioner and the learned trial Court had opined that if the brother of husband of the petitioner does some business in the schedule premises, he cannot be termed as a stranger. Accordingly, the said issue was decided by holding that "... The defendants have not Page No.# 11/19

examined themselves in this suit to prove the contrary, hence, it is held that the plaintiff no.2 is not a stranger to the suit premises and he comes within the definition of tenant." As per the discussions in respect of issue no.2 in TS 31/2007, the tenanted premises consists of three rooms measuring about 17 X 16 ft, 9 X 16 ft, and a workshop/ karkhana of about 218 sq. ft. Therefore, when in a suit jointly filed by the petitioner and proforma respondent no.2, they had obtained a decision on issue no.2 and 3, the decision in TS 31/2007 becomes relevant by operation of Section 41 and 42 of the Evidence Act, 1872. Accordingly, in light of categorical finding in TS 31/2007, as discussed above, the present suit is not found to be bad for mis-joinder of the petitioner and proforma respondent no.2 as defendants in the present suit. Moreover, it is seen that the petitioner had armed herself with a decree in TS 31/2007, wherein in spite of the contents of Ext.D i.e. Agreement of House Rent, which was between the respondent no.1 and the petitioner, it was held that the proforma respondent no.2 was not a stranger to the suit premises and comes within the definition of tenant, the petitioner cannot be permitted to take a contradictory stand in this present case by projecting that a separate suit was required to be filed against proforma respondent no.2. Having not made any attempt to have this point decided by the learned trial Court by getting a issue framed in this regard, the Court is of the considered opinion that in view of finding in T.S. No. 31/2007, wherein the petitioner and proforma respondent no2 were the joint plaintiffs, the respondent no.1 herein cannot be non-suited on the said plea at this belated stage. To assert that the provisions of Order I, Rule 3 CPC did not permit a single suit against two defendants, the learned senior counsel for the petitioner had cited the case of Kali Charan (supra). In this regard, the Court is of the considered opinion that when both the petitioner and proforma respondent no.2 had filed a common single suit, being TS 31/2007 and obtained a declaration that they were the tenants of the respondent no.1 and his brother, Prashant Choudhury, the ratio of the case of Kali Charan (supra) would not come to the aid of the petitioner in any manner whatsoever, as the petitioner would be bound by the declaration given therein. Therefore, the point of determination no. (II) is answered by holding that the suit was not bad for mis-joinder of two separate causes of action.

15) The point of determination no. (III) is relatable to issues no. 1, 2 and 3 as framed by the learned trial Court. In this regard, it would be relevant to mention herein that Page No.# 12/19

on examination of the evidence on record, it is seen that the petitioner herein did not examine herself as one of defendant's witnesses.

16) A unique situation is found to exist in this case. As already discussed above, as per Ext.D i.e. Agreement for House Rent dated 29.02.2000, the respondent no.1 is the sole landlord and the petitioner is the sole tenant. Yet, in the year 2003, the petitioner and proforma respondent no.2 had jointly filed TS 299/2003 (Old), renumbered as T.S. No. 31/2007. The said suit was decreed on 23.08.2010 by the learned Munsiff No.1, Guwahati, amongst others, declaring that the petitioner and proforma respondent no.2 (i.e. plaintiffs therein) were monthly tenants of the respondent no.1 and his brother Prashant Choudhury. In the opinion of the Court, the declaratory decree relates back to the date when the suit is instituted. It would now be relevant to quote Section 35 of the Specific Relief Act, 1963 which is as follows:-

"35. Effect of declaration.- A declaration made under this Chapter is binding only on the parties to the suit, persons claiming through them respectively, and, where any of the parties are trustees, on the persons for whom, if in existence at the date of declaration, such parties would be trustees."

17) Thus, the effect of Section 35 of the Specific Relief Act, 1963 is that the parties are bound by the declaration. Therefore, as per decree in TS 31/2007, the petitioner and the proforma respondent no.2 were tenants and the respondent no.1 and his brother Prashant Choudhury were the landlord. The said TS 31/2007 was decreed on 23.08.2010, during the pendency of TS No. 392/2008, but the declaration would take effect on and from the date of institution of such suit. However, as per the contents of Ext.L to Ext.L(27) and Ext.M to Ext.M(69), which are copies of rent deposit challans, it is seen that in respect of column No.2 "For whom tendered", it has been mentioned that rent was tendered for "Bishyajit Choudhury & Ors." However, in the column no. 1 "By whom tendered", it is seen that the petitioner alone was the sole tenderer. It is also seen from the contents of Ext.4 to Ext.7, i.e. copy of Misc. (N.J.) Case petitions that the petitioner was the sole tenderer of rent. Thus, though the petitioner and the proforma respondent no.2 was bound by the declaratory Page No.# 13/19

relief granted in TS 31/2007, yet as no rent was tendered for and on behalf of the proforma respondent no.2, the petitioner and proforma respondent no.2 utterly failed to prove that there was proper tender of rent to the petitioner and his brother, Prashant Choudhury. Therefore, the Court is of the view that perhaps in order to save the petitioner from this unique trap opened up by the petitioner herself, owing no non- deposit of rent by proforma respondent no.2, the learned senior counsel for the petitioner had strenuously urged before this revisonal Court that the respondent no.1 ought to have filed two separate suits, although as per decree in TS No. 31/2007, the petitioner was not the sole tenant. It may also be mentioned that in his cross- examination, the DW-1 had admitted that " Prashant Choudhury never demanded rent from me. My landlord plaintiff used to take rent from me ", which appears to the factual situation on field. However, in light of decree passed in TS 31/2007, the Court refrains from questioning Ext. L(series) and Ext. M(Series) on the ground that the deposit of rent was not by both tenants.

18) Nonetheless, the examination of evidence discloses that Misc.(NJ) Case No. 461/2004 was dismissed on 11.08.2004 for not depositing challans. The DW-1 had also admitted that vide Ext.L(5), the rent for the month of September and October, 2004 were deposited together in Bank on 13.10.2004 which included rent for the month of October, 2004 in advance and it was also admitted that that vide Ext.M(65), the rent for the month of August and September, 2006 were deposited together in Bank on 20.09.2006. The DW-1 had also stated that rent deposit challans were not submitted for the months of August, 2009, September, 2009 and April, 2010. From Ext. 4 to Ext.7, it is seen that the date when rent was offered has not been mentioned. It is also seen that the DW-1 he had admitted his statement contained in Ext.3 that he had deposited rent in court without offering rent to the landlord for the month of November and December, 2008. Therefore, the respondent no.1 had been able to prove that rent was deposited in Court without offering monthly rent to the landlord. The petitioner did not discharge the burden to prove that (1) rent was offered to the landlord before depositing the same in Court, (2) challans were deposited on time and submitted in Court in all Misc. (N.J.) Cases, (3) rent was deposited in Court as per the requirement of Section 5(4) of the Assam Urban Areas Rent Control Act, 1972 because the respondent no.1 had proved that the rent for the month of October, 2004 and September, 2006 was deposited Page No.# 14/19

in advance within the currency of the said months. Therefore, the learned Courts below are found to have committed no perversity in holding that the petitioner and respondent no.2 had failed to discharge their burden of proving that deposit of rent was made in accordance with the provisions of Section 5(4) of the Assam Urban Areas Rent Control Act, 1972.

19) The non- tendering of monthly rent was sought to be justified by referring to the ratio of the case of Dr. Brahmanand (supra), Muhit Kumar Deb Roy (supra) and Swapan Kumar Saha (supra) by projecting that there was a strained relationship between the landlords and the tenants. Although the projection appears to be attractive, but, the evidence on record appears to be contrary to the said plea. At the cost of repetition, it is reiterated that in TS 31/2007, the DW-1 in present suit was cross examined as PW-1. His cross-examination is exhibited as Ext.3. In his cross examination on Ext.3, the DW-1 had admitted his statement in Ext.3 that he had deposited rent in court without offering rent to the landlord for the month of November and December, 2008. By referring to Ext.3, the DW-1 had categorically deposed in his cross examination that " the son of my landlord had called me to meet his father, but since I was busy in my shop I could not meet his father. On that day no discussion for enhancement of rent took place, nor was there any threatening for my eviction ." It is also submitted that in his cross- examination, the DW-1 had admitted that " Prashant Choudhury never demanded rent from me. My landlord plaintiff used to take rent from me ." Moreover, the DW-1 had not made any effort to show that any statement was made in Misc.(N.J) Case petitions that due to animosity between the landlords and tenants, the monthly rent was not offered to the landlords. The statement made in Ext.3 does not disclose any strained relationship. The DW-1 had not proved either the final report in respect of Bharalumukh P.S. Case No. 275/2003 under sections 447/325/427/ 506/34 IPC or final order in trial of the said case to show that even investigation or in course of trial the police or the Court had opined that the petitioner was guilty of commission of any offence.

20) Thus concurrent finding of both the learned courts below on issue no.1 is found liable to be and is hereby affirmed.

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21) The issue of bona fide requirement appears to have been washed away in course of cross examination of PW-1, who had categorically stated that " It is not a fact that the house is required for me or for sons. My elder son Anurag does business of PCO and VCD. Younger son is with him ." This part of the cross examination is found to have been ignored by the learned trial Court as well as the learned first appellate Court. The learned counsel for the respondent no.1 had submitted that in light of the overall evidence of the PW- 1, PW-2 and PW-3, the stray recording of the herein above quoted statement in cross examination of PW-1 was erroneous recording of deposition and the statement "it is not a fact" was wrongly recorded as "it is a fact". The said submission cannot be accepted at this revisional stage when no attempt has been made to bring the point to the notice of the learned trial Court and there was no attempt to have such statement expunged or altered. Thus, in respect of issue no.2, the concurrent finding by the learned courts is held to be jurisdictional error as relevant part of cross-examination was not taken into consideration by both the learned Courts below and accordingly, the Court would have jurisdiction to interfere with such finding based on non-consideration of evidence on record. Accordingly, issue no.2 is answered in the negative and against the respondent no.1- plaintiff.

22) The finding by both the learned Courts below on issue no.3 has been taken up for examination. In this regard, at the outset it must be seen that how far the Agreement for House Rent dated 29.02.2000 (Ext.3, also marked as Ext.D) can be read to determine the quantum of monthly rent for which the petitioner and proforma respondent no.2 had committed default, if there be any. In this regard, as per the provisions of Section 17(d) of the Registration Act, 1908 it is provided that leases of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent is required to be compulsorily registered. The consequences of non registration is prescribed in Section 49(c) of the said Act, which provides that no document required by section 17 or by any provision of the Transfer of Property Act, 1882 to be registered shall be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered. However, as per the proviso appended thereto, such document may be received as evidence of any collateral transaction not required to be effected by registered instrument. Therefore, when both the Courts below were examining the issue of rent payable after 01.03.2003, there Page No.# 16/19

was no written agreement in existence commencing from 01.03.2003. However, the rent payable during the tenure of the agreement was the purpose of agreement, as such, for the purpose of the quantum of rent payable for the period commencing from 01.03.2003 onwards, the said rent agreement (Ext.3, also exhibited as Ext.D) cannot be read in evidence. After 28.02.2003, the petitioner and respondent no.2 were holding the status of statutory tenant. In view of the discussions above, the evidence to the effect that as per the terms of Ext.3/Ext.D, the rent last payable under the said agreement was Rs.2,640/- per month.

23) It is the pleaded case of the respondent no.1 in the plaint that as per the tenancy agreement dated 29.02.2000, the monthly rent was fixed at Rs.2,640/- and that since 01.03.2003, the rent had been automatically enhanced by 20% i.e. Rs.3,168/-. As there was no agreement for paying enhanced rent, it was open to the respondent no.1 to approach the Court for determining the quantum of 'fair rent' under Section 4 read with Section 3 of the Assam Urban Areas Rent Control Act, 1972. The prayer made in the plaint for recovery of monthly rent at the rate of Rs.3,168/- w.e.f. 01.03.2003 was a mere claim, but without calling upon the Court for determination and/or fixation of 'fair rent'. Therefore, in the absence of any tenancy agreement 01.03.2003, the provisions of Section 49(d) of Registration Act, 1908 makes the clauses relating to purported enhancement of rent by 20% is not enforceable as the said clause cannot be read by the Court in evidence. Moreover, the agreement dated 29.02.2000 (Ext.D) had already lapsed by afflux of time and the present suit was not filed for enforcement of the said agreement. Therefore, the Court is inclined to hold that the rent due and payable by the petitioner and proforma respondent no.2 to the petitioner on and from 01.03.2003 for pre-suit, pendente lite and till evicted would be at the rate of Rs.2,640/- per month, unless otherwise determined by competent Court in accordance with law.

24) It would be pertinent to mention here that the learned trial Court had arrived at the finding that the petitioner and the respondent no.1 was a defaulter. However, no decree for recovery of arrear rent was passed. The said finding is found to have been assailed in appeal, however, there is nothing on record which would show that the respondent no.1 had filed any cross objection with respect to the non-granting of prayer for recovery of arrear rent. Therefore, although the learned first appellate Court had affirmed the finding returned Page No.# 17/19

by the learned trial Court on defaulter, but no appellate decree was passed for recovery of pre-suit, pendente lite and arrear rent. Thus, when the concurrent finding in respect of arrear rent has attained finality, the issue no.3 stands answered accordingly.

25) It may be mentioned that the learned counsel for the respondent no.1 had referred to the cross-examination of the proforma respondent no.2 (DW-1), where he had stated that he had filed the written statement and verification and affidavit was signed by him, but he had not mentioned that he had signed the same on behalf of the petitioner also. However, It is seen that the written statement contains the signature of the petitioner on all pages, except the verification and the affidavit. Therefore, the defect of verification, being curable in nature, the petitioner cannot be non-suited at this revisional stage, when the defect was not pointed out during settlement of issues and the suit was not heard on the said point.

26) The point of determination no. (IV) is now taken up, which is inter-linked with issue nos. (4), (5) and (6) framed by the learned trial Court. Having regard to the discussions on issue no. (1), the Court is of the considered opinion that notwithstanding that the issue nos. (2) and (3) are decided against the respondent no.1, the respondent no.1 is found to be entitled to decree for ejectment of the petitioner and proforma respondent no.2 (both defendants in the suit) from the suit premises described in Schedule of the plaint on the ground that the petitioner and the proforma respondent no. (2) are defaulters. The point of determination No. (IV) is answered accordingly.

27) The learned senior counsel for the petitioner had cited the case of Anil Rishi (supra) in the context of burden of proof and the case of Hasmat Rai (supra) and Variety Emporium (supra) were cited for showing that bona fide requirement must exist all throughout. However, as the contention of the petitioner has been accepted on the issue of bona fide requirement, it is not necessary to discuss the ratio of the said cited cases.

28) Thus, except for reversal of concurrent finding on issue nos. 2 and 3, the Page No.# 18/19

concurrent finding on all other issue nos. (1) and (4) to (6) are affirmed. The decree passed by the learned trial Court and as affirmed by the learned first appellate Court stands modified to the extent as indicated above. The petitioner and proforma respondent no.2 (defendants in the suit) are liable to be evicted forthwith and the respondent no.1 is entitled to vacant possession of the suit premises.

29) At this juncture, as the Court has provided herein before that the respondent no.1 would be entitled to be put into vacant possession of the suit premises, it would be appropriate to mention that as indicated herein before, the Court has taken note of the judgment and decree dated 23.08.2010 in TS 31/2007, which provides that the respondent no.1 and his brother Prashant Choudhury are the landlord. Nonetheless, it is too well settled that ejectment suit at the instance of one of the two or more co-landlord is maintainable. Although, this point was never raised by the petitioner, if one needs any authority on the point, the case of Mohinder Pd. Jain Vs. Manoharlal Jain, (2006) 2 SCC 724 may be referred to.

30) Taking note of the current Covid-19 pandemic situation, the Court is inclined to grant time till 30.09.2021 to vacate the suit premises and hand over physical possession thereof to the respondent no.1. This is subject to compliance of the following conditions:-

i. The petitioner and the proforma respondent no.2 would file a joint undertaking in form of affidavit, unconditionally undertaking to vacate the suit premises described in Schedule to the plaint on or before 30.09.2021 and to deliver vacant possession of the same to the petitioner. Such undertaking should be filed within 30.06.2021 before the learned trial Court, who upon receipt the filing together with a copy of this order, would open a part file and on receipt of the records, make it a part of record.

ii. However, for the period of such stay, for four months of June, July, August, and September, the petitioner and the proforma respondent would have to pay a compensation of Rs.20,000/- (Rupees Twenty thousand only) in advance within 30.06.2021 at the rate of Rs.5,000/- per month as compensation. The extended Page No.# 19/19

period of stay and payment of compensation by the petitioner and proforma respondent no.2 would not create a fresh tenancy, agreement, contract or continuation of landlord-tenant relationship of any nature whatsoever.

iii. During the extended period of stay, the petitioner and proforma respondent no.1 shall not sub-let or induct any third party into the suit premises on any pretext whatsoever.

iv. If the compensation amount in advance and the undertaking in form of affidavit are not filed within the time allowed, or if the other conditions as imposed by this order are not adhered to, it would be open for the petitioner to put the decree into execution.

31)                Let the lower Court records be sent back.




                                                                           JUDGE.




Comparing Assistant