Gakul Bharali vs On The Death Of Rathin Choudhury ...
2021 Latest Caselaw 2669 Gua

                                                               Page No.# 1/7

GAHC010008602020




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

                         Case No. : CRP/9/2020

         GAKUL BHARALI
         S/O LT. MOHINDRA BHARALI, R/O HARSHADEEP RESTAURANT, 5 GOPAL
         ROAD, PANBAZAR, GUWAHATI-781001, DIST-KAMRUP(M), ASSAM



         VERSUS

         ON THE DEATH OF RATHIN CHOUDHURY HIS LEGAL HEIRS
         GEETANAGAR, DIST- KAMRUP(M), ASSAM

         1.1:BANANI CHOUDHURY
         W/O LATE RATHIN CHOUDHURY
         R/O AMBIKAGIRI NAGAR
          P.O.-GEETANAGAR
          P.S.-GEETANAGAR
          DIST-KAMRUP(M)
         ASSAM
          PIN-781024

         1.2:DEBOJEET CHOUDHURY
          S/O LATE RATHIN CHOUDHURY
         R/O AMBIKAGIRI NAGAR
          P.O.-GEETANAGAR
          P.S.-GEETANAGAR
          DIST-KAMRUP(M)
         ASSAM
          PIN-781024

         1.3:DR. SWAPNAMITA C. VAIDESWARAN
          D/O LATE RATHIN CHOUDHURY
         R/O AMBIKAGIRI NAGAR
          P.O.-GEETANAGAR
          P.S.-GEETANAGAR
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             DIST-KAMRUP(M)
             ASSAM
             PIN-78102

Advocate for the Petitioner   : MR. J KALITA

Advocate for the Respondent : MR. B DEKA

BEFORE HONOURABLE MR. JUSTICE DEVASHIS BARUAH

JUDGMENT & ORDER (oral) Date : 02-11-2021

Heard Mr. J. Kalita, the learned counsel appearing for the petitioner and Mr. B. Deka, the learned counsel for the respondents.

2. This is a petition under Article 277 of the Constitution of India challenging the order dated 06/09/2019 passed by the Civil Judge, Senior Division No. 3, Kamrup(Metro), Guwahati in Title Appeal No. 98/2016, whereby the judgment an decree dated 26/08/2016 passed by the Munsiff No. 1, Kamrup(Metro), in Title Suit No.5/2014 was confirmed.

3. 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 revisionsal 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 or 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 mis-carriage of justice. In other words, interference with an incorrect finding of fact for the purpose of exercising revisional jurisdiction must be understood in the context, where such findings is perverse, based on no evidence or mis- reading 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 Page No.# 3/7

allowed to stand, will occasion in mis-carriage of justice.

4. In the backdrop of the above, material facts relevant for the disposal of the instant petition are that the predecessor-in-interest of the respondent herein, Lt. Ratin Choudhury, instituted a suit as plaintiff against the defendant (the petitioner herein) seeking for ejectment of the defendant and for realization of arrear rent, electricity charges and compensation. The said suit was registered and numbered as Title Suit No. 5/2014.

5. The case of the plaintiff in the said suit was that the defendant, who had taken on rent the Schedule "A" and "B" premises from the plaintiff have defaulted in payment of rent since January, 2013 and consequently the defendant is a defaulter in payment of rent. It is also the case of the plaintiff, that he has a son, who is 31 years old and is an unemployed youth require the schedule premises.

6. The defendant filed his written statement. In his written statement it is the specific case of the defendant (the petitioner herein) that he paid the monthly rent of the Schedule "A" and "B" premises till August 2013 by cash and when the plaintiff refused to accept the rent and serve the pleaders notice, the defendant deposited the rent in the Court. In paragraph 20 of the written statement the defendant stated that till August 2013 he paid rent by way of cash and when the plaintiff refused to accept the monthly rent for October, 2013, the defendant is paying a sum of Rs. 8,550/- per month and Rs. 550/- as electricity charges by way of Court process. There is no averment in the written statement that subsequent to the refusal of accepting rent in the month of October,2013, he had approached the plaintiff for tendering rent for the subsequent periods when he had been depositing the rent in the Court. It is also pertinent herein to take note that there was no mention whatsoever in the averments made in the written statement as regards the rent for the month of September, 2013.

7. On the basis of the pleadings of the parties as many as five issues were framed and for the sake of convenience the said issues are quoted here-in-below :-

" (1) Whether there is cause of action for the suit ?

(2) Whether the suit is bad for non-joinder of necessary parties ?

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(3) Whether the defendant has defaulted in payment of the monthly rents in respect of the tenanted premise ?

(4) Whether the suit premise is bonafide required by the plaintiff ? (5) Whether the plaintiff is entitled to the relief (s) as prayed for ?

8. The plaintiff adduced as many as three witnesses and had exhibited various documents. The defendant examined two witnesses including the defendant himself and had exhibited the challans in certain N.J. Cases as Ext. 1 to Ext. 22. It is relevant to note that the defendant while filing his evidence did neither call for the records of the rent deposit cases, i.e., Misc. (NJ) Cases, nor exhibited the orders passed in those N.J. Cases before the Courts below. The defendant had only marked certain challans in the N.J. cases as exhibits without giving any evidence of those persons to prove those challans.

9. The Trial Court vide the judgment and decree dated 26/08/2016 decreed the suit in favour of plaintiff by holding that the defendant is a defaulter in payment of rent and the plaintiff has bona fide requirement of the suit premises i.e. Schedule "A" and Schedule "B" premises. Accordingly, the suit was decreed by granting the following relief (s) :-

" (1) The plaintiff has right to recover the khas possession of the suit premises (which are more specifically described in schedule A and Schedule B of the plaint) by evicting the defendant, his men, agents, representatives etc. from the suit premises.

(2) The plaintiff has also right to recover arrear rent of Rs. 95,209/- (Rupees Ninety Five Thousand Two Hundred Nine) only from the defendant.

(3) The plaintiff has also right to recover the rent amounting to Rs. 8,000/- (Rupees eight thousand) per month only from the defendant from the date of filing the suit till recovery of the suit premises from the defendant. If the rent is deposited in the Court, the plaintiff may collect the same in accordance with law."

10. Being aggrieved, the defendant preferred an appeal before the First Appellate Court, which was registered and numbered as Title Appeal No. 98/2016. The Trial Court upheld the issue of defaulter in payment of rent in favour of the plaintiff thereby holding that the defendant(the petitioner herein) is a defaulter in payment of rent. However, the Appellate Court reversed the findings of the Trial Court insofar as bonafide requirement of the plaintiff is concerned. There is no challenge by the respondents herein as regards the findings of the Page No.# 5/7

Appellate Court insofar the bonafide requirement of the plaintiff is concerned. Consequently, the appeal was dismissed by upholding the judgment and decree passed by the Trial Court of eviction of the Defendant/Petitioners herein.

11. Against the said judgment and decree dated 06/09/2019 passed by the First Appellate Court confirming the judgment and decree dated 26/08/2016 in Title Suit No. 5/2014 insofar as the finding of defaulter is concerned, the petitioners are before this Court challenging the said impugned judgment and decree by invoking the revisional jurisdiction under section 115 of the Code of Civil Procedure. As already stated hereinabove, the revisional jurisdiction under section 115 of the CPC is limited and is primarily to be exercised on the ground of error of jurisdiction and/or exercise of jurisdiction illegally and with material irregularity. Under such circumstances, the question which requires to be adjudicated upon is as to whether the Courts below committed any jurisdictional error in their findings as regards default in payment of rent.

12. The question of default in payment of rent is purely a question of fact and unless and until the petitioner is able to show that the said finding of fact has been arrived at by the Courts below by mis-reading material evidence or on the ground of perversity or on the ground that such finding 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 mis-carriage of justice, no interference is called for.

13. I have perused the impugned judgment, the evidence on record as well as the pleadings. As already stated hereinabove and in the written statement filed, there is no averment to the effect that the defendant had made payment of rent for the month of September, 2013. It is no longer res integra that it is the burden of the defendant to prove that he had not defaulted in payment of rent in order to get the protection under section 5 (1) of Assam Urban Area Rent Control Act. Under such circumstances, it was the burden of the defendant to plead and prove that there has been no default in payment of the rent. It is the specific pleaded case of the plaintiff that since January, 2013, no rent has been paid till the date of filing of the suit. In the written statement, the defendant had categorically pleaded in paragraph 20 that he had been paying rent till the month of August 2013 by way of cash but from the month of October, 2013 onwards he has been depositing the rent in the Page No.# 6/7

Court, and as such, there is no averment as regards payment of rent for the month of September, 2013. The written statement also does not contain the statement to the effect that on refusal to accept rent at each and every month the defendant deposited the rent in the Court. Rather in the written statement it is the specific case of the defendant that when the rent for the month of October, 2013 was refused, the defendant had been depositing rent in the Court since then.

14. Let us see the evidence for the purpose of proving payment of rent in the Court. The requirement of law is either the relevant rent deposit cases are called for or production of certified copies of the orders passed in the rent deposit cases along with challans. The law as to how a document is to be proved is well settled by the judgment of the Supreme Court rendered in the case of Narbada Devi Gupta Vs. Birendra Kr. Jaiswal reported in (2003) 8 SCC 745, wherein it has been held that mere production and marking of a document by the Court cannot be held to be a due proof of its contents. It is the execution which has to be proved by admissible evidence i.e. by the evidence of those persons, who can vouchsafe for the truth of the fact in issue. In the instant case, the defendant only marked and exhibited the challans without producing any evidence as regards the due execution of the challans, or for that matter, whether notices were issued to the landlord as regards the deposit of rent which is also mandatorily required. Furthermore, in the cross-examination of the defendant, he categorically admits that the challans so submitted do not disclose payment of rent for the month of October 2013 and for the month of November, 2014. He further admits in his cross- examination that the rent for the month of December, 2014 was paid on 21/01/2015 as could also be seen from Ext.15. In the backdrop of the above evidence, both the Trial Court and the First Appellate Court have held that the defendant is a defaulter in payment of rent. Under such circumstances, I do not find any error, no less a jurisdictional error in the judgment and decree impugned before this Court and consequently the instant petition is dismissed.

15. At the time of passing of this judgment, Mr. J. Kalita, the counsel for the petitioner upon instructions submits that on account of COVID, it would be very difficult on his part to find any alternative space within a short span of time and therefore, at least 8(eight) months time should be given to him to vacate the suit premises. The counsel for the respondents, Mr. B. Deka fairly contends that he has no objection if 8(eight) months' time is granted, i.e. till Page No.# 7/7

30th of June, 2022, provided the Respondents do not have to file an application for execution insofar as eviction of the petitioner from the suit premises is concerned.

16. As agreed to by the counsels for the parties concerned, the petitioner is directed to handover the possession of the suit premises to the plaintiff-respondent on or before 30/06/2022 without fail. As the Petitioner claims to be in possession of the suit premises, it is made clear that during this period i.e. from the date of this judgment till 30/6/2022, the Petitioner shall remain in possession as a custodian of the Respondents and see to it that during this period, the rights of the Respondents in respect to the suit premises are not adversely affected on account of any act or omission on the part of the petitioner herein. As regards the payment of arrear amount as well as compensation directed by the Trial Court, confirmed by the First Appellate Court, the Respondent shall be at liberty to file appropriate application seeking recovery of the said amount.

It is also observed that the permission granted by this Court to the Petitioner to continue in possession of the suit premises till 30/06/2022 is based upon undertaking of the petitioner to vacate the suit premises within the said period and if the petitioner fails to adhere to the same, the Respondents herein shall be at liberty to initiate appropriate proceedings including invoking the contempt jurisdiction of this Court. It is also clarified that during this period i.e. from the date of judgment till 30/06/2022, the Petitioner shall be liable to pay the rent due along with electricity charges in the form of compensation to the Respondents. No equity and/or rights however, can be claimed by the Petitioner on the basis of being permitted to continue in possession of the suit premises during this period from 02/11/2021 to 30/6/2022 and also on account of payment of compensation directed hereinabove.

17. With the above observations, the instant proceedings are disposed off leaving the parties to bear their own costs so far as the instant proceedings are concerned. Send the LCR back.

JUDGE Comparing Assistant