Bachu Das vs Jerina Banu
2021 Latest Caselaw 2678 Gua

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GAHC010074972019




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

                                  Case No. : CRP/50/2019

            BACHU DAS
            S/O LT. DINESH DAS, R/O NEW ANNAPURNA MITHAI BHANDAR,
            OPPOSITE JORHAT PUBLIC BUS STAND, M.G.ROAD, DIST.-JORHAT, PIN-
            785001



            VERSUS

            JERINA BANU
            D/O LT. A. HUSSAIN, W/O DR. J. SAIKIA, R/O TITABOR TOWN, NEAR BASIK
            TINIALI, DIST.-JORHAT, PIN-785630, ASSAM



Advocate for the Petitioner   : MR. PRADIP KUMAR KALITA

Advocate for the Respondent : MR. A SATTAR (R1)




                                   BEFORE
                    HONOURABLE MR. JUSTICE DEVASHIS BARUAH

                                         ORDER

Date : 02-11-2021

Heard Mr. P.K. Kalita, Senior Advocate assisted by Mr. K.R. Barooah, the learned counsel appearing on behalf of the petitioner and Mr. Abdus Sattar assisted by Mr. P.P. Borthakur, the learned counsel appearing on behalf of respondent No. 1.

2. Vide the order passed in I.A. (Civil) No. 3066/2019, this Court had deleted the names Page No.# 2/6

of respondents No. 2 to 10, who were the legal heirs of Lt. Bipin Bihari Das.

3. The present application under section 115 of the Code of Civil Procedure, 1908, is filed challenging the judgment and decree dated 11/12/2018 passed by the Civil Judge, Jorhat, in Title Appeal No. 4/2018, whereby the appeal filed by the petitioner was dismissed, thereby the judgment and decree passed by the Court of the Munsiff No. 1, Jorhat in Title Suit No. 36/2014, dated 30/01/2018 was affirmed. It is relevant to note that the findings as regards the facts are concurrent in nature and under such circumstances, the jurisdiction of the Court to exercise the revisional jurisdiction under section 115 of the CPC would be limited only to error of jurisdiction or perversity of the findings of both the Courts below. It is trite principle of law that this Court does not have the authority to re-appreciate or re-appraise the evidence on record like the First Appellate Court.

4. In the backdrop of the above, it is relevant to take note of the facts material for the purpose of disposal of the instant proceeding. The respondent No. 1 admittedly is the owner of a suit premises admeasuring 28ft. X 27 ft. attached with a front verandah measuring 28 ft. X 6 ft. and a kitchen in the back side, bearing Municipality Holding No. 3 and Ward No. 8 standing over the plot of land covered by Dag No.4478 (Old)/5410 (New) of P.P. No. 6 (Old)/544 (New) of Block No. 2 of Jorhat town Mouza. The said plot of land has been most specifically described in the schedule-"A" of the plaint. It is case of the respondent No. 1 in the suit that the defendants have failed to make payment of the monthly rents from August/September, 2011 onwards, for which the defendants are liable to be evicted. In the paragraph 1 of the plaint, it has been mentioned that the defendant No. 1 (the petitioner herein) is an employee of the defendant No. 2 and the suit premises was originally let out to one Bipin Bihari Das (since deceased) and after the death of Lt. Bipin Bihari Das, the defendant No. 2 is continuing the tenancy and the said business. The respondents No. 3 to 10 were impleaded as defendants as they were the legal heirs of Lt. Bipin Bihari Das. It was specifically mentioned that the appellant (the defendant No. 1) in the suit used to deposit the monthly rents in the name of defendant No. 2 in the said suit filed by the respondent No. 1 herein. The defendants No. 2 to 10 did not file any written statement or contest the suit. The suit was contested by the defendant No. 1(the petitioner herein) by filing his written statement. In the written statement, the petitioner contended that the suit was barred by res Page No.# 3/6

judicata in view of the decision passed in Title Appeal No. 1/2012. In paragraph No. 6, it has been mentioned that there is no agreement of tenancy between the defendant No. 1 and the plaintiff, and as such, the plaintiff was not entitled to claim any relief, as prayed for. It may be relevant herein to take note that in the written statement filed by the defendant No. 1 (the petitioner herein), there is not a single averment that the defendant No. 1 was claiming an independent right dehors the rights of the defendants No. 2 to 10. It is also interesting to note that the defendant No. 1 even did not deny the statements made in paragraph 1 of the plaint wherein, it has been specifically mentioned that the defendant No. 1 is an employee of the defendant No. 2 and functions as per the directions of the defendant No. 2.

5. After perusal of the pleadings as many as 5 issues were framed, which for the sake of convenience are quoted herein-below :-

i) Whether the suit is barred by Res judicata ?

ii) Whether the defendants are tenants under the plaintiff?

iii) Whether the defendants have defaulted in payment of rent ?

iv) Whether the plaintiff is entitled to the decree as prayed for?

v) To what other relief or reliefs the plaintiff is entitled to?

6. The respondent No. 1 adduced as many as three witnesses and exhibited various documents. The defendants including the petitioner did not adduce any evidence. The Trial Court vide the judgment and decree dated 30/01/2018 decreed the suit in favour of the plaintiff i.e., the respondent No.1 herein, holding inter alia that the defendant No. 2 was the tenant of the plaintiff and the defendant No. 2 had defaulted in payment of rent. It was specifically observed, while deciding the issue No. 2 that there was no denial of the fact that the defendant No. 1 is the employee of defendant No. 2, and as such, he cannot be said to be a tenant of the plaintiff. Accordingly, the suit was decreed on contest directing that the defendant No. 2 and all his workmen including the defendant No. 1 were liable to be evicted from the suit premises. It was also held that the plaintiff was entitled to recover Rs.57,600/- as arrear rent and other rents of subsequent months as mentioned in schedule-B from the defendant No. 2. It was further held that the plaintiff was also entitled to get compensation of Rs. 2,000/- per month from the date of default till restoration of khas possession of the suit premises. The plaintiff was also entitled to cost. Being aggrieved, the defendant No. 1 i.e. the Page No.# 4/6

petitioner herein, preferred an appeal, wherein the plaintiff was the respondent No. 1 and the defendants No. 2 to 10 in the suit were the respondents No. 2 to 10 in the appeal.

7. It has been brought to my attention by the learned counsel appearing for the Respondent No. 1 that in the said appeal proceedings, an application No. 581/2018 was filed under the provision of Order I Rule 10(2) of the CPC, whereby the petitioner herein sought deletion of the names of the Respondents No. 2 to 10 and accordingly vide order dated 26/03/2018, the names of the respondents No. 2 to 10 were deleted. It is also relevant herein to mention that the defendant No. 2 to 10 and more particularly the defendant No. 2, who has been held to be a defaulter and liable to be evicted, did not challenge the judgment and decree dated 30/01/2018 and the same had attained finality in so far as the defendants No. 2 to 10 are concerned.

8. The First Appellate Court vide the impugned judgment and decree dated 11/12/2018 confirmed the findings of the Trial Court and accordingly, dismissed the appeal with costs. Against the said judgment and decree dated 11/12/2018 in Title Appeal No. 4/2018 confirming the judgment and decree passed by the Munsiff No. 1 on 20/01/2018 in Title Suit No. 36/2014, the present application under section 115 of the Code of Civil Procedure has been filed seeking interference.

9. I have heard Mr. P.K. Kalita, Senior Advocate assisted by Mr. K.R. Barooah, wherein he submits that the judgment passed by both the Courts below, though concurrent in nature, is a judgment against the defendant No. 2 and the defendant No. 1, i.e., the petitioner herein, has an independent right dehors the right of the defendant No. 2. It has been further contended on behalf of the petitioner that though, the petitioner admits the ownership of the plaintiff in respect to suit premises, the plaintiff cannot by resorting to a proceeding under Assam Urban Area Rent Control Act seek ejectment of the defendant No. 1, who is not a tenant of the plaintiff.

10. On the other hand, Mr. Abdus Sattar, the learned counsel appearing for the respondent No. 1/plaintiff submits that the petitioner neither has nor had claimed an independent status dehors the defendant No. 2 and this aspect of the matter would be apparent from a perusal of the written statement, wherein he has not even denied the averments made in paragraph Page No.# 5/6

1 of the plaint. In this regard, he has relied upon the provisions of Order VIII Rule 3 and 5 of the CPC, wherein it stipulates that unless and until those statements are specifically denied, it will be deemed that there has been an admission. He further submits that the only claim of the petitioner is that the suit was barred by res judicata on the basis of the judgment and decree passed in Title Appeal No. 1/2012 by the Court of the Civil Judge, Jorhat. That case has no relevance in so far as the instant suit is concerned, inasmuch as, the said case was in respect to a suit for bona fide requirement of the suit premises, whereas the present suit is a suit for default in payment of rent. He further submits that it is very important to take note of that the petitioner had filed a joint written statement with the defendant No. 2 in the said suit and in doing so, he had made an averment that the plaintiff (respondent No. 1) did not have a bona fide requirement in respect to the suit premises. He further submits that from the conduct of the petitioner, it would therefore, transpire that the petitioner does not have any independent right dehors the right of the defendant No. 2.

11. I have heard the learned counsel for the petitioner as well as the respondents and have given my anxious consideration to the matter.

12. A perusal of the written statement filed by the petitioner does not in any manner show that the petitioner had claimed any independent right, title and interest over the suit premises dehors the respondent No. 2 and there has been also no denial of the relevant statements made in the plaint, wherein it has been categorically mentioned that the defendant No. 1 (the petitioner herein) is an employee of the defendant No. 2. It is also relevant herein to note that the defendant No. 2 against whom the judgment has been passed, has not chosen to challenge the said judgment. The non-denial of the statements that the defendant No. 1 is an employee of the defendant No. 2 would be deemed that the defendant No. 1 i.e. the petitioner had admitted that he is an employee of the defendant No. 2. Apart from the said admission, it is also relevant to take note that Petitioner had not adduced evidence. In absence of evidence and taking into consideration, the deemed admission, this Court, while exercising the revisional jurisdiction do not find any error of jurisdiction or perversity in the impugned order. Consequently, the Revision Petition lacks merit, for which it is dismissed.

13. At the time of passing of this judgment, the counsel for the petitioner submits that the petitioner is running his business and presently it is the festive season and further on account Page No.# 6/6

of COVID, it would be very difficult on his part to find any alternative space within a short span of time and therefore, upon instructions submits that at least 8(eight) months time should be given to him to vacate the suit premises. The counsel for the respondents, Mr. Abdus Sattar fairly contends that he has no objection if 8(eight) months' time is granted, i.e.

till 30th of June, 2022, provided the Respondent No.1 does not have to file an application for execution in so far as eviction of the petitioner from the suit premises is concerned.

14. 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 No.-1) 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 to 30/6/2022, the Petitioner shall remain in possession as a custodian of the Respondent No-1 and see to it that during this period, the rights of the Respondent No-1 in respect to the suit premises is not adversely affected. 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 2/22/2021 to 30/6/2022. As regards the payment of arrear amount as well as compensation directed by the Trial Court, confirmed by the First Appellate Court, the Respondent No.-1 shall be at liberty to file appropriate application seeking recovery of the said amount.

15. With the above observations, the Revision Petition stands dismissed. The judgment and decree impugned are confirmed. However, no costs.

JUDGE

Comparing Assistant