Abdul Noor vs Saukat Mazid @ Babul Mazid
2021 Latest Caselaw 2897 Gua

                                                                                 Page No.# 1/7

GAHC010003112020




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

                                   Case No. : CRP/3/2020

            ABDUL NOOR
            S/O- LATE TOTA MIA, R/O- KALIBARI, P.O AND P.S- DIBRUGARH, ASSAM



            VERSUS

            SAUKAT MAZID @ BABUL MAZID
            S/O- LATE ABDUL MAZID, R/O- PANCH ALI (KUMARPATTY), P.O AND P.S-
            DIST- DIBRUGARH, ASSAM, PIN- 786001



Advocate for the Petitioner   : MR S ISLAM

Advocate for the Respondent : MR. P J SAIKIA

BEFORE HONOURABLE MR. JUSTICE DEVASHIS BARUAH

JUDGMENT & ORDER (ORAL) Date : 16-11-2021

Heard Mr. P.K. Roy Choudhury, the learned counsel appearing on behalf of the

petitioner and Mr. PJ Saikia, the learned counsel appearing on behalf of the respondent.

2. This is a proceeding under Section 115 of the Code of Civil Procedure, 1908

challenging the judgment and decree dated 08/11/2019 passed in Title Appeal No. 10/2017 Page No.# 2/7

by the Court of the Civil Judge, Dibrugarh, whereby the suit filed by the plaintiff seeking

eviction of the defendant was decreed.

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

4. In the backdrop of the above said law and the limits of jurisdiction to be exercised by

the Court, the factual matrix of the case is that the respondent as plaintiff instituted a suit

being Title Suit No. 48/2012 whereby it was pleaded that the respondent is the landlord of

the suit premises and he had let out the suit premises to the petitioner herein at the monthly

rent @ Rs. 650 per month, which fell due at the end of every English Calendar month. It is

the specific case of the respondent in the suit that the petitioner who is the defendant in the Page No.# 3/7

suit failed to make payment of the rent since the month of June, 2009, and as such, the

petitioner herein is a defaulter in payment of rent. It is also alleged in the plaint that in the

month of January, 2010, the respondent came to learn that the petitioner herein was

planning to sub-let the suit to one Mr. Karthick Bhumis, which resulted in an altercation

between the petitioner and the respondent. It has also been pleaded that the petitioner used

to threaten the respondent with filing of criminal case against him and when the respondent

requested the defendant to clear the outstanding rent, the defendant replied that he had

deposited the rent to the Court. It was only in the month of October 2010, the respondent

came to learn that the petitioner had deposited the rent for the month of September, 2010,

without tendering the rent to him, to the Court. On the said factual matrix the respondent

instituted the said suit seeking eviction of the defendant on the ground that he is a defaulter

in payment of rent. The petitioner filed his written statement denying the statements and

allegations made in the plaint and for the sake of convenience, paragraph 10 and 14 are

quoted here-n-below :-

"10. That the averments made in the Para 5 of the Plaint are not admitted. It

is submitted that no monthly rent till date in stopped for the suit premises for

any month in any manner, earlier it was collected from the defendant and paid

up to the month of August,2010 but in fact the same is deposited into the Court

under Assam Urban Area Rent Control Act to save himself from being a

defaulter, on refusal to accept the same by the Plaintiff and the same is paid up

to date.

14. That the allegation of Para 10 in the Plaint is partly admitted and partly

denied.

Page No.# 4/7

It is submitted that it is correct that the rent for the suit premises is

regularly depositing into the Court at Dibrugarh in favour of the Plaintiff after

his refusal to accept the same, but it is denied that the defendant is a defaulter

in payment of the rent for the month of June, 2009."

5. It would reveal from the above statements made in paragraph 10 and 14 of the

written statement that it is the specific stand of the petitioner herein that he had been paying

rent regularly to the respondents till August 2010 and thereafter the petitioner had been

depositing the rent in the Court to save himself from being a defaulter. It is also stated in

paragraph No. 14 of the written statement that the petitioner had been regularly depositing

the rent in the Court at Dibrugarh after the respondent had refused to accept the same.

6. On the basis of the pleadings as many as 4 issues were framed which are quoted here-

in-below :-

              (i)        Whether the suit maintainable ?

              (ii)       Whether the defendant is a defaulter of payment of rent for the suit

                      premises ?

              (iii)     Whether the plaintiff is entitled to the reliefs so claimed for ?

              (iv)      To what reliefs the plaintiff is entitled to ?

7. Issue No. (ii) is the issue as to whether the petitioner is a defaulter in payment of rent.

Although it is the established principle of law that it is the burden of the tenant to prove that

he is not a defaulter, the Trial Court by placing the burden upon the landlord held that the

respondent, who is the landlord failed to prove the burden that the petitioner is a defaulter in

payment of rent. Accordingly, on the basis of the findings in respect to issue No. (ii) the suit Page No.# 5/7

was dismissed.

8. Feeling aggrieved and dis-satisfied with the judgment and decree dated 21/09/2017

passed in Title Suit No. 48/2012, the respondent preferred an appeal before the Court of the

Civil Judge at Dibrugarh, which was registered and numbered as Title Appeal No. 10/2017.

The First Appellate Court vide the judgment and decree dated 08/11/2019 came to a finding

that the petitioner herein was a defaulter in payment of rent and consequently, decreed the

suit in favour of the respondent. Against the said judgment and decree dated 08/11/2019

passed in Title Appeal No. 10/2017, the petitioner has approached this Court by invoking the

revisional jurisdiction under Section 115 of the CPC.

9. In the backdrop of the above, if the facts are looked into, it would be seen that it is an

admitted fact that the tenancy was oral and the plaintiff (the respondent herein) has

specifically asserted that since June,1999 the defendant/petitioner herein had failed to make

payment of the rent. The defendant categorically stated in the written statement that till

August, 2010 he had been making payment of the rent directly to the plaintiff and since then

he had been depositing the rent to the court on refusal by the plaintiff. On the other hand, if

the evidence is looked into more particularly the defendant himself who is the DW -1

categorically admits that he used to pay the rent by going to the house of the plaintiff, who is

also known as Babul Mazid and used to pay rent within the 1 st week of the succeeding

months. He further admits that since August, 2010 he had not been to the house of the

plaintiff as the rent has been deposited in the Court. He also stated in his evidence that he

deposited the rent for the month of March, 2010 in the Court in Misc. (NJ) Case No. 203/2010

on 18/02/2010 and has been depositing the rent from March 2010 in the Court. When the law Page No.# 6/7

categorically prescribes that it is the burden upon the tenant to prove that he is not a

defaulter in payment of rent and further in order to give benefit under Section 5 of the Assam

Urban Areas Rent Control Act, 1972, it is also the mandate of law that provisions of Section 5

(4) is duly complied with. The contradictory stand taken by the tenant i.e. the petitioner

herein in his pleadings as well as in his evidence does not inspire the Court to exercise the

revisional jurisdiction and consequently as the tenant has failed to discharge his burden as

envisaged under the law, I am of the opinion that the judgment and decree passed by the

First Appellate Court decreeing the suit in favour of the plaintiff does not call for any

interference.

10. During the course of hearing, the counsel appearing for the petitioner Mr. PK Roy

Choudhury submits that 6(six) months may be granted to the petitioner to vacate the suit

premises and to seek for alternative arrangement. Mr. PJ Saikia the learned counsel appearing

for the respondent submits that he has no objection if the period of 6(six) months is granted,

provided the petitioner vacates the suit premises on or before 15/05/2022. In this regard, he

further submits that the plaintiff had already filed a Execution Case being Title Execution Case

No. 49/2019 which have been stayed by this Court by an order dated 10/01/2020.

11. In view of the above, I think it would be proper to direct the petitioner to file an

undertaking before the Executing Court on or before 15/12/2021 to the effect that the

petitioner shall be vacating the suit premises on or before 15/05/2022 and failing which the

Executing Court shall proceed with the execution of the Decree in accordance with law. It is

clarified that the possession of the Petitioner during this period upto 15/5/2022 on the basis

of the undertaking so to be submitted, shall be that of custodian of the Respondent in respect

of the suit premises and the petitioner shall not do or cause to do anything during this period Page No.# 7/7

till handing over of possession to the Respondent which might adversely impact and/or effect

the rights of the Respondent in respect to the suit premises. It is also clarified that the

permission to remain in possession during this period upto 15/05/2022 in terms with the

order and on the basis of the undertaking so to be filed, shall not confer any right or interest

upon the petitioners in respect to the suit premises.

12. It is also observed that if the Petitioner fails to file the undertaking within the time so

stipulated herein, the Executing Court shall proceed with the Execution of the Decree.

13. With the above observation, the revision petition stands dismissed No costs.

JUDGE

Comparing Assistant