Bhupendra Kumar Das vs Anima Prava Das
2022 Latest Caselaw 1404 Gua

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GAHC010131552019




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

                                Case No. : CRP/83/2019

            BHUPENDRA KUMAR DAS
            S/O- SRI LAKSHI KANTA DAS, R/O- H.NO. 8, PIYOLI PUKHAN ROAD,
            REHABARI, GHY-8, DIST- KAMRUP (M) ASSAM, M.NO. 8811092738, EMAIL-
            [email protected]



            VERSUS

            ANIMA PRAVA DAS
            W/O- SRI BHABEN CHANDRA DAS, R/O- K.C.SEN ROAD, SOLAPARA,
            PALTANBAZAR, P.S. PALTANBAZAR, GHY-8, DIST- KAMRUP (M), ASSAM



Advocate for the Petitioner   : MR H MAURYA

Advocate for the Respondent : MR H K SARMA

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BEFORE HONOURABLE MR. JUSTICE PARTHIVJYOTI SAIKIA

JUDGMENT AND ORDER 28 .04.2022

Heard Mr. K. N. Choudhury, learned senior counsel appearing for the petitioner and Mr. H. K. Sarma, learned counsel for the respondent.

2. This is an application under Section 115 of the Code of Civil Procedure whereby the order dated 07.05.2019 passed by the Civil Judge No. 1, Kamrup (M), Guwahati in Title Appeal No. 07/2017 upholding the judgment and decree dated 23.12.2016 passed by the Munsiff No. 1,Kamrup (M), Guwahati in Title Suit No. 307/2012 and thereby dismissing the title appeal with cost.

3. The respondent filed a title suit being T. S. No. 307/2012 against the petitioner praying for his ejectment from the suit premises.

4. The petitioner contested the suit of the respondent by filing written statement. The petitioner has admitted to be a tenant under the respondent. He repudiated the pleading of the respondent that the suit property is required for his bonafide use.

5. The trial court decreed the suit of the respondent.

6. The first appellate court dismissed the appeal.

7. Aggrieved by the said judgment, the present application has been filed.

8. I have given my anxious consideration to the submissions made by the learned counsel for both the parties.

9. The respondent filed the suit against the petitioner on the ground of bonafide requirement. It was pleaded that the suit property is required for the married daughter of the respondent, who wanted to start a new business.

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10. The petitioner repudiated the said pleading by claiming that the pleading of the respondent is not bonafide. The petitioner further submitted that he has a wine shop license which was given to him by the government considering the locality of the premises and if he is to vacate the tenanted premises his license will be cancelled. The petitioner submits that the bonafide requirement of the respondent is a feigned one.

11. In the case of Ram Dass v. Ishwar Chander, reported in (1988) 3 SCC 131, the Hon'ble Supreme Court has held as under:

"10. It is, no doubt, true that the question whether the requirement of the landlords is bona fide or not is essentially one of fact, notwithstanding the circumstance that a finding of fact in that behalf is a secondary and inferential fact drawn from other primary or perceptive ones. All conclusions drawn from primary facts are not necessarily questions of law. They can be, and quite often are, pure questions of fact. The question as to bona fide requirement is one such.

11. Statutes enacted to afford protection to tenants from eviction on the basis of contractual rights of the parties make the resumption of possession by the landlord subject to the satisfaction of certain statutory conditions. One of them is the bona fide requirement of the landlord, variously described in the statutes as "bona fide requirement", "reasonable requirement", "bona fide and reasonable requirement" or, as in the case of the present statute, merely referred to as "landlord requires for his own use". But the essential idea basic to all such cases is that the need of the landlord should be genuine and honest, conceived in good faith; and that, further, the court must also consider it reasonable to gratify that need. Landlord's desire for possession however honest it might otherwise be, has inevitably a subjective element in it and that, that desire, to become a "requirement" in law must have the objective element of a "need". It must also be such that the court considers it reasonable and, therefore, eligible to be gratified. In doing so, the court must take all relevant circumstances into consideration so that the protection afforded by law to the tenant is not rendered merely illusory or whittled down."

12. Thereafter, in the case of Prativa Devi vs. T. V. Krishnan, reported in (1996) 5 SCC 353, the Hon'ble Supreme Court has held that the landlord is the best judge to decide his bonafide requirement and courts have no concern to dictate the landlord as to how and in what manner he should live.

13. So, the landlord is the best judge to decide his bonafide requirement. In such a case, even the courts cannot dictate the landlord as to how and in what manner he should use his premises. Therefore, the tenant is not entitled to express his opinion on this subject.

14. In the case in hand, the petitioner has no right to repudiate the claim of Page No.# 4/5

bonafide requirement of the respondent.

15. There is another aspect of this matter. The relationship between a tenant and a landlord in respect of a tenanted property is governed by the Assam Urban Areas Rent Control Act, 1972. Section 8 of the said Act bars filing of a second appeal. Probably, this is the reason why the present application under Section 115 of the CPC has been filed. Section 115 of CPC reads as under: "Section 115. Revision.

[(1)] The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears

(a) to have exercised a jurisdiction not vested in it by law, or

(b) to have failed to exercise a jurisdiction so vested, or

(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity,

the High Court may make such order in the case as it thinks fit:

[Provided that the High Court shall not, under this section, vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding, except where the order, if it had been made in favour of the party applying for revision would have finally disposed of the suit or other proceedings.]

[(2) The High Court shall not, under this section, vary or reverse any decree or order against which an appeal lies either to the High Court or to any Court subordinate thereto.

[(3) A revision shall not operate as a stay of suit or other proceeding before the Court except where such suit or other proceeding is stayed by the High Court.]

Explanation--.In this section, the expression "any case which has been decided" includes any order made, or any order deciding an issue in the course of a suit or other proceeding.]".

16. The power under Section 115 of the Code is a revisional jurisdiction analogous to power of superintendence. The extent of revisional jurisdiction is limited. No decree or judgment can be reversed under Section 115 of the Code. There is a difference Page No.# 5/5

between revisional jurisdiction and appellate jurisdiction. Revisional jurisdiction is always included in appellate jurisdiction but not vice-versa.

17. As a revisional court, this court will not interfere with finding of facts by the courts below. I find no perversity in the impugned judgments passed by the courts below. The judgments are well reasoned one and do not require interference of this court.

18. Under the aforesaid premised reason, the present application is found to be devoid of merit and stands dismissed accordingly.

19. Return the LCR.

JUDGE

Comparing Assistant