North Eastern Institute Of Health ... vs Tarakeshwar Kataki
2022 Latest Caselaw 2881 Gua

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GAHC010004672020




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

                                   Case No. : CRP/16/2020

            NORTH EASTERN INSTITUTE OF HEALTH AND ALLIED SCIENCES
            (NEIHAS)
            GUWAHATI, ASSAM, REP. BY ITS CHAIRMAN/ PRESIDENT DR. NIRANJAN
            NATH AND SECY. DR JOYDEEP NATH RESPECTIVELY.



            VERSUS

            TARAKESHWAR KATAKI
            S/O- LT. SARBESWAR KAKATI, R/O- UZANBAZAR, HOUSE NO. 12, NEAR
            CHATRAKAR DEVALAYA, S. KAKATI PATH, P.O. UZANBAZAR, P.S.
            LATASIL, GUWAHATI-1, DIST. KAMRUP(M), ASSAM.


Advocate for the Petitioner   : MR. S SAIKIA

Advocate for the Respondent : MR. N BHARALI

             Linked Case : CRP/15/2020

            NORTH EASTERN INSTITUTE OF HEALTH AND ALLIED SCIENCES (NEIHAS)
            GUWAHATI
             ASSAM
             REP. BY ITS CHAIRMAN/ PRESIDENT DR. NIRANJAN NATH AND SECY. DR
            JOYDEEP NATH RESPECTIVELY.


             VERSUS

            TARAKESHWAR KATAKI
            S/O- LT. SARBESWAR KAKATI
            R/O- UZANBAZAR
            HOUSE NO. 12
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            NEAR CHATRAKAR DEVALAYA
            S. KAKATI PATH
            P.O. UZANBAZAR
            P.S. LATASIL
            GUWAHATI-1
            DIST. KAMRUP(M)
            ASSAM.


           ------------
           Advocate for : MR. S SAIKIA
           Advocate for : MR. N BHARALI appearing for TARAKESHWAR KATAKI



                                     BEFORE
                      HONOURABLE MR. JUSTICE DEVASHIS BARUAH

                                       ORDER

Date : 10-08-2022

Heard Mr. S Saikia, learned counsel for the petitioners and Mr. N Bharali, learned counsel for the respondent.

2. Both the petitions under section 115 of the CPC is directed against the common judgment and decree dated 31.10.2019 passed in Title Appeal No.19/2018 and Title Appeal No.20/2018 by the Court of the Additional District Judge, Kamrup (M) at Guwahati whereby the appeals were dismissed and the judgment and decree dated 25.06.2018 passed by the learned Civil Judge No.1, Kamrup (M) at Guwahati in Title Suit No.167/2014 was upheld.

3. For the purpose of convenience the parties herein are referred to in the same status as they stood before the trial Court.

4. The plaintiff admittedly entered into a tenancy agreement with the defendant on 24.02.2005 initially for a period of 3 years Page No.# 3/9

which was subsequently renewed and the last agreement of renewal was on 18.02.2010 and the monthly rent was fixed at Rs.20,100/-.

5. It was the case of the plaintiff that the plaintiff had invested a huge amount of money towards the purchase of equipments and machineries of internal fittings and fixtures and due to expansion of his institute he was facing space constraint and hence made a proposal for additional space to the defendant. The plaintiff further states in the plaint that the defendant agreed to provide the same by undertaking construction upon the terrace of the building. Accordingly construction was completed around June, 2011 at the cost of Rs.1,50,000/- which was incurred by the defendant and the plaintiff claims to have paid 15% of the expenditure and the sum of Rs.1,50,000/- was duly adjusted against the monthly rent with effect from 01.08.2011. It is the further claim of the plaintiff that the plaintiff used to pay the monthly rent regularly and the defendant upon receipt of the same used to issue receipts. However, when the plaintiff went to offer the rent for the month of April, 2014 the same was refused by the defendant and several attempts were made till 08.05.2014. The defendant asked the plaintiff to vacate the suit premises including the additional space within one month. Under such circumstances, the plaintiff started depositing the rent in the Court. Further to that the plaintiff had also alleged in the plaint that the defendant had threatened the plaintiff to vacate the suit premise. It is under such circumstances, the plaintiff instituted a suit for declaration and permanent injunction which was registered and numbered as Title Page No.# 4/9

Suit No.167/2014 praying inter alia for the tenancy rights of the plaintiff to subsists in respect to the suit premises and the plaintiff is entitled to continue the institute as before in the suit premises. Further to that permanent injunction was also sought for restraining the defendants, his agents etc. from entering into the suit premises and also to restrain them from causing any sort of disturbance, obstructions, annoyance in the peaceful use, occupation and enjoyment of the suit premises.

6. Upon summons being issued the defendant entered appearance and filed the written statement cum counter claim. A perusal of the counter claim shows that the defendant as counter claimant sought for a decree for ejectment of the Plaintiff's Institute together with its Chairman, Secretary, Employees, Agents, Servants, Workman, Laborers etc and/or any other person claiming and/or representing under the Plaintiff Institute from the suit premises as described in Schedule A appended thereto and for delivery of khas possession of the suit premises to the defendant by removing all goods, materials, belongings, furnitures, fixtures etc of the plaintiff from the suit premises as described in the Schedule to the counter claim; a decree for realization of a sum of Rs.1,10,800 being the arrear rent from the months of April 2014 to July 2014 along with interest @ 18% per annum; a decree for realization of future monthly rent of Rs.27,700/- pm from the month of August 2014 till the plaintiff is evicted from the suit premises and the vacant possession of the same to be handed over to the defendant.

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7. A perusal of the counter claim shows that the grounds taken therein was that the plaintiff had defaulted in payment of rent and the suit premises was bonafidely required by the counter claimant as the suit premises was in a dilapidated condition as the suit premises is located in a low lying area for which during the rainy season, the suit premises get inundated by water.

8. The plaintiff filed a written statement to the counter claim filed by the defendant denying the contents of the counter claim and more particularly, the ground that there was a default in payment of rent and that the suit premises was required for bona fide need of the suit premises.

9. On the basis of the pleadings there were as many as 7 issues framed, which were:

1. Whether there is any cause of action?

2. Whether the suit is maintainable in its present form?

3. Whether the plaintiff is defaulted in payment of monthly rent and liable to be evicted from the suit premises as completed by the defendant in the counter claim?

4. Whether the suit premises are bonafide required by the defendant for the purpose of demolishing and construction of multistoried building thereon?

5. Whether the defendant is entitled to any arrear rent?

6. Whether the plaintiff is entitled to get a decree as prayed for?

7. Whether the parties are entitled to any relief(s) as Page No.# 6/9

pleaded in the plaint as well as in the counter claim?

10. In the said suit the plaintiff adduced evidence of two witnesses and exhibited a few documents. The defendant/counter claimant had adduced the evidence of two witnesses and also exhibited a few documents.

11. The trial Court took up the issue Nos.3, 4 and 5 together and came to a finding that from the evidence on record, it appears that there are certain major discrepancies in the evidence of both the plaintiff witness No.1 and 2 with their cross objection in respect of offering of rent to the defendant. It was opined that major inconsistencies create doubt regarding the actual tendering of rent by the plaintiff to the defendant. The trial Court also came to a finding that the deposit of rent by the plaintiff before the Court of the Munsiff was not a valid deposit as per Section 2(a) of the Assam Urban Areas Rent Control Act, 1972 (for short, Act of 1972) and consequently the deposit cannot be held to be lawful under law for which the plaintiff cannot get the benefit under Section 5(4) of the Act of 1972.

12. On the question of bonafide requirement, the trial Court came to a finding that the plaintiff had a bonafide requirement of the suit premises. The trial Court further came to a finding that the defendant/counter claimant was entitled for recovery of arrear rent @ Rs.27,700/-. On the basis of the said findings, the trial Court vide a judgment and decree dated 25.06.2018 decreed the counter claim and dismissed the suit.

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13. Feeling aggrieved and dissatisfied two appeals were preferred before the Court of the Additional District Judge (FTC) No.3, Kamrup (M) at Guwahati which were registered as Title Appeal No.20/2018 and Title Appeal No.19/2018. The First Appellate Court after taking into consideration the contentions and the grounds/objections so raised in the memos of appeal framed the point of determination "whether the judgment and decree passed by the ld. Trial Court below is perverse and needs interference of this Court?"

14. The First Appellate Court after taking note of the evidence on record came to a finding that the Plaintiff was defaulter in payment of rent; the suit premises was bonafide required by the Defendant and the defendant/counter claimant was entitled to recovery of rent @ Rs.22,160 with effect from April 2014. It is under such circumstances vide the judgment and decree dated 03.10.2019 both the appeals were dismissed thereby affirming the judgment and decree passed by the Trial Court.

15. In the meantime, immediately after the judgment and decree passed by the trial Court, the counter claimant had filed an application seeking execution of the judgment and decree dated 25.06.2018 in Title Suit No.167/2014. The said execution application was filed before the Court of the learned Civil Judge No.1, Kamrup (M) at Guwahati and was registered and numbered as Title Execution Case No.54/2018.

16. It has been submitted by the learned counsel appearing on behalf Page No.# 8/9

of the respondent/counter claimants that prior to the filing of the instant revision applications, the decree has already been executed on 20.11.2019 and possession of the suit premises was duly delivered to the counter claimant. In that regard the learned counsel also draws the attention of this Court to the report of the Nazir dated 20.11.2019 which duly records the fact that the decree has been duly executed. A copy of the said report has been submitted before this Court which is kept on record and marked with the letter - 'X'.

17. The learned counsel for the respondent/counter claimant further submits that pursuant to the execution of the decree, the building in question has already been demolished and construction of the said multistoried building to his knowledge is at very advance stage and it is after the said execution of the decree, both these applications have been filed under Section 115 of the Code, 1908 challenging the judgment and decree dated 30.10.2019 passed in Title Appeal No.19/2018 and Title Appeal No.20/2018.

18. After perusal of the materials on record and the facts above mentioned, it would show that both the First Appellate Court and the Trial Court have arrived at a concurrent finding of fact that the plaintiff was a defaulter in payment of rent and there was a bonafide requirement in respect to the suit premises as the building in question was in a dilapidated condition and required urgent demolition and construction. This finding of fact so arrived at, cannot be questioned in a proceeding under Section 115 of the Code unless and until the petitioner is able to show that there was perversity in the findings Page No.# 9/9

arrived at by the courts below. However, it is relevant to take note of that the petitioner have not been able to show that the findings arrived at by the Courts below suffers from any perversity and as such, the question of interference with the judgment and decree dated 03.10.2019 in Title Appeal No.19/2018 and Title Appeal No.20/2018 is not called for.

19. Consequently, both the petitions being devoid of any merit stands dismissed.

20. Send down the LCR.

JUDGE

Comparing Assistant