Gauhati High Court
Md. Nizamuddin Ahmed vs On The Death Of Ahmed Hossain His ... on 4 March, 2022
Page No.# 1/34
GAHC010058862021
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRP/34/2021
MD. NIZAMUDDIN AHMED
S/O LATE SHAH MOHAMMAD, R/O HOUSE NO. 45, SIJUBARI IDGARH
ROAD, P.S. HATIGAON, GUWAHATI 38, DIST. KAMRUP (M), ASSAM.
VERSUS
ON THE DEATH OF AHMED HOSSAIN HIS LEGAL HEIRS HABIBUL NESSA
AND 6 ORS (B)
R/O HOUSE NO. 77 ANUPAM NAGAR, P.S. HATIGAON, GUWAHATI 38, DIST.
KAMRUP (M), ASSAM.
2:FATEMA HASAN
R/O HOUSE NO. 77 ANUPAM NAGAR
P.S. HATIGAON
GUWAHATI 38
DIST. KAMRUP (M)
ASSAM.
3:IBRAHIM HASAN
R/O HOUSE NO. 77 ANUPAM NAGAR
P.S. HATIGAON
GUWAHATI 38
DIST. KAMRUP (M)
ASSAM.
4:IMRAN HASAN
R/O HOUSE NO. 77 ANUPAM NAGAR
P.S. HATIGAON
GUWAHATI 38
DIST. KAMRUP (M)
ASSAM.
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5:UMAR HASAN
R/O HOUSE NO. 77 ANUPAM NAGAR
P.S. HATIGAON
GUWAHATI 38
DIST. KAMRUP (M)
ASSAM.
6:FAUJIA HASAN
R/O HOUSE NO. 77 ANUPAM NAGAR
P.S. HATIGAON
GUWAHATI 38
DIST. KAMRUP (M)
ASSAM.
7:FARHAN HASAN
R/O HOUSE NO. 77 ANUPAM NAGAR
P.S. HATIGAON
GUWAHATI 38
DIST. KAMRUP (M)
ASSAM
Advocate for the Petitioner : MR. S P ROY
Advocate for the Respondent : MR. A IKBAL
BEFORE
HONOURABLE MR. JUSTICE DEVASHIS BARUAH
JUDGMENT AND ORDER (CAV)
Date : 04.03.2022
Heard Mr. S.P. Roy, the learned counsel appearing on behalf of the
petitioner, and Mr. A. Ikbal, the learned counsel appearing on behalf of the
Respondents.
2. For the convenience of this Court the parties in the instant proceedings
are referred to in the same status as they stand before the Trial Court. The brief
facts of the instant case is that one Ahmed Hossain (since deceased) who is the
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predecessor-in-interest of the Respondent Nos.1 to 7 herein filed the suit being
Title Suit No.154/2017 against the Petitioner herein. In the said suit the said
Ahmed Hossain claimed to be the owner in respect to premises measuring 20 ft.
X 32 ft. standing over a plot of land measuring 1 Katha 5 Lechas covered by Dag
No.727/728 included in K.P. Patta No.252 of Village-Borsojai under Mouza-
Beltola in the District-Kamrup (M), Assam. The said room has been more
specifically described in the schedule to the plaint and for the sake of
convenience hereinafter referred to as "the Schedule Premises". The Schedule
Premises was rented out initially for a period from 01.01.2012 to 31.12.2012 at
monthly rent of Rs.7,100/- and during the pendency of the said lease, an
agreement was entered into on 12.03.2012. Due to various ailments of the
original plaintiff, he wanted to engage his son in a business for earning
livelihood and accordingly a business was set-up on the side of the Schedule
Premises. Due to increase in demand and the business having expanded the
plaintiff and his son required a larger area for which the plaintiff decided to evict
the defendant on the expiry of the tenancy, more so, as the Schedule Premises
was a temporary structure which was required to be repaired and the plaintiff
had plans to make a permanent structure over the said plot of land. Accordingly,
a notice dated 05.12.2012 was issued for vacating the aforesaid schedule
premises.
3. Immediately thereupon after receiving the said notice the defendant filed
an application under Section 11 of the Arbitration and Conciliation Act, 1996 (for
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short 'the Act of 1996') which was registered and numbered as Misc.(R) Case
No.549/2012 before the Court of the Additional District Judge No.1. Further to
that, the plaintiff also alleged in the plaint that the defendant was a defaulter in
payment of monthly rent since February, 2013. On the basis of the said
averments the suit was filed for declaration of right and interest over the
schedule premises in favour of the plaintiff in terms of tenancy agreement dated
12.03.2012 and for recovery of possession of the suit premises by evicting the
defendant from the suit premises. The said suit was filed on 19.04.2013 and
was registered and numbered as Title Suit No.154/2013. At this stage it may be
relevant to mention that at the time of filing of the suit the Court Fee of
Rs.2691.10 was paid. It is also relevant herein to mention that in paragraph 2 of
the plaint it has been mentioned that owing to the original plaintiff suffering
from various ailments he had appointed his brother one Ahmad Hussain
Chawdhury as his lawful attorney for the schedule premises and he was
competent to file the plaint on his behalf.
4. The defendant filed the written statement on 09.02.2015. In the said
written statement it was contended that in view of the Arbitration Clause in the
Tenancy Agreement dated 12.03.2012, the parties are liable to be referred for
arbitration. It was also mentioned that initially the tenancy between the parties
commenced vide agreement dated 01.02.2011 w.e.f. 01.02.2011 for a period of
11 (eleven) months in respect of a tenanted room measuring 10 ft. X 15 ft.
against the payment of monthly rent of Rs.2,500/- payable within the 7th day of
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each English calendar month plus electricity charges and pursuant to the
agreement dated 01.02.2011, an amount of Rs.1,00,000/- was paid by the
defendant to the plaintiff on account of security deposit/advance rent which was
refundable upon vacation of the tenanted premises. It was also mentioned that
after entering into the Tenancy Agreement dated 01.02.2011 the defendant
started his business of office/home furnishing in the tenanted room against
payment of the monthly rent and electricity charges to the plaintiff regularly and
by obtaining necessary trade licence from the GMC, Guwahati in the name of
M/s Nice Furnishing. The defendant had also obtained a credit facility/loan
amounting to Rs.7,00,000/- from the United Bank of India which was continued.
In paragraph 8 of the written statement it was further mentioned that during
the continuance of the tenancy created by Tenancy Agreement dated
01.02.2011 it was verbally agreed between the parties that the plaintiff shall
rent out the schedule premises to the defendant for a further period of 1 (one)
year w.e.f. 01.01.2012 against the payment of the monthly rent of Rs.7,100/-
only payable within the 7th day of each English calendar month plus electricity
charges as per meter reading installed in the tenanted premises. The defendant
as per the said verbal agreement was required to pay an amount of
Rs.2,00,000/- to the plaintiff on account of security deposit/advance rent which
was refundable upon termination and/or vacation of the schedule premises after
necessary adjustment of dues payable by the defendant to the plaintiff.
Accordingly the defendant paid an additional amount of Rs.1,00,000/- totalling
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to Rs.2,00,000/- to the plaintiff and has been continuing his business in the
Schedule Premises against regular payment of monthly rent and electricity
charges. The Agreement of Tenancy dated 12.03.2012 was duly admitted and
as per the defendant the said amount of Rs.2,00,000/- was still lying with the
plaintiff.
5. As regards the claim of the plaintiff of bonafide requirement, the
defendant stated that neither the plaintiff nor any of his sons/daughters are
carrying on any business in any room near the schedule premises and therefore,
question of increasing demands for his business and/or expansion of the said
business did not arise. It was also mentioned that there were three shop rooms
including the Schedule Premises which belongs to the plaintiff. Out of the three
shop rooms, one shop room is under the occupation of the defendant; another
shop room measuring 6 ft. X 21 ft. has been rented out to one Md. Rafique Ali
who is running his business in the name of M/s Oigi Choice and the third shop
room is presently vacant. It is the contention of the defendant that the plaintiff
keeping the third room vacant clearly shows that the plaintiff did not have any
bonafide requirement in respect to the schedule premises. Further to that, it was
also mentioned that the plaintiff had two daughters and four sons and out of
the said six children except one Fatema Khatoon who is 22 years all other
children of the plaintiff are minors and as such the question of doing business
by the side of the Schedule Premises and/or expansion of the said business
either by the plaintiff or by any of the sons or daughters as alleged do not
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arise.
6. As regards the question of defaulter, it was mentioned in paragraph 14 of
the written statement that the defendant is not a defaulter in payment of the
monthly rent since February 2013. It has been mentioned that as per the
agreement dated 12.03.2012 the monthly rent of Rs.7,100/- is payable within
the 7th day of each English calendar month but the authorized representative of
the plaintiff namely Ibrahim Hassan collected the rent as per his convenience as
would be evident from the rent receipts dated 12.12.2012 and 08.01.2013. It
has also been stated that sometime the plaintiff used to collect the said monthly
rent for two or three months at a time through his authorized representative i.e.
his son. In the said paragraph it was also mentioned that the plaintiff
collected/received the rent for the month of December, 2012 on 08.01.2013 but
the plaintiff did not collect/receive the monthly rent for the months of January
2013 and February 2013 even after being tendered by the defendant on it
becoming due, to the authorized son by asking the defendant to wait for some
time till filing his reply in Misc.(R) Case No.549(K)/2012. It was also mentioned
that on 07.04.2013 when the defendant tendered the rent for the months of
January, 2013, February, 2013 and March, 2013 amounting to Rs.21,300/-, the
plaintiff refused to accept the same and under such circumstances the
defendant deposited the rent of Rs.21,300/- in the Court on 12.04.2013 as per
the provisions of Assam Urban Rent Control Areas Act, 1972 (for short 'the Act
of 1972'). It has also been mentioned that since then the defendant had been
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regularly depositing the rent of Rs.7,100/- in the Court till date. At this stage, it
may also be relevant herein to mention that there is no pleading that pursuant
to the deposit made on 12.04.2013 the defendant had tendered the rent to the
plaintiff and thereafter deposited the monthly rent to the Court. It was also
mentioned that on 29.06.2013 the plaintiff disconnected the electricity supply to
the schedule premises for which the defendant filed an interlocutory application
for restoration of the electricity supply to the Schedule Premises which was
allowed directing the plaintiff to restore the electricity supply to the Schedule
Premises vide an order dated 23.09.2013 and accordingly the electricity supply
to the Schedule Premises was restored on 10.12.2013 and since then the
defendant is paying the electricity charges regularly to the ASEB directly. Apart
from that, it was also mentioned that the security deposit/advance rent of
Rs.2,00,000/- paid by the defendant to the plaintiff is still lying with the plaintiff
till date without any adjustment and therefore, in view of the same the
defendant is not a defaulter in payment of rent as alleged by the plaintiff.
7. Pursuant to the filing of the written statement, the plaintiff had filed an
amendment application under Order VI Rule 17 on 27.02.2015 registered as
Misc. (J) Case No.77/2015. It also reveals that the defendant had also filed an
application under Section 8 of the Act of 1996 for referring the parties to
arbitration by dismissing the suit in view of the Clause 14 of the Agreement
dated 12.03.2012 entered between the parties to the suit on 09.02.2015
registered as Petition No.248/2015. It may be relevant to mention that the said
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application under Section 8 of the Act of 1996 was filed on the date when the
written statement was filed. The record further shows that the Defendant till
09.02.2015 never informed the Court that the Defendant would be filing an
application under Section 8 of the Act of 1996. The Trial Court vide an order
dated 01.03.2016 rejected the said application under Section 8 of the Act of
1996 holding inter alia that an eviction or a tenancy matter is not an arbitrable
dispute and in spite of the existence of an arbitration clause the same cannot
bar the jurisdiction of the Civil Court to decide the matter arising out of landlord
tenancy relationship which is regulated under the provisions of the Act of 1972.
At this stage, it is pertinent to note that with effect from 23.10.2015, a new
clause being Clause (a) was inserted to Section 37 (1) of the Act of 1996 vide
the Arbitration and Conciliation (Amendment) Act, 2015 whereby an appeal was
provided in respect to orders passed refusing to refer the parties under Section
8 of the Act of 1996. Admittedly such appeal was not filed against the order
dated 1/3/2016.
8. Vide the said amendment application as mentioned herein above, a prayer
being (ii)(a) was added and certain amendments were carried out to the
description of the schedule premises as described in the schedule to the plaint.
Subsequent thereto vide another order dated 30.05.2016 the amendment
application was allowed and thereby 02.07.2016 was fixed for filing of the
amended plaint. It is relevant herein to mention that the Trial Court while
allowing the said amendment application allowed it without any precondition
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and thereby the said amendment dates back to the date of filing of the suit. The
relevant portion of the said order dated 30/5/2016 passed in Misc. (J) Case
No.77/2015 is quoted herein below.
"On perusal of the case-record, it is revealed that the trial has not
yet commenced. It is further revealed that it is a landlord-tenant suit.
Therefore, as per the provision of Order VI Rule 17 of the Code of Civil
Procedure, 1908, this Court can allow the petition for the amendment of
the plaint which is necessary for deciding the real questions in
controversy. The suit is filed for recovery of arrear rent and bonafide
requirement of the suit premises. Therefore, proposed amendment is
necessary for deciding the real questions in controversy. There must be
specific description of the boundary in the plaint; otherwise the court
will face difficulties in the execution of the decree if there is no specific
description of the subject matter.
Upon considering all, the petition is allowed.
Accordingly, the Misc.(J) case is disposed of."
9. In the meantime, on 14.06.2016 the original plaintiff expired and
accordingly on 28.07.2016 an application was filed for substituting the legal
representatives of the original plaintiff which was allowed and the Trial Court
thereafter fixed the matter on 12.08.2016 for amended plaint and the said
amended plaint was also filed on 12.08.2016 itself. Pursuant thereto on
20.01.2017 the additional written statement was filed.
10. At this stage it may be relevant to mention that prior to the amendment
carried out to the plaint on 19.06.2015, four Issues were framed which were -
1. Whether there is cause of action for the suit?
2. Whether the defendant has violated the terms and conditions
of the tenancy agreement dated 12.03.2012?
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3. Whether the suit premises is bona fide required by the
plaintiff?
4. Whether the plaintiff is entitled to the Decree as prayed for?
Subsequent thereto on 04.03.2017 another issue was framed as
an additional issue i.e. whether the defendant is a defaulter under the
Assam Urban Areas Rent Control Act, 1972 for having defaulted in
paying the monthly rent since the month of February, 2013?
11. The plaintiff adduced evidences of 2 (two) witnesses and exhibited various
documents marked as Exhibit-1 to Exhibit-4. The defendant adduced himself as
the sole witness and exhibit various documents exhibited as Exhibit-1 to Exhibit-
10.
12. The Trial Court vide the judgment and decree dated 26.06.2018 decreed
the suit in favour of the plaintiff. As regards the Issue No.3 which is as to
whether the plaintiff had bonafide requirement, the Trial Court after taking into
the consideration the evidence of PW-1 and PW-2 and more particularly PW-2
who testified that he does not have any other source of income except his
poultry business which is run from the space near the Schedule Premises and
the said business is required to be expanded and that the said evidence of the
witness could not be shaken during cross-examination and the self admission of
the defendant in his cross-examination that there is a bonafide requirement of
the schedule premises of the landlord and his family members decided the said
issue in favour of the plaintiff holding inter alia that the schedule premises is
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bonafide required by the plaintiff.
13. As regards the issue pertaining to defaulter in payment of rent, the Trial
Court held that the defendant having self admitted that he had deposited the
rent for the month of January, February and March, 2013 amounting to
Rs.21,300/- which is not the mandate of the provisions of the Act of 1972, the
defendant was a defaulter in payment of the rent. Further to that, the Trial
Court also took into account that the defendant in his cross-examination had
duly admitted that as per the Clause 12 of the Tenancy Agreement dated
12.03.2012 the rent is to be enhanced @3.34% p.a. and accordingly w.e.f.
01.01.2013 the tenant ought to have paid Rs.7,337/- as monthly rent to the
plaintiff and as the defendant himself admitted that he has been depositing
Rs.7,100/- per month after 01.01.2013, he was a defaulter in payment of rent.
Consequently, on the basis of the decision in respect to the Issue no.3 and Issue
No.5 the Trial Court held that the defendant was a defaulter in payment of rent
and that the plaintiff required the schedule premises bonafide and accordingly
decreed the suit in favour of the plaintiff.
14. Feeling aggrieved and dissatisfied the defendant as appellant preferred an
appeal before the Court of Civil Judge No.1, Kamrup (M) at Guwahati and the
said appeal was registered and numbered as Title Appeal no.42/2018. A perusal
of the Memo of Appeal would disclose that the grounds of objection taken
therein were the existence of an arbitration clause which was not taken into
consideration while deciding the jurisdiction of the Trial Court; the findings of
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the Trial Court were perverse; that the Trial Court committed grave error by
holding that the appellant/defendant was a defaulter for depositing the rent in
the Court when the lawful rent was refused; that the Trial Court decided the
issue of bonafide requirement in favour of the plaintiff without the plaintiff
proving their financial capacity or type of business they are planning to start and
that the plaintiff did not abide by Clause 14 of the Tenancy Agreement as there
was no effort by the plaintiff to settle amicably the dispute/difference/anomalies
with the defendant.
15. The First Appellate Court vide the judgment and decree dated 21.12.2020
decreed the suit in favour of the plaintiff. In doing so the First Appellate Court at
paragraph 13 of the impugned judgment and decree observed that the point of
determination for adjudicating the appeal relates to the Issue No.2, 3 and 5
which pertains to bonafide requirement of the schedule premises and default in
payment of rent and accordingly took up the three issues for decision. In
deciding the Issue no.2 the First Appellate Court upheld the findings of the Trial
Court that before depositing the rent in the Court the defendant did not offer to
the plaintiff and there being no refusal by the plaintiff and as such the deposit in
the Court is not valid in law and was in violative of the provisions of Section 5(4)
of the Act of 1972. It was also observed that though the house rent for the
months of January 2013 onwards were deposited in the Court the notice was
never issued to the plaintiff informing about the deposit which is a mandatory
requirement as per the provisions of the Act of 1972. Further to that the
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Appellate Court also took into consideration the admission of the defendant that
for the month of September, 2013 he had not deposited the rent in the Court
and exhibited a handwritten receipt which had not been proved.
16. While deciding the Issue No.3, the First Appellate Court upon perusal of
the materials on record came to a finding that the appellant/defendant could
not substantiate their plea that there existed a third room which was vacant and
further held that mere existence of another room will not disentitle the plaintiff's
bonafide requirement where the plaintiff had been able to show (i) requirement
of the additional space on account of expanding of the business and (ii) the
other premises being on rent to another tenant. It was also taken note of that
the plaintiff could prove that the suit premise is an old one and it requires
substantial renovation and construction.
17. As regards the Issue No.5, the defendant in his cross-examination having
admitted that as per Clause 12 of the Tenancy Agreement dated 12.03.2012,
the rent was to be enhanced @ 3.34% p.a. and accordingly on 31.12.2012 the
rent increased to Rs.7,337/- and from 01.01.2013 the defendant was supposed
to pay Rs.7,337/- as monthly rent to his landlord and admittedly the defendant
had been depositing the monthly rent @ Rs.7,100/- even after 01.01.2013, the
First Appellate Court held that the defendant was a defaulter in payment of rent
in respect to the suit premises and concluded that the Trial Court had rightly
come to the conclusion on the Issue No.3 and 5 and on the basis thereof
confirmed the judgment and decree dated 26.06.2018 passed by the Trial Court.
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The First Appellate Court further directed the appellant/defendant to vacate the
suit premises within 60 days w.e.f the date of the judgment and to deliver the
possession to the plaintiff and in the event of failure by the defendant to vacate
the suit premises, the plaintiff was held to be entitled to take delivery of the suit
premises through the Executing Court with cost incurred therefore.
18. Feeling aggrieved and dissatisfied with the confirmation of the judgment
and decree passed by the Trial Court dated 26.06.2018 by the First Appellate
Court by the judgment and decree dated 21.12.2020, the defendant as the
Petitioner has filed the instant writ petition under Article 115 of the Code of Civil
Procedure.
19. 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 Revisional 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 by 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 miscarriage of justice. In other words, interference with an incorrect
finding of fact for the purpose of exercising revisional jurisdiction must be
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understood in the context, where such findings is perverse, based on no
evidence or misreading 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
miscarriage of justice.
20. In the backdrop of the above, let me take into consideration the
contentions raised by the parties before this Court. Mr. S.P. Roy, learned Counsel
on behalf of the Petitioner submits that both the Trial Court as well as the First
Appellate Court did not take into consideration the existence of the arbitration
clause and thereby did not decide the question of the bar under Section 5 of the
Act of 1996. He further submitted that the Trial Court pursuant to the
amendment carried out vide the order dated 30.05.2016 did not have the
pecuniary jurisdiction to decide the suit in as much as, on the date which the
amendment was carried out the value of the suit had increased beyond
Rs.2,00,000/-. He further submitted that both the Trial Court as well as the First
Appellate Court did not take into consideration that an amount of Rs.2,00,000/-
was lying as a security deposit/advance in the hands of the plaintiff and as such
the defendant cannot be held to be a defaulter unless the defendant was in
arrears. He in that regard referred to the agreement dated 12.03.2012 exhibited
as Exhibit-2 and more particularly to Clause 2 which stipulates that the tenant
has paid an amount of Rs.2,00,000/- as security deposit to the landlord which
the landlord duly receipt/acknowledged and admitted the same shall be
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refunded at the time of termination and/or vacation of the commercial rented
premises. He further contended that in view of the unreported judgment of this
Court in the case of Rashmi Deka Baishya vs Tribodh Kumar Das this Court had
categorically held that default of the tenant as regards payment of rent in the
case of advance lying with the landlord would be when the arrears of the
particular period did not cover the advance amount lying with the landlord and
upon being adjusted if the tenant is in arrears then the tenant would be
regarded as a defaulter in payment of rent. He submitted that allegation in the
plaint was that for the month of February 2013 onwards there was no payment
of rent and the suit was filed on 19.04.2013 and at that very point of time the
rent deposited for the month of January, February, March 2013 were not in
accordance with Section 5(4) of the Act of 1972 but in view of the advance lying
with the plaintiff, the defendant cannot be held to be a defaulter in payment of
rent. He submitted that as the records would show that the plaintiff himself did
not file the suit and the suit was filed through his power of attorney agent and
even after the death of the original plaintiff and the substitution of the legal
representatives of the plaintiff the suit was continued through the power of
attorney agent but the evidence given by the power of attorney agent who is
the PW-1 could not have been taken into consideration by the Trial Court as it is
no longer res integra that a power of attorney agent cannot give evidence
except if he has personal knowledge of the facts and the dispute. As regards the
question of bonafide requirement he submits that findings of both the Courts
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below were perverse as both the Courts below did not take into consideration in
the proper perspective that there were three rooms of which one of the room
was vacant and as it is the case of the plaintiff/landlord who has to prove
bonafide requirement it was burden of the plaintiff to prove that there was no
third room which is vacant. He further submitted that both the Courts below did
not take into consideration that mere wish of the landlord cannot be construed
to be a bonafide requirement in as much as, the materials on record would
clearly go to show that the plaintiff's alleged bonafide requirement was nothing
but a mere wish to oust the defendant from the tenanted premises.
21. On the other hand, Mr. A Ikbal, learned counsel appearing on behalf of the
respondent/plaintiff submits that the bar under Section 5 of the Act of 1996
does not apply to the instant case in as much as the petitioner having filed an
application under Section 8 of the Act of 1996 which was dismissed vide Order
dated 01.03.2016 and there was no appeal being filed the said aspect of the
matter has already attained finality. Further to that he submits that in a recent
judgment of the Supreme Court in the case of Vidya Drolia V. Durga Trading
Corporation reported in (2021) 2SCC 1 had categorically held that landlord-
tenant disputes covered and governed by Rent Control Legislation would not be
arbitrable when a specific court or forum has been given exclusive jurisdiction to
apply and decide specific rights and obligations. As regards the contention of
the petitioner that as on the date on which the amendment was carried out the
value of the suit had increased beyond Rs.2Lakhs and therefore beyond the
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pecuniary jurisdiction of the Court of the Munsif, the learned counsel submits
that such plea has not been taken by the petitioner either before the Trial Court
or the Appellate Court. He refers to Section 21 of the Code of Civil Procedure,
1908, wherein sub-Section (2) of Section 21 stipulates that no objection as to
the competence of a court with reference to the pecuniary limits of a jurisdiction
shall be allowed by any Appellate or Revisional Court unless such objection was
taken in the court of the first instance at the earliest possible opportunity, and in
all cases, where issues are settled at or before such settlement and unless there
has been consequent failure of justice.
22. As regards submission made by the petitioner/defendant to the effect that
there was an amount of Rs.2 Lakhs held by the respondent/plaintiff landlord as
security deposit and as such the petitioner/defendant cannot be held to be a
defaulter, the learned counsel for the respondent/plaintiff, Mr. A. Ikbal submits
that a perusal of the agreement exhibited as Exhibit- 2 and more particularly to
Clause 2 stipulates that the said amount of Rs. 2 Lakhs shall be returned at the
time of termination and/or vacation of the commercial rented premises. He
further refers to Clause 12 of Exhibit- 2 and submits that in case of
termination of the tenancy agreement before the tenancy period, the landlord
would have to return the security money to the tenant and/or return the
remaining balance of deposit advance money to the tenant. He further submits
that the amount of Rs. 2 Lakhs although not admitted by the
respondents/plaintiffs at best is a security money/security deposit which could
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be returned only after vacating the scheduled premises. He further submits that
the said amount of Rs. 2 Lakhs being received and held on by the landlord is
not admitted and this aspect of the matter would be further clear from the
cross-examination of the petitioner/defendant who was the sole defendant
witness. He refers to the part of the cross-examination wherein the
petitioner/defendant had denied that he had paid the amount of Rs. 2 Lakhs to
the landlord as security deposit. And as such, the learned counsel submits that
in view of the clear admission on the part of the defendant/petitioner, that he
had not paid the amount of Rs. 2 Lakhs, the question of the
petitioner/defendant claiming that there is an amount of Rs.2,00,000/- lying
with the landlord does not arise. He further submitted that it is an admitted fact
that with effect from 01.01.2013, the petitioner was required to deposit the
enhanced rent of Rs. 7,337 which is duly admitted by the petitioner/defendant
during his cross-examination and the petitioner/defendant also having admitted
that for the months of January, February and March 2013, he had deposited
altogether an amount of Rs. 21,300/- violates the mandate under Section 5(4)
of the Act of 1972 on the ground of not depositing the lawful rent which was
Rs. 7,337/- with effect from 01.03.2013, as well as also not depositing the rent
within a fortnight of its due before the Court. He therefore submits that these
factual aspects of the matter have been duly taken into consideration by both
the Courts below and accordingly, had come to a finding that the petitioner is a
defaulter in payment of rent. As regards the question of bonafide requirement,
Page No.# 21/34
the learned counsel for the respondent/plaintiff submits that the
plaintiffs/respondents have duly proved that they have bonafide requirement of
the suit premises by giving cogent evidence. He submits that when the
petitioner has alleged that there exists a third room for which the
respondents/plaintiffs did not have a bonafide requirement of the suit premises
it was a burden upon the petitioner/defendant to prove the existence of the
third room. He further submits that for the purpose of bonafide requirement of
a landlord what is required is that it must be something more than a mere
desire but must not certainly be a compelling or absolute or dire necessity. A
bonafide requirement is something between a mere desire or wish, on the one
hand, and a compelling or dire necessity on the other hand. He submits the
factual aspects of the matter have been duly taken into consideration by the
Courts below and there is a concurrent finding of fact that the
plaintiffs/respondents herein has bonafide requirement of the suit premises.
23. I have heard the learned counsels for the parties and given my anxious
consideration to the matter. Let this Court first take into consideration the
contentions as regards maintainability of the suit and that the Trial Court did not
have the pecuniary jurisdiction as raised by the learned counsel for the
petitioner/defendant. The first contention so made is that in view of the
existence of an arbitration agreement the Court did not have the jurisdiction to
entertain the dispute. As has been already noted hereinabove, the
petitioner/defendant filed his application under Section 8 on 09.02.2015 at the
Page No.# 22/34
time when the written statement was filed. A perusal of the records would show
that the petitioner/defendant had time and again only sought time for filing of
the written statement. A perusal of Section 8 of the Act of 1996 stipulates that
the said application has to be filed not later than the date of submitting his first
statement on the substance of the dispute. In the instant case, on 09.02.2015,
along with submitting the written statement the petitioner/defendant submitted
the application under Section 8 of the Act. The record further reveals that the
Trial Court on 01.03.2016 rejected the said application under Section 8 of the
Act of 1996 interalia holding that eviction or tenancy matter is not an arbitrable
dispute and inspite of the existence of any arbitration clause, the same cannot
bar the jurisdiction of the Civil Court to decide the matter arising out of
landlord-tenancy relationship which is regulated under the provision of the Act
of 1972. Further to that it is also relevant to take note that with effect from
23.10.2015, a new clause being Clause (a) was inserted to Section 37(1) of the
Act of 1996 vide the Arbitration and Conciliation (Amendment) Act, 2015,
whereby an appeal was provided in respect to orders passed refusing to refer
the parties under Section 8 of the Act of 1996. No appeal however was filed
against the order dated 01.03.2016, whereby the application under Section 8 of
the Act of 1996 was rejected. Moreover, a perusal of the judgment of the
Supreme Court in the case of Vidya Drolia (Supra), more particularly paragraph
80 would show that when landlord-tenant disputes are covered and governed by
the Land Control Legislation, the same are not arbitrable. Paragraph 80 of the
Page No.# 23/34
said judgment is quoted hereinbelow:
"80. In view of the aforesaid, we overrule the ratio laid down in
Himangni Enterprises and hold that landlord-tenant disputes are
arbitrable as the Transfer of Property Act does not forbid or foreclose
arbitration. However, landlord-tent disputes covered and governed by
rent control legislation would not be arbitrable when specific court or
forum has been given exclusive jurisdiction to apply and decide special
rights and obligation. Such rights and obligations can only be
adjudicated and enforced by the specified court/forum, and not through
arbitration."
24. It would also be relevant herein to mention that on one hand the
petitioner seeks to claim benefits under the Act of 1972 which is a Rent Control
Legislation on the basis of which the petitioner/defendant is claiming, and on
the other hand contends that the dispute in question ought to be decided in
terms with the Transfer of Property Act, thereby, the said dispute should be
adjudicated by way of arbitration. This dual stance taken by the petitioner
cannot be permitted as it would amount to permitting the petitioner/defendant
to approbate and reprobate at his own sweet will. Apart from that the Order
dated 01.03.2016 having attained finality, the petitioner cannot raise the
question that in view of the arbitration Clause, the suit was not maintainable.
25. The second ground which pertains to pecuniary jurisdiction of the Trial
Court to the effect that pursuant to the amendment allowed on 30.05.2016, the
value of the suit had increased beyond Rs. 2 Lakhs and as such the Court of the
Munsif did not have the pecuniary jurisdiction to decide the said dispute. In
paragraph 8 of the instant judgment, the fact pertaining to amending the plaint
Page No.# 24/34
has been mentioned and the relevant portion of the order dated 30.05.2016 has
been quoted. A perusal of the said portion of the order would reveal that the
said amendment was allowed without any condition and thereby applying the
doctrine of Relation back, the amendment would be deemed to have been made
as on the date of filing the suit. In the backdrop of the said, if this Court look
into the insertion of the prayer (ii)(a), it would reveal that the decree is for
recovery of rent from the month of February 2013 till the date of judgment, and
also till the date of realization of the total amount of arrear of house-rent from
the petitioner/defendant. As the amendment dates back to the date of filing of
the suit, the arrear rent would be calculated from February 2013 till realization
and as such the question of the value of the suit exceeding or going beyond Rs.
2 Lakhs does not arise. It would also be relevant to take note that pursuant to
the amendment being allowed, and the amended plaint being filed on
12.08.2016, the petitioner/defendant submitted an additional written statement
on 20.01.017. In the additional written statement filed on 20.01.2017, there is
not a single whisper that the said Court did not have the pecuniary jurisdiction
to decide the suit. Record reveals that as many as five issues were framed and
the petitioner/defendant did not raise any objection as regards the pecuniary
jurisdiction of the Court. Under such circumstances, by virtue of Section
21(2) of the Code of Civil Procedure, it is therefore, the opinion of this Court
that the petitioner cannot be permitted to raise such issues on the question of
the competence of the Court with respect to the pecuniary limits of the
Page No.# 25/34
jurisdiction before this Revisional Court.
26. In the backdrop of the above, let this Court take into consideration as to
whether there is any error in exercise of jurisdiction and/or there is any illegality
or material irregularity in the exercise of jurisdiction by the Courts below within
the limited jurisdiction conferred upon this Court under Section 115 of the Code,
in respect primarily, to the two issues so framed as to whether the
petitioner/defendant was a defaulter in payment of rent and whether the
respondents/plaintiffs had bonafide requirement of the suit premises.
27. First, let this Court take into consideration as to whether both the Courts
below had committed any illegality or material irregularity in exercise of its
jurisdiction or had committed any jurisdictional error in deciding that the
petitioner/defendant is a defaulter in payment of rent. The facts which are
necessary to be taken into consideration is that the plaintiffs/respondents allege
that from the month of February 2013 no rent has been paid. The
petitioner/defendant in his written submission had admitted that for the months
of January, February and March 2013, he could not pay the rent as the landlord
did not accept it and as such on 12.04.2013 he deposited the rent for the
months of January, February and March 2013 amounting to Rs. 21,300/- before
the Court. Although the written statement was filed on 09.02.2015 there is no
statement in the written statement or even in the additional written statement
filed on 20.01.017, that pursuant to 12.04.2013, the defendant/petitioner had
tendered the rent to the plaintiffs/respondents and upon refusal had deposited
Page No.# 26/34
the monthly rent to the Court. It is the case of the defendant/petitioner that an
amount of Rs. 2 Lakhs is lying as security deposit with the landlord. In terms
with Clause 2 and Clause 10 of the agreement dated 12.03.2012 marked as
Exhibit- 2 it would reveal that the said amount is security deposit and shall be
retuned at the time of termination and/or vacation of the suit premises. It was
the pleaded case of the defendant that the said amount of Rs. 2 Lakhs was lying
as security deposit with the landlord and therefore, the burden lies upon the
said defendant/petitioner to prove that the said amount of Rs. 2 Lakhs was lying
with the plaintiff/landlord. Though the defendant/petitioner in his written
statement had categorically state that the said amount of Rs. 2 Lakhs was lying
as security deposit, but as it is well-settled that pleading is not proof, it was
necessary for the petitioner to prove that the said amount of Rs. 2 Lakhs was
lying with the landlord as security deposit. In the cross-examination of the
defendant/petitioner, he had, however, denied that he paid this amount of Rs. 2
Lakhs as security deposit and this aspect of the matter would be clear from the
following cross-examination which is quoted hereinbelow:
"It is not a fact that I paid Rs. 1 Lakh which is security deposit to
my landlord.
It is not a fact that I paid another amount of Rs. 1 Lakh in total
Rs. 2 Lakhs to my landlord Ahmed Hasan as security deposit."
From the above quoted cross-examination it would be clear that the
petitioner/defendant had duly admitted that he did not pay the amount of Rs. 2
Lakhs as security deposit. In view of the categorical admission this Court cannot
Page No.# 27/34
therefore hold that the amount of Rs. 2 Lakhs was lying as security deposit.
Further to that it is also relevant to take note that it is an admitted case as per
Exhibit- 2 as well as from the admission made by the petitioner/defendant in his
cross-examination that with effect from 01.01.2013, the rent ought to have
been Rs. 7,337/-. In this regard, relevant portion of the cross-examination is
quoted hereinbelow:
"As per the said agreement dated 12.03.2012, I am possessing
the tenant premises till date. The said tenancy agreement expired on
31.12.2012 (Clause '7'). As per Clause '11' of the tenancy agreement
dated 12.03.2012, there was a Clause for enhancing of rent at the rate
of 3.34% per annum after the expiry of tenancy on 31.12.2012, the
rent increased and it became Rs. 7,337/-, so from 01.01.2013, I was
supposed to pay Rs. 7,337/- as the monthly rent to pay landlord
Ahmed Hasan (since deceased)".
However, it being the admitted case of the petitioner/defendant that for
the months of January/February and March, 2013, and thereafter also he has
been depositing Rs. 7,100/- per month which cannot be a lawful rent within the
meaning of Section 5(4) of the Act of 1972 and consequently, the petitioner is a
defaulter in payment of rent. These aspects of the matter have been duly taken
into consideration by both the Trial Court and the first Appellate Court while
coming to a finding that the petitioner/defendant is a defaulter in payment of
rent and this Court, therefore, does not find any perversity in such findings.
Accordingly this Court, therefore, affirms both the concurrent findings of facts
arrived at by both the Courts below that the petitioner is a defaulter in payment
of rent.
Page No.# 28/34
28. The next question which arises is to whether the plaintiffs/respondents
had bonafide requirement of the suit premises. The facts in hand shows that
apart from pleadings in the plaint that the suit premises was required by the
plaintiffs/respondents in order to engage his son in business to earn livelihood
as the business was being carried out on the side of the suit premises and in
view of the increasing demand in the business requiring a larger space for which
the suit premises was urgently required for bonafide purpose and it was also
pleaded that the suit premises is a temporary structure/ ekcha house which is
urgently required to be repaired and the landlord was planning to make
permanent structures over the plot of land. The evidence-in-chief of the PW-2
who was the son of the original plaintiff/respondent and the plaintiff himself
after the demise of his father had stated that as his uncle i.e., the PW-1 had
engaged him in a poultry business in the premises near the suit premises and
due to his hard work and sincerity the business expanded and he was in need of
more space to extend his business to augment his income, the suit premise was
bonafide requirement. It was also mentioned in his evidence on affidavit by the
PW-2 that the suit premises is a temporary structure and in a dilapidated
condition and require urgent repair works and as such the PW-1 decided to
undertake repair works and make the temporary structure into a permanent
structure. The PW-1 had in his evidence affidavit also given evidence in
consonance with the statements made by the PW-2. From the cross-
examination of the plaintiffs/respondents witnesses it would be seen that their
Page No.# 29/34
evidence in so far as the bonafide requirement of the suit premises could not be
dislodged.
29. The defendant in his examination-in-chief had stated that there is no
bonafide requirement as in the third room, the plaintiff/respondent was running
their boiler business and if the plaintiff/respondent wanted to extend their
business they should have sought for eviction of the other tenant and not the
petitioner. However, in his cross-examination, the defendant duly admits that
the plaintiff/respondent and their family members have bonafide requirement
and as such they have filed the instant suit for eviction. The relevant portion of
the cross-examination is quoted hereinbelow:
"There is a bonafide requirement of the landlord and his family
members and as such they have filed the instant writ for eviction"
30. As regards the question as to whether the respondents/plaintiffs were
trying to evict the defendant/petitioner on a bonafide requirement of the suit
premises or it was their mere wish to evict the defendant/petitioner for reasons
other than bonafide, it would be relevant to take note of the judgment of the
Supreme Court in the case of Raghunath G. Panghale (dead) by LRS. V.
Chaganlal Sundarji and Co. reported in (1999) 8SCC 1 and more particularly to
paragraph 9, 10 and 11 which is quoted hereinbelow:
"9. Next comes the decision of this Court in A.K. Veeraraghava
Iyengar v. N.V. Prasad, AIR (1994) SC 2357. In that case, this Court
observed that the need was bonafide and that the tenant failed to
adduce any evidence against the "experience of landlord, his financial
Page No.# 30/34
capacity and his readiness and willingness to start jewellery shop". In
Vinay Kumar and Ors. v. District Judge, Ghazipur and Ors., [1995]
Suppl. 2 SCC 586, it was contended for the tenant that the son of the
landlord whose requirement was pleaded, was in government service
and, therefore, he could not have any bona fide need to start private
practice as a doctor. This contention was rejected. In Rena Drego (Mrs.)
v. Lalchand Soni and Ors., [1998] 3 SCC 341 it was observed that in the
light of the factual position in that case, "where the (landlady) says that
she needs more accommodation for her family, there is no scope for
doubting the reasonableness of the requirement" It was held that the
circumstances of the case raised a presumption that the requirement
was bonafide and that "tenant has failed to show that the demand for
eviction was made within any oblique motive". It was held that in the
absence of such evidence by the tenant, the presumption of the bona
fide need stood unrebutted. In Sarla Ahuja v. United India Insurance
Co., [1998] 8 SCC 119 it was again observed that the Court should not
proceed on the assumption that the requirement of the landlord was
not bona fide and that the tenant could not dictate to the landlord as to
how he should adjust himself without getting possession of the
tenanted premises. It was stated in Prativa Devi (Smt.) v. T.V. Krishnan,
[1996] 5 SCC 353 and in Meenal Eknath Kshirsagar v. Traders and
Agencies & Another, [1996] 5 SCC 344, that the landlord was the best
judge of his requirement. In Smt. Sheela Chadha and Ors. v. Dr.
Accharaj Ram Sehgal, [1990] Suppl. SCC 736, it was held that the
landlord had the discretion to determine his need. See also in this
connection the judgment of this Court in Shiv Sarup Gupta v. Dr.
Mahesh Chand Gupta, [1999] 6 SCC 222. In Raj Kumar Khaitan and
Ors. v. Bibi Zubaida Khatun and Anr., [1997] 11 SCC 411, this Court had
even stated that it was not necessary for the landlord to state in the
pleadings, the nature of the business he proposed to start.
10. In the light of the above principles, we shall now examine the
decision of the courts below. In this case, the plaintiff No. 1/3 (one of
the legal representative of the deceased plaintiff) came forward with
the plea that he was in service of Metal Box Co. and since January
1988, due to lock-out, the company was closed down and he was not
having any source of income and therefore, he wanted to earn his
livelihood by opening a grocery-shop The trial Court and the first
Page No.# 31/34
appellate Court observed that it was necessary that plaintiff should
prove that he had lost his job and was unable to maintain his family.
This, according to the said courts, was belied by the fact that in the
amendment application and affidavit, the plaintiff No. 1/3 described his
occupation as `service' and that, therefore his evidence was not
acceptable. It was further held that his evidence that he lost his job on
15.1.1958 must also be rejected. The envelope containing notice of
lock- out from the company and news item in newspaper would not, it
was observed, prove the lock out. The notice showed only an intention
to lock-out from 5.2.1988. It was stated that no documentary evidence,
was produced to prove that the said plaintiff lost his job. The trial Court
in fact went into the definition of `lock-out' in the Industrial Disputes
Act, 1947 and held that by a lock-out, the plaintiff would not lose his job
permanently and that he would get his wages when the lock-out was
lifted. As the plaintiff also admitted that there was a sign board at his
house, with the words `Ganesh Water Supply', the plaintiff must be
deemed to have started some other business. The plaintiff's evidence
that he was maintaining himself by taking loans from friends was not
proved by adducing other evidence. He had not taken steps to purchase
furniture to furnish the proposed grocery shop and never thought of the
capital required for the business. On this material, it was held that no
case was made out that he was not able to maintain his family. Yet
another reason was that during his father's life time, he, the plaintiff
never thought of running a grocery shop. The plaintiff admitted that he
did not resign his job. He thus had no intention of permanently running
a grocery shop. It was not proved he had knowledge of grocery
business. These are the reasons given by the trial court and the first
appellate court for rejecting the appellant's case. The High Court
rejected the application under Article 227 on the ground that concurrent
findings of fact could not be interfered with.
11. It will be seen that the trial Court and the appellate Court had
clearly erred in law. They practically equated the test of "need or
requirement" to be equivalent to "dire or absolute or compelling
necessity". According to them, if the plaintiff had not permanently lost
his job on account of the lock-out or if he had not resigned his job, he
could not be treated as a person without any means of livelihood, as
contended by him and hence not entitled lo an order for possession of
Page No.# 32/34
the shop. This lest, in our view, is not the proper test. A landlord need
not lose his existing job nor resign it nor reach a level of starvation to
contemplate that he must get possession of his premises for
establishing a business. The manner in which the courts have gone into
the meaning of "lock-out" in the Industrial Disputes Act, 1947 appears
to us to be nothing but a perverse approach to the problem. One
cannot imagine that a landlord who is in service should first resign his
job and wait for the unknown and uncertain result of a long drawn
litigation. If he resigned his job, he might indeed end up in utter
proverty. Joblessness is not a condition precedent for seeking to get
back one's premises. For that matter assuming the landlord was in a job
and had not resigned it or assuming that pending the long drawn
litigation he started some other temporary water business to sustain
himself, that would not be an indication that the need for establishing a
grocery shop was not a bona fide or a reasonable requirement or that it
was motivated or was a mere design to evict the tenant. It is not
necessary for the landlord to adduce evidence that he had money in
deposit in a Bank nor produce proof of funds to prove his readiness and
willingness as in a suit for specific performance of an agreement of sale
of immovable property. So far as experience is concerned, one would
not think that a grocery business was one which required extraordinary
expertise. It is, therefore, clear that the entire approach of both the
Courts was absolutely wrong in law, and perverse on fact. Unfortunately
the High Court simply dismissed the writ petition filed under Article
227 stating that the findings were one of fact. That is why we think that
this is an exceptional case calling for interference under Article 136 of
the Constitution of India."
31. From the above judgment it would be clear that for the purpose of
bonafide requirement of a landlord what is required is that it must be something
more than a mere desire, it need not certainly be a compelling or dire necessity.
A bonafide requirement is something in between a mere desire or wish on the
one hand and a compelling or dire or absolute necessity on the other. The
findings of both the Courts below would clearly go to show that the
Page No.# 33/34
plaintiffs/respondents had bonafide requirement of the suit premises and I do
not see any perversity in the findings. Accordingly the concurrent findings of
facts arrived at by both the Courts below are hereby affirmed.
32. Taking into consideration that the defendant/petitioner has been carrying
on his business of furnishing since long it would be just reasonable to grant the
petitioner/defendant six months of time to vacate the suit premises provided the
petitioner/defendant submits an undertaking before the Trial Court within
19.03.2022 to the fact that he shall vacate the suit premises within a period of
six months from the date of the instant judgment i.e., on or before 03.09.2022.
Failure to submit the undertaking within a period as stated herein the
plaintiffs/respondents shall be entitled to initiate the execution proceedings for
evicting the defendant/petitioner. It is made clear that if the petitioner fails to
vacate after giving an undertaking within the period as mentioned hereinabove,
the respondents shall not only be entitled to initiate execution proceedings but
also shall be entitled to initiate contempt proceedings before this Court. It is
also clarified that during this period of six months the defendant/petitioner shall
continue to make payment of an amount of Rs. 9,542/- per month in the form
of compensation to the plaintiffs/respondents. The said compensation is worked
out on the basis of increase in rent by 3.34% per annum as is the admitted case
of the parties herein. It is further observed that granting of extension of the
period of six months subject to filing undertaking as aforesaid and the payment
of compensation of Rs. 9,542/- per month during this period of six months shall
Page No.# 34/34
not create any right or interest in favour of the defendant/petitioner in respect
to the suit premises. It is also clarified that during this period the
defendant/petitioner shall remain in possession of the suit premises as the
custodian of the plaintiffs/respondents and shall not carry out/do any act or
cause anything to be done in any manner whatsoever which may affect the
rights of the plaintiffs/respondents over the suit premises in any manner
whatsoever.
33. The respondent/plaintiff shall be entitled to rent for the period of eviction
proceedings either through adjustment from the rent deposited in the Court (if
any) or by making an application before the executing Court to decide on the
entitlement of the rent during the pendency of the eviction proceedings and the
executing Court would permit the defendant/petitioner herein to controvert the
allegations of non-payment/reduced payment of rent during the eviction
proceedings and thereupon decide in accordance with law.
34. With the above observation the instant Petition stands dismissed.
JUDGE
Comparing Assistant
