Umangkhini Borman Dutta vs Luna Bora
2022 Latest Caselaw 1868 Gua

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GAHC010181972021




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

                              Case No. : CRP/61/2021

            UMANGKHINI BORMAN DUTTA
            W/O SRI DEEP DUTTA, R/O AMOLAPATTY, SIVASAGAR TOWN, P.O.
            SIVASAGAR, P.S. SIVASAGAR, DIST. SIVASAGAR, ASSAM, PIN 785640


            VERSUS

            LUNA BORA
            W/O SRI TUTU BORA, R/O B.G. ROAD, SIVASAGAR TOWN, WARD NO. 13,
            P.O. SIVASAGAR, P.S. SIVASAGAR, DIST. SIVASAGAR, ASSAM, PIN 785640


Advocate for the Petitioner       : Mr. A. R. Shome, Advocate.
Advocate for the Respondents : Mr. P. Kataki, Advocate

BEFORE HONOURABLE MR. JUSTICE DEVASHIS BARUAH

Date of Hearing : 30.05.2022 Date of Judgment : 30.05.2022

JUDGMENT AND ORDER (ORAL)

Heard Mr. A. R. Shome, the learned counsel for the petitioner and Mr. P. Kataki, the learned counsel appearing on behalf of the respondent.

2. This application under Section 115 of the Code of Civil Procedure, 1908 read Page No.# 2/8

with Article 227 of the Constitution of India challenging the judgment and decree dated 06.09.2021 passed by the learned Civil Judge, Sivasagar in Title Appeal No. 08/2020 thereby dismissing the appeal and confirming the judgment and decree dated 17.11.2020 passed by the Court of the Munsiff No. 1, Sivasagar in Title Suit No. 48/2016.

3. For the purpose of convenience, the parties herein are referred to in the same status as they were in the suit.

4. Before entering into the facts of the case, it would be relevant to note that the petitioner has invoked the revisional jurisdiction under Section 115 of the Code of Civil Procedure. It is no longer res-integra that the revisional jurisdiction is limited in scope inasmuch as, the said jurisdiction cannot be exercised to correct errors of facts however gross or even errors of law unless the said error have relation to the jurisdiction of the Court to try the dispute itself. A plain reading of Clauses (a) and (b) of Section 115 is in reference to exercise of jurisdiction by the Court not vested in the Court by law or has failed to exercise jurisdiction so vested in the Court. Clause (c) is in relation to exercise of jurisdiction illegally or with material irregularity. Therefore, under Section 115 of the Code of Civil Procedure a jurisdictional question may arise not only when a Court acts wholly without jurisdiction but also in a case where jurisdictional errors are committed while exercising jurisdiction. There may be various facets of jurisdictional errors for example the finding arrived at is perverse, based on no evidence or misreading of the evidence or such finding has been arrived at by ignoring or overlooking the material evidence or such finding so grossly erroneous that if allowed to stand will occasion in miscarriage of justice. This limited scope is so permitted in view of the fact that the finding of fact recorded by the Court below, if perverse or has been arrived at without consideration of material evidence or such finding is based on no evidence or misreading of evidence or is grossly erroneous that if allowed to stand, it would result in gross miscarriage of justice, is open to correction because it is not treated as a finding according to law. However, as held by the Page No.# 3/8

Constitution Bench of the Supreme Court in the Case of Hindustan Petroleum Corporation Limited vs. Dilbahar Singh, reported in (2014) 9 SCC 78, this Court in order to satisfy itself as regards the regularity, correctness, legality or propriety of the impugned decision or the order cannot exercise its power as an Appellate Court to re- appreciate or re-assesse the evidence to a different finding of fact. This Court in exercise of its revisional jurisdiction is not and cannot be equated with the power of reconsideration of all questions of fact as a Court of First Appeal. In the backdrop of the above proposition the facts material for the adjudication of the disputes involved in the instant proceedings are taken up for consideration.

5. The respondent herein as plaintiff had instituted the suit being registered and numbered as Title Suit No. 48/2016. In the said suit, the plaintiff claimed to be the owner of the schedule property. The said schedule property/the suit property was leased out to the defendant by the deed of lease agreement dated 03.11.2014 for a

period of 11 months starting from the 1st day of November, 2014 to 30th day of September, 2015. The plaintiff further stated as per the said agreement that the rent

was required to be paid within the 10th day of the next month. The defendant, after entering into the lease agreement, started her business in the tenanted premises in the name and style of 'Shivan Dhaba'. It was alleged in the plaint that after a few weeks of formation of tenancy, the defendant surreptitiously started liquor selling business and on coming to know about such illegal and immoral activities, the plaintiff's family kept surveillance on the business of the defendant which fruited in the form of some photographs. Under such circumstances, the plaintiff demanded that the defendant to avoid such unauthorised and offensive business. As the defendant did not yield to the request made, the plaintiff requested the defendant to vacate tenanted premises. Instead of vacating the tenanted premises, the defendant filed a Caveat before the Court of the Munsiff No. 1 Sivasagar. It has been alleged in the said plaint that since the month of October, 2015, the defendant stopped making payment of rent as agreed upon. It was further alleged that the intentional default in making Page No.# 4/8

payment of the monthly rent has made the defendant a defaulter on records and on the score alone the defendant is liable to be evicted from the suit premises. Further to that, the plaintiff also claimed that the plaintiff required the said suit premises for his bonafide use and occupation. On the basis of the said allegation being made, the plaintiff sought for eviction of the defendant, her men and others from the suit premises, for declaring that the activities of selling wine by the defendant in the suit premises as illegal, void etc. as well as for costs of the suit.

6. The defendant filed her written statement. In the said written statement, it was admitted that the defendant is a tenant under the plaintiff in respect to the suit premises measuring 52 ft X 28 ft situated in the first floor of the RCC building of the plaintiff. It was further admitted that the suit premises was leased out to the defendant by the lease agreement dated 03.11.2014 for a period of 11 months starting from 01.11.2014 to 13.09.2015 at the monthly rate of Rs.11,000/- with a condition to renew the period of the same on lapse of the stated period with a clause of 20% enhancement of the stated rent amount. As regards the allegations made in paragraph No. 5 to the plaint to the effect that the defendant is a defaulter, it was mentioned in paragraph No. 9 of the written statement that the monthly rent in respect to the suit premises was being regularly paid to the plaintiff, mostly through the court, under Section 5 (4) of the Assam Urban Areas Rent Control Act, 1972 whenever the plaintiff refused to accept the monthly rent in respect of the suit premises. It was further mentioned in the written statement that there was no outstanding of rent payable currently to the plaintiff and the plaintiff's claim of the suit premises on the ground of bonafide requirement is a plain statement having no legal force.

7. On the basis of the pleadings, the trial court framed as many as 6 (six) issues which for the sake of convenience is stated herein below:

(i) Whether there is any cause of action for the suit?

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(ii) Whether the suit is maintainable in the present form and manner?

(iii) Whether the defendant has defaulted in payment of monthly rent to the plaintiff?

(iv) Whether the suit property is required by the plaintiff for bonafide requirement of his own use and occupation?

(v) Whether the plaintiff is entitled to a decree for eviction of the defendant from the suit property?

(vi) Whether the parties are entitled to any relief(s) under the law (To what relief or relief(s) the parties are entitled to)?

8. The record shows that the plaintiff adduced evidence of two witnesses and exhibited as many as eight documents which were marked as Ext.1 to Ext.8. The defendant did not adduce any evidence.

9. The trial court by the judgment and decree dated 17.11.2020 decreed the suit in favour of the plaintiff thereby passing a decree for eviction of the defendant and her men from the suit premises as well as a decree for arrear rent. It is observed that the plaintiff had taken an amount of Rs.50,000/- from the defendant as a security deposit and the same has not been returned, and as such, while preparing the decree for arrear rent, the said amount of Rs.50,000/- is to be deducted from the total arrear rent amount. In deciding the issue as to whether the defendant has defaulted in payment of monthly rent to the plaintiff, the trial court while deciding the Issue No. 3 came to a finding that as the defendant has failed to bring in any proof as to whether the rent was offered to the landlord and only on her refusal to accept the same had deposited in the court and there was no evidence led to the fact that the rent was duly paid. The said issue that the defendant was a defaulter was held in the affirmative. In deciding the Issue No. 4, the trial court came to a finding that from the perusal of the documents on record, the cross-examination of the plaintiff, the court was not satisfied that there was a bonafide requirement by the plaintiff. In view of the Page No.# 6/8

decision in Issue No. 3, the suit was decreed in favour of the plaintiff.

10. Being aggrieved, the defendant as appellant preferred an appeal before the Court of the Civil Judge, Sivasagar which was registered and numbered as Title Appeal No. 8/2020. The First Appellate Court framed the point for determination as to whether the judgment and decree passed by the trial court in Title Suit No. 48/2016 was just and proper or needs any interference through the appeal. The First Appellate Court, in doing so, took into account the Issue No. 3 and on the ground that the defendant had failed to bring on record any proof as to whether the rent was first offered to the landlord and on her refusal to accept the same, it was deposited in the court and there was no evidence adduced to the effect that the defendant deposited the rent upon refusal of the plaintiff to accept it for which there was non-compliance to the provision of Section 5 (4) of the Act of 1972 and it being an admitted case that the rent for three months was due and there was no rebuttal evidence being adduced, the First Appellate Court decided the appeal against the defendant.

11. Being aggrieved, the defendant, who is the petitioner herein, has preferred the instant revision under Section 115 of the Code of Civil Procedure.

12. I have heard the learned counsels for the parties and given my anxious consideration to the matter. It appears from the records that the plaintiff has specifically stated in her plaint that from October, 2015 onwards till the date of filing of the suit, rent was not paid to the plaintiff as per the agreed terms and conditions. In the written statement, the stand of the defendant was that the monthly rent in respect to the suit premises was being regularly paid to the plaintiff mostly through the court under Section 5 (4) of the Act of 1972 whenever the plaintiff refused to accept it in respect to the suit premises. It is no longer res-integra that it is the burden of the tenant to prove that the tenant is not a defaulter in payment of rent. Further to that, it is also well established that in order to make the deposit in terms with Section 5 (4) of the Act of 1972, the tenant has to prove that upon refusal of the landlord to Page No.# 7/8

accept the rent, the tenant has deposited the rent in the court in the manner stipulated under Section 5 (4) of Act of 1972. As there has been no evidence adduced by the defendant to prove the same that the mandate of Section 5 (4) of the Act of 1972 has been duly complied with, this court is in agreement with the concurrent finding of the facts arrived at by both the courts below and being a revisional court exercising jurisdiction under Section 115 of the Code of Civil Procedure, the concurrent finding of facts arrived at by both the courts below do not show any error in jurisdiction by the courts below in arriving at the decision for which the instant application stands dismissed thereby affirming the judgment and decree dated 06.09.2021 passed by the Court of the Civil Judge, Sivasagar in Title Suit No. 08/2020.

13. Taking into consideration that the defendant has been carrying on her business of a Dhaba since long and Mr. A. R. Shome, the learned counsel appearing for the petitioner/defendant submits that if the defendant is immediately evicted from the suit premises, serious irretrievable injury would be caused to her as it would be very difficult to immediately find an alternative location to carry out of the business, this Court deems it just and reasonable to grant the defendant 6 (six) months of time to vacate the suit premises provided the defendant submits an undertaking before the trial court within 15.06.2022 to the effect that the defendant shall vacate the suit premises within a period of 6 (six) months from the date of the instant judgement, i.e., on or before 30.11.2022. Failure to submit the undertaking within the said period, the plaintiff shall be entitled to initiate execution application for evicting the defendant.

14. It is clarified that during this period of 6 (six) months, ending 30.11.2022, the defendant shall continue to make payment of the amount of rent to which the plaintiff is entitled to per month in the form of compensation to the plaintiff.

15. It is further observed that granting of extension of the period of 6 (six) months subject to filing the undertaking as aforesaid and the payment of compensation during Page No.# 8/8

this period of 6 (six) months shall not create any right or interest in favour of the defendant in respect to the suit premises. It is also clarified that during this period, the defendant shall remain in possession of the suit premises as the custodian of the plaintiff and shall not do any act or acts which may affect the rights of the plaintiff over the suit premises in any manner whatsoever.

16. The plaintiff/respondent herein shall also be entitled to rent for the period of eviction proceedings either through adjustment or from the rent already deposited in the court or by making an application before the Executing Court to decide on her entitlement of the rent during the pendency of the eviction proceedings and the Executing Court would permit the tenant/petitioner herein to controvert the allegation of non-payment of rent during the pendency of the eviction proceedings and thereupon decide in accordance with law.

17. With the above observations, the instant revision petition stands dismissed.

JUDGE

Comparing Assistant