Gauhati High Court
CRP/17/2025 on 19 August, 2025
GAHC010019282025
THE GAUHATI HIGH COURT AT GUWAHATI
(The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh)
Principal Seat at Guwahati
CRP No. 17/2025.
Shri Ashok Baishya,
S/o Late Prabhat Chandra Baishya,
R/o House No. 15, Santipur Main Road, Guwahati - 09,
Dist. - Kamrup (M), Assam.
...... Petitioner.
-Versus-
1. M/S Orient Motors,
76 M.S. Road, Athgaon, Baishya Building,
Near Gol Building,
Guwahati - 781001,
Dist. - Kamrup (M), Assam.
2. Sri Binoy Choudhury,
S/o Late S.N. Choudhury.
3. Sri Mukesh Pareek,
S/o Late Sita Ram Pareek.
...... Respondents.
Page 1 of 29
BEFORE
HON'BLE MR. JUSTICE ROBIN PHUKAN
Advocate for the petitioner :- Mr. S. Ali.
Advocate for the respondents :- Mr. G.N. Sahewalla,
Ms. K. Bhattacharya.
Date of Hearing :- 15.07.2025.
Date of Judgment & Order :- 19.08.2025.
JUDGEMENT & ORDER (CAV)
Heard Mr. S. Ali, learned counsel for the petitioner and Mr.
G.N. Sahewalla, learned senior counsel, assisted by Ms. K.
Bhattacharya, learned counsel for the respondents.
2. In this appeal, under Section 115 of the Code of Civil
Procedure, read with Section 151 of the said Code, the petitioner has
put to challenge the correctness or otherwise of the judgment and
decree, dated 21.12.2024, passed by the learned Civil Judge (Senior
Division) No. 2, Kamrup (M) at Guwahati (appellate court
hereinafter), in Title Appeal No. 24/2022.
3. It is to be noted here that vide impugned judgment and decree
dated 21.12.2024, the learned appellate court had allowed the
appeal filed by the respondents herein and dismissed the cross-
objection filed by the petitioner and thereafter, reversed the
judgment and decree dated 23.08.2022, passed by the learned
Munsiff No. 2, Kamrup (M) at Guwahati (trial court hereinafter), in
Title Suit No. 235/2016.
Background Facts:-
4. The background facts, leading to filing of the present appeal,
are adumbrated herein below:-
"The petitioner, as plaintiff, had instituted a title suit, being
Title Suit No. 235/2016, against the present respondents,
before the learned Munsiff No. 2, Kamrup (M) at Guwahati,
seeking a decree of ejectment of the respondents/defendants,
basically on two grounds:-
(i) defaulter and
(ii) bona-fide requirement and also for realization of
arrear rent.
In the aforementioned title suit, the respondents, on
receipt of notice, entered appearance and contested the suit by
filing joint written statement. Thereafter, the learned trial
court, after hearing learned counsel for both the parties and
also considering the evidence brought on record, had decreed
the suit, only on the ground of bona-fide requirement. But, it
had decided the ground of defaulter, in favour of the
respondents.
Then being aggrieved, the respondents herein, had
preferred an appeal, being Title Appeal No. 24/2022, before
the learned appellate court. In the said appeal, the petitioner,
being aggrieved with the finding of the learned trial court, on
the point of defaulter had filed a cross-objection. But, the
learned appellate court, after hearing advocates of both the
parties, had allowed the appeal and dismissed the cross-
objection vide impugned judgment and decree dated
21.12.2024."
5. Being aggrieved, the petitioner has preferred the present
petition challenging the aforesaid judgment and decree on the
following grounds:-
(i) That, the learned appellate court had misread,
misinterpreted and misconstrued the relevant provisions
of law and the rules framed there under, presently
holding the field, and arrived at an erroneous finding;
(ii) That, the learned appellate court had failed to appreciate
that the respondents had failed to produce or exhibit, the
Cheque No. 000279, dated 07.01.2016, by which the
respondents alleged that the rent was tendered by them
to the petitioner/landlord and that the said cheque was a
vital piece of evidence to show that the respondents had
offered and tendered rent for the month of December,
2015, on 07.01.2016, and as the respondents miserably
failed to produce the said document, it is established that
the respondents had failed to tender the monthly rent for
the month of December, 2015 to the petitioner and as
such, the respondents are defaulters and not liable to get
the protection under the Assam Urban Areas Rent Control
Act, 1972 (1972 Act hereinafter) and that the learned
appellate court, having held that the Judgment and
Decree dated 21.12.2024, with respect to issue No. 3 is
liable to be set aside and thereby reversed the same;
(iii) That, the learned appellate court, without considering
Section 5(4) of the 1972 Act, had held that the
respondents had made valid deposit and as such, they
are entitled to get the benefit under Section 5(4) of the
1972 Act and that the learned appellate court while
coming to the said conclusion, had not made any
discussion as to whether the respondents had deposited
the rent in the court, without falling due along with the
process fee and notice upon the landlord;
(iv) That, the learned appellate court had failed to consider
the cardinal principle of Tenancy Law and has concluded
that the deposit of rent by the respondents are valid
which is not at all tenable in law;
(v) That, the learned courts below did not discuss whether
Exhibit- G(1) to Exhibit- G(19) showing deposit of rent in
the court was made as per law holding the field and
without discussing this vital aspect, the learned courts
below have held that the respondents are not defaulter,
which is contrary to the settled propositions of law;
(vi) That, the learned appellate court had completely
misconstrued, misread and misinterpreted the legal
meaning and definition of the word „Advance Amount‟
and „Security Money‟ deposit and that the decision relied
upon by the learned appellate court in Mohd.
Salimuddin vs. Misri Lal and Another, reported in
(1986) 2 SCC 378 and Modern Hotel, Gudur vs. K.
Radhakrishnaiah and Others, reported in (1989) 2
SCC 686, are not relevant considering the facts and
circumstances on the record;
(vii) That, the learned appellate court had completely gave an
illegal and perverse finding with regard to issue No. 4,
i.e. bona-fide requirement and where it had held on a
mere suggestion being given to the respondents by the
petitioner, that whether the monthly rent in respect of
the tenanted premises is appropriate or not and the said
suggestion, as suggested by the petitioner would, by no
stretch of imagination, can lead to the conclusion that the
requirement of the tenanted premises by the petitioner is
not genuine and bona-fide;
(viii) That, the learned courts below failed to appreciate that
there is no denial by the respondents that the son of the
petitioner is running a bakery cum confectionary along
with fast food courter under the name and style of A.B.
Enterprise in the adjacent room of the tenanted
premises, which is a smaller room of 250 sq. ft.
compared to the tenanted room, which is 500 sq. ft.; and
(ix) Further, the learned appellate court having held that the
petitioner, being a businessman, has every right to
expand his business and therefore, it ought to have held
that the petitioner requires the tenanted premises bona-
fide for his own use and for his family members to
augment his income and to settle his son and mere
suggestion that the monthly rent was not appropriate,
would not make the desire of expanding the business of
the petitioner as mala-fide and insincere or a dishonest
desire.
Submissions:-
6. Mr. Ali, learned counsel for the petitioner submits that the
learned trial court had decided the issue of bona-fide requirement of
the premises by the petitioner in its proper perspective and arrived
at the right conclusion. Mr. Ali has pointed out that the son and
daughter of the petitioner, are running one bakery cum
confectionary along with fast food courter, under the name and
style of A.B. Enterprise, in the adjacent room of the tenanted
premises, which is a smaller room of 250 sq. ft. compared to the
tenanted room, which is 500 sq. ft. and that the petitioner with a
view to settle his son, desires to expand his business and therefore,
he requires the tenanted premises bona-fide for his own use and for
his family members. But, while deciding the said issue, being issue
No. 4, the learned appellate court had taken a contrary view and
arrived at an erroneous finding on the ground that there was a
suggestion in the cross-objection that the monthly rent was not
appropriate. But, the said suggestion would not make the desire of
expanding the business of the petitioner as mala-fide and insincere
or a dishonest desire.
6.1. Mr. Ali has further pointed out that the learned trial court,
while decreeing the suit, arrived at an erroneous finding in respect
of issue No. 3, in favour of the respondent herein, and that though
a plea was taken that the respondents had tendered the rent to the
petitioner by a cheque, being Cheque No. 000279, dated
07.01.2016, the petitioner had refused to accept the same and for
which, he has been depositing the same in the court, yet, during the
course of trial, the respondents herein had failed to exhibit the said
cheque before the court to substantiate their claim that the said
cheque was refused to accept by the petitioner. And since the
respondents had failed to establish the same, the contention that
the petitioner has refused to accept the cheque does not prove and
in order to establish such plea, there must be valid point and as
such, the finding of the learned trial court in respect of issue No. 3,
is erroneous.
6.2. Mr. Ali also submits that for such erroneous finding the
petitioner herein had filed cross-objection before the learned
appellate court. But, the learned appellate court also arrived at an
erroneous finding in respect of the same. Mr. Ali further pointed out
that once a defaulter is always a defaulter and that the respondents
herein had relied upon the clause No. 4 of the tenancy agreement,
but, the said clause is illegal in view of the Section 29 of the
Contract Act as the tenancy could not be continued for an indefinite
period. Referring to a decision of Hon‟ble Supreme Court in the
case of R.V. Bhupal Prasad vs. State of A.P. and Others,
reported in (1995) 5 SCC 698; Mr. Ali submits that the respondent
herein is a tenant in sufferance as the term of agreement had
expired on 03.01.2016 and there is no tenant and landlord
relationship between the petitioner and respondents and the
respondents becomes trespasser and are liable to be evicted from
the suit premises in due course of law. Referring to another decision
of Hon‟ble Supreme Court in the case of Syed Sugara Zaidi vs.
Laeeq Ahmad (dead) Through Legal Representatives and
Others, reported in (2018) 2 SCC 21; Mr. Ali submits that the
term in the lease agreement for renewal of lease deed does not ipso
facto extend the tenure or term of the lease. And in the absence of
renewal of rent agreement, the possession of the respondent-
tenants in the demised premises has become unlawful and they are
liable to be evicted. Therefore, Mr. Ali has contended to set aside
the impugned judgment and decree so passed by the learned
appellate court.
6.3. Mr. Ali has also referred following case laws, in support of his
submission :-
(i) Ramjidas and Another vs. Rambabu and Others,
reported in (2000) 9 SCC 329;
(ii) Joginder Pal vs. Naval Kishore Behal, reported in
(2002) 5 SCC 397;
(iii) Ajit Singh and Another vs. Jit Ram and
Another, reported in (2008) 9 SCC 696; and
(iv) Abdul Matin Choudhury and Another vs.
Nityananda Dutta Banik, reported in 1997 0
Supreme (Gau) 107.
7. Per-contra, Mr. Sahewalla, learned senior counsel for the
respondents, had relied upon the clause 4 of the tenancy
agreement, which provide that after every 5 years, the agreement
would be renewed automatically and that the petitioner herein had
instituted the suit before the learned trial court only to enhance the
rent and as per the act they are not entitled for enhancement of the
rent and therefore, they had chosen to file the suit for eviction of
the respondents on irrelevant ground. Mr. Sahewalla has pointed
out that nowhere in the title suit and in the appeal and also in this
petition, the petitioner had mentioned the source of money to
expand their business and from where they will manage the finance,
and also not enclosed their plan to expand their business. Mr.
Sahewalla further submits that the petitioner had preferred similar
suit in the year 2008, and also on earlier occasions, and the same
was filed with a view to enhancement of rent and the same ended
in compromise and present suit is also part of such game plane.
7.1. Mr. Sahewalla further submits that in respect of defaulter, i.e.
issue No. 3, there are ample evidence that the respondents herein
had tendered the rent to the petitioner and the petitioner had
refused to accept the same and as such, the rent are being
deposited in the court and that the respondents herein are tenants
since the year 1973 and the petitioner herein had taken same
ground in the suit filed in the year 2008 also. Under such
circumstances, Mr. Sahewalla has contended to dismiss this petition.
7.2. Mr. Sahewalla has referred following case laws, in support of
his submission :-
(i) Prasanta Kumar Bose vs. Md. Nuruddin, reported in
1995 (II) GLT 182;
(ii) Jatish Chandra Paul and Others vs. Manjurani
Paul and Others, reported in (1992) 2 GLR 36;
(iii) Deena Nath vs. Pooran Lal, reported in (2001) 5
SCC 705;
(iv) Muhit Kumar Deb Roy and Others vs. Gaurangalal
Roy, reported in (1986) 1 GLR 442; and
(v) Swapan Kumar Saha vs. Biswanath Sureka, reported
in 2014 (1) GLT 252.
Consideration of this court :-
8. Having heard the submissions of learned counsel for both the
parties, I have carefully gone through the petition as well as the
documents placed on record and also gone through the judgment
and decree dated 21.12.2024, passed in Title Appeal No. 24/2022
and also gone through the case laws referred by learned counsel for
both the parties. Also I have carefully gone through the judgments
and decree, dated 23.08.2022, passed by the learned trial court in
T.S. No. 235/2016.
9. Before a discussion is directed into the issue raised in this
application, it would be appropriate to understand the scope and
extent of revisional jurisdiction under the Rent Control Act. This
issue was came before the Hon‟ble Supreme Court in the case of
Hindustan Petroleum Corpn. Ltd. v. Dilbahar Singh,
reported in (2014) 9 SCC 78, wherein a Constitutional Bench of
Hon‟ble Supreme Court has held as under:-
‚28.Before we consider the matter further to find
out the scope and extent of revisional
jurisdiction under the above three Rent
Control Acts, a quick observation about the
‚appellate jurisdiction‛ and ‚revisional
jurisdiction‛ is necessary. Conceptually,
revisional jurisdiction is a part of appellate
jurisdiction but it is not vice versa. Both,
appellate jurisdiction and revisional
jurisdiction are creatures of statutes. No
party to the proceeding has an inherent right
of appeal or revision. An appeal is
continuation of suit or original proceeding,
as the case may be. The power of the appellate
court is coextensive with that of the trial
court. Ordinarily, appellate jurisdiction
involves rehearing on facts and law but such
jurisdiction may be limited by the statute
itself that provides for the appellate
jurisdiction. On the other hand, revisional
jurisdiction, though, is a part of appellate
jurisdiction but ordinarily it cannot be
equated with that of a full-fledged appeal. In
other words, revision is not continuation of
suit or of original proceeding. When the aid
of Revisional Court is invoked on the
revisional side, it can interfere within the
permissible parameters provided in the
statute. It goes without saying that if a
revision is provided against an order passed
by the Tribunal/appellate authority, the
decision of the Revisional Court is the
operative decision in law. In our view, as
regards the extent of appellate or revisional
jurisdiction, much would, however, depend on
the language employed by the statute
conferring appellate jurisdiction and
revisional jurisdiction.
29. With the above general observations, we shall
now endeavour to determine the extent, scope,
ambit and meaning of the terms ‚legality or
propriety‛; ‚regularity, correctness, legality
or propriety‛; and ‚legality, regularity or
propriety‛ which are used in the three Rent
Control Acts under consideration:
29.1. The ordinary meaning of the word
‚legality‛ is lawfulness. It refers to
strict adherence to law, prescription, or
doctrine; the quality of being legal.
29.2. The term ‚propriety‛ means fitness;
appropriateness, aptitude; suitability;
appropriateness to the circumstances or
condition conformity with requirement;
rules or principle, rightness,
correctness, justness, accuracy.
29.3. The terms ‚correctness‛ and ‚propriety‛
ordinarily convey the same meaning, that
is, something which is legal and proper.
In its ordinary meaning and substance,
‚correctness‛ is compounded of ‚legality‛
and ‚propriety‛ and that which is legal
and proper is ‚correct‛.
29.4. The expression ‚regularity‛ with
reference to an order ordinarily relates
to the procedure being followed in accord
with the principles of natural justice
and fair play.
30. We have already noted in the earlier part of
the judgment that although there is some
difference in the language employed by the
three Rent Control Acts under consideration
which provide for revisional jurisdiction but,
in our view, the revisional power of the High
Court under these Acts is substantially
similar and broadly such power has the same
scope save and except the power to invoke
revisional jurisdiction suo motu unless so
provided expressly. None of these statutes
confer on revisional authority the power as
wide as that of the appellate court or
appellate authority despite such power being
wider than that provided in Section 115 of the
Code of Civil Procedure. The provision under
consideration does not permit the High Court
to invoke the revisional jurisdiction as the
cloak of an appeal in disguise. Revision does
not lie under these provisions to bring the
orders of the trial court/Rent Controller and
the appellate court/appellate authority for
rehearing of the issues raised in the original
proceedings.
31. We are in full agreement with the view
expressed in Sri Raja Lakshmi Dyeing
Works v. Rangaswamy Chettiar, (1980) 4 SCC
259] that where both expressions ‚appeal‛ and
‚revision‛ are employed in a statute,
obviously, the expression ‚revision‛ is meant
to convey the idea of a much narrower
jurisdiction than that conveyed by the
expression ‚appeal‛. The use of two
expressions ‚appeal‛ and ‚revision‛ when used
in one statute conferring appellate power and
revisional power, we think, is not without
purpose and significance. Ordinarily,
appellate jurisdiction involves a rehearing
while it is not so in the case of revisional
jurisdiction when the same statute provides
the remedy by way of an ‚appeal‛ and so also
of a ‚revision‛. If that were so, the
revisional power would become coextensive with
that of the trial court or the subordinate
tribunal which is never the case. The classic
statement in Dattonpant Gopalvarao
Devakate vs. Vithalrao Maruthirao Janagaval,
(1975) 2 SCC 246] that revisional power under
the Rent Control Act may not be as narrow as
the revisional power under Section 115 of the
Code but, at the same time, it is not wide
enough to make the High Court a second court
of first appeal, commends to us and we approve
the same. We are of the view that in the garb
of revisional jurisdiction under the above
three rent control statutes, the High Court is
not conferred a status of second court of
first appeal and the High Court should not
enlarge the scope of revisional jurisdiction
to that extent.‛
9.1. Thereafter, summing up the principle in para No. 43, Hon‟ble
Supreme Court has held as under:-
‚43. We hold, as we must, that none of the above
Rent Control Acts entitles the High Court to
interfere with the findings of fact recorded
by the first appellate court/first appellate
authority because on re-appreciation of the
evidence, its view is different from the
court/authority below. The consideration or
examination of the evidence by the High
Court in revisional jurisdiction under these
Acts is confined to find out that finding of
facts recorded by the court/authority below
is according to law and does not suffer from
any error of law. A finding of fact recorded
by court/authority below, if perverse or has
been arrived at without consideration of the
material evidence or such finding is based
on no evidence or misreading of the 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. In that event, the High Court in
exercise of its revisional jurisdiction
under the above Rent Control Acts shall be
entitled to set aside the impugned order as
being not legal or proper. The High Court is
entitled to satisfy itself as to the
correctness or legality or propriety of any
decision or order impugned before it as
indicated above. However, to satisfy itself
to the regularity, correctness, legality or
propriety of the impugned decision or the
order, the High Court shall not exercise its
power as an appellate power to reappreciate
or reassess the evidence for coming to a
different finding on facts. Revisional power
is not and cannot be equated with the power
of reconsideration of all questions of fact
as a court of first appeal. Where the High
Court is required to be satisfied that the
decision is according to law, it may examine
whether the order impugned before it suffers
from procedural illegality or irregularity.‛
10. Keeping the aforesaid principles in mind, now an endeavour
will be made to examine the legality, propriety and correctness of
the impugned judgment and decree so passed by the learned
appellate court.
11. It appears that the learned trial court had framed as many as 7
issues, which are extracted here under:-
‚(I) Whether there is any cause of action in this
suit.
(II) Whether the suit is maintainable in its
present form.
(III) Whether the defendant is a defaulter in
payment of rent with respect to the suit
premises.
(IV) Whether the suit premises is required for
bona fide purpose of the plaintiff.
(V) Whether the plaintiff is entitled to recover
arrear rent, amounting to Rs 25,000/- since
the month of December, 2015, to September,
2016, with interest @ 15% per annum.
(VI) Whether the plaintiff is entitled to the
decree as prayed for.
(VII) To what other relief(s) the plaintiff is
entitled to.‛
11.1. It also appears that out the aforesaid 7 issues, issue Nos. 3 & 4
are vital. It is not in dispute that the learned trial court while
deciding the issue No. 4, in favour of the plaintiff/petitioner herein, it
has decided the issue No. 3, in favour of the defendants and
thereafter, in view of affirmative finding in respect of issue No. 4 , it
had decreed the suit. But, the respondents herein had preferred the
title appeal wherein, the petitioner had filed cross-objection against
the finding of the learned trial court in respect of the issue No. 3.
Thereafter, hearing learned counsel for both the parties, the learned
appellate court had decided both the issues against the plaintiff and
dismissed the suit.
11.2. In respect of the defaulter, the contention of the petitioner is
that though the respondents had taken a stand that it had tendered
the rent on 07.01.2016, vide Cheque No. 000279 to the petitioner,
yet, it had failed to exhibit and prove the same during trial and as
such, it could not prove the tender of rent to the petitioner. On the
other hand, the stand of the respondent is that it had tendered rent
to the petitioner, but, the petitioner had refused to accept it for
which rent is being tendered in the court.
11.3. Section 5(4) in The Assam Urban Areas Rent Control Act, 1972
read as under:-
‚(4) Where the landlord refuses to accept the
lawful rent offered by his tenant, the
tenant may within a fortnight of its
becoming due, deposit in Court the amount
of such rent together with process fees
for service of notice upon the landlord,
and on receiving such deposit, the Court
shall cause a notice of the receipt of
such deposit to be served on the landlord,
and the amount of the deposit may
thereafter be withdrawn by the landlord on
application made by him to the Court in
that behalf. A tenant who has made such
deposit shall not be treated as a
defaulter under clause (e) of the proviso
to sub-section (1) of this section.‛
11.4. In the case in hand, while the stand of the respondents is that
it had tendered the rent on 07.01.2016, vide Cheque No. 000279 to
the petitioner, and that the petitioner herein had refused to accept
the same, then the proper course to establish the tender and refusal
was to exhibit the said Cheque No. 000279 before the learned trial
court. But, the respondents had failed to do the same. Thus, it
cannot be said to be established the tender and refusal so as to
justify deposit of the same before the court.
11.5. Thus, having gone through the record of the learned trial
court, this court is unable to derive its satisfaction that the
respondents had succeeded in establishing that they had tendered
the rent by cheque, as because the said cheque was not exhibited
before the learned trial court to establish the contention. Mr. Ali has
rightly pointed out this during the course of his argument. And I find
sufficient force in the same and if the petitioner had refused to
accept the cheque, the same would have in the possession of the
respondents and if the same was in their possession, then they could
have very well exhibited the same before the court. But, having not
done the same, it cannot be said that he had succeeded in
establishing the said fact of tendering the rent on 07.01.2016. The
respondent herein, thus, failed to establish tendering of rent to the
petitioner on 07.01.2016 and refusal to accept the same by the
petitioner. Therefore, to the considered opinion of this court he is not
entitled to protection of clause (e) of the proviso to Sub-Section (1)
of Section 5 of the Act of 1972.
11.6. It is a well settled proposition that once a defaulter is always a
defaulter. Since the respondents have failed to prove that they had
tendered the rent to the petitioner on 07.01.2016, for the month of
December, 2015. Then subsequent tendering has no consequence
and in that view of the matter, the finding of the learned trial court
had failed to withstand the legal scrutiny. This aspect also eschewed
consideration of the learned appellate court. Therefore, the finding
so recorded by both the learned courts below, appears to be
arbitrary, illegal and on such count, the same warrants interference
of this court.
11.7. I have considered the submission of Mr. Sahewalla, learned
senior counsel for the respondents and also gone through the
decisions, referred by him in Muhit Kumar Deb Roy (supra) and
also Swapan Kumar Saha(supra). In the case of Muhit Kumar
Deb Roy (supra) a co-ordinate bench of this court had held that
once the landlord has refused the rent subsequent tendering in each
month becomes an idle formality. But, the case in hand is
distinguishable from the facts of the said case. Here, the
respondents had failed to establish tendering and refusal of the rent
and on such count, the decision referred by Mr. Sahewalla, as above,
would not advance his argument.
12. In respect of issue No. 4, i.e. the bona-fide requirement, it is
well settled in catena of decisions that it is always the prerogative of
the landlord to decide for what purpose he requires premises in
question. Reference in this context can be made to the decision of
Sait Nagjee Purushottam and Company Limited vs.
Vimalabai Prabhulal and Others, reported in (2005) 8 SCC
252, wherein Hon‟ble Supreme Court has held in para No. 4 as
under:
4. xxxxxxx xxxxxx xxxxxxx
...... It is true that the landlords have
their business spreading over Chennai and
Hyderabad and if they wanted to expand their
business at Calicut it cannot be said to be
unnatural thereby denying the eviction of the
tenant from the premises in question. It is
always the prerogative of the landlord that if
he requires the premises in question for his
bona fide use for expansion of business this is
no ground to say that the landlords are already
having their business at Chennai and Hyderabad
therefore, it is not genuine need. It is not the
tenant who can dictate the terms to the landlord
and advise him what he should do and what he
should not. It is always the privilege of the
landlord to choose the nature of the business
and the place of business. However, the trial
court held in favour of the appellant tenant.
But the appellate court as well as the High
Court after scrutinising the evidence on record,
reversed the finding of the trial court and held
that the need of establishing the business at
Calicut by the landlords cannot be said to be
lacking in bona fides.‛
12.1. Thereafter, in para No.5 it has been held as under:-
‚ 5. Xxxxxxx xxxxxx xxxx
...... It is common experience that
landlord-tenant disputes in our country take a
long time and one cannot wait indefinitely for
resolution of such litigation. If they want to
expand their business, then it cannot be said
that the need is not bona fide. It is alleged
that one of the sons of the landlords has
settled in the USA. That does not detract from
the fact that the other sons of the landlords
want to expand their business at Calicut. Indian
economy is going global and it is not unlikely
that prodigal sons can return back to the
motherland. He can always come back and start
his business at Calicut. On this ground we
cannot deny the eviction to the landlords.‛
12.2. In the case of Ajit Singh (supra), relying upon its earlier
decision in Joginder Pal (supra) Hon‟ble Supreme Court has
interpreted the phrase "for his own use" with reference to landlord
held as under:-
‚19. From the aforesaid decision of this Court
(in Joginder Pal case [(2002) 5 SCC 397] ),
it is therefore clear that this Court has
laid down authoritatively that a non-
residential premises, if required by a son
for user by him would cover the requirement
of the words used in the section i.e. ‚for
his own use‛ in reference to a landlord.
Therefore, if ‚his own use‛ has been
interpreted by this Court in the abovesaid
manner, then the requirements as laid down
in Sections 13(3)(a)(ii)(b) and (c) of the
Act have to be interpreted in the same
manner to hold that (a) the son of the
landlord has to plead in the eviction
petition; (b) that he is not occupying in
the urban area concerned for the purpose of
his business any other such building or
rented land as the case may be; and (c) he
has not vacated such a building or rented
land without sufficient cause after the
commencement of the Rent Act, in the urban
area concerned.
20. In the present case, it was pleaded and
proved that the said shop was required for
the use of the son and, therefore, the
pleadings of the son in regard to the
aforesaid requirement, being mandatory,
were satisfied, otherwise it would make the
requirement laid down under the said
provisions nugatory in view of the
interpretation given by this Court in the
aforesaid decision (in Joginder Pal [(2002)
5 SCC 397] ), with which we are in full
agreement.
21. Applying the principles as laid down by the
aforesaid decision, namely, Joginder
Pal [(2002) 5 SCC 397] which also deals
with commercial premises, as in the present
case, we are of the view that a plain
reading of Sections 13(3)(a)(ii)(a) to (c)
in conjunction with Sections
13(3)(a)(iv)(a) and (b) of the Rent Act,
would make it amply clear that when the
said shop is being got vacated on the
ground of user for the son of the landlord,
then in the eviction petition, the son
(Appellant 1) must plead that he was not
occupying any other building and that he
had not vacated such a building without
sufficient cause. It is well settled that
while interpreting a provision of a
statute, the same has to be interpreted
taking into consideration the other
provisions of the same statute.
12.3. Though Mr. Sahewalla, learned senior counsel for the
respondents has submitted that on similar ground the petitioner had
also instituted a suit in the year 2008 and thereafter, and the said
suits were disposed of on compromise on payment of rent at
enhanced rate, and on similar design, the present suit is also filed
and that no ground of bona-fide requirement exist here in this case
yet, the said submission cannot be accepted since there may not
exist the bona-fide requirement at the relevant point of time and the
same may exist now. It is well settled in the decision of Hon‟ble
Supreme Court in the case of Pratap Rai Tanwani vs. Uttam
Chand, reported in (2004) 8 SCC 490, that the bona fide
requirement of the landlord has to be seen on the date of the
petition and the subsequent events intervening due to protracted
litigation won‟t be relevant. It was held that the crucial date is the
date of petition. The normal rule is that the rights and obligations of
the parties are to be determined on the date of the petition and that
subsequent events can be taken into consideration for moulding the
reliefs provided such events had a material impact on those rights
and obligations. It was further observed that it is a stark reality that
the longer is the life of the litigation the more would be the number
of developments sprouting up during the long interregnum.
Therefore, the courts have to take a very pragmatic approach of the
matter. It is common experience in our country that specially
landlord-tenant litigation prolongs for a long period. It is true that
neither can the person who has started the litigation sit idle nor can
the development of the events be stopped by him. Therefore, the
crucial event should be taken as on the date when the suit for
eviction was filed unless the subsequent event materially changed
the ground of relief.
12.4. This aspect was considered by Hon‟ble Supreme Court in the
case of Ramjidas (Supra) and the same reads as under:-
‚6. The High Court after examining the facts on
this question found that the findings of the
courts below of reletting the accommodation
after getting it vacated for personal need
in the year 1980 cannot defeat the bona fide
need of the landlord for the year 1987.
7. The High Court rightly considered the fresh
need which was after the passage of seven
long years between the last order and the
present application made by the landlord. By
this passage of time the need has changed,
his minor son has become major for whose
need there was specific pleading and
evidence was also led.
8. We find that the High Court has given due
consideration and has given good reasons to
interfere with the findings recorded by the
courts below. In our considered view no
error was committed by the High Court.
Accordingly, we do not find any merit in
this appeal. It is accordingly dismissed.‛
12.5. Again in the case of Ram Dass vs. Ishwar Chander,
reported in (1988) 3 SCC 131, a three-Judge Bench, has held as
under:-
‚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.‛
13. In the case in hand, it is not in dispute that the petitioner‟s son
and daughter have been running a bakery cum confectionary along
with fast food courter under the name and style of 'A.B.
Enterprise' in the adjacent room of the tenanted premises. Said
room is a smaller room of 250 sq. ft. compared to the tenanted
room, which is of 500 sq. ft. and the petitioner wishes to expand his
business to settle his son and 500 sq. ft. tenanted premises, which is
adjacent to 250 sq. ft. could be helpful to him to expand the
business and based on the aforementioned requirement, the learned
trial court had rightly arrived at the finding that there is bona-fide
requirement of the suit premises by the petitioner herein.
14. It is a fact that the petitioner has not disclosed the source of
money to expand the business and also not produced the trade
license. But, as submitted by the learned counsel for the petitioner,
there is no requirement in law to establish the source of income to
augment the business. Though Mr. Sahewalla, learned senior counsel
for the respondents has contended that on account of non-disclosure
of source of money and plan and also the trade license, the bona-
fide requirement cannot be believed, yet, the said submission left
this court unimpressed and in that view of the matter, the finding so
recorded by the learned appellate court, in respect of bona-fide
requirement, i.e. the issues No. 4, is unsustainable and arbitrary one
and therefore, the same requires interference of this court.
Accordingly, the same stands interfered with.
15. Though Mr. Sahewalla, learned senior counsel for the
respondents submits that in view of the clause No. 4 of the tenancy
agreement, the tenancy would continue for indefinite period till the
respondents are evicted under the provisions of the Tenancy Act and
that the Section 29 of the Contract Act has no application there, yet,
the said submission also left this court unimpressed, inasmuch as in
view of Section 29 of the Contract Act that there cannot be a
contract for an indefinite period and as such, the respondents herein
cannot take the shelter of the clause No. 4 of the tenancy
agreement. So far as the clause for renewal in the agreement is
concerned, it was held in by Hon‟ble Supreme Court in the case of
Syed Sugara Zaidi (supra) and also in the case of
DDA vs. Durga Chand Kaushish, reported in (1973) 2 SCC
825, that such covenant only entitled a lessee to obtain a fresh
lease in accordance with and in due satisfaction of the law governing
the making of leases.
16. I have carefully perused the decisions so referred by Mr.
Sahewalla, learned senior counsel for the respondents in Prasanta
Kumar Bose(supra) and in Jatish Chandra Paul(supra) and
in Deena Nath (supra). There is no quarrel at the Bar regarding
the proposition of law laid down in the aforementioned decisions.
But, in the given facts and circumstances on the record, the said
ratios are not applicable in all force to the present case. Therefore,
detail discussion of the same are found to be not necessary herein
this case.
17. As held by Hon‟ble Supreme Court in the case of R.V. Bhupal
Prasad (supra), and also in Syed Sugara Zaidi (supra), the
respondents herein is a tenant in sufferance, as the term of
agreement had expired on 03.01.2016 and there is no tenant and
landlord relationship between the petitioner and respondents and the
respondents becomes trespasser and are liable to be evicted from
the suit premises in due course of law.
18. Thus, the finding so recorded by the learned appellate court in
respect of issues No. 3 and 4, of the impugned judgment and decree
dated 21.12.2024, passed by the learned appellate court
hereinafter), in Title Appeal No. 24/2022 and also the finding
recorded by the learned trial court in respect of issue No. (III) of the
judgment and decree dated 23.08.2022, in Title Suit No. 235/2016,
are grossly erroneous and 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 as held by a Constitutional Bench of
Hon‟ble Supreme Court in the case of Dilbahar Singh (supra).
19. In the result, I find sufficient merit in this petition and
accordingly, the same stands allowed. The impugned judgment and
decree, so passed by the learned appellate court stands set aside
and quashed. And the judgment and decree so passed by the
learned trial court stands restored. However, the finding of the
learned trial court in respect of issue No. 3 is interfered with being
illegal and arbitrary.
20. In terms of above, this petition stands disposed of. The parties
have to bear their own costs. Send down the record of the learned
courts below with a copy of this judgment and order.
JUDGE
Comparing Assistant
