Page No.# 1/ vs Sarala Devi Bhadani
2025 Latest Caselaw 3429 Gua

Gauhati High Court

Page No.# 1/ vs Sarala Devi Bhadani on 24 February, 2025

Author: Devashis Baruah

Bench: Devashis Baruah

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GAHC010011992025




                                                              2025:GAU-AS:1936

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

                             Case No. : CRP/22/2025

         MANOJ KUMAR JAIN @ NOWLAKHA
         S/O. RAJENDRA KUMAR JAIN @ NOWLAKHA, R/O. WARD NO. 9,
         KOKRAJHAR TOWN, P/O. AND P/S. KOKRAJHAR, DIST. KOKRAJHAR, BTR,
         ASSAM, PIN-783370.



         VERSUS

         SARALA DEVI BHADANI
         W/O. SRI CHAINRUP BHADANI, R/O. WARD NO. 6, KOKRAJHAR TOWN,
         P/O. AND P/S. KOKRAJHAR, DIST. KOKRAJHAR, BTR, ASSAM, PIN-783370.




                                  BEFORE
               HON'BLE MR. JUSTICE DEVASHIS BARUAH


     Advocates for the petitioner(s)   :      Mr. S Das



     Advocates for the respondent(s) :        None appeared

     Date of hearing & judgment         :     24.02.2025
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                          JUDGMENT &ORDER(ORAL)

Heard Mr. S Das, the learned counsel appearing on behalf of the petitioner.

2. None appears on behalf of the caveator/respondent, when the matter is called upon.

3. This is an application under Section 115 of the Code of Civil Procedure 1908, (for short, the Code) challenging the judgment and decree dated 20.12.2024 passed by the learned Civil Judge, (Senior Division) Kokrajhar in Title Appeal No.02/2024 whereby the appeal filed by the petitioner herein was dismissed thereby confirming the judgment and decree dated 16.07.2021 passed by the Court of the learned Civil Judge (Junior Division) Kokrajhar(hereinafter to be referred to as the learned Trial Court) in Title Suit No.25/2021.

4. This Court had heard the learned counsel appearing on behalf of the petitioner. The question arises as to whether this is a fit case for exercise of jurisdiction under Section 115 of the Code. Before proceeding to adjudicate the present lis, this Court finds it relevant to deal with the contours of the jurisdiction to be exercised in the present proceedings. In this respect, this Court finds it profitable to refer to the judgment of the Supreme Court wherein the scope of the revisional jurisdiction was explained. In the case of Hindustan Petroleum Corporation Ltd. Vs. Dilbahar Singh reported in (2014) 9 SCC 78, the Supreme Court in paragraph 43 observed as under:

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"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 reappreciation 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."

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5. In the backdrop of the above, let this Court take note of the facts which led to the filing of the instant revision petition.

6. It is the case of the petitioner/plaintiff that in the month of August 2011, he approached the respondent/defendant to take the suit room, which has been specifically described in the schedule to the plaint, on rent. The said suit room is referred to hereinafter as the 'suit premises'. The respondent herein agreed to let out the suit room to the petitioner w.e.f. 01.08.2011 at a monthly rent of Rs.5100/- and accordingly, a formal agreement was executed by and between the petitioner and the respondent on 27.09.2011. The said agreement, however, was not exhibited as seen from the present records and the submission of the learned counsel for the petitioner.

7. Be that as it may, on 03.02.2017, another agreement was entered into by and between the petitioner and the respondent in respect to the suit premises, whereby the monthly rent was fixed @ Rs.6300/-. The duration of the said agreement was from 01.01.2017 to 30.11.2017 and the rent was payable on or

before the 7th day of each succeeding month, without delay or default. It was categorically stipulated in the said agreement dated 03.02.2017 (Exhibit-H) that on expiry of the period of the agreement, the petitioner would vacate the suit premises.

8. The record further reveals that after the expiry of the tenancy agreement on 30.11.2017, the respondent asked the petitioner to vacate the suit premises Page No.# 5/10

as per the terms and conditions laid down in the agreement dated 03.02.2017 for the bona fide requirement of the premises by the respondent for running her own business therein. The concurrent finding of facts arrived at by the learned Courts below show that the petitioner did not pay any heed to the request and instead stopped paying the rent. It is also seen from the records that the respondent served notices through registered post to the petitioner on 20.02.2018, 04.06.2018 and 05.11.2018. The petitioner though received the said notices, but instead of vacating the suit premises, he raised certain pleas and also gave a reply on 19.11.2018 thereby refusing to vacate the suit premises on the ground stated in the notices.

9. The petitioner herein alleging that the respondent had threatened the petitioner on 07.08.2019 to remove him without due process and disconnect the essential services approached the Court by filing a suit being Title Suit No.16/2019 which was later on re-registered and re-numbered as Title Suit No.25/2021. The suit was initially filed before the Court of the learned Civil Judge (Senior Division), Kokrajhar, but subsequently due to change in the pecuniary jurisdiction, the suit was transferred to the Court of the learned Civil Judge (Junior Division), Kokrajhar for disposal. In the said suit, the petitioner sought for a declaration that he had right, title and interest as tenant over the suit room; for declaration that the respondent and her agent/subordinate cannot disturb and interfere in any manner in the peaceful running of the business of yarn selling shop house; for declaration that the respondent herein cannot disconnect the electricity supply connection to the suit room which is an essential service attached to the tenancy; and for permanent injunction.

10. Pursuant to the said suit being filed and summons being issued, the Page No.# 6/10

respondent appeared and filed her written statement and also a counter claim. In the said counter claim, the respondent took the pleas that the petitioner was a defaulter in payment of rent; the suit room was required for bona fide purposes and further that the petitioner had no right to continue to remain in possession of the suit premises after the period of tenancy was over. On the basis of the said counter claim being filed, written statement was filed by the petitioner reiterating his stand taken in the plaint and further denying that the petitioner was a defaulter in payment of rent. It was further denied that the respondent herein had bona fide requirement over the suit premises and further that the petitioner had a right to continue in the suit premises. On the basis of the pleadings of both the parties, the Court framed as many as 17 issues. It is being relevant to take note of that although 17 issues were framed, Issue Nos.5, 6, 13, 14 and 16 are relevant for the purpose of the instant proceedings and the same are reproduced hereinunder:

"(V). Whether the plaintiff is regularly paying rent of tenancy to the

defendant?

(VI) Whether the defendant and her husband are of bona fide requirement of the suit tenanted room?

(XIII).Whether the plaintiff/counter defendant has became defaulter in payment of rent of the suit and thereby liable to be evicted from the suit premises?

(XIV).Whether the counter claimant/defendant is in bonafide requirement of the suit premises?

(XVI). Whether the counter claimant/defendant is entitled for rents for the period of stay by the plaintiff/counter defendant in the suit land?"

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11. From the above issues, it would be seen that the Issue Nos. 5 and 13 are same and Issue Nos.6 and 14 are identical.

12. On behalf of the petitioner, three witnesses were examined and on behalf of the defendant also three witnesses were examined. The petitioner exhibited 46 documents. The said documents were treasury challans for payment of rent. It is relevant to take note of that the Exhibits- 2 to 46 are treasury challans for the rents of the suit room on a monthly basis, but Exhibit-1 is a treasury challans for the rent of the suit room for the months from April 2017 to March 2018. It is relevant to note that the concurrent findings of facts arrived at by the Courts below is that only after issuance of the notice dated 11.02.2018, the petitioner started depositing the rent in the Court vide Exhibit-1 onwards.

13. On behalf of the respondents, various documents were exhibited which had been marked as Exhibit-A to Exhibit-I. Amongst the various documents, it is relevant to take note of Exhibit-H, which is the tenancy agreement dated 03.02.2017.

14. The learned Trial Court vide its judgment and decree dated 16.07.2024 dismissed the suit of the petitioner and decreed the counter claim of the respondent. In doing so, the learned Trial Court while deciding the Issue Nos.5 and 13 though separately came to a categorical finding on the basis of the evidence on record that the petitioner was a defaulter in payment of rent on the basis that Exhibit-H, which was the tenancy agreement wherein it was Page No.# 8/10

mentioned that the rent was to be paid on a monthly basis on or before the 7 th day of every succeeding month, when it becomes due, without further delay or default. The learned Trial Court also came to a categorical finding that Exhibit - 1 was the challan for payment of rent of 12 months from April 2017 to March 2018 which was paid only after receipt of the legal notice dated 11.02.2018. The learned Trial Court also arrived at a finding of fact on the basis of evidence

that the petitioner failed to show that he paid the rent on or before the 7 th day of each succeeding month. On the basis thereof, the learned Trial Court arrived at the conclusion that the petitioner herein was a defaulter in payment of rent and thereby liable to be evicted from the suit premises.

15. In respect to the Issue Nos. 6 and 14, the learned Trial Court separately on the basis of the evidence on record came to a finding that the suit premises was required for bona fide purpose by the respondent.

16. In respect to the Issue No.16, the learned Trial Court came to a categorical finding that after the termination of the tenancy agreement on 30.11.2017, the possession of the petitioner was not that of a tenant, but becomes that of a trespasser and, as such, the respondent would be entitled not to the rent, but to mense profit by way of compensation and on the basis thereof arrived at a conclusion that from the date of the institution of the counter claim i.e. on 26.11.2019 till the date of eviction of the petitioner from the suit room, the respondent would be entitled to compensation at a rate equal to the amount of rent i.e.Rs.6300/-.

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17. Being aggrieved, an appeal was preferred by the petitioner before the learned First Appellate Court which was registered and numbered as Title Appeal No.02/2024. The said appeal was dismissed vide the judgment and decree passed by the learned First Appellate Court on 20.12.2024.

18. This Court had duly perused the judgment of the learned First Appellate Court. The learned First Appellate Court framed two points for determination which were:

(i). Whether the learned Trial Court had correctly dismissed the suit of the Plaintiff and decreed the counter claim of the Defendant.

(ii). In addition to that, the second part for determination was whether the Plaintiff was a defaulter in payment of rent and a tenant by sufferance and thus liable to be evicted.

19. The learned First Appellate Court while deciding the question as to whether the petitioner herein was a defaulter, took into consideration that vide Exhibit - 1 the Petitioner deposited the rent for the months from April 2017 to March 2018 on 27.04.2018. The learned First Appellate Court further took note of the provisions of Section 5 of the Assam Urban Areas Rent Control Act, 1972 (for short 'the Act of 1972') and came to a finding that the petitioner was defaulter in payment of rent and consequently not saved by Section 5(1) of the Act of 1972. The law as discussed in the opinion of this Court is in tune with the settled principles of law and, therefore, requires no interference.

20. The learned First Appellate Court further took into consideration as to Page No.# 10/10

whether the respondent herein had a bona fide requirement and affirmed the observation of the learned Trial Court that the respondent had bona fide requirement. This Court had duly perused the observations and views of the learned Trial Court on the question of bona fide requirement which in the opinion of this Court is in accordance with the settled principles laid down by various judicial precedents.

21. Consequently taking into account the scope of the instant proceedings as observed in the judgment of the Hon'ble Supreme Court in the case of Hindustan Petroleum Corporation Ltd. (supra), it is the opinion of this Court that the concurrent finding of facts arrived at requires no interference.

22. Accordingly, the instant revision petition stands dismissed. However, this Court is not inclined to impose costs for the present proceedings.

JUDGE

Comparing Assistant