Page No.# 1/9 vs Ajay Kumar Gupta
2025 Latest Caselaw 2432 Gua

Gauhati High Court

Page No.# 1/9 vs Ajay Kumar Gupta on 29 January, 2025

Author: Devashis Baruah

Bench: Devashis Baruah

                                                                        Page No.# 1/9

GAHC010190502023




                                                                  2025:GAU-AS:1034

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

                             Case No. : CRP/130/2023

         MRIDUL MAZUMDAR
         S/O- SRI SITESH MAZUMDER,
         R/O- WARD NO. 4, RABINDRA SARANI,
         DHUBRI TOWN,
         P.O. AND P.S. AND DISTRICT- DHUBRI,
         ASSAM- 783301.



         VERSUS

         AJAY KUMAR GUPTA
         S/O- SRI KESHAB PRASAD GUPTA,
         R/O- WARD NO. 5, N.S. ROAD,
         DHUBRI TOWN,
         P.O. AND P.S. AND DISTRICT- DHUBRI,
         ASSAM- 783301.




                                  BEFORE
                   HON'BLE MR. JUSTICE DEVASHIS BARUAH


     Advocates for the petitioner(s)    :      Mr. GN Sahewalla
                                               Senior Advocate
                                               Ms. K Sarma


     Advocates for the respondent(s) :         Mr. P Mazumder

Page No.# 2/9

Date of hearing & judgment : 29.01.2025

JUDGMENT & ORDER(ORAL)

Heard Mr. GN Sahewalla, the learned senior counsel assisted by Ms. K Sarma, the learned counsel appearing on behalf of the petitioner. Mr. P Mazumder, the learned counsel appears on behalf of the sole respondent.

2. This is an application under Section 115 of the Code of Civil Procedure 1908 (for short, the Code) challenging the judgment and decree dated 01.08.2023 in Title Appeal No. 23/2014, whereby the judgment and decree passed by the learned Munsiff, Dhubri dated 18.02.2014 in Title Suit No.239/1995 was affirmed.

3. To ascertain as to whether this Court can exercise jurisdiction under Section 115 of the Code against the impugned judgment and decree dated 01.08.2023 passed in Title Appeal No. 23/2014, this Court finds it relevant to take note of the facts which led to the filing of the instant proceedings.

4. The respondent herein as plaintiff had filed a suit for ejectment of the defendant from the premises described in Schedule A and for a decree of Rs.1500/- being the arrear rent. It is the case of the plaintiff that the defendant is a monthly tenant under the plaintiff in respect to the premises described in Schedule A to the plaint with effect from 27.04.1995 and to that effect an agreement was entered into by and between the parties at a monthly rent fixed Page No.# 3/9

at Rs.500/- per month to be payable in the first week of every month of the English calendar.

5. The defendant, however, did not tender the rent from the very beginning and as on the date of filing of the suit, there was three months' arrear rent. A notice was also sent to the defendant asking him to hand over the possession of the tenanted premises within 15 (fifteen) days from the date of receipt to the said notice, however, the defendant did not vacate the premises. It is also alleged that the defendant did not pay any further rent. It is under such circumstances, the suit was filed by the plaintiff in the month of August, 1995, which was registered and numbered as Title Suit No.239/1995.

6. The defendant filed his written statement, wherein various preliminary objections were taken, more particularly, to the fact that the plaintiff was not the landlord or the owner of the suit property. The defendant duly admitted in paragraph 5 of the written statement that he had entered into a tenancy agreement with the plaintiff on 27.04.1995. But it was stated that the said agreement was entered into on a misrepresentation.

7. It is the specific case of the defendant that the plaintiff was not the owner of the suit premises, or in other words, the defendant had denied the ownership of the plaintiff and accordingly had also specifically stated that the defendant did not pay any rent to the plaintiff. It was further mentioned in the written statement that one Kanailal Prasad Gupta was the owner of the said property, who died leaving behind his wife Smti. Kunti Devi and daughter Smti Maya Page No.# 4/9

Gupta. It was further mentioned that the said Kanailal Prasad Gupta never gifted his property to any person nor had any occasion to do so. It was also mentioned that the record of rights stood in the name of Late Kanailal Prasad Gupta and the electric line of the suit premises also stood in the name of Smti. Kunti Devi, who was the landlord.

8. On the basis of the plaint, as many as nine issues were framed. Issue No. 3 pertained to as to whether the plaintiff had locus standi to file the suit. Issue No.5 pertained to as to whether the defendant was a monthly tenant under the plaintiff. Issue No.6 related to as to whether the plaintiff is the owner of the suit premises and landlord of the defendant and Issue No.7 related to as to whether the defendant is a defaulter as alleged.

9. On behalf of the plaintiff, two witnesses were examined and four documents were exhibited. It is very pertinent to mention herein that Exhibit 4 is a registered deed of gift dated 03.05.1972, whereby Late Kanailal Prasad Gupta had gifted the suit premises to one Ram Suirity Devi and Exhibit 3 is the registered deed of gift, whereby the tenanted premises was gifted by Ram Suirity Devi, who was the grandmother of the plaintiff to the plaintiff and was executed on 28.03.1983.

10. On behalf of the defendant, five witnesses were examined and various documents were exhibited. The learned Trial Court, decreed the suit vide a judgment and decree dated 08.02.2000. On the basis of Exhibit 3 and Exhibit 4, the learned Trial Court came to a categorical finding that the tenanted premises Page No.# 5/9

belonged to the plaintiff and the defendant vide Exhibit 1, which is an agreement dated 27.04.1995 was a tenant of the plaintiff. The learned Trial Court, accordingly, held that the plaintiff had the locus standi to file the suit and the plaintiff was the owner and landlord of the defendant in respect of the suit premises.

11. In respect to the issue No.7 as to whether the defendant was a defaulter, the learned Trial Court, on the clear admission made by the defendant himself, came to a finding that the defendant had never paid any rent to the plaintiffs since the agreement, which is Exhibit-1 was executed and as such was a defaulter. On the basis of the above decisions in respect to the issues, the learned Trial Court, decreed the suit in favour of the plaintiff.

12. An appeal thereagainst was preferred by the petitioner herein which was registered and numbered as Title Appeal No.4/2000 before the Court of the learned Civil Judge, (Senior Division) Dhubri.

13. The said appeal was allowed by the judgment and order dated 26.11.2002, by setting aside the judgment and decree passed by the learned Trial Court dated 08.02.2000 and the suit was remanded to the learned Trial Court for a decision of the suit afresh, after rewriting a judgment deciding all the issues as indicated in the order dated 26.11.2002 and in accordance with law.

14. Subsequent thereto, by another judgment and decree dated 18.02.2014, the suit was again decreed in favour of the plaintiff by the learned Trial Court. It Page No.# 6/9

was opined that the plaintiff was the owner of the suit premises and the landlord of the defendant and that the defendant was a defaulter in payment of the rent. The additional issue which was framed as to whether the agreement dated 27.04.1995, entered into by and between the plaintiff and the defendant No.1 was fraudulent was decided in favour of the plaintiff.

15. Being aggrieved, Title Appeal No.23/2014 was filed by the defendant. The same was dismissed vide a judgment and decree dated 01.08.2023, thereby affirming the judgment and decree dated 18.02.2014, the present revision proceedings has been initiated.

16. This Court had duly heard the learned Senior Counsel appearing on behalf of the revision petitioner as well as the counsel appearing on behalf of the respondents. At the outset, it is relevant to take note of that the jurisdiction so exercised by this Court under Section 115 of the Code is a limited jurisdiction on the aspect as to whether the learned First Appellate Court had committed any error in its exercise of jurisdiction or as to whether the impugned judgment and decree suffers from any illegality or material irregularity in exercise of the jurisdiction. The materials on record very clearly show that the plaintiff, who is the respondent herein was the owner of the tenanted premises on the basis of Exhibit-3 and Exhibit-4. The findings of facts arrived at by both the Courts below in respect to the Exhibit -1 does not suffer from any perversity. Under such circumstances, the question arises as to whether any interference can be made in exercise of the revisional jurisdiction of this Court.

Page No.# 7/9

17. It is an admitted fact that the defendant, who is the petitioner herein, that he had not made any payment of the rent and, accordingly, he is a defaulter. Both the Courts below had also accordingly arrived at the said finding. Nothing could be shown by the learned Senior Counsel representing the petitioner that the concurrent finding of facts as regards the ownership of the plaintiff; the landlord tenant relationship between the plaintiff and the defendant and the fact that the defendant was defaulter were perverse. Accordingly, this Court does not find any ground to interfere with the impugned judgment and decree dated 01.08.2023 passed in Title Appeal No. 23/2014. Accordingly, the judgment and decree passed by the learned Trial Court is confirmed by this Court.

18. Mr.GN Sahewalla, the learned Senior Counsel appearing on behalf of the petitioner submits that the petitioner is carrying on business in the tenanted premises and he would require some time to vacate and look for some alternative premises for shifting of his business and for which, some time may be granted to the petitioner to vacate the tenanted premises. The learned counsel appearing on behalf of the respondent, who is the plaintiff, had objected to the same. Be that as it may, this Court is of the opinion that as the petitioner had been in possession of the said tenanted premises since long, some reasonable time can be granted to him, provided he submits an undertaking before the learned Trial Court on or before 14.02.2025.

19. The said undertaking shall state that the petitioner would vacate the premises on or before 31.07.2025. In addition to that, the petitioner shall also give an undertaking that within the said period, the petitioner would deposit before the learned Trial Court the rent for the period from 01.01.2022 to Page No.# 8/9

31.12.2024. In addition to that, the petitioner should also state in the undertaking to the effect that till 31.07.2025, the petitioner shall deposit every month an amount of Rs.500/- in the form of compensation to the respondent, who is the plaintiff in the suit.

20. This Court had directed the payment of rent for the period from 01.01.2022 to 31.12.2024, taking into account that it is a well settled principle of law that the tenant is bound to pay the rent during the pendency of the eviction proceedings. This Court further observes that the payment of the amount of Rs.500/- is in the form of compensation and is not a rent and under such circumstances, the same shall not create any further landlord tenant relationship between the petitioner and the respondent. It is further observed that during this period i.e. from today till 31.07.2025, subject to submission of the undertaking, the status of the petitioner in respect to the tenanted premises shall be as a custodian of the plaintiff and the petitioner shall not do any act or acts which may effect the rights of the plaintiff over the tenanted premises.

21. This Court further observes that in the circumstance, the undertaking is not given within the period as above-mentioned, the decree holder would be at liberty to initiate execution proceedings against the judgment debtor i.e., the petitioner herein.

22. It is further observed that in such execution proceedings, the decree holder would not only be entitled to seek a writ for recovery of possession by ejectment of the judgment debtor/petitioner, but also would be entitled to Page No.# 9/9

recovery of the rent for the period from 01.01.2022 to 31.12.2024

23. This Court further finds it relevant to take note of that the respondent herein, who is the plaintiff had been unnecessarily deprived of the enjoyment of the tenanted premises and on account of the various judicial proceedings there has been a considerable delay. Under such circumstances, as the instant petition is completely vexatious and meritless, this Court imposes a cost of Rs.11000/-, (Rupees Eleven Thousand) only upon the petitioner.

24. Interim order, if any, stands vacated in view of the directions as given hereinabove.

25. Revision petition, accordingly, stands dismissed subject to the observation(s) as made hereinabove.

JUDGE

Comparing Assistant