Gauhati High Court
CRP/62/2024 on 6 May, 2025
Page 1 of 17
GAHC010111842024
IN THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)
CRP/62 /2024
1. Siddhartha Sen
S/O- Late Khagesh Chandra Sen,
Natunpatty, Silchar Town,
Pargana- Barakpar,
Dist.- Cachar, Assam.
.....Petitioners
-Versus-
1. Roma Choudhury
Wife Of Late Bibha Basu Choudhury,
Residing Of Shyama Prasad Road,
Shillong Patty, Silchar Town,
Paragran- Barakpar,
Dist.- Cachar, Assam Pin- 788001.
2. Dr. Ayan Choudhury
Son Of Late Bibha Basu Choudhury,
Residing Of Shyama Prasad Road
Shillong Patty, Silchar Town
Paragran- Barakpar
Dist.- Cachar Assam Pin- 788001
......Respondents
CRP No. 62/2024 Page 1
Page 2 of 17
For Petitioners : Mr. S. K. Ghosh, Advocate
For Respondents : Mr. D. Majumdar, Sr. Advocate
Mr. G. R. Dutta, Advocate
Date of Judgment : 06.05.2025
BEFORE
HON'BLE MR. JUSTICE MRIDUL KUMAR KALITA
JUDGMENT
(MRIDUL KUMAR KALITA, J)
1. Heard Mr. S. K. Ghosh, the learned counsel for the petitioner. Also
heard Mr. D. Majumdar, the learned Senior counsel assisted by
Mr. G. R. Dutta, the learned counsel for the respondents.
2. This Revision Petition under Section 115 of the Code of Civil
Procedure, 1908 read with Section 151 of the said Code has been
filed by the petitioner impugning the judgment and decree dated
17.02.2024 passed by the learned Civil Judge, Senior Division No. 2,
Cachar in Title Appeal No. 12/2022, whereby the said appeal was
dismissed and the judgment and decree dated 30.03.2022 passed by
the learned Munsiff No. 1, Cachar in T.S. No. 470/2006 was upheld.
3. The facts relevant for consideration of the instant Civil Revision, in
brief, are that the predecessor-in-interest of the present respondents
had instituted the Title Suit, which was registered as T.S. No.
470/2006 in the Court of learned Munsiff No. 1, Cachar against the
present petitioners praying for declaration of plaintiff's right, title and
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interest over the scheduled land and for eviction of the defendants
from the suit property. It was pleaded in the plaint that the plaintiff
was the owner along with his brother of the suit premises, which is a
room described in the schedule to the plaint. Originally the suit
premises was let out on rent to the defendant by executing a deed of
agreement dated 01.03.1981. Subsequently, another deed of tenancy
was executed between them on 15.03.1985. Finally, the scheduled
premises was let out on rent to the defendant for a period of three
years on condition of payment of monthly rent of Rs.1000/-
commencing from 1st of April 1990.
4. The defendant undertook to pay the monthly rent on or before the
seventh day of each month as per the English calendar in advance.
In this regard, a deed of agreement was executed between the
parties on 06.08.1990. As per the terms and condition of the said
agreement, it was to end on 31st day of March, 1993. It is stated in
the plaint that after 31st day of March 1993, the defendant continued
in possession of the tenanted premises. However, he did not pay any
rent for the month of April 1993 in advance.
5. It is further stated in the plaint that without tendering any rent for
the month of April 1993, he wrongly alleged that the plaintiff declined
to accept the rent and filed Misc (RC) Case No. 366/2003 and
thereby deposited the rent in the Court.
6. The plaintiff also pleaded that he was in dire necessity of vacant
possession of the suit room for his personal use and, therefore, also
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took the plea of bona fide requirement for seeking eviction of the
defendant in addition to the plea of defaulter in payment of rent.
7. The defendant filed the written statement wherein he denied the
averments made in the plaint and stated that he did not defaulted in
payment of rent. Neither the suit premises is required bona fide by
the plaintiff.
8. On the basis of the pleadings of the parties the Trial Court framed
following issues:
i. Is there any cause of action?
ii. Whether the suit is maintainable in its present form?
iii. Is the suit bad for non-joinder of necessary party(s)?
iv. Is the suit barred by limitation?
v. Is the suit barred by estoppels, acquiescence and waiver?
vi. Is the plaintiff sole owner of the tenancy room?
vii. Does not the defendant tender monthly rent for the months
from April 1993 to the plaintiff?
viii. Is the relationship of landlord and tenant affected in any
way?
ix. Has the plaintiff any bonafide requirement of the suit room?
x. Is the defendant defaulter in any way?
xi. Whether the plaintiff is entitled for decree of eviction of the
defendant described in the schedule of the plaint or any
other relief claimed?
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9. At the final hearing the plaintiff had adduced the evidence of one
witness, namely, Bibha Basu Choudhury as PW-1 and exhibited a few
documents. However, before cross-examination of PW-1, he expired
and, therefore, the examination-in-chief of PW-1 was expunged.
Thereafter, the plaintiff side adduced the evidence of PW-2 namely,
Dr. Ayan Choudhury and exhibited certain documents. The defendant
side adduced the evidence of only one witness that is the defendant
Siddharth Sen himself. He also exhibited a few documents.
10. However, ultimately by the judgment dated 30.03.2022, passed in
Title Suit No. 470/2006, the Trial Court, i.e., the Court of learned
Munsiff No. 1, Cachar decided all the issues in the favour of the
plaintiff and decreed the suit, directing the eviction of the defendant
from the suit premises. Accordingly, the decree was prepared.
11. Being aggrieved by the judgment and decree of the Trial Court, the
defendant i.e., the present petitioner preferred an appeal before the
Court of learned Civil Judge (Senior Division) No. 2, Cachar. The said
appeal was registered as Title Appeal No. 12/2022
12. The First Appellate Court, after hearing the learned counsel for both
the parties and after going through materials on record, formulated
following points for determination in the said appeal:
Point For Determination No. 1: Whether the Learned Trial Court had
rightly decided the issue no. 3, wherein the Learned Trial Court had held
that the suit is not bad for non-joinder of necessary parties?
Point For Determination No. 2: Whether the Learned Trial Court had
rightly decided the issue no 6 wherein the Learned Trial Court held that
the plaintiff is the sole owner of the tenancy room?
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Point For Determination No. 3: Whether the Learned Trial Court had
rightly decided the issue no. 7 wherein the Learned Trial Court held that
the defendant had not tendered the monthly rent for the month from April
1993 to the plaintiff?
Point For Determination No. 4: Whether the Learned Trial Court had
rightly decided the issue no. 8 wherein the Learned Trial Court held that
the relationship of landlord and tenant has not been affected in any way.
Point For Determination No. 5: Whether the Learned Trial Court had
rightly decided the issue no. 9 wherein the Learned Trial Court held that
the plaintiff has bonafide requirement of the suit room?
Point For Determination No. 6: Whether the Learned Trial Court had
rightly decided the issue no. 10 wherein the Learned Trial Court had held
that the defendant has defaulted in payment of rent in respect of the suit
property?
Point For Determination No 7: Whether the Learned Trial Court had rightly
decided the issue no. 4 wherein the Learned Trial Court held that the suit
is not barred by limitation?
Point For Determination No. 8: Whether the Learned Trial Court had
rightly decided the issue no. 11 wherein the Learned Trial Court held that
the plaintiff is entitled for decree of eviction of the defendant from the suit
premises described in the schedule of the plaint.
13. By the impugned judgment, the First Appellate Court decided all the
points for determination in favour of the present respondents and
upheld the judgment and decree of the Trial Court.
14. It is pertinent to note herein that both the Courts, namely, the Trial
Court as well as the First Appellate Court held that the defendant
(the present petitioner) failed to prove that he had tendered the rent
for the month of April 1993 to the landlord and that the landlord
refused to accept the same. He also failed to plead that on refusal of
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the plaintiff/landlord, the rent was deposited in the Court within the
time prescribed by law. Both the Courts held that there was no
pleading to that effect in the written statement regarding tendering
of the rent and refusal of the same by the landlord.
15. Mr. S. K. Ghosh, the learned counsel for the petitioner has submitted
that in the paragraph No. 11 of the plaint, the plaintiff has himself
pleaded that the rent for the month of April 1993 was filed by the
defendant in the Court by filing Misc (RC) Case No. 366/2003
illegally. He submits that the defendant in paragraph No. 14 of his
written statement has specifically denied the said averment. It is
further submitted that the petitioner deposited the rent in the Court
within stipulated time through Misc (RC) Case No. 366/2003 and
thereafter, each and every month the defendant has been depositing
the rent in the Court and the notice was duly served upon the
plaintiff through process server and, therefore, he is not a defaulter.
16. It is also submitted by the learned counsel for the petitioner that the
defendant had called for the records of Misc (RC) Cases by filing an
application before the Trial Court. However, the Court rejected the
same and thereafter, he had applied for certified copies of those
records but the Court also failed to supply the said certified copies by
stating that the records were not traceable.
17. He further submits that thereafter, PW-1 in his oral evidence has
deposed regarding refusal of acceptance of rent by the plaintiff on
tendering of same by the defendant and deposit of the rent in the
Court as per the provision of law. He submits that said evidence was
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wrongly ignored by the Trial Court as well as the First Appellate
Court.
18. The learned counsel for the petitioner has also submitted that in
respect of the bona fide requirement of the suit premises, both the
Court below have not discussed the evidence regarding the said plea
and have come to finding in favor of the plaintiff without discussing
the evidence and, therefore, the said finding is perverse.
19. The learned counsel for the petitioner has also submitted that the
principle of law that the consideration of form cannot override the
legitimate consideration of substance has not been taken into
consideration by both the Courts. He submits that even if a plea is
not specifically made and yet it is covered by implication and the
parties knew that the said plea was involved in the trial then mere
fact that the plea was not expressly taken in the pleadings would not
necessarily disentitle the party from relying upon it and proving the
same by adducing the evidence. In support of his submission the
learned counsel or the petitioner has cited a ruling of the Apex Court
in the case of "Bhagwan Prasad Vs. Chandramol" reported in
AIR 1966 SC 735.
20. He submits that in the instant case the defendant (the present
petitioner) has in his evidence clearly stated that he tendered the
rent for the month of April to the plaintiff and same was refused and
on refusal of the said rent the same was deposited in the Court by
filing Misc (RC) Case.
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21. He, therefore, submits that the Trial Court and the First Appellate
Court have committed illegality and material irregularity in decreeing
the suit of the plaintiff (present respondent) without taking into
evidence tendered by the present petitioner regarding offering of rent
to the plaintiff, refusal of said by the defendants and thereafter,
deposit the same in the Court as per provision of law. He, therefore,
submits that the judgment and decree of the First Appellate Court as
well as the Trial Court are liable to be set aside and reversed.
22. On the other hand, Mr. D. Mazumdar, the learned senior counsel for
the respondents has submitted that the First Appellate Court has
correctly decided the case and decreed the suit of the plaintiff and
there has been no illegality or material irregularity in the judgment
and decree in the decision of the Trial Court or the First Appellate
Court. He submits that there is no perversity either on the part of the
Trial Court or the First Appellate Court in deciding the suit as well as
the first appeal in favour of the present respondents.
23. The learned senior counsel for the respondents has submitted that as
regards the plea of defaulter of rent is concerned the predecessor in
interest of the present respondents had specifically averred in his
plaint that the defendant had defaulted in payment of rent for the
month of April 1993. It has also been stated therein that the
defendants have illegally deposited the rent in Misc (RC) Case No.
366/2003 by wrongly stating that the plaintiff had declined to accept
the rent.
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24. The learned senior counsel for the respondents has submitted that in
their written statement, the defendants have simply denied the
averments made in paragraph No. 11 of the plaint. He, however,
submits that no pleading is there in the written statement as to when
did the defendant offer the rent to the plaintiff and when it was
refused and that by filing which Misc Case, he had deposited the rent
in the Court.
25. The learned senior counsel for the respondents has submitted that in
paragraph No. 11 of the plaint there has been mention of Misc (RC)
Case No. 366/2003, whereas the defaulter of rent has been alleged
for the month of April, 1993, however, no clarification regarding the
said Misc (RC) Case number has been given in the written statement,
except a simple denial.
26. He submits that apart from mere denial no pleading is there
regarding tender a rent to the plaint and refusal of the said by the
plaintiff and under such circumstances any evidence to that effect
would be inadmissible.
27. He further submits that no evidence is permissible to be taken on
record in absence of pleading, and no party may be permitted to
travel beyond pleading. In support of his submission, he has cited
ruling of the Apex Court in the case of "Union of India Vs.
Ibrahim Uddin and Another", reported in (2012) 8 SCC 148,
wherein it was observed as follows:
"77. This Court while dealing with an
issue in Kalyan Singh Chouhan v. C.P.
CRP No. 62/2024 Page 10
Joshi [(2011) 11 SCC 786 : (2011) 4 SCC
(Civ) 656 : AIR 2011 SC 1127] , after
placing reliance on a very large number
of its earlier judgments including Trojan
& Co. v. Nagappa Chettiar [(1953) 1 SCC
456 : AIR 1953 SC 235] , Om Prakash
Gupta v. Ranbir B. Goyal [(2002) 2 SCC
256 : AIR 2002 SC 665] , Ishwar
Dutt v. Collector (LA) [(2005) 7 SCC 190
: AIR 2005 SC 3165] and State of
Maharashtra v. Hindustan Construction
Co. Ltd. [(2010) 4 SCC 518 : (2010) 2
SCC (Civ) 207 : AIR 2010 SC 1299] ,
held that relief not founded on the
pleadings cannot be granted. A decision
of a case cannot be based on grounds
outside the pleadings of the parties. No
evidence is permissible to be taken on
record in the absence of the pleadings in
that respect. No party can be permitted
to travel beyond its pleading and that all
necessary and material facts should be
pleaded by the party in support of the
case set up by it. It was further held that
where the evidence was not in the line of
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the pleadings, the said evidence cannot
be looked into or relied upon."
28. The learned senior counsel for the petitioner has also submitted that
in a suit for eviction between tenant and landlord, a tenant has the
duty to prove that landlord had refused to accept the rent on being
tendered, and in absence of offer and refusal thereof the tenant
cannot deposit the rent before the Court, and deposit of such rent
before the Court without offering the same to the landlord thereof is
contrary to the provision of subsection (4) of Section 5 of the Assam
Urban Areas Rent Control Act, 1972. In support of his submission, he
has cited a ruling of this Court in the case of "Keshav Chandra
Sinha and Others Vs. Maulavi Abdul Vandeep Chaudhary and
others", reported in (2006) 2 GLT 731.
29. The learned counsel for the respondent has further submitted that,
as regards the plea of bona fide requirement is concerned, it is well
settled that the landlord is the best judge regarding his requirement
of the tenanted premises for business or residential purpose, and the
tenant cannot dictate the term to the landlord as to how else he can
adjust himself. In support of his submission, he has cited rulings of
the Apex Court in the case of "Pratibha Devi Vs. T. V. Krishna",
reported in (1995) 5 SCC 353, as well as Sarla Ahuja Vs. United
India Insurance Company Limited, reported in (1998) 8 SCC
779.
CRP No. 62/2024 Page 12
30. He further submitted that though, the Trial Court did not made
elaborate discussion on the materials on record for coming to the
finding that the tenanted premises is required bona fide by the
plaintiff, however, the First Appellate Court, which is also a Court of
fact as well as law, has discussed elaborately regarding the facts
regarding the bona fide requirement of the tenanted premises by the
plaintiffs. He further submits that both the Courts, i.e., the Trial Court
as well as the First Appellate Court, gave the concurrent finding
regarding defaulter of rent by the present petitioner in respect of the
tenanted premises as well as bona fide requirement by him of the
tenanted premises.
31. He also submits that in a revision under Section 115 of the Code of
Civil Procedure, 1908, this Court may not re-appreciate facts to come
to a different finding after two Courts, i.e., the Trial Court as well as
First Appellate Court, have given concurrent findings of the fact. He,
therefore, submits that the revision petition filed by the present
petitioner may be dismissed with cost.
32. I have considered the submissions made by the learned counsel for
both the sides and have gone through the materials available on
record carefully.
33. This Revision Petition has been filed against the judgment and decree
of the First Appellate Court, whereby it has upheld the judgment and
decree of the Trial Court, wherein the relief of eviction of the
defendant from the suit premises was granted on the basis that the
defendant/present petitioner has defaulted in payment of rent and
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that the suit premises was bona fide required by the plaintiff/ present
respondents.
34. While considering the submissions of learned counsel for both the
sides, this Court is conscious about the fact that it is not dealing with
a second appeal, but only exercising its revisional jurisdiction, which
has its inherent limitations. While exercising its revisional jurisdiction,
this Court is mainly concerned with the question as to whether the
impugned judgment and decree by the First Appellate Court has been
passed in exercise of its jurisdiction illegally or with material
irregularity.
35. In the instant case, the present petitioner was found to be a
defaulter of rent for the month of April 1993 on the basis that there
was no pleading in his written statement that he offered rent for the
month of April 1993 to the landlord/plaintiff, and that on such
offering of rent, same was refused to be accepted by the
plaintiff/landlord, and only thereafter, he deposited the same in the
Court.
36. It's no longer res integra that while exercising the revisional
jurisdiction, this Court would not re-appreciate the evidence again to
come to a different finding from that of First Appellate Court as well
as the Trial Court when their finding is concurrent in nature. The
stand of the petitioner is that he offered the rent for the month of
April 1993 to the plaintiff and when the plaintiff refused to accept the
said rent, he was compelled to deposit the said rent by filing Misc
(RC) Case in the Court. To that effect, the present petitioner had also
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tendered evidence as DW-1. However, there is no pleading to that
effect in the written statement filed by the defendant/present
petitioner.
37. In paragraph No. 14 of the written statement filed by the defendant,
he has only denied the evidence made by the plaintiff in paragraph
No. 11 of the plaint where there has been mention of Misc (RC) Case
No. 366/2003. However, no averment was made in the written
statement to the effect that the defendant offered the payment of
rent to the plaintiff and that it was refused by the plaintiff and that
thereafter, he deposited the said rent by filing Misc (RC) Case No.
46/1993. The First Appellate Court as well as the Trial Court declined
to consider the evidence of DW-1 as it was beyond pleading.
38. This Court finds no illegality or any material irregularity committed by
the Trial Court as well as the First Appellate Court in declining to
consider that part of the evidence of DW-1, which was beyond
pleading. The Apex Court, in the case of "Union of India Vs.
Ibrahim Uddin and Another" (Supra) has very categorically held
that where the evidence was not in the line of the pleadings, said
evidence cannot be relied upon.
39. This Court is of considered opinion that the ratio of the case of
"Bhagwan Prasad Vs. Chandramol" (Supra), which has been
cited by learned counsel for the petitioner in support of his
submission is not applicable to this case. In the said case, the Apex
Court has laid down the principles of exception to the applicability of
the normal rule that relief should be founded on pleadings made by
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the parties only. However, the said exception is applicable only if a
plea is not specifically made and yet it is covered by an issue by
implication and parties knew that the said plea was involved in the
trial, then the mere fact that the plea was not expressly taken in the
pleading would not necessarily disentitle a party from relying upon it,
if it is satisfactorily proved by the evidence.
40. However, in the instant case, the defendant had merely denied the
averment made in paragraph No. 11 of the plaint in paragraph No.
14 of the written statement. Though, he had adduced oral evidence
only in respect of the fact that the plaintiff refused to accept the rent
for the month of April 1993 when it was tendered by him and on
such refusal, he had deposited the said rent by filing Misc (RC) Case
No. 46/1993. However, no such pleading was there in the written
statement and there is no material on record from which it can be
said that the plaintiff knew regarding deposit of rent by the
defendant by filing Misc (RC) Case No. 46/1993. As no material was
before the Court, before the evidence of DW-1 was adduced to even
infer by way of implication that the rent for the month of April 1993
was deposited by the defendant by filing Misc (RC) Case No.
46/1993, the rule of exception to the applicability of general principle
as propounded in the above noted case, in the considered opinion of
this Court is not applicable to the facts and circumstances of this
case.
41. This Court is, therefore, of considered opinion that there is no room
for interference with the concurrent finding of the Trial Court as well
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as First Appellate Court that the present petitioner was a defaulter of
payment of rent of for the month of April 1993 in respect of the
tenanted premises.
42. As regards the issue of whether the plaintiff was in bona fide
requirement of the suit premises is concerned, though, the Trial
Court has not discussed elaborately the said issue while coming to
the affirmative finding, however, the First Appellate Court has made
elaborate discussion regarding the plea of bona fide requirement of
the plaintiff in its judgment. The First Appellate Court has elaborately
discussed the evidence on record as well as law applicable to the
case while deciding the issue of bona fide requirement in the
paragraph Nos. 140 to 164 of the impugned judgment, therefore, the
submission of learned counsel for the petitioner that no elaborate
discussion was made while deciding the said issue is not tenable.
43. For the reasons discussed in foregoing paragraph, this Court is of
considered opinion that there is no illegality or material irregularity in
the impugned judgment of the First Appellate Court as well as the
Trial Court while decreeing the suit of the plaintiff (the respondent in
the instant case) for eviction on the basis of bona fide requirement
and finding the present petitioner a defaulter of the rent.
44. The present Revision Petition is, accordingly, dismissed with cost.
JUDGE
Comparing Assistant
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