Gauhati High Court
Page No.# 1/4 vs Bhobesh Ch. Baroowa on 22 October, 2025
Page No.# 1/40
GAHC010236622022
2025:GAU-AS:14089
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRP/12/2023
ANJALI BANERJEE AND 2 ORS.
W/O LATE PREMENDU SHEKAR BANERJEE,
R/O DANISH ROAD, NEAR PAN BAZAR POLICE STATION, OPPOSITE M.M.C.
HOSPITAL,
DIST.- KAMRUP (M), GUWAHATI- 781001.
2: SAYAN BANEREJEE
S/O LATE PREMENDU SHEKAR BANERJEE
R/O DANISH ROAD
NEAR PAN BAZAR POLICE STATION
OPPOSITE M.M.C. HOSPITAL
DIST.- KAMRUP (M)
GUWAHATI- 781001.
3: VIKRAMADITYA BANERJEE
S/O LATE PREMENDU SHEKAR BANERJEE
R/O DANISH ROAD
NEAR PAN BAZAR POLICE STATION
OPPOSITE M.M.C. HOSPITAL
DIST.- KAMRUP (M)
GUWAHATI- 781001
VERSUS
BHOBESH CH. BAROOWA
S/O LATE MADHAB CHANDRA BAROOWA,
R/O HOUSE NO. 7, NILGIRI PATH, R.G. BARUAH ROAD, P.O.- ZOORAOD,
GUWAHATI- 781024.
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Advocate for the Petitioner : MR. R HUSSAIN, MR. A M DUTTA,MR A A AHMED,MS P
SEN,MRS. S ROY
Advocate for the Respondent : MR G RAHUL, MR. D M NATH
Linked Case : CRP/81/2023
BHOBESH CHANDRA BAROOWA
SON OF LATE MADHAB CHANDRA BAROOWA
RESIDENT OF HOUSE NO. 7
NILGIRI PATH
NEAR ZOO ROAD
GUWAHATI- 781024
WITHIN THE DISTRICT OF KAMRUP(M)
ASSAM.
VERSUS
ANJALI BANERJEE AND 2 ORS
WIFE OF LATE PREMENDU SHEKAR BANERJEE
RESIDENTS OF DANISH ROAD
NEAR PAN BAZAR POLICE STATION
OPPOSITE M.M.C. HOSPITAL
GUWAHATI
KAMRUP(METRO)
PIN- 781001
ASSAM.
2:SAYAN BANERJEE
SON OF LATE PREMENDU SHEKAR BANERJEE
RESIDENTS OF DANISH ROAD
Page No.# 3/40
NEAR PAN BAZAR POLICE STATION
OPPOSITE M.M.C. HOSPITAL
GUWAHATI
KAMRUP(METRO)
PIN- 781001
ASSAM.
3:VIKRAMADITYA BANERJEE
SON OF LATE PREMENDU SHEKAR BANERJEE
RESIDENTS OF DANISH ROAD
NEAR PAN BAZAR POLICE STATION
OPPOSITE M.M.C. HOSPITAL
GUWAHATI
KAMRUP(METRO)
PIN- 781001
ASSAM.
------------
Advocate for : MR G RAHUL
Advocate for : MR. R HUSSAIN appearing for ANJALI BANERJEE AND 2 ORS
- B e f o r e-
Hon'ble Mr. Justice Robin Phukan
JUDGMENT & ORDER (CAV)
Date : 22-10-2025
Heard Mr. R. Hussain, learned counsel for the petitioners in CRP
No. 12 of 2023. Also heard Mr. G. Rahul, learned counsel for the
respondent.
2. Heard Mr. G. Rahul, learned counsel for the petitioner in CRP
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No. 81 of 2023. Also heard Mr. R. Hussain, learned counsel for the
respondents.
3. In these two Civil Revision Petitions, under Section 115 of the
Code of Civil Procedure, the petitioners have challenged the same
judgment and decree dated 07.11.2022 passed by the learned
Additional District Judge No. 2, Kamrup (M) at Guwahati (herein after
Appellate Court) in Title Appeal No. 14 of 2021, where by the learned
appellate court had dismissed the appeal being Title Appeal No. 14 of
2021 filed by the defendants and thereby affirmed the judgment and
decree dated 05.12.2020, so passed by the learned Civil Judge No. 2,
Kamrup (M), Guwahati (herein after Trial Court) in T.S No. 265 of 2010,
with a modification of compensation amount of Rs.500/- instead of Rs.
2000/- per day, till realization for unauthorized stay in the suit
premises.
4. As in these two Civil Revision Petitions are directed against the
same judgment and decree and as the parties involved in both the
petitions are same and also as agreed upon by learned counsel for
both the parties, it is proposed to dispose of both the petitions by this
common judgment and order.
5. For the sake of convenience and to avoid confusions, the status of
the parties, as indicated in the original Title Suit, is adopted in this
petition.
Background Facts:-
(common to both the Civil Revision Petitions):-
6. The background facts leading to filing of the present petition, are
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briefly stated as under:-
"The plaintiff is the owner of two storied warehouse building
having ground floor area measuring 5366 sq. ft. comprising of
266 sq. ft. office rooms and 5100 sq. ft. warehouse areas and
first floor warehouse area measuring about 5100 sq. ft.
totaling to 10466 sq. ft. which is specifically described in the
schedule of the plaint of the suit. In the year 1988 the
plaintiff gave the schedule warehouse on lease for a period of
11 months to one M/S Clearline Tea Company, a registered
partnership firm comprising of 4 partners which is
subsequently converted to proprietorship firm. Among some
of the clauses it was stipulated that the lease agreement will
be renewed on expiry of the term as may be considered fit
and as desired by the lessor. The partnership firm was
represented by Sri Premendu Shekar Benarjee for all
purposes even though there were other partners. According
to the plaintiff after expiry of 11 months the defendant
company was to vacate the premises and after initial expiry
the plaintiff allowed the defendant to occupy the schedule
warehouse by enhancing the rent. Since the plaintiff in his
own discretion extended the lease, it was asked to the
defendant to pay the enhanced rent in respect of 10466 sq.
ft. but the defendant was paying enhanced rent only for
10000 sq. ft. area. Though the plaintiff requested the
defendants to pay the rent for 10466 sq. ft. and to enter into
a fresh written argument but the defendants failed to pay any
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heed to such request. On 14.07.2008 the plaintiff served legal
notice to the defendant to pay the arrear rent amounting to
Rs. 128616/- and to enter into a fresh agreement. On
15.09.2008 the defendant gave reply to the notice denying
the claim of the plaintiff and so the plaintiff requested the
defendant to make payment of the dues and handover
physical possession of the schedule warehouse. The plaintiff
further stated that in the reply dated 15.09.2008 the
defendant admitted that rent is paid only for the space of
10000 sq. ft. and in the reply dated 07.10.2008 the defendant
stated that the plaintiff was not entitled to rent for space of
466 sq. ft. as he is not the owner of the additional space. In
that reply the defendant tried to create a title for plaintiff's
brother by saying that those additional space is the share of
plaintiff's brother and thus the defendant denied to pay rent
for 466 sq. ft. which was against the spirit of tenancy
agreement dated 01.03.1988. The plaintiff his wife and his
son are the partners of M/S L.P. Automative Corporation
which is a dealer of M/S Force Motors Limited and this
showroom is required for the dealer and so on such
requirement, the plaintiff requested the defendant to vacate
the schedule warehouse and though the defendant agreed to
vacate the same from April, 2010 but the same was not
vacated resulting in non renewal of the authorized dealership
from the side of the Force Motors Ltd. in favour of the plaintiff
corporation. According to the oral agreement Sri Premendu
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Shekar Benarjee was to vacate the schedule warehouse but in
the first week of April, 2010 the defendant informed the
plaintiff that due to his ill health he could not vacate the
schedule warehouse and requested more time to vacate the
premise and this was allowed by the plaintiff and for the said
reason the defendant did not tender the rent for the month of
April, 2010. However, the plaintiff came to know that the
defendant filed Misc. N.J. Case and deposited the rent in the
court. The defendant claimed that he paid the rent for the
month of April, 2010 to the Manager of the plaintiff Mr. Deka
but according to the plaintiff there was no such Manager by
that name. The plaintiff was withdrawing the house rent from
the court but it was seen by the plaintiff that the rent for July,
2010 was not paid and so the defendant becomes a defaulter.
As the tenanted premise is required for bona-fide reason and
as the conduct of the defendant was adverse, the plaintiff has
not other option but to file the Title Suit No. 265 of 2010, for
recovery of arrear rent with interest, ejectment and damages.
Defendant contested the suit of the plaintiff by submitting
written statement as well as additional written statement
contending inter-alla, that he denied that he is a defaulter
and apart from the mechanical grounds the defendant took
the plea that it was the plaintiff who refused to accept the
rents. The written statement also stated that the plaintiff
sought exorbitant enhanced rent and the defendant also took
the plea that the defendant is never a defaulter in respect of
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payment of rent. Further the defendant denied that he agreed
to vacate the schedule premises in April, 2009. Overall, the
written statement of Premendu Shekar, Benarjee is that of
total denial.
On the basis of the pleadings of the parties, the learned trial Court
framed the following issues:-
(i) Whether there is cause of action for the
suit?
(ii) Whether the suit is maintainable in its
present form and manner?
(iii) Whether the suit is bad for defect of
parties?
(iv) Whether the defendant has defaulted in
payment of rent in respect of suit premises
to the plaintiff ?
(v) Whether the plaintiff is entitled to
recovery of arrear rent of Rs. 125592/-
only from the defendant as prayed?
(vi) Whether the plaintiff is entitled to
compensation as prayed for?
(VII) Whether the plaintiff is entitled to the
decree as prayed for?
During the course of trial, Premendu Shekar Benarjee expired
and in this place, his legal heirs i.e. his wife and his two sons
were substituted. Though the said defendants entered
appeared, subsequently the substituted legal heirs remained
absent. Since the substituted legal heirs remained absent
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without steps the suit proceeded ex-parte.
The plaintiff adduced the evidence of two witnesses and the
plaintiff/respondent also exhibited some documents in
support of her contention. Thereafter, hearing the counsel for
the plaintiff, the learned Civil Judge, No.2, Kamrup, Guwahati
passed the judgment and decree dated 05.12.2020, in T.S.
No. 265 of 2010.
Then being aggrieved, by the judgment and decree dated
05.12.2020, in T.S. No. 265 of 2010, so passed by the learned
Civil Judge, No.2, Kamrup, Guwahati, the defendants had
preferred an appeal, being Title Appeal No. 14 of 2021,
before the Court of learned District Judge, Kamrup (M), which
was subsequently transferred to the Court of learned
Additional District Judge No. 2, Kamrup (M) at Guwahati
(herein after Appellate Court).
The learned appellate Court then formulated following point
for determination:-
(a) Whether the impugned judgment and
decree passed by the Learned Civil Judge
No. 2, Kamrup (M), Guwahati in connection
with T.S. No. 265/2010 is bad in law as
well as facts and is liable to be set
aside?
Thereafter, hearing learned counsel for the parties, the
learned appellate Court, vide impugned judgment and decree
dated 07.11.2022, had dismissed the appeal filed by the
defendants and thereby affirmed the judgment and decree
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dated 05.12.2020, so passed by the learned Civil Judge No. 2,
Kamrup (M), Guwahati (herein after Trial Court) in T.S No.
265 of 2010, with a modification of compensation amount of
Rs.500/- instead of Rs. 2000/- per day, till realization for
unauthorized stay in the suit premises."
7. Then being aggrieved, the defendants/petitioners have preferred
revision petition No. 12 of 2023, with a prayer to set aside the
impugned judgment and decree, on the following grounds:-
(I) The learned appellate Court has exercised the
jurisdiction not vested by law in it by upholding the
judgment and decree of the learned trial court;
(II) The learned appellate Courts had exercised its
jurisdiction illegally when the plaintiff failed to comply
with the mandatory requirement of CPC to file list of the
documents with the plaint.
(III) That Clause No. 7 of the agreement provides for
settlement of disputes through Arbitration and the
petitioners in their written statement in paragraph No. 2
took the plea of arbitration clause; therefore, the learned
Courts below had no jurisdiction to entertain the suit in
view of the provision of Section 8 of the Arbitration and
Conciliation Act, 1996.
(IV) That the learned appellate Court had failed to
appreciate that the learned trial court passed the
Judgment and Decree in violation of the notifications
issued by the Hon'ble High Court as well as by the
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learned District & Session Judge, Kamrup (M); Guwahati
in the month of March, 2020 and extended from time to
time restraining the normal functioning of the Court and
direction to take up the cases involving extreme urgency
involving liberty to take up which continued up to
January, 2021.
(V) That in the instant case, the plaintiff never prayed
for a decree of declaration that the defendants are
defaulter in paying the rent, the learned Courts below
without considering the same most illegally exercise its
jurisdiction that the defendant is defaulter in payment of
rent.
(VI) That the plaintiff, for the first time alleged non
-payment of rent for the 466 square feet of extra space
in the premises by way of legal notice dated 14.07.2008
and therefore, the claim of the arrear rent for the month
of April, 2003 is time barred and the suit for recovery of
arrear rent is also barred by limitation.
(VII) That the plaintiff had willfully did not encash the
cheque for the month of April, 2010, and later on, when
the cheque for the month of May, 2010 was refused, the
defendant started to deposit the rent in the Court and
therefore, the findings of the learned Courts below that
the defendant is a defaulter in payment of rent is not
sustainable in law as well as on fact.
(VIII) That, the defendant in the instant case, sent the
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rent for the month of April, 2010 through a cheque sent
by post and the plaintiff accepted the cheque as per
postal report, then the plaintiff is debarred from taking
such plea that the rent was not paid for the month of
April, 2010 and as such the impugned Judgment and
Decree declaring the defendant as defaulter in payment
of rent is not maintainable.
(IX) That, the plaintiff had arbitrarily insisted upon the
enhancement of rent to Rs. 8 per sq. ft. and claimed for
arrear rent for the purported 466 sq. ft. of area which is
not sustainable under the Assam Urban Areas Rent
Control Act, 1972.
(X) That, the learned Courts below simply held that
the defendant is a defaulter in the payment of rent
simply on the version of the plaintiff without coming to a
specific finding from when and for which month, the
defendant defaulted in the payment of money and as
such the impugned Judgment and Decree of the learned
Courts below suffers from jurisdictional error.
(XI) That, the learned Courts below without coming to
any finding regarding the manner and the mode of
payment and when the rent becomes due, held that the
defendant is a defaulter in payment of rent and as such
the impugned judgment and decree of the learned Courts
below suffers from error of jurisdiction.
(XII) That, when the plaintiff refused to accept the rent,
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the defendant deposited the rent in Court in accordance
with the provisions of Section 5 (4) of the Assam Urban
Areas Rent Control Act, 1972 and the plaintiff had
withdrawn same, the defendant cannot be treated as a
defaulter and as such the findings of the learned lower
courts below as regard the defendant being defaulter
suffers from error of jurisdiction.
(XIII) That in the instant case neither the plaintiff nor
the learned lower courts below suo-moto called for the
record of N.J. Cases, particulars of which were available
in the Rents Deposits of Challans, filed by the defendants
in the suit and the record of N.J. cases are part of court
records which were necessary for proper decision
regarding defaulter.
(XIV) That, the claim of the plaintiff for requirement of
the suit premises for expansion of the business not
mentioned in the eviction notice and it was first time
mentioned in filing the suit and as such the findings of
the learned Courts below that the suit premises is
required by the plaintiff bona-fide is not sustainable in
law.
(XV) That, the plaintiff projected a case of bona-fide
requirement based on a document by way of Ext. 6 & 7,
but the author of the said document was not examined,
therefore, neither the document has been proved in
accordance with law nor the contents of the document
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has been proved.
(XVI) That, the learned Courts below committed
illegality in shifting the burden for fixation of fair rent in
case of a dispute despite the fact that under Section 4 of
the Assam Urban Areas Rent Control Act, 1972, on
application either by landlord and/or tenant, fair rent
shall be determined by the Court.
(XVII) That, the plaintiff never prayed for eviction of the
defendant on the ground of bona-fide requirement and
no issue has been framed in this respect, but the learned
Courts below while discussing the issue Nos. 6 and 7,
which are not related to the issue of bona-fide
requirement made out a new case and travelled beyond
the relief sought by the plaintiff and granted the relief of
eviction on the ground of bona-fide requirement.
(XVIII) That, it is settled law that an ex-parte order can
be passed without hearing the other side while the
adjudicating authority is satisfied that the case involves
grave urgency and in the instant case neither there is a
finding arrived at by the learned Courts below nor the
tenancy dispute can be treated in urgent in nature during
the pandemic period.
(XIX) That, the learned Courts below acted illegally in
passing a decree for compensation inasmuch as till the
decree is passed by a competent Civil Court or an
appeal/ revision preferred there against is dismissed, the
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tenant cannot be said to be a trespasser with respect to
the suit premises, there is no question of payment of any
compensation at all.
(XX) That, the learned Courts below had passed the
Judgment and Decree on the weakness of the defendant
where the Hon'ble Supreme Court and the Hon'ble High
Courts held that it is the plaintiff who has to prove its
own case and in the instant case, the plaintiff failed to do
so.
(XXI) That, the parties must abide by the procedure
prescribed in the Code and if they fail to do so, they have
to suffer the consequences and the Courts of Civil
Judicature also have to adhere to the procedure
prescribed in the Code and where Code is silent about
something, Courts act according to justice, equity and
good conscience and in the instant case, the learned
Courts below failed to apply this principle.
(XXII) That, the truth is the foundation of Justice and it
must be endeavor of all the Judicial Officers and Judges
to ascertain truth in every matter and no stone should be
left unturned in achieving this object and in the instant
case, the same is not followed.
(XXIII) That, the learned courts below failed to apply its
judicial mind and as such there is abuse of the process of
law and gross injustice has been caused to the
defendants/petitioners by throwing them out from the
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suit premises which is their source of livelihood.
8. It is also to be noted here that being aggrieved, by the impugned
judgment and decree so passed by the learned appellate Court, the
plaintiff/petitioners have preferred revision petition No. 81 of 2023,
with a prayer to set aside the impugned judgment and decree, on the
following grounds:-
A. That, the learned appellant Court while passing the
impugned judgment dated 07.11.2022 and decree dated
11.11.2022, has wrongly reduced the compensation
amount from Rs.2,000/- (Rupees Two Thousand only)
per day, recoverable from the respondents for their
unauthorized stay/ occupation in the suit premises after
31.03.2010, to Rs.500/- (Rupees Five Hundred only) per
day till realization of decretal amount, in view of the clear
and categorically stand of the petitioner/plaintiff that the
suit premises is a commercial space measuring about
10,466 square feet and the respondents have been
illegally occupying the same since 31.03.2010, and as a
result of which the petitioner has been financially
suffering.
B. That, the learned appellant Court, while passing the
impugned judgment dated 07.11.2022 and decree dated
11.11.2022, committed a manifest error of law in failing
to give any justifiable reason for its reduction of the
compensation amount from Rs.2,000/- (Rupees Two
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Thousand only) per day to Rs.500/- (Rupees Five
Hundred only) per day. As the impugned reduction of the
compensation amount is not backed by any valid/
effective reason.
C. That, the impugned judgment dated 07.11.2022 and
decree dated 11.11.2022, so far as the same relates to
arbitrary reduction of the compensation amount to
Rs.500/-, having been done by the first appellate Court,
which is the final Court of appeal in rent control matters,
ought to have been done with conscious application of
mind and must have recorded reasons supported by
findings on its reduction of the compensation amount
from Rs. 2,000/- per day to Rs.500/- per day along with
the contentions put forth by the parties, upon proper
appreciation of the evidences, both oral and
documentary on record. But in the instant case, the
learned Additional District Judge No. 2, Kamrup (Metro),
Guwahati mechanically reduced the compensation
amount totally disregarding the evidences on record.
D. That, the mechanical reduction of the compensation
amount by the appellate Court without assigning any
valid reason based on supportive evidence has vitiated
the impugned judgment and decree to that extend.
Submissions:-
9. Mr. R. Hussain, learned counsel for the petitioner submits that the
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petitioners are not defaulters and they have paid the rent for the
months of April and July, 2010 by cheque and the plaintiffs willfully did
not encash the cheque for the month of April, 2010 and refused to
accept the cheque for the month of May, 2010 and thereafter, the
defendant started depositing the rent in the Court and in that view of
the matter, the defendant cannot be branded as a defaulter in
payment of rent and he paid rent as per the agreement of lease,
Annexure-1, at Page No. 29 of the petition.
9.1. Further, Mr. Hussain submits that there is no bona fide
requirement of the suit premises and the learned Court below has
travelled beyond the relief sought for by the plaintiff and as such, the
impugned judgment and decree, so passed by the learned First
Appellate Court, is liable to be interfered with.
9.2. Referring to the additional affidavit submitted by the petitioner,
Mr. Hussain submits that there is subsequent development in respect
of the suit properties and the Government of Assam has issued an
order under Section 3(1) of the Assam Land (Requisition and
Acquisition) Act, 1964, in L.A. Case No. 9/2025/2194, dated
28.05.2025 and the same was issued by the District Commissioner and
Collector, Kamrup Metropolitan District, Guwahati for requisition of
certain land, as described in the schedule, which also includes the suit
land; as the name of the opposite party is also appearing in the Serial
No. 43 and the said notification is of 28.05.2025 and from the date of
said notification, the land in question vested with the acquisition
authority and as the land is acquired by the Government, the
respondents have lost their right over the suit land and under such
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circumstances, Mr. Hussain submits that the impugned judgment and
decree, so passed by the learned First Appellate Court, affirming the
judgment and decree passed by the learned Trial Court; is liable to be
interfered with.
9.3. In respect of the Review Petition No. 81/2023, Mr. Hussain
submits that there, the learned First Appellate Court has interfered
with the compensation amount of Rs. 2000/- per day, fixed by the
learned Trial Court and the same is found to be excessive by the
learned First Appellate Court and as such, the learned First Appellate
Court has rightly interfered with the same and reduced the same to Rs.
500/- per day and therefore, that part of the decision requires no
interference by this Court.
9.4. Mr. Hussain also submits that since the land is acquired by the
Government of Assam, the Government of Assam is a necessary party
in this revision petition. But, the respondent has not arrayed the State
of Assam as a party and on such ground also, the impugned judgment
and decree is liable to be interfered with.
10. Per contra, Mr. G. Rahul, learned counsel for the respondent in
Revision Petition No. 12/2023 and Revision Petition No. 81/2023,
submits that it is well settled in the case of Kanaklata Das vs. Naba
Kumar Das, reported in (2018) 2 SCC 352, in a tenancy suit, only
two persons are necessary parties for the decision of the suit, namely,
the landlord and the tenant. And as such the Government of Assam is
not a necessary party as submitted by Mr. Hussain, the learned counsel
for the petitioner.
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10.1 In the instant case, the decree was passed by the learned Trial
Court sometime on 05.12.2020, in Title Suit No. 265/2010, whereas
the land was acquired by the State of Assam, only on 28.05.2025 and
as such, the impugned notification of the government will no longer be
applicable in the present case.
10.2 Referring to the decision of a Co-ordinate Bench of this Court,
in Ashutoshini Bhattachargjee Vs. Tapan Kumar Das, reported
in (2006) 3GLR 381, especially to paragraph No. 13; Mr. Rahul
submits that under the provision of 1972 Act, the burden is on the
tenant to pay the monthly rent to the landlord, on the date when it fell
due and in the event of refusal to accept rent by the landlord when the
same was offered, a duty is cast on the tenant to deposit the same in
court with proper process fee, etc., within a fortnight of its falling due.
The tenant can claim protection from eviction only in case the rent is
paid or deposited in accordance with the provision of Section 5 of the
Act of 1972 and the burden is also on the tenant to prove that such
rent was paid or deposited, in the event of there being any allegation
that such rent was not paid to the landlord in time; and in the case in
hand, the petitioner has failed to prove the payment of the rent for
months of April and May, of the year 2010 and that, once a defaulter is
always a defaulter and subsequent payment of rent in the court will
not absolve him from being evicted from the suit premises; and that
the petitioner has failed to produce any IOTA of evidence regarding
two month's rent to be paid. Under such circumstances, Mr. Rahul
submits that there is no merit in this petition and therefore, it is
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contended to dismiss the same.
10.3. Mr. Rahul also submits that while dismissing the appeal, the
learned First Appellate Court has interfered with the compensation of
Rs. 2000/- per day to Rs. 500/- per day, without giving any reason for
interfering with the same and a judicial decision has always to be
supported by reason and without there being any reason, the same is
unsustainable and therefore, Mr. Rahul has contended to allow the
Revision Petition No. 81/2023.
11. In reply to his submission, Mr. Hussain submits that the bona fide
requirement in the present case has gone due to operation of law, as
the land was acquired by the Government of Assam under Land
Acquisition Law and that the rent for 2 months have already been paid.
Discussion:-
12. Having heard the submission of the learned counsel for both the
parties, I have carefully gone through the petition and the documents
placed on record and also perused the decision, referred to by the
learned counsel for both the parties.
13. It is to be noted here that in the case of Kanaklata Das
(supra) Hon'ble Supreme Court has held that there are some well
settled principles of law relating to parties, pleadings and proof in
eviction suits under rent law, and these are :-
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"11.1. First, in an eviction suit filed by the
plaintiff (landlord) against the defendant
(tenant) under the State Rent Act, the
landlord and tenant are the only necessary
parties. In other words, in a tenancy suit,
only two persons are necessary parties for the
decision of the suit, namely, the landlord and
the tenant.
11.2. Second, the landlord (plaintiff) in such suit
is required to plead and prove only two things
to enable him to claim a decree for eviction
against his tenant from the tenanted suit
premises. First, there exists a relationship
of the landlord and tenant between the
plaintiff and the defendant and second, the
ground(s) on which the plaintiff landlord has
sought defendant tenant's eviction under the
Rent Act exists. When these two things are
proved, the eviction suit succeeds.
11.3. Third, the question of title to the suit
premises is not germane for the decision of
the eviction suit. The reason being, if the
landlord fails to prove his title to the suit
premises but proves the existence of
relationship of the landlord and tenant in
relation to the suit premises and further
proves existence of any ground on which the
eviction is sought under the Tenancy Act, the
eviction suit succeeds. Conversely, if the
landlord proves his title to the suit premises
but fails to prove the existence of
relationship of the landlord and tenant in
relation to the suit premises, the eviction
Page No.# 23/40
suit fails. (See Ranbir Singh v. Asharfi Lat.)
11.4. Fourth, the plaintiff being a dominus litis
cannot be compelled to make any third person a
party to the suit, be that a plaintiff or the
defendant, against his wish unless such person
is able to prove that he is a necessary party
to the suit and without his presence, the suit
cannot proceed and nor can be decided
effectively. In other words, no person can
compel the plaintiff to allow such person to
become the co-plaintiff or defendant in the
suit. It is more so when such person is unable
to show as to how he is a necessary or proper
party to the suit and how without his
presence, the suit can neither proceed and nor
it can be decided or how his presence is
necessary for the effective decision of the
suit. (See Ruma Chakraborty v. Sudha Rani
Banerjee².)
11.5. Fifth, a necessary party is one without whom,
no order can be made effectively, a proper
party is one in whose absence an effective
order can be made but whose presence is
necessary for a complete and final decision on
the question involved in the proceeding. (See
Udit Narain Singh Malpaharia v. Board of
Revenue³.)
11.6. Sixth, if there are co-owners or co-landlords
of the suit premises then any co-owner or co-
landlord can file a suit for eviction against
the tenant. In other words, it is not
necessary that all the owners/landlords should
Page No.# 24/40
join in filing the eviction suit against the
tenant. (See Kasthuri Radhakrishnan v. M.
Chinniyan.)"
14. It is also to be mentioned here that the revisional powers of High
Court under the various State Rent Acts and scope of the same have
been dealt with by Hon'ble Supreme Court in the case of Hindustan
Petroleum Corporation Limited vs. Dilbahar Singh, reported
in (2014) 9 SCC 78, wherein in paragraph No. 43, it has been 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
Page No.# 25/40
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."
15. Bearing the above principles in mind, now this Court will
proceed to examine the impugned judgment and decree, so passed by
the learned Appellate Court.
16. It appears from a perusal of the Judgment, dated 05.12.2020,
passed by the learned Trial Court, that though the defendant
Premendu Shekar Banerjee had entered appearance and filed his
written statement, he subsequently suffered demise and in his place,
his legal heirs, i.e., his wife and his two sons were substituted and the
learned Trial Court had issued summons to the newly substituted
defendants. It also appears that though the newly impleaded
Page No.# 26/40
defendants had entered appearance, yet subsequently, they had
defaulted, for which, the case proceeded against them ex-parte and.
And as such, there was no cross -examination of the two witnesses
examined by the plaintiff.
17. It also appears from the record of the learned Trial Court that the
title suit was filed for a decree for:-
(a) For recovery of arrear rent of Rs.1,25,5021-
(Rupees one lakh twenty five thousand five
hundred ninety two) only from the defendant.
(b) For ejectment of the defendant from the suit
premises.
(c) For compensation from the defendant for his
unauthorized stay in the suit premises after 31-
03-10 Rs. 5000/ per day along with mesne profits.
(d) Cost, etc.
17.1. The arrear rent was for the month of April, 2010 and July, 2010.
It also appears that as per agreement, the rent has to be paid within
7th day of every month, and the defendant had paid the rent for the
month of May 2010 on 31st of May and as such he was defaulter for
the month of May 2010 also, which is being contended by the
plaintiff/respondents herein. It is the categorical contention of the
plaintiff/respondent herein that the suit premises is bona-fide required
for opening one Automobile Dealership Workshop of the wife and son
of the plaintiff/respondents herein. Thus, it becomes clear that on two
counts the ejectment of the petitioner was sought for one is defaulter
and the other is bona-fide requirement.
Page No.# 27/40
Finding of the learned Trial Court:-
18. It also appears from the judgment dated 05.12.2020 of the
learned trial Court that the issue of defaulter was dealt with by the
learned trial Court in issues Nos. 4 & 5. While discussing the issue No.
4, the learned Trial Court had held that though the deceased
defendant, in his written statement as well as additional written
statement; has taken a stand that on refusal of acceptance of rent by
the plaintiff, he deposited the rent in the Court and in additional
written statement, he has also taken a stand that he was aggrieved by
the exorbitant enhanced rent; the said statement regarding exorbitant
enhanced rent is proof enough that the defendant refused to pay the
rent to the plaintiff directly and the remedy available to the defendant,
by filing a petition for fair rent was never exercised, either by the
deceased defendant or by his legal heirs; meaning thereby, that the
landlord's claim of enhanced rent was refused and furthermore, both
PW-1 and PW-2 supported the factum of default on the part of the
defendant firm, and the evidence so rendered, was never tested
through cross examination, and under such backdrop of the case and
when the defendant failed to prove that he is not a defaulter, there is
nothing to disbelieve the claim of the plaintiff that the defendant has
defaulted in payment of rent, in respect of the suit premises. It had
also been held that the Agreement for Lease, dated 01.03.1988, was
specific that the defendant was to pay rent for 10,466 sq. ft. of the
tenanted premises, but the challenge made by the defendant, which is
reflective in the additional written statement that there was a claim
Page No.# 28/40
made arbitrarily by the plaintiff in respect of the 466 sq. ft., is reflective
of the fact that the defendant is defaulter in payment of rent of the
scheduled premises and thereafter, decided the issue in affirmative.
19. It also appears that in respect of the Issue No. v, the learned
Trial Court had observed that the defendant in the position of the
tenant, went against the spirit of the agreement for lease, i.e., Exhibit-I
and the defendant's challenge made against Exhibit-I, regarding not
paying rent for 466 sq. ft. makes it abundantly clear that the defendant
has willfully and with full knowledge refused to payment of rent, as has
been agreed and thereby, the arrear rent shown by the plaintiff
becomes believable and so, the claim which remains un-rebutted, is to
be given in favour of the party who claims it, as because the onus put
on such a party is completely proved in the present circumstances of
the suit and thereafter, decided the suit in affirmative.
20. Further it appears that in respect of the bona-fide requirement
of the suit premises by the plaintiff/respondent herein, the learned trial
Court had dealt with the same in Issue No. 6 and 7. Then after
discussion of evidence, it had arrived at a finding that the plaintiff is
able to show his bonafide requirement, when he stated that the suit
premises is required for extension of his business on the strength of
Exhibit 6 & 7 to substantiate such claim of his. While arriving at such a
finding, the learned trial Court had also relied upon two decisions of
the Hon'ble Supreme Court, being Shiv Sarup Gupta Vs. Mahesh
Chandra Gupta, reported in (1999) 6 SCC 222 and Raghabendra
Kumar Vs. Firm Prem Machinery & Co., reported in (2000) 1
Page No.# 29/40
SCC 679.
20.1. Notably, in the case of Shiv Sarup Gupta (supra), Hon'ble
Supreme Court has dealt with the issue of bona-fide requirement as
under:-
13.Chambers 20th Century Dictionary defines bona
fide to mean "in good faith : genuine". The word
"genuine" means "natural: not spurious: real:
pure: sincere". In Law Dictionary, Mozley and
Whitley define bona fide to mean "good faith,
without fraud or deceit". Thus the term bona fide
or genuinely refers to a state of mind.
Requirement is not a mere desire. The degree of
intensity contemplated by "requires" is much more
higher than in mere desire. The phrase "required
bona fide" is suggestive of legislative intent
that a mere desire which is the outcome of whim or
fancy is not taken note of by the rent control
legislation. A requirement in the sense of felt
need which is an outcome of a sincere, honest
desire, in contradistinction with a mere pretence
or pretext to evict a tenant, on the part of the
landlord claiming to occupy the premises for
himself or for any member of the family would
entitle him to seek ejectment of the tenant.
Looked at from this angle, any setting of the
facts and circumstances protruding the need of the
landlord and its bona fides would be capable of
successfully withstanding the test of objective
determination by the court. The judge of facts
should place himself in the armchair of the
landlord and then ask the question to himself --
whether in the given facts substantiated by the
Page No.# 30/40
landlord the need to occupy the premises can be
said to be natural, real, sincere, honest. If the
answer be in the positive, the need is bona fide.
The failure on the part of the landlord to
substantiate the pleaded need, or, in a given
case, positive material brought on record by the
tenant enabling the court drawing an inference
that the reality was to the contrary and the
landlord was merely attempting at finding out a
pretence or pretext for getting rid of the tenant,
would be enough to persuade the court certainly to
deny its judicial assistance to the landlord. Once
the court is satisfied of the bona fides of the
need of the landlord for the premises or
additional premises by applying objective
standards then in the matter of choosing out of
more than one accommodation available to the
landlord his subjective choice shall be respected
by the court. The court would permit the landlord
to satisfy the proven need by choosing the
accommodation which the landlord feels would be
most suited for the purpose; the court would not
in such a case thrust its own wisdom upon the
choice of the landlord by holding that not one but
the other accommodation must be accepted by the
landlord to satisfy his such need. In short, the
concept of bona fide need or genuine requirement
needs a practical approach instructed by the
realities of life. An approach either too liberal
or too conservative or pedantic must be guarded
against."
20.2. Further, in the case of Raghabendra Kumar(supra), Hon'ble
Supreme Court has held as under:-
Page No.# 31/40
"10. The learned Single Judge of the High Court
while formulating the first substantial question
of law proceeded on the basis that the plaintiff
landlord admitted that there were a number of
plots, shops and houses in his possession. We have
been taken through the judgments of the courts
below and we do not find any such admission. It is
true that the plaintiff landlord in his evidence
stated that there were a number of other shops and
houses belonging to him but he made a categorical
statement that his said houses and shops were not
vacant and that the suit premises is suitable for
his business purpose. It is a settled position of
law that the landlord is the best judge of his
requirement for residential or business purpose
and he has got complete freedom in the matter.
(See Prativa Devi v. T.V. Krishnan [(1996) 5 SCC
353].) In the case in hand the plaintiff landlord
wanted eviction of the tenant from the suit
premises for starting his business as it was
suitable and it cannot be faulted."
21. Further it appears that the learned trial Court had found that
apparent loss has been caused to the plaintiff by the defendant and so
apart from the decree, the plaintiff is also entitled to get compensation
as has been prayed for and this becomes more stronger, because the
defendant did not support his written statement through any evidence
and so, the pleading of the defendant cannot be taken into account
and thereafter, decreed the suit granting relief as prayed for.
Finding of the appellate Court:-
22. On the other hand, the learned Appellate Court, in the impugned
Page No.# 32/40
Judgment and Decree, in respect of Issue No. 4; had held that the
plaintiff has taken the plea that the defendant is the defaulter in
respect of the suit premises of the plaintiff, whereas the defendant has
denied the same. The claim of the defendant in his written statement
is that the plaintiff has refused to accept the rent in the Court and
further, agitated that the rent enhanced by the plaintiff was exorbitant.
Thereafter, it had found that the admitted fact is that the plaintiff is the
landlord of the defendant and the claim of the plaintiff has been
supported by the plaintiff and his witnesses; whereas the defendant
had failed to cross examine the witnesses of the plaintiff and therefore,
the claim of the plaintiff remains as it is, which fails to be rebutted by
the defendant. That apart, though the plea has been taken that the
rent enhanced was much higher, but the defendants have failed to
approach proper forum for reducing the same, if any.
22.1. The learned appellate Court then went on to observe that as per
the agreement entered by the parties of the tenanted premises for
10466 sq. ft. and when the plea of defaulter of payment of rent is
taken by the plaintiff and in support of his claim, he has adduced
evidences; under such circumstances, it is the duty of the defendant to
show and establish that he has regularly made payment of rent to the
plaintiff and he is not a defaulter. But, the same is missing in the case
in hand, as the defendant had failed to cross examine the plaintiff and
his witnesses to establish the fact that he was not a defaulter.
22.2. Thereafter, the learned appellate Court had discussed a decision
of the Hon'ble Supreme Court, in Dhonpal Chettiar vs. Yasuda
Page No.# 33/40
Amal, reported in AIR 1979 SC 1745 and also a decision of this
Court, in Bansal Traders and Others Vs. Nandalal Gattani,
reported in 2006 (3) GLT 715 and in Kali Kr. Sen Vs.
Makhallal Biswas, reported in AIR 1969 A & N 66 (FB) and in
Abdul Matin Choudhury Vs. Nilyananda Dutta Banik,
reported in 1997 (2) GLT 590.
22.3. Thereafter, the learned appellate Court had went on to observe
that there must be evidence that there was refusal by the landlord,
tenant must tender or offer due rent within fortnight of this failing due,
which is the precondition to the deposit of rent in the Court. Section
5(4) is a mandatory provision. Section 5 (4) of Assam Urban Areas
Rent Control Act, 1972, deals with deposit of rent in the Court, which
provides that rent must be deposited in the Court together with
process fee for service of notice on landlord and also with written up
notice and thereafter, it had arrived at the finding that the learned Trial
Court has rightly decided the issue and the same requires no
interference.
23. Thereafter, in respect of Issue No. 5, the learned appellate
Court has held that the defendant has taken rent, totaling 10466 sq. ft.
on a plot of land, measuring 1 Bigha 2 Kathas 18 Lechas, of Dag No. 9,
covered by KP Patta No. 46, of village Sarusajai, under Mouza Beltola,
Guwahati and he has not been paying the rent for 466 sq. ft. and he
willingly refused to make payment of the same and once the defendant
admits the relationship of the plaintiff as landlord, they cannot make
question on the title of the plaintiff and as such, the learned Trial Court
Page No.# 34/40
has rightly decided the issue and therefore, refused to interfere with
the same.
24. In respect of Issue No. 6, the learned Appellate Court has
held that the learned Trial Court, discussing the case law in respect of
Shiv Sarup Gupta (Supra) and Raghabendra Kumar (Supra), has
rightly decided the issues Nos. 6 & 7, which requires no interference.
25. However, while dismissing the appeal, the learned Appellate
Court has held that the plaintiff is entitled to recover arrear rent of Rs.
1,25,592/- from the appellant and also their eviction from the suit
premises, following due process of law and also held that the
respondent is entitled to get compensation from the appellant for
unauthorized stay in the suit premises after 31.03.2010, at Rs. 500/-
per day, till realization of decree amount, instead of Rs. 2000/- per day,
as the same is higher in degree.
Finding of this Court:-
26. Thus, while the submission of Mr. Hussain, learned counsel for
the petitioners and the grounds mentioned in the revision petition are
considered in the light of given facts and circumstances on the record,
and also in view of the decision of the Hon'ble Supreme Court in the
case of Kanaklata Das & Others (supra) and in the case of
Hindustan Petroleum Corporation Limited (Supra), this Court
finds the submission of Mr. Hussian, learned counsel for the
petitioners, as well as the ground so taken in this petition, devoid of
Page No.# 35/40
substance.
27. Though, Mr. Hussian submits that the State of Assam is a
necessary party in this case as the Government has acquired some
portion of the suit premises, yet, we should not forget even
momentarily, that this is suit for ejectment and it is well settled in the
case of Kanaklata Das & Others (supra) that in a suit for
ejectment only the landlord and the tenant are the necessary party.
And that being so, his submission that the State of Assam is a
necessary party, cannot be accepted.
28. Further, it appears that there is concurrent finding of fact by both
the learned Courts below in respect of petitioner being a defaulter for
the months of April, 2010 and July, 2010. Such finding is based upon
proper appreciation of evidence and materials placed on record during
the course of trial and also supported by several decision of Hon'ble
Supreme Court as well as of this Court. Though the
defendants/petitioners herein have taken a stand that they have paid
the rent by cheque for the month of April, 2010 by registered post and
the plaintiff/respondent had not encashed the same, and he refused to
accept the cheque for the month of May, 2010 and thereafter, the rent
is being deposited in the Court and had taken specific plea in the
written statement and in additional written statement, in that regard,
yet the defendants/petitioners have failed to enter into the witness box
to prove the statements and averments made in their written
statement.
Page No.# 36/40
28.1. And that being so, their case, as set out in the written
statements and also as stated in the revision petition cannot be
considered, in view of the decision of the Hon'ble Supreme Court in the
case of Vidhyadhar vs. Manikrao, reported in (1999) 3 SCC
573, wherein Hon'ble Supreme Court has held as under:-
"17. Where a party to the suit does not appear in
the witness-box and states his own case on oath
and does not offer himself to be cross-examined by
the other side, a presumption would arise that the
case set up by him is not correct as has been held
in a series of decisions passed by various High
Courts and the Privy Council beginning from the
decision in Sardar Gurbakhsh Singh vs. Gurdial
Singh [AIR 1927 PC 230: 32 CWN 119]. This was
followed by the Lahore High Court in Kirpa
Singh v. Ajaipal Singh [AIR 1930 Lah 1 : ILR 11
Lah 142] and the Bombay High Court in Martand
Pandharinath Chaudhari v. Radhabai Krishnarao
Deshmukh [AIR 1931 Bom 97 : 32 Bom LR 924]. The
Madhya Pradesh High Court in Gulla Kharagjit
Carpenter v. Narsingh Nandkishore Rawat [AIR 1970
MP 225 : 1970 MPLJ 586] also followed the Privy
Council decision in Sardar Gurbakhsh Singh
case [AIR 1927 PC 230 : 32 CWN 119] . The
Allahabad High Court in Arjun Singh v. Virendra
Nath [AIR 1971 All 29] held that if a party
abstains from entering the witness-box, it would
give rise to an adverse inference against him.
Similarly, a Division Bench of the Punjab and
Haryana High Court in Bhagwan Dass v. Bhishan
Chand [AIR 1974 P&H 7] drew a presumption under
Section 114 of the Evidence Act, 1872 against a
party who did not enter the witness-box. "
Page No.# 37/40
28.2. It is also to be noted here that pleading cannot be read as
evidence. Reference in this context can be made to a decision of
Hon'ble Supreme Court in the case of Anil Rishi vs. Gurbaksh
Singh, reported in (2006) 5SCC 558, where it has been held that-
'pleading is not evidence, far less proof'.
29. It also appears that the learned Courts below had also recorded a
finding, that the suit premises are bona-fide required for establishing
an Automobile Dealership Workshop for the wife and son of the
plaintiff, and that the plaintiff had been able to show his bona-fide
requirement, when he stated that the suit premises is required for
extension of his business on the strength of Exhibit 6 & 7 to
substantiate his claim.
30. Thus, it appears that the learned Courts below had rightly
discussed all the issues and arrived at a reasoned finding. Since the
defendants/petitioners herein had abstained from entering the witness-
box, to state its case and to substantiate the pleas taken by them in
their written statements, it would give rise to an adverse inference
against them under Section 114 of the Evidence Act, 1872, as held by
Hon'ble Supreme Court in the case of Vidhyadhar(supra).
31. Though Mr. Hussain, learned counsel for the
defendants/petitioners has taken an additional ground that the suit
premise was acquired by the Government, vide Notification dated
28.05.2025, yet the impugned judgment was passed on 07.11.2022,
and decree was passed on 11.11.2022, and the judgment and decree
Page No.# 38/40
of the learned Trial Court was passed on 05.12.2020, much earlier than
issuance of the Notification dated 28.05.2025. And as such, the
submission of Mr. Hussain, learned counsel for the
defendants/petitioners that the judgment and decree becomes
inoperable by operation of law i.e. the Notification dated 28.05.2025,
by which a portion of the suit premises was acquired and now the land
lord tenant relationship had changed, yet the same left this Court
unimpressed. Admittedly, the impugned judgments and decrees are
much earlier than the Notification, dated 28.05.2025. The legality,
propriety and correctness of the impugned judgments and decrees
have to be tested on the very date of pronouncement of the same.
Over and above, no retrospective operation of the said notification had
been given.
32. This Court has also considered the ground taken by the petitioner
in CRP No. 81/2023 and the submission of Mr. Rahul, learned counsel
for the plaintiff/petitioner and also the submission of Mr. Hussain,
learned counsel for the defendants/respondents.
33. It is not in dispute that while the learned Trial Court has directed
to pay compensation @ Rs. 2000/- per day for unauthorized stay in the
suit premises, till realization of decreetal amount, w.e.f. 31.03.2010;
the learned Appellate Court has reduced the same to Rs. 500/- per
day.
34. Though Mr. Rahul, learned counsel for the plaintiff/petitioner has
contended that the learned Appellate Court had reduced the amount of
Page No.# 39/40
compensation from Rs. 2000/- per day to Rs. 500/- per day without
any reason, yet it appears that though cryptic, one reason has been
assigned in the impugned judgment, dated 07.11.2022. It is stated
that the compensation of Rs. 2000/- per day, is higher in degree. Thus,
it cannot be said that the learned Appellate Court had not assigned any
reason for reducing the amount; though not in much, but in a short
and cryptic manner. And having examined the same in the light of facts
and circumstances on the record, the same appears to be justified. As
such, the same warrants no interference of this Court.
35. Thus, having examining the legality, propriety and correctness of
the impugned judgment, dated 07.11.2022 and decree, dated
11.11.2022, so passed by the learned appellate Court, keeping in mind
the aforementioned well-settled principles of law in the case of
Kanaklata Das & Others (supra) and in the case of Hindustan
Petroleum Corporation Limited (supra); this Court finds that
the plaintiff/petitioner has failed to demonstrate commission of any
illegality, impropriety in upholding the judgment and decree so passed
by the learned trial Court.
36. Under the given facts and circumstances, this Court finds no
merit in Civil Revision Petition No. 12 of 2023 and accordingly, this
petition stands dismissed.
37. And in view of the discussions and findings so recorded in para
No. 26, 27 and 28, herein above, the Civil Revision Petition No.
81/2023, also stands dismissed.
Page No.# 40/40
38. 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
