[Cites 14, Cited by 0]
Gauhati High Court
M/S. Assam (Trade) Agencies vs Sujauddin Ahmed on 4 May, 2026
Page No.# 1/14
GAHC010169282019
2026:GAU-AS:6052
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRP/97/2019
M/S. ASSAM (TRADE) AGENCIES
REP. BY SRI YASHPAL CHACHRA (PARTER) (AGE ABOUT 59 YEARS),
S/O LT. SATYA PAL CHACHRA,
SRCB ROAD, FANCY BAZAR,
GUWAHATI-781001,
PH. NO. 9435014693(M)
VERSUS
SUJAUDDIN AHMED
S/O LT. SAADUDDIN AHMED,
R/O S.S. ROAD, LAKHTOKIA,
GUWAHATI-781001
For the Petitioner : Mr. A. Sattar, Advocate
For the Respondent : Mr. A. Tiwari, Advocate
Date of Hearing : 22.01.2026
Date of Judgment : 04.05.2026
Page No.# 2/14
BEFORE
HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA
JUDGMENT
1. Heard Mr. A. Sattar, the learned counsel for the petitioner. Also heard
Mr. A. Tiwari, the learned counsel for the respondent.
2. This application, under Section 115 of the Code of Civil Procedure,
1908, has been filed by the petitioner, namely, M/s Assam (Trade) Agency,
represented by its partner Shri Yashpal Chachra, impugning the judgment and
decree dated 28.06.2019, passed by the Court of the learned Civil Judge No. 3,
Kamrup (M), in Title Appeal No. 120/2016, whereby the judgment and decree
dated 25.11.2016, passed by the Court of the learned Munsiff No. 2, Kamrup
(M) at Guwahati in Title Suit No. 185/2013 was upheld.
3. The facts relevant for consideration of the instant revision petition, in
brief, are that the present respondent and his brother are the absolute owners
of an RCC building situated on a plot of land covered by Dag No. 433 under K.P.
Patta No. 268 of Village Seher, Guwahati Part-III, under Guwahati Metropolitan
District Kamrup(M). In Pursuant to a partition between the brothers, the present
respondent received, in his share, the entire second floor of the building as well
as the RCC hall in the ground floor of the same building.
4. The respondent let out the said RCC hall on rent to the present
petitioner at an initial rent of Rs.3,500/- (Rupees Three Thousand Five Hundred
only) per month, payable within the first week of every month. The tenancy
period was from 12.08.2002 till the end of August 2007, i.e., for a period of five
years and a written tenancy agreement to that effect was executed between the
parties on 12.08.2002.
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5. As per the terms of the tenancy agreement, the present petitioner paid
an amount of Rs.1,25,000/- (Rupees One Lakh Twenty-Five Thousand) as
advance rent to the respondent. The said advance amount has to be adjusted
towards the monthly rent of the tenanted premises at the rate of Rs.1,000/- per
month.
6. At the end of the tenancy period, i.e., in August 2007, the present
petitioner requested the respondent to renew the tenancy agreement for a
further period of five years. The respondent was initially reluctant to extend the
tenancy agreement as he required the suit premises for starting a business
being an unemployed youth at that time. However, upon the request of the
present petitioner, the respondent agreed to extend the tenancy for another
period of five years with effect from 01.09.2007 till the end of August 2012. A
written agreement to that effect was executed on 01.10.2007 at a rent of Rs.
5,000/- (Rupees Five Thousand) per month.
7. Thereafter, on expiry of the second extension of tenancy agreement on
31.08.2012, the respondent asked the present petitioner to vacate the tenanted
premises as he bona fide required the said premises for starting a business
there. When the petitioner did not vacate the suit premises, the respondent filed
a title suit for eviction of the present petitioner from the suit premises. The said
suit was registered as Title Suit No. 185/2013, before the Court of Munsiff No.
2, Kamrup (M) at Guwahati.
8. The present petitioner contested the suit by filing a written statement,
wherein the plea of bona fide requirement raised by the present respondent was
denied. It was further stated that the respondent had attempted to forcibly evict
the petitioner from the suit premises by disconnecting the water supply and
blocking the sewage pipes. Consequently, the present petitioner instituted a
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separate suit, being Title Suit No. 462/2012, seeking a declaration that he is a
lawful tenant of the said premises. It was also pleaded that upon refusal by the
respondent to accept the rent, the present petitioner deposited the rent in court
as per the provisions of law.
9. Upon pleadings of both the parties, the trial court framed following
issues in the Title Suit No. 185/2013:
(i) Whether there is any cause of action for the suit?
(ii) Whether the suit is bad for non-joinder of necessary
parties?
(iii) Whether the plaintiff has any bonafide requirement of
the suit premises?
(iv) Whether the plaintiff is entitled to the decree?
(v) What other relief, if any, the parties are entitled to?
10. In support of his case, the respondent, as plaintiff, examined himself as
PW-1. Whereas, the present petitioner adduced evidence of two witnesses as
DW-1 & DW-2. Ultimately, after considering the evidence on record and after
hearing both the sides, the Court of learned Munsiff No. 2, Kamrup (M), by the
Judgment dated 25.11.2016, decided all the issues in favour of the respondent
and decreed the suit by holding that the suit premises is required bona fide by
the respondent. However, the respondent was also directed to return Rs.5000/-
(Rupees Five Thousand) out of the advance rent paid by the present petitioner
to it.
11. Being aggrieved by the judgment and decree of the trial court, the
present petitioner preferred an appeal under Section 96 read with Order 41 of
the Code of Civil Procedure, 1908, before the Court of learned Civil Judge
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(Senior Division) No. 3, Kamrup (M), Guwahati. In the said appeal, the appellate
court formulated following point for determination - " Whether the plaintiff had
bona fide requirement of the tenanted premises?". However, after considering
the submissions made by the learned counsel for both sides and after going
through the records, the Appellate Court, by its judgment and decree dated 28 th
June, 2019, upheld the judgment and decree passed by the trial court and
dismissed the appeal.
12. Mr. A. Sattar, the learned counsel for the petitioner has submitted that
the First Appellate Court had committed illegality and irregularity in passing the
impugned order without considering the fact that the trial court did not consider
the evidence on record in its true perspective. He submits that the materials on
records clearly indicate that the suit premises was not required bona fide by the
respondent, however, in spite of that both the Trial Court as well as the First
Appellate Court decreed the suit merely on the ground of bona fide requirement
of the respondent.
13. The learned counsel for the petitioner further submits that in the Title
Suit No. 462/2012, which was filed by the present petitioner and wherein the
respondent also filed his written statement, he never took the plea of bona fide
requirement in the said suit. He submits that the respondent had filed the Title
Suit No. 185/2013 only out of grudge and jealousy against the present
petitioner. He submits that as the petitioner has been regularly paying the rent
for the tenanted premises, the respondent had falsely instituted the aforesaid
title suit on the ground of bona fide requirement. He submits that the
respondent never required the suit premises during the period in between year
2002 to 2007, when the rent for tenanted premises was Rs. 3500/- (Rupees
Three Thousand Five Hundred Only), out of which after adjustment of Rs.
Page No.# 6/14
1000/- against the advance amount paid by the present petitioner, the
respondent was getting only Rs. 2500/- as rent. He submits that, under such
circumstances, after 2012 when the rent was enhanced to Rs.5000/-, there
could not be any bona fide requirement of the suit premises, by the respondent,
as he was till that time was sustaining at a much lower rental income only.
14. The learned counsel for the petitioner has also submitted that the
appellate court has erred in holding that the burden of proving that the plaintiff
also possesses other property in the building where the suit go-down is situated,
is on the petitioner under Sections 101/103 of Indian Evidence Act. He submits
that the plaintiff is the co-sharer, of the building in which suit go-down is
situated, with his brother, however, he has not produced any partition deed or
any such document in the trial before the trial court or the appellate court from
which the present petitioner could have known the exact extent of his share in
the said building, as such the petitioner could not have proved the said fact.
15. The learned counsel for the petitioner has also submitted that the First
Appellate Court also erred in not taking into consideration the fact that the
respondent, apart from merely stating that he requires the suit premises for
starting a business, failed to produce any material before the trial court or the
appellate court, to show that he is seriously contemplating of starting a
business. He submits that there is neither any pleading nor any proof to show
that the respondent has done anything in preparation in order to start a
business in the tenanted premises, such as obtaining of trade license, etc. He
submits thatthe plea of bona fide requirement is only a desire and there is no
bona fide in it. He submits that though there was a stipulation in the first
tenancy agreement that the rent of the tenanted premises may be enhanced @
15%, however, same was enhanced in the second tenancy agreement at a
Page No.# 7/14
much higher rate. He submits that it shows that if there is enhancement of the
rent at a rate acceptable to the respondent, the tenanted premises may not be
required by him, as such, same cannot be regarded as bona fide requirement of
the tenanted premises, but only a desire, which was overlooked by both the trial
court and the appellate court.
16. The learned counsel for the petitioner submits that while decreeing the
Title Suit No. 185/2013, in favour of the present respondent, the Trial Court also
directed the present petitioner to pay the cost of the suit to the respondent
without there being any reason for doing so either under Section 35 or under
Order 20 of the Code of Civil Procedure, 1908. He submits that a tenant may be
evicted from tenanted premises only by following the due process of law and
accordingly the respondent has filed the Title Suit No. 185/2013. He submits
that since the respondent had filed the aforesaid suit as it was lawful for him to
do so to seek a relief of eviction of the present petitioner from the tenanted
premises, hence, this was not a case for imposition of cost while decreeing the
suit.The learned counsel for the petitioner, accordingly, prays for setting aside
the judgment of the appellate court as well as the trial court.
17. On the other hand, Mr. A. Tiwari, the learned counsel for the
respondent has submitted that there is no illegality or irregularity in the
impugned judgment of the appellate court justifying any interference by this
court in exercise of its revisional jurisdiction under Section 115 of the Code of
Civil Procedure, 1908. He submits that the petitioner has failed to justify any
valid reason for invoking the revisional jurisdiction of this court for unsettling the
concurrent decision of two courts, i.e., the trial court as well as the appellate
court.
18. The learned counsel for the respondent has submitted that in the Title
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Suit filed by the present petitioner in respect of the said property, i.e., Title Suit
No.462/2012, the judgment passed therein, in paragraph no. 6, unambiguously
indicates that the present respondent has taken the plea of bona fide
requirement in the said suitalso and same has been acknowledged in the
judgment passed in the said suit. He also submits that the fact that the
respondent did not file any counter claim in the suit filed by the present
petitioner, cannot debar the respondent in filing a fresh suit for eviction of the
petitioner from the suit premises.
19. The learned counsel for the respondent has submitted that the
respondent is an unemployed person having a family including wife and child.
He submits that the respondent was not having any other source of income
apart from rent receive form the tenanted premises. He submits that the rent of
Rs. 5000/- per month is so paltry amount in these hard times when every item
of day-to-day need has become so costly that the respondent is not in a position
to sustain his family out of the said amount. He further submits, on the other
hand, the petitioner apart from the tenanted premises has two shops at the
prime location of Guwahati city, as such, the comparative hardship would be
more for the respondent, if the tenanted premises is not vacated.
20. The learned counsel for the respondent has submitted that as the
present petitioner has failed to counter the plea of bona fide requirement by
adducing any evidence to show that the respondent has alternative means of
income, or that he could start his business elsewhere also. He submits that
under such circumstances the law would lean in favour ofthe respondent only.
In support of the submission, he has cited the ruling of the Apex Court in the
case of "Mehmooda Gulshan Vs. Javaid Hussain Mungloo" reported in "(2017) 5
SCC 683".
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21. The learned counsel for the respondent has also submitted that there is
no perversity in the impugned judgment passed by the appellate court or in the
judgment of the trial court, as both the courts have arrived at concurrent finding
on the basis of evidence available on record.
22. He submits that the revisional jurisdiction of the High Court under
Section 115 of the Code of Civil Procedure, 1908 cannot be equated with the
power of a first appellate court. He submits that in exercise of revisional
jurisdiction, this court cannot reappreciate the evidence microscopically to
unsettle the concurrent finding of the trial court and the appellate court, to
arrive at a different conclusion, unless there is a perversity in the impugned
judgment. In support of his submission, the learned counsel for the respondent
has cited following rulings -
(i) "Rajani Manohar Kuntha & Ors. Vs. Parshuram Chunilal Kanojia
& Ors". reported in"(2025) Live Law(SC) 1253".
(ii) "Gandhe Vijay Kumar Vs. Mulji @ Mulchand" reported in
"(2018) 12 SCC 576".
(iii) "Binod Kumar Murarka Vs. On the death of Late Khemraj Lohia
His Legal Heirs Sanjiv Lohia and Ors." reported in "(2019) 1 GLT 221".
23. I have gone through the materials available on records. I have also
considered the submissions made by the learned counsel for both sides. I have
also gone through the rulings cited by learned counsel for both sides in support
of their respective submission.
24. In this case, the petitioner has prayed for invoking the revisional powers
of this court under Section 115 of Code of Civil Procedure, 1908. A bare perusal
of the statutory provisions contained in the above-mentioned section would
reveal that the High Court can exercise its jurisdiction under the aforesaid
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provision only under following three circumstances -
(a) If the subordinate court appears to have exercise a
jurisdiction not vested in it by law; or
(b) If the subordinate court appears to have failed to exercise a
jurisdiction so vested; or
(c) If the subordinate court appears to have acted in exercise
of its jurisdiction illegally or with material irregularity.
25. Thus, the scope of revisional jurisdiction under Section 115 of the Code
of Civil Procedure, 1908 is restricted and different from that of appellate
jurisdiction. The High Court may exercise its revisional jurisdiction only when
there is a jurisdictional error, illegality or material irregularity in exercise of
jurisdiction by the subordinate court. In exercise of the revisional jurisdiction, it
is not open for the High Court to rectify even erroneous conclusion arrived at by
the subordinate court on the basis of the evidence on record. As held by the
Apex Court in the case of "Rajani Manohar Kuntha & Ors. Vs. Parshuram Chunilal
Kanojia & Ors." (supra) the microscopic scrutiny of the evidence on record is
unwarranted in exercise of revisional jurisdiction until the jurisdiction exercise by
the subordinate court is ex-facie without authority. The High Court may also
interfere in the decision of the court below, if the same is perverse.
26. The Apex Court, in the case of "Associate Builders Vs. Delhi
Development Authority", reported in "(2015) 3 SCC 49", has observed as follows
-
"32. A good working test of perversity is contained in two
judgments. In Excise and Taxation Officer-cum-Assessing
Authority v. Gopi Nath & Sons [1992 Supp (2) SCC 312] , it was held
: (SCC p. 317, para 7)
Page No.# 11/14
"7. ... It is, no doubt, true that if a finding of fact is arrived at
by ignoring or excluding relevant material or by taking into
consideration irrelevant material or if the finding so
outrageously defies logic as to suffer from the vice of
irrationality incurring the blame of being perverse, then, the
finding is rendered infirm in law."
In Kuldeep Singh v. Commr. of Police [(1999) 2 SCC 10 : 1999 SCC
(L&S) 429] , it was held : (SCC p. 14, para 10)
"10. A broad distinction has, therefore, to be maintained
between the decisions which are perverse and those which
are not. If a decision is arrived at on no evidence or evidence
which is thoroughly unreliable and no reasonable person
would act upon it, the order would be perverse. But if there is
some evidence on record which is acceptable and which
could be relied upon, howsoever compendious it may be, the
conclusions would not be treated as perverse and the
findings would not be interfered with."
27. From the above observation of the Apex Court, it appears that if a
decision is arrived at on the basis of no evidence or evidence which is
thoroughly unreliable and no reasonable person would have acted upon it, the
order would be perverse. However, if there is some evidence on record which is
acceptable and which could be relied upon, howsoever, compendious it may be,
the conclusion would not be treated as perverse and the finding would not be
interfered.
28. In the instant case, in the impugned judgment, the first appellate court
has arrived at a concurrent finding with that of the trial court regarding bona
fide requirement of the suit premises by the present respondent/plaintiff. The
First Appellate Court has considered the evidence on record adduced by the PW-
1 regarding necessity of suit premises by the respondent/plaintiff for doing
business for his self-employment as due to increase of the day-to-day
expenditure for maintenance of his family, sustenance only on rental income of
Page No.# 12/14
Rs. 5000/- has become difficult. The first appellate court, concurring with the
trial court has held that the necessity of the suit premises for running a
business, so as to increase his income in order to maintain his family may be
regarded as a bona fide requirement. The said reasoning and the finding, in the
considered opinion of this court, do not suffer from the vice of irrationality,
neither same was based on thoroughly unreliable evidence so as to treat it as
perverse.
29. Moreover, the impugned judgment also cannot be faulted in the First
Appellate Court holding that the burden of showing that the respondent/plaintiff
possesses separate property within the RCC building in which he can start a
business without disturbing the present petitioner/defendant is on the
defendant, as said assertion was made by the defendant. The principle that
whoever desires the court to give judgment as to any legal right or liability
dependent on existence of facts which he asserts, must prove that those facts
exist, is a well settled legal principle with statutory recognition in Section 101 of
the Indian Evidence Act. The First Appellate Court was not wrong in reiterating
that principle in the impugned judgment and same cannot be a ground for
interfering with the impugned judgment.
30. The First Appellate Court in addition to concurring with the finding of the
trial court that the suit premises is required bona fide by the present
respondent/plaintiff had also taken into consideration the aspect that the
comparative hardship would be more for the respondent/plaintiff, if the tenanted
premises is not vacated.
31. Though, under Assam Urban Areas Rent Control Act, 1972, the question
of comparative hardship is not required to be considered while considering the
existence of any of the grounds mentioned in Section 5 of the said Act, however,
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the impugned judgment cannot be faulted with only on the ground that the said
aspect was additionally considered by the First Appellate Court after finding
existence of the ground of bona fide requirement of the suit premises by the
landlord/plaintiff.
32. As regards the submission of the learned counsel for the petitioner that
the present respondent/plaintiff had not mentioned about bona fide requirement
of the suit premises in the Title Suit No. 462/2012 filed by the present petitioner
is concerned. It appears that in the paragraph No. 6 of the judgment dated
29.08.2015, passed in Title Suit No. 462/2012, the Court of learned Munsiff No.
2, Kamrup (M), has categorically mentioned about the contention of the
defendant/present respondent that he, being an educated unemployed youth is
preparing to start his own business in the suit premises for self-employment and
as such he bona fide requires the suit premises. As such, the contention raised
by the learned counsel for the petitioner holds no water.
33. The submission of the learned counsel for the petitioner that since a
tenant may be evicted from the tenanted premises only by following the due
process of law, hence, in a suit for eviction under Assam Urban Areas Rent
Control Act, 1972, on decreeing of the suit, no cost may be imposed under
Section 35 or Order 20 of the Code of Civil Procedure, 1908, is also a fallacious
submission. It is a settled principle of law, which is statutorily recognized in
Section 35 of the Code of Civil Procedure, 1908, that the cost shall follow the
event and if not, reason thereof shall be stated. It implies that the cost which
are reasonably incurred by a successful party, except in those cases where the
court in its discretion may otherwise direct by recording reasons, have to be
paid by the unsuccessful party.
34. The principle that the tenant may be evicted from the tenanted premises
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only by following the due process of law only means that a tenant may be
evicted from the rented premises only if the grounds mentioned in Section 5 of
the Assam Urban Areas Rent Control Act, 1972, exists. If any of the ground
mentioned in Section 5 of the said Act exists the landlord may ask for vacating
of the tenanted premises by the tenant. If on asking by landlord, on satisfaction
of the conditions mentioned in Section 5 of the said Act, the tenant vacates the
tenanted premises, the question of filing an eviction suit does not arise.
However, if the landlord is compelled to file an eviction suit, he may not be
denied the cost under Section 35 of the Code of Civil Procedure, 1908, in the
event of getting a decree in the said suit. As such, the principle that the costs
shall follow the event is alsoapplicable to an eviction suit, under the Assam
Urban Areas Rent Control Act, 1972.
35. As already discussed herein above, the impugned judgment of the first
appellate court cannot be regarded as perverse and the said court also does not
appear to have committed any jurisdictional error, invoking of powers under
Section 115 of the Code of Civil Procedure, 1908 is not warranted in this case.
36. In view of the discussion made and reasons stated in the foregoing
paragraphs, this court is of the considered opinion that there is no merit in the
instant revision petition and same is liable to be dismissed.
37. Accordingly, this revision petition is dismissed with cost.
Amit Das Amit Das
Date: 2026.05.04
JUDGE
19:05:02 +05'30'
Comparing Assistant
