Sikkim High Court
Mohammed Safique vs Ahishek Rai on 30 September, 2024
Author: Bhaskar Raj Pradhan
Bench: Bhaskar Raj Pradhan
THE HIGH COURT OF SIKKIM: GANGTOK
(Civil Appellate Jurisdiction)
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SINGLE BENCH: MR. JUSTICE BHASKAR RAJ PRADHAN, JUDGE
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R.F.A. No. 06 of 2023
Mohammed Safique
Aged about 62 years
S/o Late Abdul Wawid
R/o Tibet Road, Near Netuk House
P.O. & P.S. Gangtok, Sikkim
Pin No. 737 101.
.... Appellant
versus
Abishek Rai
S/o Dhurba Rai
R/o Lall Market
P.O. & P.S. Gangtok, Sikkim,
Pin No: 737 101.
.... Respondent
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Appeal under Order XLI, Rules 1 and 2 read with
Section 151 of the Code of Civil Procedure, 1908.
Appearance
Mr. Rahul Rathi and Ms. Khushboo Rathi, Advocates
for the Appellant.
Dr. Doma T. Bhutia, Senior Advocate with Mr. Shakil
Raj Karki, Advocate for the Respondent.
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Date of Hearing : 28.08.2024
Date of Judgment : 30.09.2024
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JUDGMENT
Bhaskar Raj Pradhan, J
1. The questions involved in this regular first appeal are
whether the respondent (the plaintiff) had been able to prove
that the appellant (the defendant) had defaulted in payment
Mohammed Safique vs. Abishek Rai
of rents and whether the premises (the suit property) was
required by the plaintiff bona fide?
2. The learned District Judge has on examination of the
evidence led by the parties concluded that the plaintiff had
in fact been able to prove that the defendant had defaulted
in payment of rents and further that the plaintiff bona fide
required the suit property for his personal use.
3. The learned counsel for the defendant submits that he
had not defaulted in payment of rents as he continued to
pay rents to the plaintiff‟s grandfather by sending money
orders on the bona fide belief that the plaintiff‟s grandfather
was the owner of the suit property (although admittedly the
grandfather had not accepted the money orders). It was
further submitted that the plaintiff suffered a trust deficit as
previously the plaintiff‟s grandfather had unsuccessfully
filed an eviction suit against the defendant as well.
4. The suit property is situated in Gangtok and therefore,
section 4 of the Gangtok Rent Control and Eviction Act, 1956
would govern the same. It reads as under:
"4. A Landlord may not ordinarily eject any tenant.
When however whole or part of the premises are
required for the bonafide occupation of the landlord
or his dependents or for thorough overhauling
excluding addition and alterations or when the rent
in arrears amount to four month rent or more the
landlord may evict the tenant on filing a suit of
ejectment in the court of the Chief Magistrate. The
tenant so evicted shall however have the first right
to reoccupy the premises after over-hauling on
such enhanced rent as may be fixed by the Sikkim
Darbar before it is let out to any tenant."
Mohammed Safique vs. Abishek Rai
5. In the plaint, the plaintiff had averred that he had
become the absolute owner of the suit property which was
let out to the defendant by his grandfather; that the suit
property was transferred by his grandfather by executing a
gift deed dated 17.04.2018; that the tenancy was a monthly
tenancy and it was earlier let out by his grandfather to the
defendant at a monthly rent of Rs.4500/-; that the plaintiff‟s
grandfather had communicated the fact of change of
ownership of the suit property to the defendant in writing
vide letter dated 31.05.2018 which was received by him on
02.06.2018; that he had also orally informed the defendant
on 11.02.2019 about the change of ownership in the
presence of his sister-in-law, i.e., Kimu Lepcha; that the
defendant had however, defaulted in payment of monthly
rents from 01.05.2018 and continues to do so despite
intimation. It was averred that the defendant was liable to be
evicted as he had failed to pay rents for more than four
months from the date of intimation regarding change of
ownership vide letter dated 31.05.2018. The plaintiff also
pleaded that he required the suit property for his bona fide
need to settle down and have a family, as he had attained
marriageable age; that he was an ad-hoc employee, employed
on a temporary basis and his job may be terminated at any
time by the Government of Sikkim; that he received a
meagre salary of Rs.18,000/- only and he was not financially
Mohammed Safique vs. Abishek Rai
sound; that he was not in a position to purchase land and
construct house for himself; and that he was embarrassed to
remain dependent on his father who was a Class „D‟
employee of the Government working as a mechanic in the
SNT Department, Government of Sikkim, as he is currently
living with his parents in a joint family; that he desires to
shift to the suit property to accommodate himself. He further
averred that the defendant is rich; that he owns a five and a
half storied commercial-cum-residential building in a prime
location in Tibet Road; that he is running a hotel business
from the said building and has also let out some rooms
therein for running beauty parlour etc. on exorbitant rents;
that he has obtained a license from Gangtok Municipal
Corporation to carry his hotel business. The plaintiff averred
that a legal notice had been issued on 16.05.2019 which
was replied to vide letter dated 31.05.2019 stating that the
plaintiff was building a false story.
6. In the written statement, the defendant admitted that he
was a tenant in the suit property since 1978 and the
plaintiff‟s grandfather was his landlord. He admitted that the
suit property was let out at a monthly rent of Rs.4,500/- by
the plaintiff‟s grandfather. He denied knowledge about the
execution of the gift deed; the mutation in the name of the
plaintiff; and the registration thereof. He denied having
received the letter dated 31.05.2018 from the plaintiff‟s
Mohammed Safique vs. Abishek Rai
grandfather. He denied any knowledge that the plaintiff was
the owner of the suit property while acknowledging that the
grandfather was in fact the owner. He stated that therefore
he continued to send the rents through money orders.
7. The defendant also denied that the suit property was
bona fide required by the plaintiff as averred in the plaint.
He denied that he owned the five storied building in Tibet
road as alleged but stated that he had taken the property
jointly with others. The defendant averred that the
grandfather had sought to raise the rent exorbitantly in the
year 2016 and thereafter filed an eviction suit against him
which was rejected. The defendant averred that the plaintiff
had filed the eviction suit sponsored by his grandfather on
"artificial grounds"; the plaintiff‟s grandfather had
approached various businessmen to let out the suit property
at a monthly rent of Rs.30,000/-.
8. The learned District Judge framed five issues:
"(i) Whether the suit is maintainable? (opp)
(ii) Whether there has been any default in
payment of monthly rent on the part of the
Defendant/tenant? (opp)
(iii) Whether the suit premises are required by the
Plaintiff for bona fide occupation? (opp)
(iv) Whether the Plaintiff's grandfather refused to
accept the monthly rent on account of which the
Defendant was constrained to send it through
money order/post (opd); and
Mohammed Safique vs. Abishek Rai
(v) Whether the Plaintiff is entitled to the reliefs
prayed for by him? (opd)"
9. The learned District Judge held that the suit was
maintainable; that the plaintiff was the owner of the suit
property and the defendant was his tenant. It was also held
that the plaintiff have been able to prove that the suit
property was required bona fide by the plaintiff for his
personal use. The learned District Judge also held that the
suit property had been transferred by the plaintiff‟s
grandfather to the plaintiff through a registered gift deed
dated 17.04.2018; that the plaintiff has been able to prove
that the defendant had been intimated vide letter dated
31.04.2018 by the plaintiff‟s grandfather and the legal notice
dated 16.05.2019 on behalf of the plaintiff about the change
of ownership; The defendant had sent all the money orders
to the plaintiff‟s grandfather although he was aware about
the change in ownership. The learned District Judge was
also of the view that the defendant had failed to pay the
rents to the plaintiff from May 2018. Accordingly, the
learned District Judge decreed the suit in favour of the
plaintiff.
10. The learned District Judge has correctly opined that
the suit was maintainable as the defendant had himself
admitted that he was a tenant of the suit property in his
written statement. The only issue raised by the defendant in
Mohammed Safique vs. Abishek Rai
the written statement as well as in the present appeal is his
lack of knowledge that the plaintiff had been gifted the suit
property by his grandfather and therefore he had become the
owner thereof. The registered Gift Deed dated 14.03.2018
(exhibit-2) and the application for mutation dated
18.04.2018 (exhibit-3) have been proved by the plaintiff who
was the donee. The defendant could not extract anything to
doubt the registered Gift Deed during the cross-examination
of the plaintiff. The plaintiff also proved that his grandfather
had issued letter dated 31.05.2018 (exhibit-4) to the
defendant which was received by him. The plaintiff exhibited
the dispatch receipt (exhibit-6) dated 31.05.2018 addressed
to the defendant as well as the delivery slip (exhibit-5) issued
by the post master of Gangtok GPU which evidences the
receipt of the letter dated 31.05.2018 by the defendant on
02.06.2018. The letter dated 31.05.2018 clearly informed
the defendant that the plaintiff‟s grandfather had transferred
the suit property to the plaintiff. Dhan Maya Rai (PW-2) and
Kimu Lepcha (PW-3) - the plaintiff‟s witnesses, have
corroborated the plaintiff‟s evidence as well.
11. Admittedly, the defendant did not ever offer the rent to
the plaintiff. The defendant, as per the written statement,
took the stand that the plaintiff‟s grandfather was the
landlord and as he had stopped receiving rents the
defendant had been sending monthly rents through postal
Mohammed Safique vs. Abishek Rai
orders in his postal address. The postal money orders
(exhibit-D3 to D56) exhibited by the defendant reflects that
they were all sent to the plaintiffs grandfather and not to the
plaintiff. This has been averred by the defendant in his
written statement as well. The plaintiff proved that he had
sent a legal notice dated 16.05.2019 to the defendant
(exhibit-11) in which he had once again reiterated the fact
that the plaintiff was now the owner of the suit property.
Admittedly, this legal notice was responded to by the counsel
for the defendant vide his reply dated 31.05.2019 (exhibit-
12). The reply dated 31.05.2019 also took the same position
as the defendant had taken before, i.e., that the plaintiff was
not the owner of the suit property but it was his grandfather
who was the landlord. The plaintiff had averred that the
defendant was in arrears of rent from 01.05.2018. The letter
dated 31.05.2018 (exhibit-4) issued by the plaintiff‟s
grandfather to the defendant was received by him on
02.06.2018. The suit was filed on 12.08.2019. Even if one
were to take the date of receipt of the letter dated
31.05.2018, i.e., 02.06.2018, as the date from which the
defendant was in arrears of rent, the defendant would still
be clearly in arrears of rent of four months. This would
permit the plaintiff to seek the defendant‟s eviction under
section 4 of the Gangtok Rent Control and Eviction Act, 1956.
When the original landlord, i.e., the plaintiff‟s grandfather,
Mohammed Safique vs. Abishek Rai
had himself informed in writing to the defendant that the
plaintiff was now the owner of the suit property, the
defendant who was only a tenant ought to have accepted the
position.
12. The plaintiff‟s plea that he requires the suit property for
his personal use has been proved through his evidence as
well as the deposition of Dhan Maya Rai (P.W.2) and Kimu
Lepcha (P.W.3). Dhan Maya Rai (P.W.2) deposed that the
plaintiff is her younger son; that the plaintiff wanted to
marry and settle down; that the plaintiff was working in a
temporary job on a meagre salary; that they were presently
living in a joint family consisting of 8(eight) members; that
her husband was on the verge of retirement and a Class-IV
employee who had taken huge loan for the construction of
the house. Kimu Lepcha (P.W.3) - the plaintiff‟s sister-in-
law, also confirmed that they were staying as a joint family
consisting of 8 members and that the plaintiff, her brother-
in-law had expressed his desire to settle in life and shift to
the suit property. These facts would be known to Dhan Maya
Rai (P.W.2) and Kimu Lepcha (P.W.3). The defendant could
not demolish the evidence led by the plaintiff and his two
witnesses. The office order dated 25.04.2018 (exhibit-7)
proves that the plaintiff had been appointed as Junior
Engineer on ad hoc basis in the project division on a pay of
Rs.18,000/- (Rupees eighteen thousand) only. The plaintiff‟s
Mohammed Safique vs. Abishek Rai
plea of bona fide requirement for his personal use does seem
genuine and reasonable and not just devised to evict the
defendant.
13. Both the issues of failure to pay rent and bona fide
requirement have been dealt with by this Court in Karma
Pintso Bhutia vs. Naresh Subba & Others1 on identical facts as
correctly pointed out by the learned Senior Counsel for the
plaintiff and therefore, the law laid down therein would be
applicable. In the said case, it was noticed that the tenants
inspite of being informed by their previous landlord that the
property had been sold to the plaintiff they failed to
acknowledge the fact and continued to send the rents to the
previous landlord. This Court held that till the receipt of the
letter informing the tenants about the change in ownership,
the tenants‟ failure to pay rents may be excused but
thereafter their failure would definitely be default. In the
said case, it was also held that the need projected by the
plaintiff for the bonafide occupation of the tenanted
premises was genuine, a reasonable one and not just
devised to evict the tenants. Therefore, the tenants‟ eviction
was justified.
14. The evidence led by the plaintiff clearly establishes that
the defendant had failed to pay rents since May 2018 and
that amounted to arrears of rents of more than four months.
2022:SHC:210
Mohammed Safique vs. Abishek Rai
Section 4 also permits the Court to evict the tenant on the
ground of bona fide occupation of the landlord or his
dependent. The plaintiff has been able to establish that he
requires the suit property for his bona fide occupation as the
landlord. There is no compelling evidence led by the
defendant to deter the learned District Judge not to exercise
the discretion in favour of the plaintiff.
15. This Court is of the view that the impugned judgment
is a reasoned one and calls for no interference. It is
accordingly upheld.
16. The defendant shall vacate the suit property within a
period of three months from the date of this judgment. The
arrears of rent deposited by the defendant in this Court
pursuant to the Order dated 08.12.2023 shall be paid to the
plaintiff by the Registry. The defendant shall pay the rent
from the date of this judgment till the vacation of the suit
property, i.e., three months as directed above to the plaintiff
directly.
17. The appeal is dismissed.
18. Parties shall bear their respective costs.
(Bhaskar Raj Pradhan)
Judge
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