Arun Chandra Sarma v. Janardan Prasad Verma

This petition under section 115 of the Code of Civil Procedure is against the judgment and decree passed by the learned Additional District Judge, Dibrugarh in Title Appeal No. 20 of 1980. By the aforesaid judgment the learned Additional District Judge affirmed the decree passed by the learned Sadar Munsiff, Dibrugarh in Title Suit No. 132 of 1968.

2. The opposite party herein as landlord filed the suit for ejec tment of the present petitioner on the ground of default in payment of rent and bonafide requirement of the suit premises and for reconstruction. Petitioner denied that the opposite party herein was his landlord or that he was a defaulter. He has further denied that the suit premises is required for reconstruction as alleged.

3. The learned Court below held that the petitioner was a tenant under the opposite party ; that he was a defaulter and that the house is required for reconstruction.

4. Being conscious of the limited jurisdiction of this Court in exercising revisional powers Mr. Sarma, learned counsel for the pet itioner has urged that the impugned judgment is perverse as the learned lower appellate Court did not consider the evidence on record. This Court in the year 1955 in Giribala Chaudhnry vs. Ushangini Debi, AIR 1955 Assam 177 held that even when affirming the decision of the a Court below, the appellate Court which is the final Court of facts must independently weigh the evidence of par ties and must do so with a clear consciousness of the relevant points which arise for adjudication and the bearing of the evidence on these points. It was further held that it is, however, no part of its duty to encumber the judgment with unnecessary details, so long as the broad facts emerging from the evidence which help the Court in forming its conclusions are found to be there.

5. The Supreme Court in Girijanandini vs. Bijendra, AIR 1967 SC 1124 held that when the appellate Court agrees with the view of trial Court on evidence it need not restate effect of evidence or reiterate reasons given by trial Court and expression of general agreement with reasons given by the Court decision of which is under appeal would ordinarily suffice.

6. So the law is well settled that the appellate Court which is the final Court of facts must weigh the evidence of the parties in dependently but in doing so if it agrees with the views of the trial Court on evidence it need not restate the effect of evidence or to reiterate reasons given by the trial Court and expression of general agreement with reasons given by the trial Court would ord inarily be sufficient. In the case in hand, I have perused the judgment of the learned lower appellate Court and the said judgment cannot be faulted as the learned Additional District Judge has elaborately dealt with all the points raised before him. I, therefore, reject the submission of Mr. Sarma that the impugned judgment is perverse.

7. Though the power of the revisional Court is restricted to jurisdiction only the question is whether this Court can examine the question of defaulter and bonafide requirement in a suit under Rent Law by exercising its revisional power. A Division Bench of this Court in Rankaran Agarwal vs. Radheshyam Agarwal, 1989 GHC 80 (1989 (1) GLi 135) held that a finding relating to a tenant being a defaulter or the premises being needed bonafide by a landlord1 can be inter fered with by the High Court on a revision petition, if it is palpably wrong being based on surmises or conjectures, or in disregard of all relevant pieces of evidence which have not been controverted. The Apex Court in Binod Kumar Arora vs. Smti. Surajit Kaur. AIR 1987 SC 2179 held that the rule that when the rent controller and the appellate authority have rendered concurrent findings of fact, High Court is not entitled to disregard those findings and come to a different conclusion of its own would apply where the findings have been rendered with reference to facts and not on the basis of non-existent materials and baseless assumption; High Court is fully justified in rejecting such findings, when both the Courts below have based their findings on conjectures and surmises and have lost sight of relevant pieces of evidence which have not been controve rted. Keeping in view the above ratio laid down, this Court can interfere with the findings of the Courts below that the petitioner was a defaulter and that the suit house was required for reconstr uction only if the findings were based on conjectures and surmises and the Courts below lost sight of relevant pieces of evidence which have not been controverted.

8 Regarding the contention on behalf of the petitioner that the opposite party is not his landlord it, may be mentioned that originally the petitioner was a tenant under M/S. K Frasad & Sons and this fact is not disputed. In fact there was a suit between the parties which ended in a compromise. According to opposite party the said Joint Hindu Family firm was partitioned by a regi stered deed of family settlement and the opposite party got the suit premises. The opposite party is the Karta of the new Joint Hindu Family firm under the name and style M/S. J. Prasad and Sons. Ext. 1 is the registered deed of settlement. From Exts. 2 to 7 the counter foils and receipt in book form it appears that the petitioner paid rent to the opposite party. The definition of the term 'landlord' under the Assam Urban Areas Rent Control Act, 1972 inter alia is as follows:

"A person receiving or entitled to receive rent whether on his own account or on account or on behalf or for the benefit of any other person is a landlord"

. The term 'landlord' is so wide that there cannot be a second opinion in view of the evidence on record that the opposite party was the landlord of the petitioner for the suit premises. Therefore, the find ing of the Courts below on this point is legal and proper.

9. In Neta Ram vs. Jiwan Lai, AIR 1963 SC 499 it was held that for a landlord to obtain an order for ejectment of his tenant on the ground of his requirement for re-construction of a house, he must satisfy the rent controller about the genuineness of his claim and this can only be established by looking at all surroun ding circumstances, such as the condition of the building, its situation, the possibility of its being put to a more profitable use after const ruction, the means of landlord and so on. It was however, held that it is not enough that the landlord comes forward, and says that he entertains a particular intention, however strongly, said to be entertained by him. In Maetulal vs. Radhelal, AIR 1974 SC 1596 it was held that it is for the Court to determine the truth of assertion that the house is required bonafide and the test is an objective one and not a subjective one and that the burden is on the landlord to show that he requires the house bonafide. In Madhabi Lata Debi vs. Graurapada, (1984) 1 GLR 392 it was held that the words "bonafide requires" appearing in the Assam Urban Areas Rent Con trol Act, 1972 (section 5 (c) cannot that the landlord genuinely, pressingly and honestly needs the premises in question for his use and mere desire is not sufficient. Of course this decision is regarding bonafide requirement for occupation and not for reconstruction.

10. From the evidence on record which has been duly taken note of by the learned lower Court below the suit premises is an old one situated in the market area of Dibrugarh Town, which is a comme rcially important town in the State of Assam. There is also evidence on record that the house was once destroyed by fire and the petiti oner as result of the earlier compromise decree repaired the damages. There is also evidence on record that the surrounding houses are R. C. C. type whereas the present suit premises is old Assam type construction. P.W. 8 is the opposite party and there is nothing to show from his evidence that he does not have the financial means to reconstruct the suit premises. Considering the situation of the house it cannot be disputed that the house can be put to more profitable use after reconstruction. Mr. Sarma, learned counsel for the petitioner has urged that nothing has been shown that the opposite party either applied for permission to reconstruct from the Municipality or drew up any plan for reconstruction. This suit was filed in the year 1968. Even if any plan had been drawn up or permission obtained it would have been of no consequence considering the facts that the parties are in liti gation for more than 20 years. That apart this point was never raised as can be gathered from the impugned judgment before the learned lower appellate Court. I am, therefore, of the opinion that the findings of the learned Courts below the house is required bon afide for reconstruction is not based on surmises or conjectures and accordingly I find no scope to interfere with the said finding.

11. Next point that requires consideration is whether the present petitioner was a defaulter. There is no dispute that rent for two months, namely, November and December, 1967 was paid in Court in the month of January. In the written statement a plea has been taken that the opposite party refused to accept the rent. From the inner foil of the rent receipt namely Exts. 2-6, it appears that rent was paid in the first week of every month. Mr. Sarma has urged that the procedure was that the rent collector of the oppo site party used to come and collect rent and for these two months rent collector did not approach the petitioner. From the evidence of rent collector P. W. 5 I find that he went to collect rent but the peti tioner refused to pay rent on the ground that no latrine was cons tructed on the suit premises. Ext. 'Ga' the petition before the learned Munsiff for payment of rent in the Court and on perusal of the petition I find that it was stated that the opposite party refused to accept rent. No plea was taken that the rent collector of the opposite party did not approach the petitioner for the purpose of collection of rent. So the new case made out by Mr. Sarma on behalf of the petitioner is not tenable. When the learned lower Courts below after going into evidence on record including the evidence of P. W. 5 have come to the definite finding of defaulter it does not call for any interference by this Court. This Court in M/S. Hans Kumar Jain vs. Jadunandan Sarma, (1987) 2 GLR (NOC) 7 held that the Assam Urban Areas Rent Control Act, 1972 is a Special Act which takes away the contractual and statutory right of the landlord and create a new right in favour of the tenant and further that a tenant to claim rights and privileges under this Act. In United Commercial Bank vs. M/S. Rakbad Chand Sonatilal, 1988(1) GLJ NOC 1 the Court held that payment of lawful rent by depositing in Court beyond the prescribed limit given under the provisions of sub section (4) of section 5 of the Assam Urban Areas Rent Control Act, 1972 is no payment in the eye of law. As the opposite party refused to accept rent as alleged by the petitioner failure to deposit th rent within a fortnight to its falling due has made the petitioner a defaulter.

12 Mr. Sarma has urged that if petitioner is evicted from the suit premises it will cause hardship. Mr. Sarma has further urged that house can be constructed without evicting the tenant and that these considerations may be taken into account by this Court. In this connection Mr. Sarma has placed reliance in J. R. Thakkar vs. T. R. Mantri, (1977) 3 SCC 517 ; Nabab AH vs. Hira Debi, (1983) 2 SCC 256; Bibarilal Agarwal vs. Tamizul Haque, (1988) 2 GLR 76 and Satyendra Gupta vs Mahesh Kamal Bhowal, (1986) 2 GLR 463. As this point has been raised for the first time before this Court I have perused the evidence and I find from the evidence of the opposite party that petitioner is also occupying another room belonging to the original Joint Hindu Family and the opposite party requested the petitioner to shift his shop from the suit house to the said godown which is situated opposite to the suit house. The question of hardship will not arise if the impugned decree -is upheld. A faint attempt was made before this Court by Mr. Sarma, learned counsel for the petitioner that due to withdrawal of the rent depo sited in the Court the opposite party has waived his right to continue the proceeding for eviction. This point was set rest by a decision of a Division Bench of this Court in Bhagat Ram vs. Keshab Deo, A1K 1665 Assam and Nagaland 55 wherein it was held that mere wit hdrawal of the amount by the landlord under the Rent Control Act does not constitute waiver, in absence of any evidence to show that the landlord intended to keep the lease subsisting. In the case in band there is absolutely no such evidence and in fact the oppos ite party is trying to get possession of the suit premises since 1968. 13. For the reasons stated above, the present petition has no merit and is dismissed. No costs.