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AMICUS AI
Citation Codes
Equivalent Citations
citation codes
Case Number
Advocates
  • For the Appellants: B.C. Barua
  • B.K. Das
  • P.K. Mushabary
  • Advocates. For the Respondents: J.P. Bhattacharjee
  • S.K. Homchoudhury
  • A. Bhattacharjee
  • Advocates.
Judges
  • Hon'ble Mr. Justice Banwari Lal Hansaria
Acts
  • Assam Urban Areas Rent Control Act, as this Act
  • S. 111(h) of Transfer of Property Act,
  • S. 12 of the Court-fees Act, 1870,
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Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Advocates
  • For the Appellants: B.C. Barua
  • B.K. Das
  • P.K. Mushabary
  • Advocates. For the Respondents: J.P. Bhattacharjee
  • S.K. Homchoudhury
  • A. Bhattacharjee
  • Advocates.
Judges
  • Hon'ble Mr. Justice Banwari Lal Hansaria
Acts
  • Assam Urban Areas Rent Control Act, as this Act
  • S. 111(h) of Transfer of Property Act,
  • S. 12 of the Court-fees Act, 1870,
See more information ...
Smart Summary

Structured Summary of the Opinion

Factual and Procedural Background

This matter concerns a suit for eviction filed in 1969. The plaintiffs sought eviction on the ground that the premises described in Schedules I and II of the plaint were needed bona fide for expansion of their business and for residential purposes. Procedurally the litigation has been long-running: the matter has reached judicial forums eight times, including a Special Leave Petition to the Supreme Court. The suit was initially dismissed, remanded and dismissed again by the trial court, that order being upheld by the District Judge; on further appeal to this Court the matter was remanded a second time. Subsequently the learned District Judge, Cachar, decreed the suit after being satisfied on three points: (1) maintainability of the suit; (2) validity of the notice; and (3) bona fide requirement by the plaintiffs. The present appeal is being treated as a revision in view of a prior decision of this Court (LPA/11/76).

Legal Issues Presented

  1. Whether the suit was maintainable, in particular in view of alleged insufficiency of court-fee and possible multifariousness caused by combining two properties (Schedules I and II) in one suit.
  2. Whether the notice of termination relied upon was valid and whether the Supreme Court authority in Dhanpal (AIR 1979 SC 1745) applies to proceedings under the Assam Urban Areas Rent Control Act.
  3. Whether the plaintiffs had a bona fide requirement of the premises for expansion of their business and for residential accommodation, and whether a business requirement falls within "own occupation" under Section 5(1)(c) of the Assam Act.

Arguments of the Parties

Appellant's (Sri Das) Arguments

  • The suit was not maintainable because proper court-fee had not been paid — contention based on differing statuses of defendant as lessees for Schedule I and licensees for Schedule II, leading to alleged insufficient court-fee and multifariousness of causes of action.
  • The ratio in Dhanpal (AIR 1979 SC 1745) may not apply to cases under the Assam Urban Areas Rent Control Act because that Act was not considered in Dhanpal.
  • A business purpose does not come within the expression "own occupation" used in Section 5(1)(c) of the Assam Act.

Respondent's (Sri Bhattacharjee) Arguments

  • A suit should not fail merely because of insufficient court-fee; reliance was placed on Section 12 of the Court-fees Act, 1870 (as noted in the opinion) and the principle that mere misjoinder or multifariousness will not reverse a decree unless it affects merits or jurisdiction (Section 99, Civil P.C.).
  • Even if Schedule II land were held to be subject to a different status (license), jurisdiction of the trial court (Assistant District Judge with unlimited pecuniary jurisdiction) would not have been affected.
  • The nomenclature used in documents (e.g., Ext. 3 describing defendants as licensees) is not decisive; what matters is the intention of the parties — the District Judge examined intention and found eviction from Schedule II could not be separated from Schedule I.
  • The Supreme Court had been approached earlier and refused to interfere with a prior decision (as stated in the opinion).

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
LPA/11/76 (decision of this Court) Authority for treating the present appeal as a revision The appeal was treated as a revision in view of this Court's earlier decision.
Second Appeal No. 148/73 (this Court) Prior consideration of the question of bona fide requirement in earlier proceedings Noted that the bona fide requirement issue had been examined earlier by this Court in that appeal; the defendants had subsequently approached the Supreme Court.
Dhanpal, AIR 1979 SC 1745 Notion that notice of termination is not necessary in cases where the statute creates an embargo on eviction despite notice The Court applied the principle in Dhanpal to proceedings under the Assam Urban Areas Rent Control Act, holding that Dhanpal's ratio extends to statutes which, like the Assam Act, prevent eviction even after notice.

Court's Reasoning and Analysis

The Court proceeded in a stepwise analysis of the three principal contentions upheld by the District Judge:

  1. Maintainability / Court‑fee and multifariousness:

    The Court accepted the view that insufficient court-fee alone does not necessarily defeat a suit, noting S.12 of the Court-fees Act and relying on S.99 of the Civil P.C. which precludes reversal for misjoinder of causes of action unless merits or jurisdiction have been affected. Because the trial court was an Assistant District Judge with unlimited pecuniary jurisdiction, the Court found jurisdiction was not impaired even if the defendants were licensees in respect of Schedule II. The District Judge's finding that Schedule II land was necessary for enjoyment of Schedule I premises (presence of a water tap, bath-room and urinal, and the interdependence of the parts) was treated as a factual conclusion properly reached and not open to interference in revision.

  2. Validity of notice:

    The Court relied on the Supreme Court's decision in Dhanpal (AIR 1979 SC 1745) which held that notice of termination is not necessary in certain circumstances. Sri Das had argued that Dhanpal did not consider the Assam Urban Areas Rent Control Act; the Court nonetheless concluded that the principle in Dhanpal applies to statutes that create an embargo on eviction despite a notice of termination (linked to the concept in S.111(h) of the Transfer of Property Act), and that the Assam Act falls into that category. Therefore the District Judge was correct in holding that the absence or invalidity of notice was not fatal.

  3. Bona fide requirement (own occupation):

    The District Judge had examined the evidence at length (partly because this point had led to a prior remand). The Court characterized the District Judge's scrutiny and conclusion as factual findings of a nature that should not be disturbed on revision. Sri Das's contention that business use cannot amount to "own occupation" under S.5(1)(c) of the Assam Act was rejected on the basis of the Act's definition of "house" in S.2(b), which expressly includes buildings let out for residential or non-residential purposes; consequently, a bona fide business requirement could qualify as own occupation.

On these bases the Court found no merit in the three contentions urged on behalf of Sri Das and affirmed the reasoning and conclusions of the learned District Judge.

Holding and Implications

Holding: Petition dismissed.

Implications and direct effects:

  • The revision (appeal treated as revision) is dismissed and the decree of the learned District Judge decreeing the suit for eviction is sustained.
  • The appellants (defendants) were granted time to vacate: the Court allowed four months from the date of the order to find suitable alternative accommodation and vacate the premises.
  • No broader change in law is announced beyond applying the principle in Dhanpal to the facts under the Assam Urban Areas Rent Control Act; the opinion does not purport to lay down a new precedent beyond the Court's application of existing authorities and statutory provisions to the facts of this case.

Petition dismissed.
Show full summary ...

    M/S. Bhura Brothers And Another v. Dinendra Narayan Ray And Others

    1. This appeal which is bong treated now as revision in view of the decision of this Court in LPA/11/76 relates to a suit for eviction filed in 1969. Counted court-wise the matter has come up far the eighth time before a judicial forum which includes a Special Leave Petition to the Supreme Court and so if is high time that the forensic fight sees its finality.

    2. The suit for eviction was on the ground that the premises described in the Schs. I and II of the plaint were needed bona fide by the plaintiffs for expansion of their business as well as for their residential purpose. The suit went through various vicissitndes as it was dismissed first and on appeal it was remanded to be dismissed again by the trial Court which order was upheld in appeal by the learned District Judge and on further appeal to this Court, the case was remanded for the second time. The suit has been decreed now by the learned District Judge, Cacbar on his being satisfied about: (1) the maintainability of the suit; (2) validity of the notice and (3) bona fide requirement of the plaintiff which are the three points urged before him.

    3. Before the submissions of Sri Das relating to these points are noted, it is worthwhile pointing out that when the matter had been examined by this Court once before in Second Appeal No. 148/73 the issue relating to bona fide requirement alone was gone into, may be because it were the plaintiffs who had then approached this Court against whom it had been decided that the premises were not needed bona fide. It was against this decision that the defendants had approached the Supreme Court, as stated by Sri Bhattacharjee when the Supreme Court had refused to interfere.

    4. The suit was not maintainable according to the defendant because proper court-fee had not been paid. The averment relating the court-fee owes its origin to the case of the defendants that though they were lessees with respect to Sch. I property described in the plaint, they were licensees as regards the Seh. II properties. It was therefore stated that though the suit for eviction from Sch. I property could be filed by paying court-fee on 12 months rent for Sch. II premises court-fee must have been paid on the valuation of the property. Relying however the position that a suit cannot fail merely because of insufficient conrt-fee, which would seem to follow from S. 12 of the Court-fees Act, 1870, also, Sri Das urged that the suit having combined the two properties, is hit by multifariousness of causes of action and was therefore not maintainable. In reply, Sin Bhattacharjee has rightly drawn my attention to S. 99 of the Civil P.C wherein it is stated that no decree can be reversed in appeal on account of misjoinder of causes of action unless the same has affected the merits of the case or the jurisdiction of the Court. In this case, the trial Court being the Assistant District Judge, whose pecuniary jurisdiction is unlimited, apparently his jurisdiction would not have been affected even if the case of the defendants that they were licensees as regards second Schedule be accepted. I do not also find any dent to the merits of the case because of the two statuses of the defendants. In this view of the matter, it is not necessary to say whether the case of the defendants that they were merely licensees for the Second Schedule is correct or not specially when the matter is being examined by this Court in its revisional jurisdiction. Even so, it may be stated that the learned District Judge has examined this aspect in detail and be has arrived at his conclusion after noting that Sch. II land was necessary for enjoyment of Sch. I premises, that the defendants could not have been evicted only from Sch. II, and that water tap, bathroom and urinal are located in Sch. II land. So finding in this regard is really such which could not be interfered with by this Court even if the matter were to be treated as second appeal, the learned District Judge has tried to find out the intention of the party which alone is the determining factor in this regard. Sri Das has submitted that Ext. 3 itself has described the defendants as licensees as regards the courtyard which is situated in Sch. II of the plaint. It is however well settled that any nomenclature is not decisive in this regard, and what counts is the intention of the parties which aspect has been adequately borne in mind by the learned District Judge.

    5. The next point urged is related to the validity of notice. But it has been held in Dhanpal, AIR 1979 SC 1745 that notice of termination is not necessary in such cases. Sri Das has contended that ratio of Dhanpal may not apply to cases under the Assam Urban Areas Rent Control Act, as this Act was not one of those which had been considered by the Supreme Court in the above case. I would however think that what has been stated in Dhanpal has to be applied to all statutes which have created an embargo on the eviction of tenants despite issue of notice of termination contemplated by S. 111(h) of Transfer of Property Act, in which cases determination of tenancy becomes a mere surplusage as a landlord cannot evict a tenant even after such a notice. This is the position under the Assam Act also. So it cannot be held that Dhanpal's decision would not apply to the cases under the Assam Act.

    6. The last submission is about the finding on the bona fide requirement of the premises by the plaintiff. This aspect too has been dealt at great length by the learned District Judge, may be because of remand of the case earlier by this Court on this point. The learned District Judge has first set out the evidence relating to the circumstances under which the premises had been let out. He has then scrutinised the evidence led by both the sides as to whether the premises were needed bona fide by the plaintiffs for expansion of their business and for accommodation of their family members. The scrutiny of the evidence is such and the conclusion founded thereon is of such a nature which could not have been disturbed by a second appellate Court not to speak of a re-visional Court. The point urged by Sri Das in this connection is that a business purpose would not come within the fold of the expression “own occupation” used in S. 5(1)(c) of the Assam Act. A reference to Sec. 2(b) of the Act which has defined “house” would negative this contention, as it has been stalled therein that “house” means any building etc. let out for residential or non-residential purposes.

    7. In the aforesaid view of the matter the three contentions raised by Sri Das cannot be accepted to merit interference with the impugned judgment. Thus, despite the best efforts of Sri Das, the petition has to be dismissed which I hereby do. Sri Das prays that as the appellants are running a business in the premises which is situated in the centre of the town, some reasonable time may be allowed to them to find out a Suitable alternative. The appellant would get four months' time from today for this purpose. It is hoped that fruits of the fight would not be denied to the plaintiffs any longer.

    Petition dismissed.

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    Comments

    M/S. Bhura Brothers And Another v. Dinendra Narayan Ray And Others
    (Jan 8, 1981)