Gauhati High Court
Page No.# 1/22 vs Musst Riazi Begum And Anr (E) on 22 January, 2025
Page No.# 1/22
GAHC010115712022
2025:GAU-AS:648
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRP/94/2022
MUSTT NAZMA AND 4 ORS
W/O- LATE ZAHIDUL HAQUE
R/O AMOLAPATTY, NAZIRA TOWN, P.O. NAZIRA, DISTRICT- SIVASAGAR,
ASSAM, PIN-785685
2: SAYED ASHADUL HAQUE
S/O- LATE ZAHIDUL HAQUE
R/O AMOLAPATTY
NAZIRA TOWN
P.O. NAZIRA
DISTRICT- SIVASAGAR
ASSAM
PIN-785685
3: SAYED BHAIMON HAQUE
S/O- LATE ZAHIDUL HAQUE
R/O AMOLAPATTY
NAZIRA TOWN
P.O. NAZIRA
DISTRICT- SIVASAGAR
ASSAM
PIN-785685
4: MISS ASHRAFI HAQUE
D/O- LATE ZAHIDUL HAQUE
R/O AMOLAPATTY
NAZIRA TOWN
P.O. NAZIRA
DISTRICT- SIVASAGAR
ASSAM
PIN-785685
5: MISS BHONIMA HAQUE
D/O- LATE ZAHIDUL HAQUE
Page No.# 2/22
R/O AMOLAPATTY
NAZIRA TOWN
P.O. NAZIRA
DISTRICT- SIVASAGAR
ASSAM
PIN-78568
VERSUS
MUSST RIAZI BEGUM AND ANR (E)
W/O- LATE MOHD. SADULLA
R/O KOLGAON, MOUZA-ATHKHEL, GALEKI, P.O. GALEKI, IN THE
DISTRICT OF SIVASAGAR, ASSAM. PIN-785696
2:MD. ASHADULLAH HUSSAIN
S/O- LATE MOHD. SADULLA
R/O KOLGAON
MOUZA-ATHKHEL
GALEKI
P.O. GALEKI
IN THE DISTRICT OF SIVASAGAR
ASSAM. PIN-78569
Advocate for the petitioners : Mr. G.N. Sahewalla, Senior Advocate;
Ms. S. Todi.
Advocate for the respondents : Mr. A. Ikbal.
Date of hearing : 29.10.2024
Date of judgment : 22.01.2025
BEFORE
HONOURABLE MR. JUSTICE ROBIN PHUKAN
JUDGMENT & ORDER (CAV)
Heard Mr. G.N. Sahewalla, learned Senior Counsel assisted by Ms. S. Todi,
learned counsel for the petitioners and Mr. A. Ikbal, learned counsel for the
respondents.
Page No.# 3/22
2. This civil revision petition, under Section 115 read with Section 151 of the
C.P.C., is directed against the Order dated 20.11.2021, passed by the learned Civil
Judge, Sivsagar, in Title Appeal No. 11/2013.
3. It is to be noted here that vide impugned Order dated 20.11.2021, the
learned Civil Judge, Sivsagar has affirmed the Judgment dated 18.03.2013, passed
by the learned Munsiff No. 1, Sivsagar, in Title Suit No. 53/2001.
4. The background facts leading to filing of the present appeal is adumbrated
here in below :-
“The respondents herein as plaintiffs had filed a suit for ejectment
against Zahidul Haque (since deceased), in respect of an Assam Type
house, 22 ft. X 20 ft. in size standing on a plot of land measuring 02
Kathas 16 Lechas covered by Dag No.253, 143 & 244 of Periodic Patta
No.20 of Nazira Mouza (herein after referred as the suit house and
suit property). After his death, his legal heirs viz- Najma Haque, Sayed
Asabul Haque, Sayed Bhaimon Haque, Miss Asrafi Haque and Miss
Bhanima Haque were impleaded in the suit as defendants.
The case of the plaintiffs is that they are the legal heirs of late
Md. Sadullah, who died intestate in respect of the suit house, which
was let out at a monthly rent of Rs. 450/- only and after his death, the
plaintiffs became the landlord and the tenancy continued. Initially,
there was a written agreement between the parties, but after expiry,
the same was not renewed.
It is alleged that as the original defendant was a defaulter in
payment of monthly rent, the original landlord Md. Sadullah instituted
an eviction suit, being Title Suit No. 81/1996, claiming arrear rent as
well. But, as Md. Sadullah expired during the continuity of the suit and
Page No.# 4/22due to lack of proper step, the same was abated and dismissed.
Prior to that, the original defendants gave the plaintiffs a
condition for payment of the arrear rent which was that the plaintiffs
will not proceed with Title Suit No. 81/1996, against him. Thereafter,
the original defendant paid arrear rent for 10 months in the month of
October, 1998 for 12 months on July, 1999. But, as he was defaulter
since April 1996 after payment of 22 months arrear rent on July, 1999,
the defendant still remained as defaulter for 16 months. Continuous
demands were made from the plaintiffs for clearance of the arrear
rent and payment of the monthly rents to the original defendant, but
without honouring the demand of the plaintiffs, the original defendant
started to deposit the monthly rent before the court without offering
them the rent.
It is further alleged that the substituted defendants after the
death of the original defendant encroached the plots of land attached
to the suit house. Lastly, the plaintiffs alleged that the suit house is
required by them bonafide for the reconstruction as it is 100 years old
structure and is in a dilapidated condition and for starting a business
for the establishment of plaintiff No. 2’s future life. In the aforesaid
premises, the plaintiffs prayed for passing decree for evicting the
defendants from the suit property.
The substituted defendants contested the suit by filing written
statement and stated that except admitting the tenancy since 1971,
they denied more or less all other allegations of the plaintiff. The
defendants challenged the maintainability of the suit in terms of cause
of action, limitation, joinder of parties, valuation etc. and also denied
Page No.# 5/22the claim of the plaintiff of his bona-fide requirement of the suit
house.
Another stand was taken by the defendant that for payment of
the monthly rent, plaintiffs used to issue receipt for the same and
suddenly, from the month of July, 1999, the plaintiffs started to
demand Rs. 800/-. But, as the defendants did not conceded to the
unjustified demand of rent and offered the plaintiffs monthly rent as
per prevailing rate of Rs. 450/-, the plaintiffs refused to receive the
same and on compelling circumstances, the defendants had to deposit
the rents before the court and further the defendants denied that the
suit house is bona-fide requirement of the plaintiff as because the suit
house is not in a dilapidated condition as alleged by the plaintiff and
therefore, the defendants prayed for the dismissal of the suit.
4.1. Upon the said pleadings, the learned trial court framed the following issues:-
“(i) Whether the suit is maintainable?
(ii) Whether there is cause of action for the suit?
(iii) Whether the defendant is defaulter?
(iv) Whether the suit premise is bona fide required by
the plaintiff?
(v) Whether the plaintiff is entitled for the decree
of eviction of the defendant from the suit
premises?
(vi) Whether the plaintiff is entitled for any other
relief/reliefs??”
4.2. Thereafter, hearing learned counsel for both the parties and also considering
the evidence adduced by both the parties and also considering all the documents
exhibited by the parties, the learned trial court had decided all the issues in favour
of the plaintiffs and decreed the suit with cost by issuing following directions:-
Page No.# 6/22
“(i) That, the defendants are directed to vacate the
suit premise within 90 days from today and hand
over the vacant possession to the plaintiffs and
after restoration of possession to the plaintiffs,
the defendants are restrained permanently from
making any effort to disturb the possession of the
plaintiffs over the suit property.
(ii) That, the defendants will pay the plaintiffs
arrear monthly rent of the suit house @ Rs. 450/-
(Rupees four hundred and fifty) only from
December, 1999 till they hand over vacant
possession of the suit house or being evicted
thereof, and
(iii) That, the defendants are also directed to pay the
cost of the suit and the same will carry interest
at the rate of 10% per annum on and from the date
of judgment till full and final realization.”
4.3. Thereafter, being aggrieved, the petitioners herein approached the learned
Civil Judge, Sivsagar, by filing a title appeal, being Title Appeal No. 11/2013 and
upon the said title appeal, the learned first appellate court has dismissed the
appeal and affirmed the judgment so passed by the learned trial court in the Title
Suit No. 53/2001.
5. Being aggrieved, this revision petition is preferred by the petitioners on the
following grounds :-
(i) That the learned first appellate court has misappropriated the
facts and law and thereby, arrived at an erroneous finding;
(ii) That the learned trial court as well as the learned first appellate
court failed to consider the documents exhibited by the
petitioners/defendants in its proper perspective and also failed to
Page No.# 7/22examine the relevancy of the materials on record, more
specifically the exhibits, exhibited by the defendants;
(iii) That the learned trial court as well as the learned first appellate
court failed to consider the fact that as to when the rent of the
rented premises, falls due and erroneously applied the provision
of Section 5(4) of the Assam Urban Area Rent Control Act, 1972;
(iv) That the learned trial court as well as the learned first appellate
court failed to appreciate that the fact that the landlord/plaintiff
has failed to prove its case and get the decree of eviction on the
ground of defaulter in payment of rent;
(v) That the learned trial court as well as the learned first appellate
court failed to appreciate the fact that the landlord has been
accepting the rent for months together, even after the landlord
initially instituted another eviction suit, being Title Suit No.
81/1996 and as such, it is incumbent on the part of the landlord
to establish mode of payment, due date and the exact date of
default, so as to negate the benefits which the defendant is
otherwise entitled to under Section 5(4) of the Assam Urban
Area Rent Control Act, 1972;
(vi) That the learned trial court as well as the learned first appellate
court failed to consider the evidence of D.W.1, who specifically
stated that the tenant has offered the rent for the month of July,
1999 to the landlord and on refusal to accept the same, the
tenant has started depositing the rent before the court and in his
cross examination, D.W.1, had stated that he offered the rent on
04.08.1999, and as such, the evidence of D.W.1 assured
Page No.# 8/22consideration of the learned trial court as well as the learned first
appellate court;
(vii) That the learned trial court as well as the learned first appellate
court failed to consider and appreciate that it is no longer res
integra that while depositing rent before the court, after initial
refusal by the landlord, it constitutes a valid deposit, which
protects the tenant from being evicted;
(viii) That the learned trial court as well as the learned first appellate
court failed to appreciate the fact that payment of rent is a
continuous process and the tenant has been depositing rent
before the court since July, 1999 till date and since the tenant
has been paying rent without default, thereby fulfillment of
criteria of Section 5(4) of the Assam Urban Area Rent Control
Act, 1972, will protect the tenant from being evicted;
(ix) That the learned trial court as well as the learned first appellate
court failed to consider the fact that the plaintiffs have never led
any evidence to substantiate bona-fide requirement except for
throwing hints here and there and without there being any
cogent evidence substantiating bona-fide requirements, the
learned trial court as well as the learned first appellate court
failed to ought not to have arrived at a conclusion that the suit
land was actually required bona-fide; and
(x) That the learned trial court as well as the learned first appellate
court failed to consider the fact that the landlord has already
instituted another title suit for eviction and the same was settled
and the tenant continued payment of rent and within a period of
Page No.# 9/22
2 years, the landlord again instituted a fresh suit claiming
eviction and bona-fide requirement and the said bona-fide
requirement is an ancillary ground for eviction, which can be very
well determined from the acts of the parties.
Under such facts and circumstances, it is contended to allow this petition by
setting aside the impugned Order dated 20.11.2021, passed by the learned Civil
Judge, Sivasagar in Title appeal No. 11/2013, whereby affirmed the Judgment
dated 18.03.2013, passed by the learned Munsiff No. 1, Sivasagar, in Title Suit No.
53/2001.
6. Mr. Sahewalla, learned Senior Counsel appearing for the petitioners submits
following points for consideration of this court :-
(i) Both the learned trial court and the learned first appellate court
have failed to consider the evidence on the record;
(ii) To establish the bona-fide requirement, the plaintiff has to
establish that to construct the building where they will get the
fund, but they could not establish the same by leading any
evidence and that they could not even pursue their studies
because of absence of fund;
(iii) The learned trial court as well as the learned first appellate court
failed to consider the Paragraph No. 15, wherein it is stated that
the plaintiff No. 2 is an unemployed, but he is a service holder,
serving as a police constable of Assam Police and that the suit
house is not in dilapidated condition and there is no requirement;
and
(iv) There is evidence to show that on being refused to accept the
rent, the defendants started depositing the rent before the court
Page No.# 10/22
and on such count, they are not the defaulter.
Under such circumstances, Mr. Sahewalla has contended to allow this revision
petition by setting aside the impugned Order dated 20.11.2021, passed by the
learned Civil Judge, Sivasagar in Title Appeal No. 11/2013.
6.1. In support of his submission, Mr. Sahewalla has referred following decisions:-
(i) Haren Barua vs. Lalit Bhuyan, reported in (1991) 1 GLR
255;
(ii) Atul Chandra Kharghoria, Secretary to the Government
Aided Model Commercial Institute, Jorhat vs. Lutfur
Rahman & Others, reported in (1992) 1 GLR 341; and
(iii) Jesraj Sharma and Another vs. Nand Kishore Sureka,
reported in (1993) 1 GLR 193.
7. On the other hand, Mr. Ikbal, learned counsel for the respondents submits
following points:-
(i) That Section 5(4) of the Assam Urban Area Rent Control Act,
1972 is not attracted here in this case as there is no materials
not to speak of proof that at first rent was tendered to the
landlord;
(ii) That no notice was given to the defendants about depositing of
the rent before the court;
(iii) That the burden to prove that they are not defaulter as raised
upon the petitioners herein, in which they could not discharge;
Page No.# 11/22
(iv) That the decisions relied upon by the petitioners are not
applicable here in this case;
(v) Tendering rent to the landlord and refusal to accept the same,
must be proved and no such evidence is laid before the court;
(vi) Annexure – 7 has no evidentiary value as no non-judicial cases
were called for at the time of hearing;
(vii) There is bona-fide requirement of the suit premise and the same
has been mentioned in Paragraph No. 12 of the plaintiff;
(viii) Plaintiffs are unemployed and at that time their financial
condition was not good and now also it is not good;
(ix) There is not legal requirement to establish that he has money to
construct the house, so as to establish the bonafide requirement;
and
(x) That the scope of revision under Section 115 of the C.P.C. is
limited and the court can invoke the said jurisdiction only on
establishing of jurisdictional error and in the case in hand, the
petitioners failed to show any jurisdictional error.
7.1. Mr. Ikbal has referred following decisions in support of his submission:-
(i) G.C. Kappor vs. Nand Kumar Bhasin & Others, reported in
(2002) 1 SCC 610;
Page No.# 12/22
(ii) Prasanta Kumar Deb vs. Gauri Shankar Pau. and Others,
reported in (2005) GLT 540;
(iii) Abdul Matin Choudhury and Another vs. Nityananda
Dutta Banik, reported in (1997) 2 GLR 468; and
(iv) Gopika Ranjan Chakraborty vs. Amulya Kumar
Bhattacharjee and Another, reported in (2005) 2 GLR 613.
8. In reply to the aforesaid submission, Mr. Sahewalla, learned Senior Counsel
appearing for the petitioners submits that the evidence of D.W.1 is very clear to
show that he went to deposit rent, but the landlord refused to accept the same.
9. Having heard the submissions of learned counsel for both the parties, I have
carefully gone through the petition as well as the documents placed on record and
also perused the Order dated 20.11.2021, passed by the learned Civil Judge,
Sivasagar, in Title Appeal No. 11/2013 and also perused the Judgment dated
18.03.2013, passed by the learned Munsiff No. 1, Sivasagar, in Title Suit No.
53/2001.
10. The issue of defaulter has been dealt with by the learned trial court in issue
No. 3 and while dealing with the issue, the learned trial court has discussed the
provision of Section 5 of the Assam Urban Areas Rent Control Act, 1972 as under :-
“Bar against passing and execution of decree and orders
for ejections :-
5.(1) No order, or decree for the recovery of possession
of any house shall be made or executed by any
Court so long as the tenant pays rent to the full
extent allowable under this Act and performs the
conditions of the tenancy:
Provided that nothing in this sub-section shall
apply in a suit or proceedings for eviction of t
Page No.# 13/22the tenant from the house:-
(a) Where the tenant has done anything contrary to
the provisions of clause (m), clause (o) or
clause (p) of Section 108 of the Transfer of
Property Act, 1882 or to the spirit of the
aforesaid clause in areas where the said Act
does not apply, or
(b) Where the tenant has been guilty of conduct
which is a nuisance of an annoyance to the
occupiers of the adjoining or neighboring
houses, or
(c) Where the house is bona-fide required by the
landlord either for purposes of repairs or
rebuilding, or for his own occupation or for
the occupation of any person for whose benefit
the house is held, or whether the landlord can
show any other cause which may be deemed
satisfactory by the Court, or
(d) Where the tenant sublets the house or any part
thereof or otherwise transfers his interest in
the house or any part thereof without
permission in writing from the landlord, or
(e) Where the tenant has not paid the rent
lawfully due from him in respect of the house
within a fortnight of its falling due, or
(f) Where the tenant has built, acquired or been
allotted a suitable residence.
(2) The transfer of the interest of the landlord in the
house shall not affect the right of the tenant
provided the tenant pays rent allowable under this
Act to the transferee.
(3) Where the landlord recovers possession of a house
from a tenant on the ground that the house is bona-
fide required by him for purpose of repairs or
Page No.# 14/22
rebuilding or for his own occupation or for the
occupation of any person for whose benefit the house
is held, and the repairs or the rebuilding of the
house is not commenced or the house is not occupied
by the landlord or such person within fifteen days of
the date of vacation of the house by such tenant or
the house having been so occupied is within six
months of the said date re-let to or allowed to be
possessed by any other person, the Court may, on the
application of the evicted tenant made within seven
months of his vacating the house, direct the landlord
to put the evicted tenant in possession of the house
within such period as the Court may fix and to pay
him such compensation as appears to the Court to be
reasonable and proper. Such a direction shall be
deemed to be a decree under the Code of Civil
Procedure, 1908 and to be capable of execution as
such under the provisions of that Code. (Central Act
5 of 1908).
(4) Where the landlord refuses to accept the lawful rent
offered by his tenant, the tenant may within a
fortnight of its becoming due, deposit in Court the
amount of such rent together with process fees for
service of notice upon the landlord, and on receiving
such deposit, the Court shall cause a notice of the
receipt of such deposit to be served on the landlord,
and the amount of the deposit may thereafter be
withdrawn by the landlord on application made by him
to the Court in that behalf. A tenant who has made
such deposit shall not be treated as a defaulter
under clause (e) of the proviso to sub-section (1) of
this section…”
11. The learned trial court has also held that the defendants alleged that they
are depositing the rent of the suit house before the court every month since July,
1999 and it can reasonably conclude that irrespective of the fact of existence of
Page No.# 15/22
any written agreement between the parties, the tenancy is found to be a monthly
tenancy and hence, the rent becomes due at the end of the month.
12. From a perusal of the provision of Section 5 of the Assam Urban Areas Rent
Control Act, 1972 it becomes clear that so long the tenant pays the rent in full
extent, he cannot be evicted from the tenanted premise by any order or decree.
But, there are some exceptional conditions, which are mentioned from Clause (a) –
(f) of Section 5(1) of the Assam Urban Areas Rent Control Act, 1972, on fulfillment
of which, a tenant can also be evicted from the rented premise.
13. A cursory perusal of the plaint also reveals that the plaintiffs had sued the
defendants, covering exceptional clauses enumerated in Clause (c) and (e) of
Section 5(1) of the Assam Urban Areas Rent Control Act, 1972 and mainly
stretched upon the “Defaulter Clause” mentioned in Clause (e) of Section 5(1) of
the Assam Urban Areas Rent Control Act, 1972, which is the subject matter of
current issue.
14. Thereafter, the learned trial court had held that though the parties are at issue
regarding the payment of house rent from the month of April, 1996, but in view of
the admissions of the plaintiffs that they received 22 months arrear rent on July,
1999 and as there was no established mode of payment before July, 1999, the
learned trial court had held that the dispute till July, 1999 can be considered as a
backup issue. But, the parties are found to be in strong disagreement regarding
payment of rent since July, 1999 and hence this is taken to the primary point for
determination for deciding whether the defendants are defaulters or not.
14.1. Thereafter, the learned trial court had held that the plaintiff refused to
accept the house rent from them since July, 1999 at prevailing rate of Rs. 450/-
and as such, they had to deposit the rent before the court. On the other hand, the
plaintiffs alleged that the defendants neither offered them the rent in the month
Page No.# 16/22
July, 1999 and subsequent thereof nor deposited the rent before the court as per
the provision of law.
14.2. Thereafter, discussing the Section 5(4) of the Assam Urban Areas Rent
Control Act, 1972, the learned trial court had held that the tenant has the liberty to
deposit the house rent in the Court subject to the refusal of the landlord to accept
the same on being offered by him. Thereafter, considering the evidence of
defendants, the learned trial court had held that the defendants neither called for
the Misc. (N.J.) cases nor exhibited and proved the same for establishing their
claim that since July, 1999 they are depositing the monthly rents of the suit house
before the court. The learned trial court had further held that the defendants have
not proved that they have approached the plaintiffs every month since July, 1999
with the house rent and as they refused they deposited the same before the court.
The learned trial court had also held that as the Misc. (N.J.) cases were not
exhibited, the fact of offer and refusal cannot be established and that the
defendants failed to establish paying the rent of the suit house to the plaintiffs,
during the continuation of this suit and they deposited the same without offering
the same to the plaintiffs, the deposits cannot be termed to be a valid deposit and
as such, they have to be adjudged as a defaulters.
14.3. The learned first appellate court had also endorsed the finding of
the learned trial court. The learned appellate court had discussed Section 5(1) (e),
5(4) of the Assam Urban Areas Rent Control Act, and Section 101 and 102 of the
Evidence Act and thereafter held that upon comprehensive reading of the
connected sections of law along with the evidence placed on record as well as
appreciation and discussion of the judgments of the learned trial court, it is seen
that the appellant/defendant has not been able to prove that he is not a defaulter.
The learned appellate court also held that the defendants had taken contradictory
pleas that they have been depositing rent on a random basis and also taken a plea
Page No.# 17/22
that they are paying rent in the court and the defendants was not able to bring out
the relevant dates on which dates rent was paid so as to show that they had paid
within fortnight and they had to prove that the rent was offered to the land lord
and the land lord refused to accept it.
14.4. It is to be noted here that in the case of Abdul Matin Choudhury
(Supra), a coordinate Bench of this court, in Paragraph No. 9, has held as
under :-
“9. Regarding the deposit of rent in Court u/s 5(4) of
the Act, there must be evidence that there was
refusal by the landlord. In a series of cases this
Court has held that Section 5(4) of the Act is a
mandatory provision and the tenant seeking protection
under the provision must tender or offer due rent
within a fortnight of its falling due. The tender
must be made which is the precondition to the deposit
of rent in Court the question of depositing of rent
in Court comes only when the landlord refuses to
accept the rent. This question now has been clinched
by a recent decision of the Apex Court in Rameswarlal
Chaudhury vs. Ram Niranjan Mour …..”
14.5. Again in the case of Kalikumar Sen vs. Makhanlal Biswas,
reported in AIR 1969 A&N 66 and in Deoki Nandan Bajaj & Ors. vs. Luku
Barman & Ors., reported in 2007 (1) GLT 8, wherein it has been held that
though the deposit was made in the Court without offering the same to the
landlord is non-est in the eye of law and the same being in derogation to Section
5(4) of the Assam Urban Areas Rent Control Act, 1972.
14.6. Thus, it cannot be said that the learned trail court as well as the learned
first appellate court had committed any jurisdictional error by finding that the
petitioners are defaulter.
Page No.# 18/22
14.7. It is to be noted here that Mr. Sahewalla, the learned counsel for the
appellants has controverted this finding referring to paragraph No.15 of the written
statement and the evidence of D.W.1 who had categorically stated that he offered
rent to the land lord at his residence on 04.08.1999, but, he had refused to accept
the same. There is substance in the submission of Mr. Sahewalla.
14.8. But, it is to be noted here that in Atma Ram vs. Shakuntla
Rani reported in (2005) 7 SCC 211, Hon’ble Supreme has Court observed as
under:
“19. It will thus appear that this Court has consistently
taken the view that in the rent control legislations if the
tenant wishes to take advantage of the beneficial
provisions of the Act, he must strictly comply with the
requirements of the Act. If any condition precedent is to
be fulfilled before the benefit can be claimed, he must
strictly comply with that condition. If he fails to do so
he cannot take advantage of the benefit conferred by such a
provision.”
14.9. In the instant case, there is concurrent finding of facts by both the courts
below that the petitioners had failed to call for the Misc. (N.J.) cases and also failed
to exhibit and prove the same in the court to substantiate that since July, 1999
they have been depositing the monthly rents of the suit house before the court.
And as the Misc. (N.J.) cases were not exhibited, the factum of offer and refusal
cannot be established by the appellant/defendants herein. Having taken
contradictory pleas that they have been depositing rent on a random basis and that
they are paying rent in the court, it cannot be said that they had been able to
discharge their burden that they are not defaulter.
15. Now, coming to the second question, regarding bona-fide requirement, this
court finds that Hon’ble Supreme Court in the case of G.C. Kappor (Supra), in
Paragraph No. 9, has held as under :-
Page No.# 19/22
“9. It is settled position of law that bona-fide
requirement means that requirement must be honest and
not tainted with any oblique motive and is not a mere
desire or wish. In Dattatraya Laxman Kamble Vs. Abdul
Rasul Moulali Kotkunde and Another, this Court while
considering the bona-fide need of the landlord was of
the view that when a landlord says that he needs the
building for his own occupation, he has to prove it but
there is no warrant for ‘presuming that his need is not
bona-fide’. It was also held that while deciding this
question. Court would look into the broad aspects and
if the court feels any doubt about bona-fide
requirement, landlord to clear such doubt.”
15.1. In the case in hand, the respondents/plaintiffs in uncertain term had
stated that the suit premise is requirement for construction of a building for own
use and occupation for business purpose and that the requirement is a bona-fide
one.
15.2. The learned trial court, after considering the evidence of P.W.1, the plaintiff
No. 2, and the blue print of the building plan, Exhibit – 5, had arrived at a finding
that the suit premises is bona-fide required by the plaintiffs. The learned first
appellate court had also endorsed the said view.
15.3. Having discussed the evidence so brought on record and also considering
the submissions of learned counsel for both the parties and further considering the
decision cited by learned counsel for both the parties, especially the decision of
Hon’ble Supreme Court in the case of G.C. Kappor (Supra), this court is of the
view that the learned trial court as well as the learned first appellate court had not
committed any illegality or infirmity or jurisdictional error in arriving at the decision
that the requirement of suit premises by the respondents herein is a bona-fide one.
15.4. It is to be noted here that Hon’ble Supreme Court in the case of
Page No.# 20/22Ragavendra Kumar vs. Firm Prem Machinary & Co., reported in AIR 2000
SC 534 and in M/s. Sait Nagjee Purushotham & Co. Ltd. v. Vimalabai
Prabhulal & Ors., reported in (2005) 8 SCC 252, has dealt with the issue of
bona-fide requirement. In the case of Ragavendra Kumar (supra), Hon’ble
Supreme Court has held that landlord is the best judge of his requirement and he
has got complete freedom in the matter. In the case of Sait Nagjee
Purushotham (supra), Hon’ble Supreme Court has held that the prerogative of the
landlord that if he requires the premises in question for his bona-fide use for
expansion of business, there is no ground that the landlord already has his
business and therefore, it is not a genuine need.
15.5. Again in the case of Anil Bajaj & Anr. Vs. Vinod Ahuja, reported in
(2014) 15 SCC 610, wherein Hon’ble Supreme Court has held as under:
“It would hardly require any reiteration of the settled
principle of law that it is not for the tenant to dictate
the landlord as to how the property belonging to the
landlord should be utilized by him for the purpose of the
business. Also, the fact that the landlord is doing
business from various other premises cannot foreclose his
right to seek eviction from the tenanted premises so long
as he intends to use the same tenanted premises for his
own business.”
16. It is well settled that the jurisdiction of this Court, under Sections 115/151
CPC is very limited. It can interfere with the impugned judgment and decree, when
it is demonstrated and the Courts below have committed jurisdictional error or a
material irregularity requiring interference of this Court. Reference in this context,
can be made to a decision of this court in the case of Niyoti Dev & Ors. vs.
Ahmed Tea Company (Pvt.) Ltd., reported in 2017 (4) GLT 57, wherein it
has been held that in exercising the revisional jurisdiction, the Court can interfere
Page No.# 21/22
only if it shows that the Court below had exercised its jurisdiction illegally or with
material irregularity.
17. In the case of Harshavardhan Chokkani v. Bhupendra N. Patel,
reported in (2002) 3 SCC 626, Hon’ble Supreme Court has held as under:-
” ………. Nonetheless, the High Court is exercising the
revisional power which in its very nature is a truncated
power. The width of the powers of the revisional court
cannot be equated with the powers of the appellate court.
In examining the legality and the propriety of the order
under challenge, what is required to be seen by the High
Court is whether it is in violation of any statutory
provision or a binding precedent or suffers from
misreading of the evidence or omission to consider
relevant clinching evidence or where the inference drawn
from the facts proved is such that no reasonable person
could arrive at or the like. It is only in such
situations that interference by the High Court in
revision in a finding of fact will be justified. Mere
possibility of a different view is no ground to interfere
in exercise of revisional power. From the above
discussion, it is clear that none of the aforementioned
reasons exist in this case to justify interference by the
High Court.”
18. In the case in hand, the learned Senior Counsel for the petitioner has failed to
demonstrate before this court as to how the jurisdictional error or any irregularity
committed by the learned courts below. The learned trial court in its judgment and
decree has extensively discussed all the points pleaded in the pleadings by the
respective parties and after detailed discussion, answered all the issues in favour of
the plaintiff. The learned first appellate court also discussed on the points and
arrived at a concurrent finding with the learned trial court.
Page No.# 22/22
19. I have carefully gone through the decisions (i) Haren Barua (supra), (ii)
Atul Chandra Kharghoria (supra) and, (iii) Jesraj Sharma and
Another(supra), so referred by Mr. Sahewalla, learned Senior Counsel appearing
for the petitioners and I find that in view of the decision of Hon’ble Supreme Court
in Ragavendra Kumar (supra), M/s. Sait Nagjee Purushotham & Co. Ltd.
(supra), Anil Bajaj & Anr.(supra) as well as in G.C. Kappor (supra), said
decisions would not come into his aid.
20. In view of above, in the case in hand, this court finds no materials of
irregularity or jurisdictional error had been committed by the learned trial court as
well as by the learned first appellate court while deciding the suit and appeal.
21. Under such circumstances, this court finds that this revision petition bereft of
merit and accordingly, the same stands dismissed.
22. Send down the records of the learned courts below along with a copy of this
judgment and order.
JUDGE
Comparing Assistant
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