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IN THE HIGH COURT OF GAUHATI
PRASANTA KUMAR DEKA, J.
Shyan Sundar Debnath - Appellant
Versus
Nabendu Kishore Sinha - Respondent
CRP 402 of 2016
Decided On : 18-02-2019
Criminal Procedure Code – Section 207 – Code of Civil Procedure 1908 – Order XVII Rule 2 – Order XVII Rule 3 – Issue on defaulter ship , rent –learned counsel for the petitioner, submits that the act of expunging of the evidence of the PW-1 i.e. the plaintiff/petitioner of the whole evidence was incorrect inasmuch as the plaintiff/petitioner was partly cross-examined and as such, the evidence ought to have been taken into consideration to the extent which is material in order to decide the issues before the court below – Referring to the cross-examination of the petitioner PW-1 it is submitted that it was deposed in his cross-examination that he deposited rent vide –Held, In the present case in hand, the learned trial court proceeded after dispensing with further cross-examination of PW-1 i.e. the plaintiff/petitioner and subsequently the partial evidence was expunged – The plaintiff/petitioner failed to discharge his onus in order to disprove the allegation of defaultership and the DW-1 i.e. the defendant/respondent who is the counter claimant has been able to show that the plaintiff/petitioner deposited monthly rent till the month of October 2007 –Further the other witnesses of the plaintiff side in their evidence did not state anything that the petitioner paid the rent and during the pendency of the suit which is also required to be proved –Accordingly, the finding on the issue of the courts below is upheld – However revisional court can enter into the bonafide of such claim which court find to be a genuine and bonafide claim of the requirement of the suit premises –Petition dismissed
JUDGMENT :
PRASANTA KUMAR DEKA, J.
1. Heard Mr. A.K. Purkayastha, the learned counsel for the petitioner. Also heard Mr. D. Mazumder, the learned Senior Counsel assisted by Mr. S. Biswas, the learned counsel for the respondent.
2. In this revision petition, judgment and decree dated 16.06.2016 passed by the learned Civil Judge No. 1, Cachar at Silchar in Title Appeal No. 20/2014 is put under challenge.
3. The present petitioner is the plaintiff in Title Suit No. 12/2009 in the learned Court of Munsiff No. 2, Cachar at Silchar filed against the sole defendant/respondent for restraining the defendant/respondent from ejecting him from the tenanted premises which is the suit premises without due process of law by way of injunction. It is the case of the plaintiff/petitioner that he was a tenant under late Nanda Kishore Singha, the father of the defendant/respondent with respect to the suit premises at a monthly rent of Rs. 500/-. After the death of late Nanda Kishore Singha, the three brothers of the defendant/respondent namely, Niresh Kishore Singha, Nripendra Kishore Singha and Nagendra Kishore Singha, renewed the tenancy in favour of the plaintiff/petitioner by way of an agreement dated 26.06.1997. The said tenancy was for a period of 5 years starting from 01.06.1997 to 31.05.2002 on the condition of payment of monthly rent of Rs. 1100/-. The plaintiff/petitioner regularly paid the monthly rent and vide letter dated 05.08.1999, the defendant/respondent informed the plaintiff/petitioner that as per an amicable family arrangement between the legal heirs of late Nanda Kishore Singha, the suit premises exclusively fell in the share of the defendant/respondent. Again vide letter dated 17.10.2001 the defendant/respondent instructed the plaintiff/petitioner to deposit the monthly rent in his account with Central Bank of India, Silchar Branch. In the month of March 2002, the plaintiff/petitioner approached the defendant/respondent to renew the tenancy agreement dated 26.06.1997 and on being instructed he started to deposit Rs. 1320/- per month as rent in the said account of the defendant/respondent till the month of December, 2008. On 28.12.2008, the brothers of the defendant/respondent alongwith some bad elements armed with deadly weapons attempted to dispossess the plaintiff/petitioner by force from the tenanted premises. Complaint was lodged before the SDM (S), Silchar on 31.12.2008 under Section 207 Cr.P.C. Thereafter, on 08.01.2009 the brothers of the defendant/respondent made attempts to put the suit premises under lock and key. Hence, the suit.
4. The defendant/respondent filed his written statement and pleaded that the father of the plaintiff/petitioner took a room measuring 800 sq. feet from the father of the defendant/respondent on rent for a period of 5 years with effect from 01.06.1988 to 31.05.1993. To that effect, a tenancy agreement dated 01.06.1988 was executed on the condition that the said suit premises would not be sublet and in the event, the said agreement is not extended then the plaintiff/petitioner would vacate the same. Thereafter, on the death of the father of the defendant/respondent, the plaintiff/petitioner was brought in by one Gouranga Chandra Debnath and illegally constructed the wall in the middle of the tenanted premises and started occupying the tenanted premises. Thereafter, the other brothers of the defendant/respondent entered into two separate tenancy agreements with the plaintiff/petitioner and another person being one Shankar Debnath for a period of 5 years with effect from 01.06.1997 to 31.05.2002 at a monthly rent of Rs. 1100/-. Due to family arrangement later on, the tenanted premises absolutely devolved on the present defendant/respondent. It was informed to the plaintiff about the said family arrangement but the plaintiff/petitioner failed to deposit the rent in the Central Bank of India after October 2007 and became a defaulter from the month of November 2007. The defendant/respondent asked the
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