Point of law: Eviction – Default in payment of rent - Unless there is the tendering of the lawful rent by tenant, Section 5 (4) does not have any application.

JUDGMENT :

Heard Mr. S. Chamaria, the learned counsel for the petitioners and Mr. N. Alam, the learned counsel appearing on behalf of the respondents.

2. This is an application under Section 115 of the Code of Civil Procedure, 1908 (for short, the Code) challenging the judgment and order dated 22.10.2019 passed by the learned District Judge, Kamrup (M), Guwahati in Title Appeal No.08/2012 whereby the appeal was dismissed thereby affirming the judgment and decree dated 28.05.2012 passed by the learned Civil Judge No.3, Kamrup (M), Guwahati in Title Suit No.151/2006.

3. Before entering into the facts of the case, it would be relevant to note that the petitioners herein have invoked the revisional jurisdiction under Section 115 of the Code. It is no longer res-integra that the revisional jurisdiction is limited in scope inasmuch as the said jurisdiction cannot be exercised to correct error of facts. However gross or even errors of law unless the said errors have relation to the jurisdiction of the Court to try the dispute itself. A plain reading of Sub-Clauses (a) and (b) of Section 115 of the Code is in reference to the exercise of jurisdiction by the Court not vested in the Court by law or has failed to exercise jurisdiction so vested in Court. Clause (c) is in relation to exercise of jurisdiction illegally and with material irregularity. Therefore, under Section 115 of the Code a jurisdictional question may arise not only where the Court acts solely without jurisdiction but also in a case where jurisdictional errors are committed while exercising jurisdiction. There may be various facets of jurisdictional error for example the findings arrived at is perverse, based on no evidence or misreading of evidence or such findings have been arrived at by ignoring or overlooking material irregularities or such findings so grossly erroneous that if allowed to stand would occasion miscarriage of justice. In other words, interference with an incorrect finding of fact recorded by the Court below for the purpose of exercising revisional jurisdiction must be understood in the context, where such findings are perverse or has been arrived at without consideration of material evidence or such finding is based on no evidence or misreading of evidence or is grossly erroneous that if allowed to stand it would occasion gross miscarriage of justice, is open to correction because it is not treated as a finding according to law. In the judgment of the Constitution Bench of the Supreme Court rendered in the case of Hindustan Petroleum Corporation Ltd. Vs. Baharsingh reported in (2014) 9 SCC 70, the Supreme Court observed that the Court while exercising jurisdiction under Section 115 of the Code is required to satisfy itself as regards the regularity, correctness, legality or propriety of the impugned decision or the order and cannot exercise its power as an Appellate Court to re-appreciate or reassess the evidence to a different finding of fact. It is also made clear that this Court while exercising the revisional jurisdiction is not and cannot be equated with the power of re-consideration of all questions of facts as the Court of First Appeal.

4. In the backdrop of the above, let this Court take into consideration the facts of the instant case. For the sake of convenience, the parties herein are referred to in the same status as they stood before the trial court.

5. The respondents herein as plaintiffs had initiated a suit before the Court of the Civil Judge No.1, Kamrup (M) at Guwahati against the petitioners herein as defendants. In the said suit, the plaintiffs has stated that they are the owners of a plot of land measuring 8 Bighas 2 Lechas whereupon the plaintiffs had constructed Assam Type small godowns some of which were given to different licencees. Amongst the several godowns in the said plot of land, there are two godowns which were vacant. The first of such godown has been more specifically described in Schedule-A of the plaint. The second such g