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IN THE HIGH COURT OF GAUHATI, ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH
DEVASHIS BARUAH, J.
On the Death of Mool Chand Kucheria his Legal Heirs Represented by Rep. Roop Chand Kucheria – Petitioner
Versus
M/s Bongaigaon Stores and Another – Respondents
CRP No. 19 of 2018
Decided On : 05-06-2023
Code of Civil Procedure, 1908 - Section 115, Order XLI Rule 31 - Assam Urban Areas Rent Control Act, 1972 - Section 5(4), (1) (e) - Defaulter in payment of rent – Order of eviction - Application challenging judgment and decree passed by Court whereby appeal was allowed thereby setting aside judgment and decree passed in Title Suit - There is no rebuttal evidence produced by Defendants to counter evidence - Para 21.
Finding of the Court: Plaintiffs failed to bring cogent evidence to show that as per direction of Supreme Court, his shop was closed for which he suffered loss in business and wanted to come back to Bongaigaon - Court finds it relevant to observe that joblessness is not a condition precedent for getting one’s premises back - Only criterion is whether requirement was bonafide - First Appellate Court further observed that except exhibiting some newspapers being Exhibit-2 to 8, Plaintiffs failed to prove fact of closure of shop on account of Supreme Court’s directions and to show that Plaintiff No.3’s business suffered as a consequence of decision of Supreme Court - Plaintiff No.3 had stated in his evidence that he wants to come back to Bongaigaon to start a business in Schedule Premises - Only requirement which First Appellate Court ought to have looked into was as to whether requirement of Schedule Premises by Plaintiffs was for bona fide purpose i.e. something above mere wish but not a compelling or absolute or dire necessity - This aspect of matter however was not looked into by First Appellate Court in deciding issue of bonafide requirement against Plaintiffs - Plaintiffs therefore are entitled to eviction of Defendants from Schedule Premises.
Result: Application allowed.
JUDGMENT :
DEVASHIS BARUAH, J.
1. Heard Mr. R.C. Sancheti, the learned counsel appearing on behalf of the Petitioners and Mr. B.J. Mukherjee, the learned counsel appearing on behalf of the Respondents.
2. This is an application filed under Section 115 of the Code of Civil Procedure, 1908 (for short the “Code”) challenging the judgment and decree dated 22.09.2017 passed by the Court of the Civil Judge, Bongaigaon in Title Appeal No. 35/2010 whereby the appeal was allowed thereby setting aside the judgment and decree dated 05.08.2010 passed in Title Suit No. 2/2000.
3. The facts in brief are that the Petitioners as Plaintiffs have filed a suit before the Court of Munsiff at Bongaigaon which was registered and numbered as Title Suit No. 2/2000. A perusal of the plaint which was amended reveals that the Plaintiffs claims to be the owners of the room which have been described in the Schedule to the plaint. It has been further mentioned that the room which have been described in the Schedule to the plaint had fallen in the share of the Plaintiff No. 3. The Defendant No. 2 took the said suit room on rent for the purpose of carrying on a business of a shop. It has been mentioned that apart from the said room, he was in occupation of two rooms, one kitchen, one bathroom and one latrine on the rear side of the first floor of the building of the Plaintiffs. It was only as regards the shop room on the ground floor which is the subject matter of the dispute. It was alleged in the plaint that the Defendants have been in occupation of the suit room (hereinafter referred to as “the Schedule Premises”) since 1975 as a monthly tenant. The rent of the Schedule Premises was Rs.280/-. It has been alleged in the plaint that as per the agreement, the rent was to be paid within the 7th day of the next month however the Defendants were always irregular in paying the rent. It was alleged that the Defendants stopped payment of rent and started depositing the rent in Court since last many years without offering rent to the Plaintiffs or any one of them. It was also mentioned that the deposit so made in Court were not in accordance with the provision of Section 5(4) of the Assam Urban Areas Rent Control Act, 1972 (for short the “Act of 1972”) inasmuch as there was no offer to the landlord and refusal of the landlord to accept the rent. It was also alleged that the rent was not deposited in the Court every month and rent for 2/3 months were deposited at a time. In paragraph 5 of the said plaint, it has been further mentioned that the plaintiff No. 3 was allotted the Schedule Premises which was presently in occupation of the defendant. As the room was not available the plaintiff No. 3 had to go to Ghaziabad, (Surya Nagar) for starting his business in Delhi however his business in Delhi did not prosper for which he intends to come back to Bongaigaon to start his own business in the room under the occupation of the Defendants. Therefore, from a perusal of the plaint, it would reveal that the eviction of the Defendants was sought on two grounds. First is the ground of bona fide requirement and the second is the ground of defaulter in payment of the rent.
4. It appears on record that the Defendants have filed their written statement. Various preliminary objections were taken. In paragraph No. 14, it was mentioned that the Defendants were in occupation of the Schedule Premises and the existing rent for the Schedule Premises in question was Rs.280/- per month however it was denied that the rent was payable within the first week of the next English Calendar month as claimed. It was categorically mentioned in the said paragraph that the “Tenancy was created under the Plaintiff No. 1 and later on since the Plaintiff Nos. 2 and 3 also claimed ownership over the same, the answering Defendants have been regularly depositing the rent in the Court in the name of all the Plaintiffs after observing the necessary formalities as provided under the Assam Urban Areas Rent Control A
Proviso (e) to Section 5(1) of Act of 1972 stipulates that when tenant has not paid rent lawfully due from him in respect of house within a fortnight of its falling due would come within various grou....
Purpose of bona fide requirement of a landlord what is required is that it must be something more than a mere desire but need not certainly be a compelling or absolute or dire necessity
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 question of facts as the Court of First Appea....
A bonafide requirement is something in between a mere desire or wish on the one hand and a compelling or dire or absolute necessity on the other.
Section 5 (1) (e) of the Act of 1972 stipulates that a decree for eviction can be passed where the tenant had not paid the rent lawfully due from him in respect to the houses within a fortnight of it....
The court established that revisional jurisdiction under Section 115 of the CPC is confined to jurisdictional errors, and findings of fact by lower courts cannot be disturbed unless they are perverse....
Sub-Clauses (a) and (b) of Section 115 of Code is in reference to exercise of jurisdiction by Court not vested in Court by law or has failed to exercise jurisdiction so vested in Court.
The bona fide requirement for landlord's premises must be substantiated with evidence, and landlords retain the right to determine their needs for personal or business use.
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