The requirement of notice under Section 11 of the Assam Non Agricultural Urban Areas Tenancy Act is unnecessary for eviction if the tenant cannot be evicted without a court decree.

JUDGMENT & ORDER (ORAL)

Heard Mr. A Ikbal, the learned counsel appearing on behalf of the appellants in both the appeals. Mr. B Kaushik, the learned counsel appears on behalf of the respondents in both the appeals.

2. Both the appeals arise out of separate judgment and decree both dated 22.08.2019 passed in Title Appeal No.64/2017 and Title appeal No.65/2017 by the Court of the learned Civil Judge No.2, Kamrup(M) at Guwahati (hereinafter to be referred to as the learned Appellate Court) whereby the appeals filed by the appellant herein was dismissed thereby affirming the judgment and decree dated 31.10.2017 passed by the learned Munsiff No.1, Kamrup(M) at Guwahati (hereinafter to be referred to as the learned Trial Court) in Title Suit No.85/2011.

3. It is relevant to take note of that the learned Coordinate Bench of this Court by separate orders passed in both the appeals dated 03.02.2020 formulated same substantial questions of law. The said substantial question of law so formulated reads as under:

(a). In a circumstance, where apart from the plea of non-payment of arrear rent, there are also pleading that the tenancy agreement dated 29.12.2007, which had been relied upon by the plaintiff to establish their right is to be declared as null and void, whether the counter claim would be considered to be a claim under the Assam Non Agricultural Urban Areas Tenancy Act 1955, and if yes, whether the bar of Section 11 of the Act would be applicable in respect of counter claim.?

4. A perusal of the said substantial questions of law so formulated by the learned Coordinate Bench of this Court would show that the substantial questions of law so formulated pertains to as to whether the respondents herein, who are the legal representatives of the original defendant could have maintained the counter claim for eviction of the plaintiff without a notice under Section 11 of the Assam Non-Agricultural Urban Areas Tenancy Act, 1955 (for short, ‘the Act of 1955’).

5. For adjudicating as to whether the above substantial question of law is involved in both the appeals, this Court finds it relevant to take note of the facts which led to the filing of the present appeals.

6. For the sake of convenience, the parties herein are referred to in the same status as they were before the learned Trial Court.

7. The appellant herein as plaintiff had instituted a suit before the Court of the learned Munsiff No.1 Kamrup, {now Kamrup(M)} at Guwahati, which was registered and numbered as Title Suit No.85/2011.

8. It is the case of the plaintiff that the plaintiff was a businessman by occupation. He was a tenant/lessee under the defendant in respect to a plot of land ad measuring 4687 sq.ft. covered by Dag No.395,(O) of patta No.547(N)/967(O) of village Bharalumukh under Mouza Guwahati. It is categorically mentioned in paragraph 3 of the plaint that the plaintiff is a monthly tenant under the defendant in respect to the suit premises. The plaintiff had entered into an agreement in respect to the suit premises since 2003 on a monthly rental basis and had been running his business of transportation and parking under the name and style of M/S Achik Sapna Travels which is a proprietary business concern of the plaintiff. It was stated that the land in respect to which the tenancy agreement was entered into was a low-lying land and the plaintiff spent huge amount of money for filling earth by way of gravel. The business of the plaintiff having flourished, he constructed a semi RCC building containing restrooms and toilets by investing huge amounts of money, which he did within 5(five) years from the date of entering into the tenancy.

9. It was further mentioned that in the month of December 2007