THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH) CRP 196 of 2017 HEM KANTA MEDHI Petitioners -Versus- MAHIDHAR KALITA Respondents
BEFORE HON'BLE MR. JUSTICE KALYAN RAI SURANA Advocates for the Petitioners : [ENTITY], Ms. [ENTITY], : Mr. [ENTITY], Mr. [ENTITY], : Ms. [ENTITY].
Advocates for the Respondents : Mr. [ENTITY], Senior Counsel.
: Mr. [ENTITY], Mr. [ENTITY].
Date of hearing : 18.07.2017, 20.07.2017. Date of judgment and order : 01.08.2017. JUDGMENT AND ORDER (CAV)
Heard [ENTITY], learned counsel for the petitioner. Also heard Mr. [ENTITY], learned Senior Advocate assisted by Mr. [ENTITY], learned counsel appearing for the respondent/ caveator.
1. The petitioner is the plaintiff in [CASE NUMBER]. The petitioner is the tenant of the respondent in respect of a shop premises measuring 12" X 12" with tin shed brick wall and pucca floor from where he is running a grocery shop in the name and style of M/s. Medhi Store. In the plaint, the petitioner-plaintiff had, inter-alia, prayed for permanent injunction for restraining the respondent and his men from interfering with the business of the plaintiff and to take possession of the suit premises. The respondent contested the suit by filing written statement with counter claim, inter-alia, seeking eviction of the petitioner from the suit premises, for recovery of possession, and for realization of arrear, pendente lite and future rent @ Rs.1,000/- per month with interest @ 18% till eviction of the petitioner from the suit premises.
2. As per the plaint, the petitioner was originally a tenant of one [ENTITY]. On his death his wife, Mrs. [ENTITY] became the landlord of the suit premises from 01.04.1995. In the month of October, 2007, the respondent had informed the petitioner that he had purchased the suit premises along with the land on which the suit premises is standing and from 01.10.2007, the monthly rent was to be paid to him. As per the verbal agreement of tenancy, the petitioner was paying monthly rent to the respondent @ Rs.500/- per month together with electricity charges separately as per the sub-meter. On 28.12.2012, the respondent asked the petitioner that he required the suit premises for constructing a building on the land and his men even started to forcibly remove some materials. On receiving further threat and warning of dire consequences from the respondent on 25.01.2013, the petitioner filed the suit.
3. In the written statement with counter claim, the respondent took a stand that his wife had purchased the land vide sale deed No. 643/06 dated 21.01.2006, which is inclusive of the suit premises and since the month of February, 2006, the petitioner was paying rent @ Rs.1,000/- per month and claimed the allegations made by the petitioner in the plaint were concocted. It was claimed that the petitioner was a defaulter since the month of January, 2011. In the written statement to the counter claim, the petitioner maintained a stand that the monthly rent was Rs.500/-, specifically stating that the monthly rent was received till July, 2013.
4. On the basis of pleading, the following issues were framed:
1. Whether there is cause of action for the suit?
2. Whether the suit is maintainable in its present form?
3. Whether the plaintiff is entitled to the decree as prayed for?
4. Whether there is cause of action for the counter-claim?
5. Whether the counter-claim is maintainable?
6. Whether the plaintiff has defaulted in payment of rent?
7. Whether the tenanted premises is bonafide required by the counter- claimant?
8. Whether the counter-claimant is entitled to the decree as prayed for?
9. Whether if parties are entitled to other reliefs, if any?
5. During trial, the petitioner has examined himself as the sole witness but did not exhibit any document. The respondent has examined two witnesses and exhibited eight documents as Ext. A to Ext.H, relating to purchase and mutation of the suit land, out of which Ext.F and Ext.G were the NOC for construction issued by Guwahati Metropolitan Development Authority (G.M.D.A.) and renewal of such permission.
6. On the basis of materials on record, the learned Munsiff No. 1, [ENTITY] (M), Guwahati, by judgment dated 26.04.2016 dismissed the suit and the counter-claim of the respondent was decreed. It was held that the petitioner did not prove any Misc. (N.J.) case records to prove deposit of rent in court. In respect of issue No. 6, the learned trial court held that the petitioner had failed to prove that the rent was first offered to the respondent before it was deposited in court and it was not proved that the mandatory notice under [SECTION] of the [ACT] was sent to the respondent. The said issue no.6 was decided in the affirmative and against the plaintiff by holding that the petitioner was a defaulter. On the basis of Ext. F and Ext.G, which are the no objection certificate dated 24.03.2009 issued by G.M.D.A. and renewal certificate dated 26.11.2012, it was held that the respondent had proved his bona fide requirement for the suit premises for construction of building as per the permission given by G.M.D.A. Hence, the issue No. 7 was decided in the affirmative and in favour of the respondent by holding that the suit premises was bona fide required by the respondent. Accordingly, in respect of issue No. 3 it was held that the petitioner was not entitled to any relief as he is a defaulter and the suit premises is bona fide required for the reconstruction of the building. The respondent was held to be entitled to evict the petitioner and to recover the possession of the suit premises.
7. The petitioner filed an appeal against the said judgment and decree dated 26.04.2016 passed by the learned Munsiff No. 1, [ENTITY] (M), Guwahati in [CASE NUMBER]. The said appeal was registered as [CASE NUMBER] and made over for hearing before the Court of Additional District Judge No.2, [ENTITY] (M), Guwahati. In course of the said appeal, the petitioner had filed an application under [SECTION] [ACT] for production of additional evidence, stating therein that the petitioner had tendered rent for the month of September, 2013 and on refusal from the month of September, 2013 till the month of February 2015, the petitioner had deposited rent in court vide various N.J. Cases mentioned therein.
8. The learned First Appellate Court while appreciating the pleadings and evidence of the parties has referred to that portion of the cross examination of the petitioner wherein he had stated that on 5th day (month not mentioned) he went to pay the rent for the month of September, 2013 and from the month of October, 2013 he had been depositing rent in court. The appellate court further observed that the petitioner had filed the suit in the month of February, 2013 and in the evidence the petitioner had stated that after filing the suit his relation with respondent had deteriorated and that he did not meet the respondent thereafter. The learned first appellate court further held that in the written statement against the counter-claim the petitioner had contested that he had been paying monthly rent upto July, 2013 and as per his deposition he went to pay the monthly rent for the month of September, 2013 and on refusal of the respondent to accept rent from the month of October, 2013 he had deposited rent in court. As per the first appellate court, if the said contention of the petitioner is accepted as to then the question arises- what about the rent of August, 2013?
9. In respect to the application filed under [SECTION] [ACT] for additional evidence, the learned first appellate court had relied on the case of [PRECEDENT]. On re-appreciation of entire evidence and decision of the learned trial court on the issues, it was held that the petitioner was a defaulter and that the suit premises was bona fide required by the respondent. In respect of the finding on bona fide requirement, the learned first appellate court relied on the case of [PRECEDENT].
10. By upholding the judgment and decree passed by the learned trial court, the learned first appellate court by its judgment and decree dated 28.02.2017, dismissed the appeal.
11. Against the concurrent finding by both the courts below, the present revision has been filed under [SECTION] of the [ACT] read with [SECTION] of the [ACT].
12. The learned counsel for the petitioner has referred to the judgment passed by the learned trial court to project that the only ground for holding the petitioner as a defaulter was that the records of various Misc. (N.J.) cases were not proved and, as such, the learned first appellate court ought to have allowed the petitioner to give additional evidence under [SECTION] [ACT] to call for Misc. (N.J.) Case records and prove that he was not a defaulter. It is submitted that the decision of both the courts is vitiated because the learned courts had relied on irrelevant material and decided the issue on bona fide requirement and defaulter against the petitioner. It is submitted that the pleadings and evidence on record when not considered in two perspectives and decided the issues against the petitioner without given any reasons for arriving at such decision. It is submitted that only after the petitioner had filed the suit, the respondent had manufactured a ground for bona fide requirement. It is projected that after the alleged NOC for construction was issued, the respondent did not say anything to the petitioner. It is further submitted that the petitioner was doing business from the suit premises since last 26-27 years and it was the only source of income for him and his family member and therefore, he would suffer a greater hardship if he is evicted from the suit premises. It is submitted that the as his suit was for permanent injunction, the learned courts below had in law in entertaining the counter claim for evicting the petitioner under the [ACT]. It is submitted that the learned first appellate court by mis- interpreting the case of [PRECEDENT] (supra) and [PRECEDENT] (supra) had decreed the suit and dismissed the appeal. It was also submitted that the petitioner has submitted all the documents including the N.J. case receipts to his then engaged counsel, but his engaged counsel had not exhibited them and, as such, the petitioner many not be allowed to suffer due to the fault of his advocate. It is also submitted that the petitioner does object to the written statement or construction of building, but he only claim to be entitled re-inducted as a tenant after the building is constructed.
13. Per-contra, the learned Senior Counsel for the respondent has urged that there was no requirement for allowing additional evidence to prove the records of Misc. (N.J) Cases, because even if it is assumed that the statement made by the learned counsel for the petitioner is correct, still no case on merit is made out because of two reasons, firstly, the suit was filed in 2013 and it is admitted that after filing of suit, the relationship of the petitioner with the respondent had deteriorated and the petitioner never met him, as such, there was no offer of rent to the respondent before it was deposited in court and secondly, as per the query posed by the learned first appellate court, assuming that the petitioner had paid rent till July, 2013 and deposited rent for the month of September, 2013 in the month of October, 2013, even then the petitioner was an admitted defaulter in the payment of the rent for the month of August, 2013. Hence, on these two counts alone, the issue of defaulter is proved. Moreover, the evidence of Ext.F and Ext.G are enough to prove the bona fide requirement of the suit premises by the respondent. Hence, it is submitted that this is not a fit case for disturbing the the concurrent finding of facts as recorded by both the learned courts below.
14. Having heard the learned counsel for the petitioner and the learned Senior counsel for the respondent, this court has perused the materials available on record. Owing to the nature of issues raised in the present revision, the revision has been heard at the motion stage.
15. In the opinion of this court, as the present revision arises out of the [ACT] only a revision under [SECTION] can be entertained and therefore, this Court is not inclined to exercise jurisdiction under [SECTION] of the [ACT].
16. It is observed that the learned first appellate court had not framed any points of determination. In this regard, the learned Senior Counsel for the respondent has relied on the following cases: (i) [PRECEDENT], (ii) [PRECEDENT], (iii) [PRECEDENT], (iv) [PRECEDENT], (v) [PRECEDENT], (vi) [PRECEDENT]. As per the ratio of the above cases, it appears that it is a well settled law that the first appellate court is not always required to frame points of determination as prescribed under [SECTION] [ACT]. It is submitted that it would be sufficient for the first appellate court to records its reasons based on evidence adduced by both parties and if that is done, a mere omission to frame the points of determination could not vitiate the first appellate judgment. In the present case in hand, it appears that there has been a substantial compliance of the provision of [SECTION] [ACT] because the learned first appellate court had revisited all the issues framed by the learned trial court. As per the ratio of the case of Laliteshwar Prasad Singh V S.P. Srivastava, (2016) 0 Supreme(SC) 997: (2016) 12 Scale 902, it has been held that "When the appellate court agrees with the views of the trial court on evidence, it need not restate the effect of evidence or reiterate reasons given by the trial court; expression of general agreement with reasons given by the trial court would ordinarily suffice. However, when the first appellate court reverses the findings of the trial court, it must record the findings in clear terms explaining how the reasonings of the trial court is erroneous." In view of above, in the facts of this case, this court holds that the non framing of points of determination has not vitiated the first appellate court judgment.
17. In the present case in hand, it is seen that under the provisions of [SECTION] of the [ACT], a suit or proceeding for eviction of a tenant from the house can be made (a) where the tenant is done anything contrary to the provisions of clause (m), clause (o) and clause (p) section 108 of the [ACT], or (b) where the tenant has been guilty of conduct which is a nuisance or an annoyance to be occupiers of the adjoining on neighbouring houses, or (c) where the house is bona fide required by the landlord either for purpose of repairs or rebuilding, or for his own occupation, 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, or (e) where the tenant has not paid the rent lawfully due from him in respect of house within fortnight of its falling due, or (f) where the tenant has built acquired or been allotted a suitable residence. Therefore, if any one of the aforesaid grounds of eviction are found against the tenant and the said relevant issue is discussed, then going by the ratio of the above cited cases, it appears to this Court that notwithstanding that the first appellate court is required to frame points of determination under [SECTION] [ACT], in the present case in hand, as the learned first appellate court appears to have dealt with all the important questions involved in the case.
18. As this was a case where counter-claim for eviction under the [ACT] is the issue involved, seeking eviction of the petitioner on the grounds of bonafide requirement and defaulter, these two important issues are found to be extensively addressed by the learned first appellate court. Moreover, in the present case in hand, the appellate court had affirmed the judgment of the trial court. Thus, in the present case in hand, the non-framing of the points of determination does not appear to be fatal.
19. However, it is always desirable for a first appellate court, which is the last court of facts to formulate the points of determination while deciding a first appeal, and it the duty of the first appellate court to see that in its judgment, the points of determination are explicitly set out, reasons are recorded thereon based on evidence so that the judgment reflects the mind of the learned first appellate court. It is also required that the points of determination by a court of first appeal must cover all important questions involved in the case and they should not be general and vague.
20. It is seen that the most relevant issues in the present case are the issue No. 6 and 7 as framed by the learned trial court. These relevant issues are required to be gone into.
21. The learned trial court held that the petitioner measurably failed to prove that he is not a defaulter and that he did not exhibit any N.J. case records and also failed to prove that the rent was first offered to the respondent before depositing rent in court. In this regard, on the perusal of the plaint, this Court finds no statement by the petitioner that he was paying monthly rent to the respondent. The suit was filed in the year 2013. The respondent had filed written statement with counter-claim, wherein a specific plea was taken that the petitioner had not paid rent from the month of January, 2011. In this connection, the learned first appellate court had held that as per the evidence of the petitioner the suit was filed in the month of February, 2013 and as per his cross- examination, after filing the suit, he never met with the defendant. Therefore, this admission appears to be contrary to the written statement against the counter-claim wherein it has first stated that the monthly rent was paid upto July, 2013. Both the above stands run contrary to the statement made in the cross examination where it was stated that the petitioner went to pay the monthly rent for the month of September, 2013, but on refusal of the respondent to accept the rent from the month of October, 2013 he has been deposing rent in the court. Even assuming this to be correct, the first appellate court had rightly raised a question as to what about the rent for the month of August, 2013. Therefore, as per the provisions of the [ACT], if a tenant has failed to pay the monthly rent even for one month, in this case, the petitioner was correctly held to be a defaulter.
22. Under the scheme of [ACT], even a single default has been held to be fatal and therefore, even assuming for the sake of argument that all the statements of the petitioner was correct, then also the petitioner by giving three separate versions, could not satisfactory account for non-payment of rent for the month of August, 2013. Having admitted not to have met the respondent after filing the suit, there is no evidence by the petitioner that how he tendered rent to the respondent from July, 2013 to September, 2013. The respondent herein had taken a specific stand that the petitioner did not pay rent from the month of January, 2011. However, the petitioner did not prove his book of accounts to show that he had been paying monthly rent to the respondent from January, 2011. The petitioner is running a business and, as such, it is presumed that he must be having books of accounts. In view of above, as the petitioner was even otherwise a defaulter, the learned first appellate court did not err in law and on facts in not allowing additional evidence under [SECTION] [ACT], when admittedly rent was deposited in court from the month of October, 2011 and, as such, even if the records of Misc. (N.J.) Cases are called, it cannot explain the previous default which occurred in the month of August, 2013 or to prove payment of monthly rent from January, 2011 to August, 2013. Moreover, no amount of evidence can be looked into if there is no pleading on record in this regard. Therefore, this court does not find any infirmity in the concurrent finding by both the learned courts below on the issue of defaulter. The preponderance of probability tilts in favour of the respondent.
23. The present suit was filed in February, 2013, but the NOC for construction of building was obtained on 24.03.2009 from the GMDA and the said permission was extended on 26.11.2012. The NOC and renewal were proved by Ext. F and Ext.G respectively. It is unbelievable that the respondent would obtain a NOC for construction in the year 2009, get it renewed on 26.11.2012, but ask the petitioner to vacate the suit premises only on 28.12.2012 as alleged by the petitioner. However, the said NOC for construction tallies with the version of the respondent as stated in his counter-claim. In the counter-claim it was stated by the respondent that his wife had purchased the land measuring 15 lessas inclusive of the suit premises by registered sale deed No. 643 dated 21.01.2006 and since the year 2009, he had requested the petitioner and other tenants to vacate their premises to enable him to construct a new building. Therefore, in the opinion of this court, the respondent had been able to prove his bona fide requirement of the suit premises and therefore, this is not a case where the concurrent finding on the issue of bona fide requirement is liable to be disturbed.
24. On the basis of materials available on record, this court does not find any material by which it can be said that the learned courts below had exercised jurisdiction illegally or with material irregularity. There is no infirmity in the concurrent finding of facts by both the courts below. The impugned judgments by both the courts below are not found to be irrational or vitiated by any other error. Under the circumstances this is not a fit case, where this revisional court is required to substitute its own view on the concurrent finding recorded by both the courts below. Hence, the revision is found to be devoid of any merit and the same is dismissed by upholding the judgment and decree passed by both the courts below.
25. Having observed that as per the ground 11 in this revision, the petitioner is doing business in the said premises from last 27 years, this court is inclined to give time till 31.10.2017 from today to vacate the suit premises, subject to the following conditions:
a. The petitioner shall bind himself and shall also deposit the decreed arrear rent together with pendente lite monthly rent @ Rs.1,000/- within a period of one month from today before the learned Court Trial Court; and b. The petitioner shall submit an unconditional undertaking in writing before the learned Trial Court, i.e. Court of Munsiff No.1, [ENTITY] (M), Guwahati, within 1 (one) month from today, binding himself to vacate the suit premises on or before 31.10.2017; and c. The petitioner shall bind himself not to sub-let or part with the possession of the suit premises or any part thereof to any other third party and/or to hand over the suit premises to anyone other than any one of the respondent herein (i.e. Plaintiff), who on receiving vacant and khas possession thereof would issue a receipt, which would be counter- signed by the petitioner.
d. The petitioner shall bind himself not to cause any nuisance or any other disturbance and/or cause any damage to the suit premises in the meantime.
e. The deposit of monthly rent shall not constitute any further tenancy or create any right whatsoever in favour of the petitioner.
26. It is made clear that if any of the petitioner does not give an undertaking to bind himself on any of the above four conditions (a) to (d) above and/or if any of those conditions are violated or not complied with, the respondent/ Plaintiff shall be entitled to enforce the decree.
JUDGE [ENTITY]