E- iiiiiiiiiiiil '¢ : i'`G, .r IN THE HIGH COURT OF SIKKIM AT GANGTOK (CIVIL APPELLATE JURISDICTION) R F A No. 01 of 2008 Shri Jagdish Prasad, S/o Late Kapur Chand, Singtam Bacar, East Sikkim. ...Appellant/Defendant Versus Tashi Tshering Bhutia, S/o Tshering Wangdi Bhutia, Resident of Simik Lingzey, P.O. Khamdong, P.S. Singtam, East Sikkim. ...Respondent/Plaintiff For the appellant: For the respondent: Mr. T.B. Thapa and Mr. B.R. Pradhan, Sr. Advocates with Ms. Yangchen D. Gyatso, Ms. Pema Yesha.y Bhutia, Mr. Yadav Shanna and Mr. Karma T. Bhutia, Advocates Mr. J.B. Pradhan, Sr. Advocate with Mr. Karma Thinla.y and Mr. D.K. Siwakoti, Advocates. Date of Heculng : 18.05.2010 Date ofdudgrnerit. : c£I ` og\2o\o PRESENT: HON'BLE TIEE CHIEF JUSTICE MR. IJUSTICE BARIN GHOSH Ghosh, C| ±£ JUDiGMENT By the judgment and decree under appeal, the suit for eviction of tenant;I has been decreed with directions I upon the defendant, appellant herein, to deliver vacant possession of the suit pre-mises within two months from the date of decree; to pay rent from the month of October, 2000 to March, 2008, without interest, and cost of Rs.2,500/-`. Before the appeal was admitted, this Court directed deposit of rent from the month of October, 2000 until the date the order was pissed, amounting to Rs.2,25,OOO/-. The defendant-appellant d'eposited the said sum. 1`hereupon this Court admitted the appeal, stayed the operation of the judgment and decree and at the same time direct.ed the appellant to deposit rent.t month by month @ Rs.2,500/-. There appears to be no dispute that the appellant is depositing the same. 3. i The principal fontention of the appellant in the appeal is that the plaintiff!+ esi-,.i:ident has failed to prQ`,..'c any of the grounds of eviction at the trial. 4. s was available to him and pressed On 14th April; 1949 the then Government of Sikkim by a Notification in:ade the following law: ---.- i-` -------------- __-- = - -,--- _- e6 th` "GOVERNMENT 0F` SIKKIM Health and Works Department Notification No. 6326-600-H&W-B Under powers conferred in para 2 of Notification No.1366-G, dated the 28th July, 1947, the following Rules have been framed to regulate letting and sub-letting of premises controlling rents thereof and unreasonable eviction of tenants as the scarcity of housing accommodation still exists in Sikkim. 1. The landlords can charge rent for premises either for residential or business purposes on the basis of the rents prevailing in locality in year 1939, plus an increase upto 50 per cent so long as the scarcity of housing accommodation lasts. 2. 1`he landlords ca_nnot eject the tenants so long as the scarcity of housing accommodation last.s, but. when the whole or part of the premises are required for their personal occupation or for thorough overhauling of the premises or on failure by the tenants to pay rent for four months the landlords may be permitted to evict the tenant on due application to the Chief Court. 3. Any tenant rna.y appl.v to this Department for fixing his rent. On receipt of such application the Department will enquire about the rent prevalltng jn the locality in 1933, and fix rent as per Rule (1) above. 4. Any person acting in contravention of this Notification will be liable to prosecution under para 4 of notification No. 1366-066-G, dated the 28th July, 1947. 5. The tenant means those person in actual occupation. Landlord means owners of the premises. These rules will come into force with immediate effect. 5. '-e By order of His Highness the Maharaja of Sikkim. R.B. Sin8h' Secretary, Health and Works Department, Government of Sikkim. Gangtok' The 14th, April, 1949." By reasons of clause (k) of Article 371F of the Constitution of India, the provisions co.ntained in the said Notification continues to deal with matters pertaining to letting and sub-letting of premises, rent payable in relation thereto and eviction of tenants there from, inasmuch as the competent legislature has not yet amended or repealed the law as was thus made by the sald Notification. The provisions contained in the said Notification by virtue of constitutional mandate referred to above overrides the provision of Transfer of Properties Act. The provisions contained in the said Notification are applicable to the State of Sikkim except to those buildings and constructions situated within the area of Gangtok Bazar, inasmuch as for buildings and constructions situated within Gangtok Bazar, the then Government of l' Sikkim made the Gangtok Rent Control and Eviction Act, 1956. 6. There appears to be no dispute, inasmuch as the suit premises is situated at Singtam, in the State of Sikkim, and not within the area of Gangtok Bazar, that the provisions contained in the said Notification applies to the suit premises. In terms of the provisions contained in clause 2 of the said Notification, landlords cannot eject tenants so long as the scarcity of housing accommodati.on lasts except for personal occupation or for thorough overhauling of the premises or on failure by the tenants to pa.y 1-ent for foiIT months. It is nobody's case that scarcity of housing accommodation, which was pronounced by the said Notirication to be existing then, has now cease to exist. Therefore, the only ground avinlable to the respondent to seek Fviction of the appe]1ant was either requirement for his personal ocoupation or for thorough overhauling of the premises or for failure of payment of rent for four months. 7. I In the plaint, the respondent pleaded requirement Ji= for his personal occupa~tion; requirement for thorough overhauling of the premises and a.leo failure on the part ol- the appellant to pay rent for more than four months. In his 11 amended written statenient, appellant denied that the premises is required for personal occupation of the respondent or that ,the premises requires thorough overhauling or tnat there has been failure on the part of the appellant to pay rent for four months. At the trial, the respondent gave up the plea that Jha- e premises is required for thorough overhauling. The trial Court was thus required to ascertain whether the respondent requires the premises for his personal occupation and whether there has been failure 'C> on the part of the appellant to pay rent for four months. The i trial Court held both in favour of the respondent. 8. As the evidence of the plaintiff stands, he had deposed, to which there appears to be no dispute, that the respondent has grown up male children, who he wants to ! settle and for that matter desires and intends to convert the suit premise into a hotel ,and a manihari shop. Assuming "his I personal occupation" !!encompasses requirement of dependants of the landlord and accordingly requirement of grown up children of the||respondent may be treated to be personal requirement of the respondent, but that the premises is required for gitown -dp children of the respondent I was not brought on evidence. What was brought on evidence was that the respondent desires and intends to settle his children in a hotel business and manihari shop to be established in the tenanted premise. Desire and intention cannot be equated with,, requirement. Even though the I respondent had deposed that the suit property is the only available property belongi-.ig to I.im which can be utilized for any commercial purpose as the same is situated in Singtam Bazar, the same would not establish requirement, inasmuch I as there is no evidence tc; convert desire and intention into requirement, except unemployment of some of his grown up children, who, as admitted by him in cross examination, are I useless fellows. It, therefore, does not appear to me that .® there was enough evidence to sugges had made out a case of requirement o his personal occupation. Further that the respondent fthe more cannot encompass use apd occupati,on. I suit premises for occupation alone The desire' and intention, as was expressed, addresseq requirement for use only and not requirement for It was contended by the respondent in the plaint tshe:ttet=:er:P::1::tti]Lh:len:i:ado:fi:1:=j:rf°=heths:LtT°:nthh:: evidence he repeated that tile appellant failed to pay rent from the month of September, 2000, but at the same time tendered in evidence records kept and malntalne'd by him pertaining to . receipt of rent, which in turn suggested rent for the month of September,2000wastenderedintheJonthofoctober,2000 =]:etnhc::=geesTeads:Cactep]t:endtfo:hae:ei:trhdsw:°stpe=:e::dt:: viel of following month. It is true that in Indian Evidence Act, 1872 only on the maintained by the respondent, the a charged, but at the same time the fact Section 34 of the basis of such records lrpee::nts could not be that negative cannot be proved. It is true that it was the contention of the respondent that rent fro± the monthl of September, 2000 remained outstanding; whereas recor[s thus tendered in evidence suggested rent .for the month was duly paid. The burden of proof, of September; 2000 ring regarded to. the -e law governing the field as contained required the respondent to the said Notification, establish that rent for four mc`nths had not been paid. The said burden remalned with the respondent all throughout. The slit was instituted in September, 2004. The evidence tend red by assertion that I rent from September, 2000 till the ti e of filing of the suit has not been paid shiftedlithe onus to |the appellant to prove that such rent was paid. The fact thit rent for September, 2000 was paid should be treated to have been admitt.ed by the respondent by exhibiting the recoids as refeITed above. I That was only for one month. I The o±us pertaining to non- payment of rent for September, 2000 thus shifted back to the respondent, but not the onus pertalni!pg to non-pa.yment of rent for the months of October, 20 0 onwards and until :eenpttef:rbetrie2°m°o4nth:h:fa::teo]:=r::eopvis=:e:h=dheD:::mpb:r: 2000 as well as January, February person and for the month of April, 200 and March, 2001 in rent was tendered by money order, which wasirefused. He also established that for the subsequent months until filing f the suit and even thereafter rents were tendered by mon'ey order, but refused. Therefore, onus to prove non-payment of April, 2001 and until the date of I the respondent, but onus to prove appellant and acceptance jf fi:`eii rents for the months of the suit shift.ed to ering of rents by the thereof by tpe respondent for the -a 11 January, February and March, 2001,as Was respondent, did not shift merely on I asserted by the the assertion of the appellant from the witnc;ss box, although the respondent I admitted in his evidencei that he never 11 on acceptance of rent alter he became in question, inasmuch as(tin order to prove, which, as aforesaid, stood shift( assertion was required t'P be I seeking to prove positive,, and the appellant did not make" any effo 11 11 circumstance, conclusion would be been able to prove non-payment 11 ssued any rent receipt owner of the premises ift back the onus to to the appellant, his rated, since he was ct remains that the to do so. In the of reht the appellant which was one of th available to him in terms;lof the ground had been pleaded 10. A look at the the respondent had for four months by grounds of eviction said Notification and which clause 2 thereof, would m!al[e it abund 11 other ground, but only on': those three 11. therein, the respondent could seek evi However, the said clause itself gives dis I permit eviction. In other ;twords, if an) mentioned in the said clalise of the I ion, and in particular antly clear that on no as mentioned the appellant. etion to the Court to )f the three grounds I 1 Notification is put home, the same would not necessarily +esult in eviction. The Court would be required to use its d eviction. In order e such scretion in permitting retion, the Court was -a 10 required to take into account the conduct of the respondent, the hardship he is likely to face and o+Jier surrounding circumstances. 11. In the instant case, although there is no requirement of giving ejection notice, an ejection notice was served upon the appellant, where it was mentioned that rent since September, 2000 remains outstanding. The appellant did not remove the default by tendering rents for the months of October, November and December, 2000 and `January, February and March, 2001, instead he tendered rent for the month of April, 2001 only in the month of May, 2001 by money order. Although rents payable for the subsequent months were tendered by him in similar fashion, but. the fact remains that after the sui': wac i-i]ed he did nt)t deposit rents in Court by taking recourse to Order XXIV ot. the a,ode of Civil Procedure, 1908. 12. The learned senior counsel for the appellant cited a judgment rendered by a Division Bench of this Court in the case Tekchand Agarwal vs. Prem Pr?kash Agarwal & Anr, Civil Ref. No. 1 of 1987, on llth May, 1987, where the question that was referred is as under: "Whether under the, Gangtok Rent Control and Eviction Act, 1956, the tenant can deposit the rent in, the Court of Chief Magistrate (equivalent to Court of District LJudge) and whether that will amount to legal deposit or not?" `0 The said question was answered by! the Division Bench, without, however, noticing the provisiops contained in Order I =o[:g:fth::e:s°::::o:1;1:np::rcedde:roes'iLn9g°::n:yLns:yoL::t,t::: the Courts are adopting the practice thereafter issuing notices to I of accepting rent and the landl'ords to appear in the Court to receive the amount and in soine cases, the landlords do not appear and the money remains deposited in the court for several years and accordingly the Court is unnecessarily 111 being burdened with additional work. IBy the said judgment and order, the Courts of the District iJu ges were directed not to accept any deposit of r:nt in their trts. First of all the Js::=deL;ttd:::::ickeentn°:eas°fp°e:::rnLFvto°fGth=g:o°kdeR=n: I Control and Eviction Act, 1956. Be that as it may, by reason ofthesald]udgmen"heabpellantmajhavebeenmisledand accordingly he did not deposit rent i remains that he deposited such rent Court, but the fact subsequently and is continuing to deposit. the same in Court: in terms of the orders I of this Court, as referred above. The (I conduct be treated as special equity in estion is, can such favour of the for not exercising discretion to permit his eviction? appellant 13. In the plaint, the respondent had specifically asked for recovery of rent which was i arrear and also rent that would accrue during the pendencly of the suit tugether `e 12 with interest @ 18 % per annum, in aqditionto eviction. In such a suit, in view of Older XX Rule (12) of Code of Civil Procedure, it is obligatory on the part the suit for pa.yment of rent until such recovered. Therefore, tendering of ren 11 though refused, and payment of ren absolve the liability to pay the same conduct cannot be treated as special ec In the Rent Control 14. States including the State of West ] rent is one of the grounds available t)f the Court to decree time the possession is by money order, even in Court would not and as a result such as special equlry. 11 Ilentrol Acts pre` 3 Of west Bengal, fo event an application is made and the 1 .I, prevalent in T,-arious non pa.yment of r eviction, but in the default in payment of rent is removed by paying rent in Court and the tenant :1::t:n=::i;:bat:;::if::I:ir:oe::;Se:r:.:ai:i]uty:t;,:te:v;:;b:yn::oert:a:: suggests that meeting up of the C payment is not such a conduct which and, therefore, statutes had to interve first defaulters. 11 15. However, in the event, the 3fault by subsequent attracts special equity ie to show lenience to had tendered rent for the months of October, November and December, :eonotot=n:e:e=uf='t::b=O=hano:rim::'2::oLLO=o::dwLh= 11 1 deposited the salne in Court by taking recourse to Order XXIV 'e \ 131 \ I, of the Code of Civil Procedure, 1908 and such deposit had I, been accepted by the respondent, such conduct could be looked at from a different angle. I 16. The question, therefore, is whether hardship and I, other circumstance demand consideration of special equity to i refuse permission to evict. Whereas\in Singtam Bazar, a flourishing town in the State ofsikkim,ithe appellant ours a premises and accordingly eviction of que appellant frorri the I suit premises would not expose him to 4 shelter on the street, I, the respondent has no other premises \at Singtam, although he does not ordinarily reside at Si]gtam. Can such a situation deprive the respondent to obtain a permission to evict the appellant, though on facts it is established that he 1. has no personal requirement of the preTlses. I do not think failure to establish personal rcquiremept is fatal, inasmuch as default in payment of rent is an independent ground for eviction. In the event such a ground is prade out, unless it is shown and established that the eviction would result in I irreparable hardship or other surroupding circumstances suggest to the contrary, the plaintiff mutst succeed. No case `` of such hardship or other surrounding circumstances has been made out by the appellant. The ;discretion, therefore, cannot be used in his favour. \ ` 17. In the circumstance, for th? reasons as above, there is no scope of interference witp the judgment and `. decree under appeal, except that the appellant is given time till 31.10.2010 to vacate the suit premises on condition that \ he will continue to deposit rent in terLs of earlier orders of •thiscourtuntilforthemohthofoctob!r,2010.Theplantiff shall be entitled to receive the anount so deposited in part i satisfaction of the decree. ,, Inasmuch ±s the respondent has not filed a cross appeal pertaining to +is claim for interest, I interest accrued on the deposit shall be|pald to the appellant, I after deducting cost of Rs.2,500/-, whic,h shall be paid to the. respondent. There shall be no order as jks/ o costs of the appeal. `:i---:------,--,. Chief Justice