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HIGH COURT FORM NO.(J)2
HEADING OF JUDGMENT IN ORIGINAL SUIT
DISTRICT: KAMRUP (M)
IN THE CIVIL COURT OF THE MUNSIFF NO.1 KAMRUP (M), GUWAHATI
Present: Sri Lakhinandan Pegu
Munsiff no.1, Kamrup (M), Guwahati
Wednesday, the 1st day of June, 2016
T.S. No.426/2012
Sri Nipen Nath
……….Plaintiff
Versus
Sri Rakesh Das
….……….Defendants
This suit/case coming on for final hearing on 20/05/2016 in the presence
of—
Sri Rupjyoti Bordoloi -----Learned Advocate for the Plaintiff.
Smti Namitra Konwar:- The learned counsel for the defendant.
And having stood for consideration to this day, the court delivered the following
judgment:-
JUDGMENT
A. NATURE OF THE SUIT:-
1. It is a suit for ejectment and arrear rent.
B. THE BRIEF FACTS OF THE PLAINTIFF’S CASE IN A NUT-SHEL:-
2. The plaintiff is the owner of an Assam Type house measuring approximately
180 sq. feet area consisting two rooms one measuring 10 x 12 ft. and another
measuring 5 x 12 ft. covered by House No.17 of Municipal Ward No.31 situated
at C.K. Road, Panbazar, Guwahati-1. The defendant is a tenant under the
plaintiff in respect of aforesaid house since the year 2001. Initially, rent of the
premises was mutually fixed at Rs.2, 500/- (Rupees Two Thousand Five
Hundred) only per month. However, subsequently same was enhanced and since
1st October, 2004 the rent of the premises was enhanced and fixed at Rs.2,750/-
(Rupees Two Thousand Seven Hundred Fifty) only per month. Moreover, as per
agreed terms of the agreement rent was payable within 1st week of every English
calendar month. As per terms of the agreement, defendant has paid monthly
rent of the tenanted premises to the plaintiff up to the month of August, 2009.
But, since the month of September, 2009 defendant has failed to pay the
monthly rent to the plaintiff in spite of repeated request/demand made by the
plaintiff from time to time. The tenanted premise presently occupied by the
defendant is required by the family members of the plaintiff for starting their
own business. The sister of the plaintiff wants to start her own business of
cosmetic and gift items. The present Assam Type house being situated at C.K.
Road of Pan Bazar, it is ideal for starting such business by the sister of the
plaintiff. Therefore, defendant is required to vacate the tenanted premises in
favour of the plaintiff as family members of the plaintiff required the same in
bonafide.
C. THE PLAINTIFF’S PRAYER:-
a) Ejectment of the defendant his men, agent etc. from the premises mentioned
in the schedule of the plaint.
b) For realization of Rs.99,000/- being arrear house rent from the defendant for
the period from September,2009 to August,2012.
c) For further rent at the rate of Rs.2, 750/- (Rupees Two Thousand Seven
Hundred Fifty) only per month from the month of September, 2012 till the
defendant is ejected from the suit premises.
d) Cost of the suit.
e) Any other relief/relief(s) as prayed for.
3. Summons has been issued against the defendant for his appearance before
the court. The defendant has appeared before the court after the receipt of
summons and contested the suit by filing written statement.
D. THE CASE OF THE DEFENDANT IN A NUT-SHEL:-
4. The defendant’s version is that he is not a tenant under the plaintiff and there
was no tenancy agreement executed between the plaintiff and the defendant in
respect of any premises for which the plaintiff did not make any statement as
regard to the suit premises by way of schedule in his plaint. The plaintiff has filed
a petition before the learned Deputy Commissioner, Kamrup (M), Guwahati
under section 107/144 Code of Criminal Procedure, 1973 which is still pending.
5. On the basis of the pleadings of both the parties, initially this court framed 6
(six) issues, but subsequently on the basis of an application filed by the plaintiff
this court for proper adjudication of the case has framed another 3 (three)
additional issues. Those are as follows:-
E. ISSUES
1) Whether the suit is maintainable in the present form and
manner?
2) Whether the suit is barred by the law of limitation?
3) Whether there is any cause of action for the suit?
4) Whether the plaintiff is entitled to recovery of Rs.99,000/-
from the defendant along with further rent?
5) Whether the plaintiff is entitled for any other relief as
prayed for?
6) Whether the plaintiff is entitled to get khas possession of
the suit premises?
F. ADDITIONAL ISSUES
7) Whether the suit premise is required bonafide by the plaintiff?
8) Whether the defendant is defaulter in payment of rent?
9) Whether the defendant is tenant under the plaintiff?
G. DISCUSSION, DECISION AND REASONS THEREOF:-
6. Plaintiff has filed the evidence-on-affidavit of 3 (Three) witnesses. They are as
follows:-
P.W.1- Sri Nipen Nath
P.W.2- Smti Lakshmi Devi
P.W.3- Sri Pradeep Dutta
7. Plaintiff has exhibited certain documents. These are as follows:-
Exhibit-1- Certified copy of the sale-deed no.4519/1997
Exhibit-2- The copy of jamabandi of Mouza-Ulubari Sahar, Guwahati 4 th part
patta no.315.
Exhibit-3- The copy of Revenue paying receipts.
Exhibit-4(1) and Exhibit-4(2)- The Bill cum Notice of Demand by GMC.
Exhibit-5(1) and Exhibit-5(2)- The GMC tax paying receipt.
Exhibit-6- The copy of Tenancy Agreement dated 05/10/2004.
Exhibit-7- The counter-folio of the rent paying receipt for the month of August,
2009 dated 07/08/2009.
8. Defendant has adduced as many as 2 (Two) witnesses. Defendant has
examined himself as D.W.1 and another witness, namely,Sri Bibhas Chakraborty
as D.W.2.
9. The defendant has exhibited certain documents which are as follows:-
Exhibit-I (I) to Exhibit-I (5)- Money receipts against the house-rent issued by the
plaintiff.
Exhibit-II- The money received in respect of the house-rent for the period of 7
(Seven) months issued by P.W.2.
Exhibit-III (1) to Exhibit-III (31)- The copies of treasury challan from the month
of December,2011 to April,2015
Decision on issue no.1:- Whether the suit is maintainable in the present
form and manner?
10. The issue has been framed on the basis of averment made in the written
statement. But, there is no specific plea as to why the suit is not maintainable.
As per section 9 of the Code of Civil Procedure,1908, court can try all suits of a
civil nature, excepting suits of which their cognizance is either expressly or
impliedly barred. The suit is based on landlord-tenant relationship and the instant
suit has been instituted against the defendant/tenant as per provision of section
5 of the Assam Urban Areas Rent Control Act,1972 on the ground of defaulter
and banafide requirement. It is suit of a civil nature and there is no express or
implied bar under any provision of law regarding non-maintainability of the suit.
Under section 2 (a) of the Assam Urban Areas Rent Control Act,1972 “Court”
means the court of ordinary civil jurisdiction in the area in which a house is
situated which would be competent to pass a decree for eviction of a tenant
from that house. Therefore, as per provision of the said Act, the present suit
instituted by the plaintiff before this court being the competent court is
maintainable in law. The Hon’ble Gauhati High Court in a judgment, Dr.
Dwijendra Mohan Lahiri –Vs- Rajendra Nath, reported in AIR 1971 Assam and
Nagaland 143 has held that unless there is a specific averment that the suit is
not maintainable either facts or in law , the court should refrain from framing
such issues as such plea is vague and in the present suit also the Defendant has
failed to express how the suit is not maintainable, therefore no issue is at all
required to decide regarding maintainability of the suit.
11. Hence, the issue is decided in affirmative and in favour of the plaintiff.
Decision:-The suit is maintainable in the present form and manner.
Decision on issue no.2:- Whether the suit is barred by the law of
limitation?
12. The present suit is instituted by the plaintiff for ejectment and arrear rent
under Assam Urban Areas Rent Control Act, 1972 on the grounds of defaulter
and bonafide requirement. The present suit is instituted by the plaintiff in the
year 2012, and according to the plaintiff, the tenancy of the defendant is
determined from September,2009 when the defendant was default in payment of
rent. The Article 67 of the Limitation Act, 1963 provides 12 years limitation from
the date when the tenancy is determined. Apart from it, the plaintiff has claimed
arrear rent from the defendant from the month of September, 2009 till August,
2012 as the defendant has defaulted in payment of rent from the month of
September,2009. However, the present suit is instituted by the plaintiff on
13/09/2012 before this court i.e. within three years from the date of payable of
rent for the month of September, 2009 which is covered under Article 113 of the
Limitation Act, 1963. On the other hand, the other ground of the plaintiff
regarding bona fide requirement of the suit premises was arose at the time of
filing the suit only i.e. in the year 2012 itself.
13. Hence, the issue is decided in negative and in favour of the plaintiff.
Decision: -The suit is not barred by the law of limitation.
Decision on issue no.3:- Whether there is any cause for the suit?
14. The term “cause of action” denotes nothing but a right to sue. Simply
speaking, it means whether the plaint discloses the existence of any right and
any infringement thereof so as to enable the plaintiff to bring a suit for
adjudication of his right. In other words, cause of action is a bundle of facts
which a party has to prove to get judgment in his favour. The plaintiff in his
plaint has pleaded that he is the owner of the scheduled tenanted premise and
he let out the same to the defendant. It is further pleaded that the defendant is
defaulter in payment of rent and he requires the tenanted premise bonafide. On
the other hand, the defendant in his pleading as well as evidence-on-affidavit
has admitted the relation of landlord and tenant; but he has denied that he is
defaulter in payment of rent as well as the bonafide requirement of the tenanted
premise by the plaintiff. It, thus, appears that the plaintiff pleaded a bundle of
facts which are opposed by the defendants. The plaintiff has to prove all those
facts to secure a judgment in her favour. So, there is a cause of action for the
suit.
15. The issue is decided in affirmative and in favour of the plaintiff.
Decision: - There is a cause of action for the suit.
Decision on issue no.8:-Whether the defendant is defaulter in payment
of rent?
Decision on issue no.4:- Whether the plaintiff is entitled to realize an
amount of Rs.99, 000/- (Rupees Ninety Nine Thousand) only from the
defendant as arrear rent along with further rent?
16. For the purpose of convenience and as both the issues are interlinked to
each other, both the issues are decided together. The present suit is instituted
by the plaintiff for a decree of recovery of arrear rent of Rs.99,000/- from
September,2009 to August,2012 and further rent till ejectment of the defendant
from the suit premises along with other relief(s). The plaintiff in his plaint has
specifically pleaded that as per the terms of the agreement, defendant has paid
monthly rent of the tenanted premise up to the month of august,2009. But, since
the month of September,2009 defendant has failed to pay the monthly rent to
the plaintiff in spite of repeated request/demand made by the plaintiff from time
to time. In support to the said pleadings, the plaintiff has adduced his evidence
as PW-1. To prove his pleadings, the plaintiff has exhibited Tenancy Agreement
dated 05/10/2004 as Exhibit-6 and the counter-Folio of last rent paying receipt
as Exhibit-7 along with other documents. The defendant who adduced his
evidence as DW-1 has admitted the Tenancy Agreement i.e. Exhibit-6. Apart
from it, the plaintiff in his evidence has stated that as per terms of the
agreement defendant has paid monthly rent of the tenanted premises up to the
month of August,2009. But, since, the month of September,2009 the defendant
has failed to pay the monthly rent to the plaintiff in spite of repeated
request/demand mad by the plaintiff from time to time. On the other hand,
against the pleadings of the plaintiff regarding defaulter as well as other
allegations made in the Plaint, the defendant in his written statement in
paragraph 5 has made evasive denial by simply stating that “5. That, the
statement made in para 2,3,4,5 & 6 of the plaint are all false, incorrect
and misleading statements made by the plaintiff, hence all are denied
by the answering defendant.” Hence, it appears that the defendant in his
written statement has not specifically denied the allegations regarding his
defaulter in payment of rent as required under Order VIII Rule 3 & 5 of the Code
of Civil Procedure,1908.
17. Order VIII Rule 3 of the Code of Civil Procedure,1908 reads as follows:-
“Denial to be specific- It shall not be sufficient for a defendant in
his written statement to deny generally the grounds alleged by the
plaintiff, but the defendant must deal specifically with each allegation
of fact of which he does admit the truth, except damages.”
18. Order VIII Rule 5 of the Code of Civil Procedure,1908 which reads as
follows:-
(1) Every allegation of fact in the plaint, if not denied specifically or
by necessary implication, or stated to be not admitted in the pleadings
of the defendant shall be taken to be admitted except as against a
person under disability.
Provided that the court may in its discretion require any fact so
admitted to be provided otherwise than by such admission.
19. Therefore, within the meaning of Order VIII Rule 3 & 5 of the Code of Civil
Procedure,1908, the reply of the defendant made in written statement can be
regarded as evasive denial, which amounts to admission in the eye of law.
20. However, although the defendant in his written statement has denied the
landlord-tenant relationship with the plaintiff, but in his evidence-on-affidavit,
the defendant has admitted the tenancy with the plaintiff by denying the
defaulter and bonafide requirement as alleged by the plaintiff in his plaint. Apart
from it, defendant has not filed any documents with his written statement, but
at the evidence stage, the defendant without seeking leave from this court has
exhibited 57 nos. of rent paying receipts as Exhibit Nos. I (1) to I (57), a Money
Receipt as Exhibit No.II and 39 Nos. of Treasury Challans as Exhibit No.III(1) to
III (39) with his evidence-on-affidavit (DW-1). All the statements made by the
defendant in his evidence-on-affidavit and the documents exhibited with his
evidence is apparently beyond his pleadings/written statement. Therefore, those
statements made in evidence (DW-1) and the exhibits filed therewith cannot be
considered as their defence.
21. However, although the defendant in the present suit has tried to adduce
evidence beyond his pleadings by exhibiting the aforesaid documents, but from
the documents specially the challans exhibited by the defendant itself reveals
that the defendant is defaulter in payment of rent. The defendant in his
evidence has stated that he paid rent up to the month of September,2010 to
the plaintiff, there after paid Rs.20,000/- to the sister of the plaintiff being rent
for 7 (Seven) months and thereafter due to refusal of the plaintiff to accept the
rent, the defendant has deposited the rent before the court from
December,2011. Therefore, on his own statements also defendant is a defaulter
as there is no payment since May,2011 to November,2011. Moreover, there is
no pleading made by the defendant regarding payment of any rent to Smti Tiliki
Devi. In support of the statements regarding payment of rent, defendant has
failed to exhibit N.J. cases before the court. The defendant has also failed to
prove offering of rent. In his evidence, defendant has specifically admitted that
he went to the house of the plaintiff in the year 2011 or 2012 for 3 to 4 times to
offer rent; but thereafter he did not offer rent to the plaintiff. Thereafter, he is
depositing the rent in the court. Moreover, the defendants has also admitted
that in the month of December,2011 for the last time he went to the house of
the plaintiff to offer rent; but subsequent to this he did not offer rent to the
plaintiff. Therefore, it is apparent that the defendant had not paid within time as
required under the provision of law. As per section 5 (4) of the Assam urban
Areas Rent Control Act,1972, the tenant can deposit the rent in the court. But,
before depositing the rent in the court, the tenant has to offer rent to the
landlord. On refusal by the landlord to accept rent, the tenant may, within a
forthnight of its becoming due, deposit in court the amount of such rent
together with process fees for service of notice upon the landlord, and on
receiving such deposit, the court shall cause a notice of the receipt of such
deposit to be served on the landlord, and the amount of the deposit may
thereafter be withdrawn by the landlord on application made by him to the
court in that behalf. A tenant who has made such deposit shall not be treated as
a defaulter under clause (e) of the proviso to sub section (1) of this section. The
Hon’ble Gauhati High Court in a judgment, Parul Bala Debnath and others –Vs-
Umatara Roy, reported in 2005 (1) GLT 532 has held that deposit of rent in
court is permissible only on refusal of the landlord to accept the same. It is also
held in the said judgment that before depositing the rent in the court, the
tenant shall have to follow the mandatory requirements enshrined in section
5(4) of the Assam Urban Areas Rent Control Act,1972. Deposit of rent in the
court in breach of these requirements will not save the tenant from being a
defaulter. In another judgment, the Hon’ble Gauhati High Court ( Himangshu
Paul Vs. On the death of Pabitra Mohan Das His Legal heirs promita Das and
another; reported in 2007 Legal Eagle (Gau) 218 has held that it was the duty
of the defendant to prove to the satisfaction of the court that he had either paid
the rent to the landlord, when the rent had become due, or that he had
deposited the rent, on the landlord’s refusal to receive the rent, in the court.
But, in the instant case in hand, the defendant has failed to prove that he has
offered rent to the plaintiff and on refusal of the plaintiff to accept rent, he has
deposited the rent in the court. As per section 5(4) of the Assam Urban Areas
rent Control Act, 1972, specific date of offering rent to the plaintiff is to be
mentioned in the pleading as well as evidence of the defendant. The defendant,
nowhere, mentioned in his examination-in-chief, on what date he went to offer
rent. In the absence of specific plea as to on which date the defendant has
offered rent to the plaintiff, he cannot deposit rent in the court. Therefore, the
defendant has failed to prove the offer of rent to the plaintiff. Furthermore, the
defendant has not exhibited the N.J. Case-records before the court. The burden
to prove the deposit of rent in the court lies on the defendant. Mere plea of
depositing the rent is not enough. Therefore, it is proved that the defendant is
defaulter in payment of rent for the period of September, 2009 to August, 2012.
22. Both, the issues are decided in affirmative and in favour of the plaintiff.
Decision on issue no.4:- The plaintiff is entitled to realize an amount of
Rs.99,000/- (Rupees Ninety Nine Thousand) only from the defendant along with
further rent.
Decision on issue no.8:- The defendant is defaulter in payment of rent.
Decision on issue no.6:- Whether the plaintiff is entitled to get khas
possession of the suit premises?
Decision on issue no.7:- whether the suit premise is required bonafide
to the plaintiff?
23. Both the issues are decided together for the purpose of convenience and
as both the issues are interlinked to each other. In the present suit, the plaintiff
has also sought ejectment of the defendant on the ground of bonafide
requirement of the suit premises by the plaintiff and his family members. It is
pleaded by the plaintiff that the tenanted premise occupied by the defendant is
required by the family members of the plaintiff for starting their own business.
The sister of the plaintiff wants to start her own business of cosmetic and gift
items. The present Assam Type house being situated at C.K. Road of Pan Bazar
and it is also ideal for starting such business by the sister of the plaintiff.
Therefore, defendant is required to vacate the tenanted premises in favour of
the plaintiff as family members of the plaintiff require the same in bonafide. On
the other hand, the defendant in paragraph 5 of the written statement has
made evasive denial against the pleadings of the plaintiff regarding bonafide
requirement. In support to the claim of bonafide requirement, the plaintiff has
adduced his evidence as well as evidence of his sister, Lakshmi Devi. All the
PWs have deposed the same facts in their respective evidence-on-affidavits.
Hence, the plaintiff has proved that the tenanted premise required bonafide by
him for the purpose of his family business. So far bonafide requirement is
concerned landlord/plaintiff is the best judge of which room or house is required
by him for his personal use and tenant cannot question the business ability or
other qualification of the landlord. In view of it, the defendant is required to be
evicted from the tenanted premise on the ground of bonafide requirement of
the suit premise by the plaintiff.
Decision on issue no.6:- The plaintiff is entitled to get khas possession of
the suit premise.
Decision on issue no.7:-The suit premise is required bonafide by the
plaintiff.
Decision on issue no.9:- whether the defendant is tenant under the
plaintiff?
24. In the present suit, although the defendant has denied the relationship of
tenant and landlord along with entire pleadings of the plaintiff evasively in his
written statement, but in evidence-on-affidavit, the defendant has admitted the
relation of landlord and tenant by denying his defaulter in payment of rent as
well as bonafide requirement of the suit premise of the plaintiff. As per section
58 of the Indian
Evidence Act, the admitted facts need not be proved.
25. The issue is decided in affirmative and in favour of the plaintiff.
Decision:-The defendant is tenant under the plaintiff.
Decision on issue no.5:- Whether the plaintiff is entitled to relief(s) as
prayed for?
26. The present suit is instituted by the plaintiff on the ground of defaulter and
bonafide requirement of the suit house. The plaintiff has succeeded to prove
that the defendant is defaulter in payment of rent since September, 2009 and
on the other hand the defendant has failed to discharge his burden to prove
that he is not a defaulter. The plaintiff is entitled to ejectment of the defendant
on the count of non-payment of rent. Furthermore, the plaintiff has proved that
the tenanted premise is required bonafide by him for the purpose of family
business. In view of it, plaintiff is entitled to recovery of possession as well as
arrear rent etc. from the defendant and the defendant is liable to be evicted
from the tenanted premise.
27. Hence, the issue is decided in affirmative and in favour of the plaintiff.
Decision:- The plaintiff is entitled to relief(s) as prayed for.
H.ORDER
28. The suit is decreed on contest with cost. The plaintiff is entitled to a decree
as prayed by him. The plaintiff is entitled to following reliefs:-
a) Ejectment of the defendant, his men agent etc. from the tenanted premise
mentioned in the schedule of the plaint.
b) For realization of Rs. 99,000/- being arrear house rent from the defendant for
the period of September, 2009 to August, 2012.
c) For further rent at the rate of Rs.2, 750/- per month from the month of
September,2012 till the defendant is ejected from the schedule premise.
d) If the rent is deposited in the court the plaintiff may collect the same, but that
does not mean that the deposits are in accordance with law, and it will not
amount to waiver.
29. Prepare decree accordingly.
30. Given under my hand and seal on this day of 1 st day of June, 2016 at
Guwahati.
Sri Lakhinandan Pegu
Munsiff No.1, Kamrup (M), Guwahati
Appendix
Plaintiff’s Witness:
P.W.1:- Sri Nipen Nath
P.W.2:- Smti Lakshmi Devi
P.W.3:-Sri Pradeep Dutta
Defendant’s Witness:
D.W.1:- Sri Rakesh Das
D.W.2:- Sri Bibhas Chakraborty
Plaintiffs Exhibits:
Exhibit-1- Certified copy of the sale-deed no.4519/1997
Exhibit-2- The copy of jamabandi of Mouza-Ulubari Sahar, Guwahati 4th part
patta no.315.
Exhibit-3- The copy of Revenue paying receipts.
Exhibit-4(1) and Exhibit-4(2)- The Bill cum Notice of Demand by GMC.
Exhibit-5(1) and Exhibit-5(2)- The GMC tax paying receipt.
Exhibit-6- The copy of Tenancy Agreement dated 05/10/2004.
Exhibit-7- The counter-folio of the rent paying receipt for the month of August,
2009 dated 07/08/2009.
Defendants’ Exhibits:
Exhibit-I (I) to Exhibit-I (5)- Money receipts against the house-rent issued
by the plaintiff.
Exhibit-II- The money received in respect of the house-rent for the period of 7
(Seven) months issued by P.W.2.
Exhibit-III (1) to Exhibit-III (31) - The copies of treasury challan from the
month of December,2011 to April,2015.
Sri Lakhinandan Pegu
Munsiff No.1
Kamrup (M), Guwahati
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