JUDGMENT
H.N. Sarma, J.
1. This revision petition arise out of the judgment and decree dated 19.10.2001 passed by the learned Civil Judge (Sr. Division), Sibsagar in Title Appeal No. 6/98 upholding the judgment and order dated 30.07.1998 passed by the learned Civil Judge (Jr. Division), Sibsagar in Title Suit No. 30/88 dismissing the plaintiff’s suit.
2. I have heard Mr. G.N. Sahewalla, learned senior counsel for the petitioner and Mr. C.K. Sarma Baruah, learned senior counsel appearing for the respondents.
3. On 27.04.1988, the plaintiff filed the Title Suit No. 30/88 in the Court of the Munsiff, Sibsagar praying for a decree for khas possession of the suit house ejecting the defendants, for arrear rent and future rent @ Rs. 150 per month and for other reliefs. It is the pleaded case of the plaintiff that the plaintiff is the owner of the suit house measuring 25′ x 55′ ft situated at Sibsagar town fully described in the schedule of the plaint, which was let out to the defendant/respondents at a monthly rent of Rs. 150 according to English Calendar month; that the defendant was irregular in payment of rent and paid the rent up to the month of December 1987 and thus became defaulter. It was also pleaded that the plaintiff, at the relevant time, was working as Havildar in the Defence Department and was posted at Pathankot, and that the suit house was necessary for construction of a new house, for his own residential purpose and the plaintiff obtained necessary permission from the Sibsagar Municipal Board and also from the Town and Country Planning Department, that the defendant, in spite of repeated requests made by the plaintiff did not vacate the suit house and that the plaintiff would be retiring from service in the month of March 1989 and as such the plaintiff require the suit house for reconstruction for his bona fide use and occupation immediately. It was also pleaded that the plaintiff not being a rich man, will not be able to complete the construction in a year or two. The plaintiff with a view to reconstruction his house, got evicted another tenant and started construction, but has not been able to complete the construction for not getting possession of the suit house. It is also stated that the defendant deposited rent for the month of January, February and March 1988 in the Court on 07.04.1988 @ Rs. 100 per month, although, in fact the rent was fixed at Rs. 150 per month. Although the defendant deposited the rent upto January 1989 in the Court, the defendant again defaulted in depositing rent in the Court also. The plaintiff found that for the month of May, June, July, August, September, October, November and December 1991 the rent was deposited in the Court on 21.07.1993 and did not take any step for issuance of process as required under the law. Further case of the plaintiff is that in January 1988 the defendant started making some changes and construction of the suit house without permission of the plaintiff and accordingly the plaintiff objected the same before the Sibsagar Development Authority on 04.02.1988, who intervened in the matter. In the aforesaid premises, the plaintiff prayed for ejectment of the defendant from the suit house.
4. The defendant contested the suit by filing written statement denying the allegation of the plaintiff. The defendant pleaded that the defendant was originally a tenant under the original landlord namely one Maniki Telani since 1952 and after her death the defendant continued tenancy with the plaintiff @ Rs. 100 per month. It was also pleaded that in the absence of any written agreement the plaintiff used to accept rent either himself or by his wife for a few months together at a time and used to acknowledge receipt thereof. With regard to the assertion of the plaintiff made in paragraph 6 of the plaint that the plaintiff is going to retire from service in March 1989 and requirement of the suit house for reconstruction and bona fide requirement, the defendant in para 9 of the written statement replied that the said contention of the plaintiff is purely matters of record and the defendant do not admit anything beyond what are specifically incorporated therein. It is also denied that the house is required for reconstruction and accordingly prayed for dismissal of the suit.
5. Upon pleadings of the parties the trial Court framed as many as 6 issues, out of which Issue No. 3 is the issue relating to defaulter and Issue No. 4 relates to bona fide requirement. Issue No. 5 is regarding the special provision for recovery of possession of a rented house by a Government servant as envisaged under Section 5(A) of the Assam Urban Areas Rent Control Act. The said issues are reproduced hereinbelow :
Issue No. 3 : Whether the defendant is a defaulter in respect of the suit house ?
Issue No. 4 : Is the suit house bona fide required by plaintiff?
Issue No. 5 : Whether the plaintiff is entitled to benefit of special provisions for recovery of the possession of the suit house as envisaged in Section 5(A) of Assam Urban Areas Rent Control Amendment Act 1987 ?
6. During the course of trial the plaintiff, in support of his case examined 5 witnesses and as many as 87 Nos. of documents were exhibited. The defendant, though filed written statement denying the allegation of the plaintiff, examined no witness in support of his case. After hearing the parties the learned trial Court decided the aforesaid Issue No. 3, 4 and 5 in negative and against the plaintiff and the suit of the plaintiff was dismissed vide judgment and order dated 30.07.1998. Out of the documents exhibited by the plaintiff, Ext. 11 is the record of rent deposit case and Ext. 60 is the notification dated 23.06.1988 containing retirement of the plaintiff from service issued by the defence authority.
7. The learned trial Court while deciding the Issue No. 3 did not consider at all the evidence of PWs-1, 3, 4 and 5 and confined himself to the evidence of PW- 2, i.e., the plaintiff. The learned trial Court also did not consider that the defendant did not counter to the statement of witness of the plaintiff by adducing evidence. PW-2 in his evidence specifically stated that the defendant paid rent in December 1987 and did not pay thereafter. It is also stated by the plaintiff in his deposition that the plaintiff demanded rent for the month of January, February and March 1988, but the defendant did not pay and later on he came to know that the rent for these three months have been deposited at a time in the Court. In the long cross-examination of this PW-2, nothing adverse to the claim of the plaintiff could be elicited and the aforesaid default in payment of the rent by the defendant was dully proved. The plaintiff also proved vide Ext. 62 that his retirement date from the Defence Department falls on 01.07.1989 and he requires the house for his bona fide use and occupation by constructing a new house. He also stated that he got necessary permission from the Municipal Authorities for construction and other portion of his land has already been cleared from other tenants for the re-construction of his house and in fact the plaintiff started his construction and only a small portion remained in half done position for not evicting the suit house by the defendant This evidence of the plaintiff also remained unrebutted. The learned trial Court while deciding this issue did not at all consider the statement of the other remaining four witnesses who in fact corroborated the evidence of the plaintiff landlord in all material particulars.
8. While deciding the Issue No. 4, i.e., the bona fide requirement of the suit house, the learned trial Court without considering the real issue came to the finding that the plaintiff has other accommodation for his family in a house along with a grocery shop run by himself, and that the plaintiff failed to show that genuinely, precisely and honestly he needs the said house and accordingly decided the said issue against the plaintiff. The learned trial Court has failed to consider the evidence adduced by the plaintiff and other witnesses regarding bona fide requirement of his house, more particularly, the fact that new construction over the area remained half done for not vacating the suit house by the defendant and the plaintiff has not been able to complete the construction as per the permission obtained from the Municipal authorities for not vacating the suit house by the defendant/petitioner.
9. While deciding the Issue No. 5, i.e., whether plaintiff is entitled to recover the suit house under Section 5(A) of the Assam Urban Areas Rent Control Act, which is a special provision for recovery of possession of a house by a retired Government servant or a member of the family of the deceased Government servant, the learned trial Court decided the said issue against the plaintiff, inter alia, on the ground that the plaintiff has his own house just beside the suit house. While deciding the said issue the learned trial Court did not consider the relevant factors such as whether the house in which the plaintiff is now residing is sufficient to accommodate him or his family or not. Learned trial Court did not take into consideration that in this case the contentions and allegations of the defendant made in the written statement remained unproved inasmuch as, the defendant opted not to examine any witness in support of his case. The defendant, for the best reason known to him, kept himself also away from the dock and did not prove his case pleaded in the written statement. The learned trial Court while deciding the issue regarding default, has failed to consider whether the defendant complied with the mandatory provisions of Section 5(4) of the Assam Urban Area Rent Control Act, 1972. It is no more res integra that if a tenant deposits rent with strict compliance of Section 5(4) of the Act, he would not be absolved from the character of default and for this purpose the tenant must first offer the rent due to the landlord and on his refusal only is entitled to deposit the rent in the Court and such deposits are also required to be made within 15 days from the date of its falling due. This provision of Section 5(4) of the Act does not contemplate deposit of rent for several months at a time. In the instant case the defendant deposited the accumulated rent for the months of May to December 1991 on 21.07.1993. Similarly, the rent for the months of January 1992 to August 1993 was deposited at a time on 28.09.1993 vide Ext. 80 which has been proved by the PW-5. Admittedly, in depositing the aforesaid rent, there has been non-compliance of the mandatory provisions of Section 5(4) of the Act and the learned trial Court also failed to consider this aspect of the matter, which goes to the root of his jurisdiction.
10. Regarding the issue on the bona fide requirement, the learned trial Court misconstrued the true scope and purport and meaning of “bona fide requirement” in the fact and circumstances of the present case. The plaintiff duly proved the necessity of the suit house for construction of his own residential purpose after his retirement from defence service. The plaintiff also proved the necessary Municipal permission for construction of the house and in fact his construction remained half done for not vacating the suit house by the defendant. The learned appellate Court failed to consider this aspect of the matter, more particularly, in view of non-rebuttal of the evidence from the defence side to this effect and on the above consideration, the learned appellate Court dismissed the appeal.
11. Mr. Sahewalla has led me to the various relevant exhibits exhibited by the plaintiff in the suit and submitted that the defendant having deposited the rent for the month of May to December 1991 on 21.07.1993 and rent for the month of January 1992 to August 1993 on 28.09.1993 vide Ext, 80, that too without complying with the provisions of Section 5(4) of the Act, the Respondent tenant is clearly a defaulter and the Courts below having failed to consider this aspect of the matter, acted illegally and with material irregularity in passing the impugned judgment and has not exercised the jurisdiction vested in him by law, requiring interference by this Court. Mr. Sahewalla has further submitted that the plaintiff-petitioner having duly proved the bona fide requirement of the suit house, which is necessary for his own use and occupation after reconstruction and to that effect having submitted necessary documents and evidence the learned Courts below acted with material irregularity in not considering this aspect of the matter and in fact misconstrued the provisions of “bona fide requirement” provided under the Act. It has further been submitted that the defendant not having examined himself as a witness nor having produced anybody on his behalf in support of his case, the plea taken in his written statement remained unproved and the learned Courts below not having at all considered this vital aspect acted illegally and with material irregularity in passing the impugned judgment and order dismissing the suit of the plaintiff on the face of such unrebutted evidence.
12. As against such submission, Mr. C.K. Sarma Baruah, learned senior counsel appearing on behalf of the respondent has only submitted that this Court being a revisional Court in exercise of power under 115 CPC will not disturb the concurrent findings arrived at by the learned Courts below nor this Court will reassess the material available on record. Mr. C.K. Sarma Baua, however, did not make any submission on other aspects of the matter regarding defaulter or bona fide requirement.
13. I have considered the rival contention of the parties and have also gone through the connected records and perused the impugned judgment and order. In the instant case, the fact that the defendant deposited the rent from the month from May to December 1991 at a time of 21.07.1993 and from January 1992 to August 1993 on 28.09.1993 is borne out of the record. This shows that the defendant paid rent for these months at a time and the plaintiff has also proved that before deposit, the Court the defendant has not offered the rent to the plaintiff. Section 5(4) of the Assam Urban Areas Rent Control Act is held to be mandatory in the case reported in (1999) 2 GLT 590 (Abdul Matin Choudhury v. Nityananda Das) as cited by Mr. Sahewalla. In the other case, as cited by Mr. Sahewlla, i.e., (2000) 2 GLT 75 (Rupchand Daftry v. Ashim Ranjan Modak) same view has been reiterated by this Court. At para 6 of the said judgment, it is held as follows :
“6. The law in this point has been settled by the decision of the Apex Court reported in 1995 (Supp) (3) page 44 (Rameswarlal Choudhary v. Ram Niranjan Mour). The Supreme Court has decided regarding the validity of the deposit under this Act. The Supreme Court in this case pointed out that the appellant/tenant did not tender the rent to the landlord. Without resorting to such tender he has deposited the rent into the Court. That is not in compliance with Section 5(4) of the Assam Urban Areas Rent Control Act, 1972. The High Court is correct in its conclusion. There are other decisions of the Apex Court on this point and another recent decision is 1996 (1) SCC page 243 (Kuldeep Singh v. Ganpatial and Anr.). That is a case under the Rajasthan Premises (Rent Control and Eviction) Act and there also certain conditions were imposed to be complied with before the deposit of rent in Court. The Supreme Court pointed out that the deposit in Court should be made only after resorting to certain prescribed norms provided by the statute and without resorting to them if the deposit is made straightway in the Court that is not the deposit in the eye of law and such a deposit cannot give protection to the tenant. The law is that the protection is given to a tenant only if the tenant complies certain condition/obligation and those condition/obligation must be adhered to by the tenant so that he can claim the benefit of protection. Regarding the finding of subletting basically it is a finding of fact and in arriving that finding of facts the learned trial Court as well as learned appellate Court has to satisfy itself with regard to the ingredients of subletting. The burden to establish this subletting is on the landlord. The ingredients of subletting are two in nature.”
14. It is thus apparent that the learned Courts below failed to consider the material evidence on record, which gave it jurisdiction to decide the issue regarding defaulter in terms of Section 5(4) of the Act. Learned Courts below also acted illegally and with material irregularity in exercising the jurisdiction while deciding the issue of bona fide requirement on the face of existence of sufficient materials in support thereof without discarding the same. The affect of unrebutted statement of 5 witnesses along with 87 documents exhibited by the plaintiff against which there is no rebuttal evidence of the defence either by furnishing document or by examining any witness including himself, was also not considered by the Courts below. In this view of the matter, the learned Courts below has not decided the matter following the procedure established by law. The jurisdictional facts necessary for deciding the dispute between the parties have not been considered and decided by the Court below. Section 115 CPC empowers a High Court to satisfy on three counts namely (a) whether the impugned order of the subordinate . Court is within its jurisdiction ; and (b) whether the case is one in which the Court ought to have exercised jurisdiction ; and (c) whether in exercising jurisdiction the Court has acted illegally, i.e., in breach of some provisions of law or with material irregularity by committing some procedural error in the course of trial and that it may have affected the ultimate decision.
15. Error committed in the instant case is in relation to the jurisdiction of the Courts below in passing a decree under the provisions of the Assam Urban Areas Rent Control Act, which is a special statute. In the instant case, failure of the Courts below to consider the jurisdictional facts regarding compliance or non-compliance of Section 5(4) of the Assam Urban Areas Rent Control Act and the bona fide requirement in its true meaning and scope vis-a-vis the established facts has vitiated the impugned judgment and decree.
16. In view of the above discussions, I am of the opinion that the impugned judgment and decree are not sustainable and accordingly the same are set aside. The matter will now go back to the learned appellate Court, i.e., to the learned Civil Judge (Sr. Division) No. 2, Sibsagar, who shall dispose of the matter in accordance with law in the light of the discussion and decisions made hereinabove and consider the evidence adduced by witnesses, exhibits and unrebutted documents and other materials on record and decide the matter afresh.
17. Since it is an old suit filed in April 1988, it is expected that the learned appellate Court will dispose of the matter as expeditiously as possible, preferably within a period of four months from the date of receipt of the record and appearance of the parties. Parties are directed to appear on 23.12.2004 in the Court of the learned Civil Judge (Sr. Division) No. 2, Sibsagar to receive necessary instructions.
18. The office is directed to transmit the lower Court records immediately.