JUDGMENT
A.H. Saikia, J.
1. Heard Mr. S.S. Sharma, learned counsel for the petitioner and also heard Mr. A. Roy, learned sr. counsel assisted by Mr. A. Roy, learned counsel for the respondents.
2. By this Revision Petition, the petitioners had challenged the judgment dated 26.2.1996 and the decree dated 7.3.1996 passed in T.A. No. 6/95 by the District Judge, Bongaigaon dismissing the appeal preferred by the defendants/appellants being the tenants against the Judgment and decree dated 19.1.1995 passed by the Munsiff, Bongaigoan in T.S. No.22/88 decreeing the plaintiff/ defendants T.S. No.23/88 for ejectment of the defendants /plaintiffs and for recovery of arrear of rent.
3. Admittedly this revision is against the concurrent findings of both the Courts below.
4. The facts briefly stated are that the respondents as plaintiffs instituted a Suit being T.S.No. 167/81 originally at the Court of Munsiff. Goalpara. The suit was later transferred to Bongaingaon on creation of Bongaigaon District and re-numbered as T.S.No.23/88. The suit was initially decreed on 7.3.1989 but on appeal the District
Judge, Bongaingaon setting aside the judgment and decree dated 7.3.1989 remanding the suit for re-trail.
5. After remand, on appreciation of evidence both oral and documentary, Munsiff s Court by its judgment and decree dated 19.1.1995 decreed the suit against the defendant petitioner holding that he is a defaulter and plaintiffs/respondents need the suit premises for bonafide requirement. Being aggrieved by the said judgment and decree of the Munsiffs Court, the present petitioner/ defendant preferred an appeal before the District Judge in T.A. No. 6/ 95. The Appellate Court by its judgment dated 26,2.1996 on proper appreciation of the evidence on record, affirmed the finding of the trial court holding that defendant/petitioner is a defaulter as well as the suit premises is required by the plaintiffs/respondents for reconstruction and personal occupation.
6. Mr. Sharma, learned counsel for the petitioners vehemently argues that the Appellate Court has committed an error of jurisdiction as well as material irregularities in affirming the findings of the trial court inasmuch as the Judge failed to appreciate the evidences adduced by the parties in its proper perspective. In support of his submissions Mr. Sharma straightaway has taken me through the findings of the Appellate Court as well as trial court particularly the finding in paragraphs 6 and 9 of the impugned Judgment. He submits that the Appellate Court was totally wrong in appreciating the trial Court’s findings as regard the finding of ‘defaulter’. In paragraph 6 of the Appellate judgment it was held as follows:
“.Learned Munsiff discussed the evidence and came to a finding that, “there is no evidence in record that the defendants deposited rent after December, 1985 Exhibit Ka(36) proves the fact”.”
Referring to this finding Mr. Sharma contends that the court cannot taken into consideration of the subsequent events of 1985 when suit was itself instituted In the year 1981. Since there is no mention of such subsequent pleadings, such finding of the Appellate Court itself on the face of it suffers from perversity and illegality. Hence, in such background, finding to the fact that defendant/petitioner is a ‘defaulter’ cannot be sustained under the law.
7. As regards the bona fide requirement, Mr. Sharma learned counsel for the petitioners strenuously urges that the Appellate Court being the last court of fact did not at all consider the evidences of the plaintiffs/respondents on whose onus lies to prove his case categorically for claiming his benefit for bona fide requirement. He further submits that only on the evidences of the defendant/petitioner the Appellate Court has opined that the plaintiff has a bona fide
requirement in the suit premises. Adverting to paragraph 9 of the Impugned judgment, it is submitted that bona fide requirement of the plaintiff was declared only on the basis of the admission of defendant/plaintiff who had adduced in cross-examination that plaintiff/respondent is an old man, having big family. Since he is not having any other land to carry business, the suit premises is required for plaintiffs godown. According to him the said finding on the part of the Appellate Court cannot be said to be a proper appreciation of evidence and as such, the same has reflected a glaring perversity in the final conclusion of the Court.
8. Hitting out on such contentions made on behalf of the petitioners, Mr. Roy, learned Sr. counsel appearing on behalf of the plaintiff/ respondent urges that since admittedly the petitioner is a tenant under the respondent/landlord, he is under statutory obligation to discharge his duties as a tenant as provided under Section 5 of the Assam Urban Areas Rent Control Act, 1972 (for short the ‘Act’). For the sake of convenience, Section 5(1) of the Act be referred which reads as follows:-
5. Bar against passing and execution of decree and orders for ejection: –
(1) No order or decree for the recovery of possession of any house shall be made or executed by any Court so long as the tenant to the full extent allowable under this Act and performs the conditions of the tenancy:
Provided that nothing in this Sub-section shall apply in a suit or proceedings for eviction of the tenant from the house:-
(a) Where the tenant has done anything contrary to the provisions of Clause (m), Clause (o) or Clause (p) of Section 108 of the Transfer of Property Act, 1882 (Central Act 4 of 1982) or to the spirit of the aforesaid clause in areas where the said Act does not apply, or
(b) Where the tenant has been guilty of conduct which is a nuisance or an annoyance to the occupiers of the adjoining or neighbouring houses, or
(c) Where the house is bona fide required by the landlord either for purposes of repairs or re-building, or for his own occupation or for the occupation of any person for whose benefit the house is held, or where the landlord can show any other cause which may be deemed satisfactory by the court, 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 from the landlord, or
(e) where the tenant has not paid rent lawfully due from him in respect of the house within a fortnight of its falling due, or
(f) where the tenant has built, acquired or been allotted a suitable residence.”
In view of the such provisions of law it is clearly seen that tenant is duly bound to pay rent to the full extent allowable under this Act and performs the conditions of the tenancy and on the failure to do so, a tenant is liable for eviction. It cannot be said that question of non-payment of rent cannot be taken up subsequently after the initiation of the suit for eviction against the tenant. In the instant case, it is the stand on the part of the petitioners that since the suit was filed in 1981 with a specific pleadings that petitioner was defaulter up to 1981 and subsequent non provable of his payment of rent after December, 1985, as held by the Appellate Court, cannot make them defaulter, under the law.
9. Mr. Roy learned sr. counsel advancing his arguments on this point, has relied on a decision of this court reported in (1997) 2 GLT-590 (Abdul Matin Choudhury and Ors. v. Nilayanda Dutta Banik. In the said case this Court in paragraph No.8 held as follows:-
“8. A Single Judge decision of this Court in 1997(1) GLR Page 5 (Sekhar Chandraswami and Ors. v. On the death of Nandalal Agarwalla. His heirs and Smt. Savitri Agarwalla and Ors.) wherein the same law has been reiterated. So, it is crystal clear that a tenant is deemed to be under all liabilities as such payment of rent etc. in accordance with law all along if he wants to avail the protection granted by a rent control legislation. The protection granted to a tenant cannot be one way traffic. If he wants to enjoy certain privileges or benefits, the corresponding duty/obligation thrust on him by the legislature must be performed/discharged by the tenant. As pointed out in the case of R.C. Bashak, the liability shall subsist all through the proceedings even when the matter may be pending in highest Court. If any point of time, the landlord by prudent manner can bring to the notice of the Court even during the pendency of the proceeding that he tenant has failed to discharge his liabilities a right shall spring up in favour of the landlord to get the decree for ejectment on any of the grounds as incorporated in the Assam Urban Areas Rent Control Act, 1972 (hereinafter called the Act for the sake of brevity). In the same manner a right available to the landlord for ejectment of the tenant may be wiped out by the happening of certain events during the pendency of the proceeding and if such an event is brought to the
notice of the Court by the tenant, the Court is bound to take notice of it to mould the relief in accordance with law. This is highly desirable state of things Inasmuch as this will do away with the multiplicity or litigations. There is no justification that if by happening of any event during the pendency the landlord gets a right to eject the tenant and/or the tenant derives certain benefits by happening of the certain event, the Court should not take note of such things to avoid multiplicity of litigation. So, it is the duty and obligation of the tenant to prove that he is entitled to the protection during the pendency of the entire proceeding and he has performed his duties and obligations. This is a wholesome provision.”.
10. Having regard to the above decision It can be safely held that liability of the tenant shall subsists all through the proceedings even when the matter is pending in the highest Court. Law is very clear to the fact that once a tenant has failed to discharge his duties, he is liable to eviction at any stage during the pendency of any proceeding. If he is found to be a defaulter on the basis of the record available before the Court, there is no bar that the Court cannot take into consideration of the subsequent event during the pendency of the proceeding. On perusal of the record, it clearly reflects that the defendant/petitioner was examined on 23.3.1987 and during his examination he has deposed as regards the payment of rent upto December, 1985 only when he was completely silent as regards the payment of rent after 1985. That being the position, I am of the opinion that the Appellate Court on proper appreciation of evidence of record has rightly came to the final conclusion that the petitioner is a defaulter and the suit premises is also required for his personal occupation.
11. It is also stated on behalf of the petitioners that the power of this Court sitting on revision over two concurrent findings of the Courts below has to be exercised very sparingly and cautiously. Reliance has been placed. In support of his submissions, on a decision of the Apex Court reported in Patel Valmik Himatlal and Ors. v. Patel Mohanlal Muljibhai (AIR 1988 SC 3325) wherein the Apex Court held that under the revisional jurisdiction the High Court has not been vested with the power to re-hear the matter and re-appreciate the evidence and mere fact that a different view is possible on reappreciation of evidence cannot be a ground for exercise of the revisional jurisdiction. In paragraph 6 of the aforesaid decision. Their Lordships held as follows:-
“6. The powers under Section 29(2) are revisional powers with which the High Court is clothed. It empowers the High Court to correct errors which may make the decision contrary to law and which
errors go to the root of the decision but it does not vest the High Court with the power to rehear the matter and reappreciate the evidence. The mere fact that a different view is possible on reappreciation of evidence cannot be a ground for exercise of the
revisional jurisdiction.”
12. Having regard to the abovementioned judicial pronouncements
and upon hearing the learned counsel for the parties, I am not at all Inclined to interfere with the impugned judgment and decree in exercise of power under the revisional jurisdiction of this Court. Accordingly, this revision fails.
13. At this stage, Mr. S.S. Sharma, learned counsel appearing on behalf of the petitioners has made a prayer to grant the petitioners 6(six) months time to vacate the suit premises. Upon hearing the parties, in the interest of justice, I am of the opinion that the prayer deserves to be allowed. Accordingly, I hereby grant 3(three) months time from today to the petitioners to vacate the suit premises.