on this 27th day of may, 2014tinsukiajudiciary.gov.in/source/judgement/2014/5may/title suit 04 of...

Title Suit No. 04 of 2004Page No.1

HIGH COURT FORM NO. J(2)HEADING OF JUDGMENT IN ORIGINAL SUIT

PRESENT: Md. N. A. Laskar, AJS. Munsiff No.1, Tinsukia, District. Tinsukia, Assam.

On this 27th day of May, 2014

Title Suit No. 04/2004.

Tinsukia Development Corpn. Ltd., a Limited Company duly incorporated under the Companies Act, having its registered office at Tinsukia town, Post Office, P. S. and District- Tinsukia, Assam………………………….….Plaintiff.

-Versus-

1. M/s. Hukmichand Madanlal, a proprietorship firm of Sri. Ramesh Chamaria, A. T. Road, Tinsukia town, P.O., P.S. and District-Tinsukia, Assam.

2. Sri. Ramesh Chamaria, S/O. Sri. Madanlal Chamaria. Proprietor of M/S. Hukmichand Madanlal, A. T. Road, Tinsukia town, P.O., P.S. and District- Tinsukia, Assam…….Defendants.

3. Tinsukia Development Authority, P.O., P.S. and District. Tinsukia, Assam ……………………..Proforma Defendant.

This suit coming on final hearing on 20/05/2014, in

the presence of Md. N. A. Laskar, Munsiff No.1, Tinsukia,

1. Sri. H. P. Agarwal, Ld. Advocate for the plaintiff.

2. Sri. B. K. Kejriwal, Ld. Advocate for the

defendants.

3. Sri. B. Prasad, Ld. Advocate for the proforma

defendants.


And having stood for consideration on this day the

court delivered the following Judgment:-

JUDGMENT

1. This is a suit for eviction of the defendants on the

ground of illegal and unauthorized construction and defaulter in

payment of rent including recovery of arrear rent, cost and

compensation etc.

THE CASE OF THE PLAINTIFF

2. The plaintiff, The Tinsukia Development Corporation

Limited (Hereinafter referred as the corporation in short)

instituted this suit stating that the plaintiff is the owner of the

suit premises mentioned in the schedule of the plaint. The

plaintiff further stated that defendant No.1 has been came in

occupation of the suit premises as a tenant and primarily it was

an Assam Type house but constructed as R.C.C. building over

the area of 2866.50 Sq. Ft. after an incident of fire in which the

Assam Type house was gutted into ashes. The plaintiff further

stated that the defendant No.2 is the proprietor of defendant

No.1 and both defendant No.1 and 2 orally agreed to pay

monthly rent including the other charges on the first day of

each month in advance, not to make any alteration,

construction of the suit premises, not to induct or sublet the

suit premises to anybody else and to vacate the suit premises

on being asked to do so. The plaintiff further stated that the

monthly rent including other charges has been fixed at Rs.

633/- and the defendant No. 1 dully paid the rent up to the

month of August 2003 to the plaintiff. The plaintiff further

stated that in the month of March 2003, the defendants

without the knowledge, consent and prior permission started

the work of unauthorized construction over the ground floor of

the suit premises and thereby constructed first floor of the

R.C.C premises in violation of the terms of tenancy. The plaintiff

further stated that on 25/04/2003 a letter was issued to the

defendant No.1 asking him to stop the construction and to


remove/dismantle the illegal construction and on receipt of said

letter, the defendant No. 1 failed to comply with it. The plaintiff

further stated that the proforma defendant on 17/04/2003 also

issued notice to the defendant No.2 to stop the illegal

construction and due to its failure the proforma defendant

imposed penalty of Rs. 250/- U/S. 31 of Assam Town and

Country Planning Act. The plaintiff further stated that since the

month of September 2003 the defendant No. 1 and 2 failed to

pay the monthly rent for occupation of the suit premises. The

plaintiff also mentioned that on 14/10/2003 the plaintiff refused

to accept the rent tendered by the defendant No.1 through

banker’s cheque for the month of September 2003 as the same

was not lawfully tendered. The plaintiff further stated that the

rent for the months of October, November and December 2003

were neither tendered nor paid. Hence the plaintiff instituted

this suit for eviction of defendant from the suit premises along

with other reliefs.

THE CASE OF THE DEFENDANTS

3. Upon the cognizance of this suit the summons has

been issued to the defendants. The defendant No.1 and 2

contested the suit by submitting written statement. The

proforma defendant failed to appear after service of summons

and the court vide order dated 30/03/2004 satisfied to proceed

ex-parte against him. In the written statement the defendant

No.1 and 2 stated inter-alia that the suit is not maintainable;

the plaintiff has no right to sue; the suit barred by the

principles of waiver, estoppel and acquiescence; the suit is bad

for being sued the defendant No.1 and 2 as proprietorship

concern in lieu of HUF; the suit is speculative and imaginary;

the suit is vague for want of material particular; the suit is

sheer abuse of the process of the court; the suit is malafide,

motivated and misconceived; the suit is bad for splitting up the

tenancy in respect of the suit premises; there is no cause of

action for this suit. The plaintiff further stated that the nature,

area and northern boundary of the suit house are not correctly


described. The defendants further stated that they are in

occupation of the premises on the plot of land measuring 3978

sq. ft. having R.C.C. roofed two storied building on the front

side i.e., on the southern side over a plot of land measuring

2866.50 Sq. Ft. and a C.I. sheet roofed building on the back

side i.e., on the southern side over a plot of land measuring

1111.50 Sq. Ft. and the said building is having Laxmi Market

Road to its north. The defendants further submitted that since

last 60 years and more and from the time of Madanlal

Chamaria (since deceased) the defendants has been in

occupation of the premises standing over a plot of land

measuring 3978 Sq. Feet. The defendants further stated that

initially the premises was having C.I. sheet roof being double

storied on the front side and single storied on the backside. The

defendants further stated that on 03/04/1990 the front side

portion of the said premises was gutted into fire but the back

side portion was remained as it is. The defendants further

stated that upon the condition of security deposit of Rs.

1,50,000/- by the defendants the plaintiff obtained permission

for construction of the double storied building from the

proforma defendant but the plaintiff only constructed single

storied building even after the security deposit of Rs.

1,50,000/- by the defendants. The defendants further stated

that due to shortage of accommodation, leakage in the R.C.C.

roof of the ground floor, damage of building, goods as well as

belongings of them an approach was made to the plaintiff in

the month of January 2003 for construction of the first floor of

the R.C.C. building and in response to that Sri. Deepak Lohia,

for and on behalf of the plaintiff permitted the defendants to

proceed with the construction works at their own risk and

expenses as R.C.C. roof instead of C.I. sheet roof and further

assured to obtain a revised permission in the name of plaintiff

from the proforma defendant. The defendants further stated

that the premise is situated about 100 meters away from the

office of the plaintiff and there cannot be possible to raise any

construction either secretly or stealthily.


4. The defendants further submitted that in open and

full public view they completed construction work of the R.C.C.

roof of the first floor within a month but the said Deepak Lohia

failed to obtain the revised permission from the proforma

defendant though assured by him rather started demand of

payment of a huge security money which they disagreed. The

defendants further stated that though they received the letter

dated 25/04/2003 about the alleged illegal construction without

the knowledge of the plaintiff as well as without permission

from the T.D.A but still they were requesting the plaintiff to

obtain the said permission and to regularize the construction

but all are of no result. The defendants further stated that the

first floor of the R.C.C roof was constructed with due permission

and consent of the plaintiff as well as with an assurance from

the plaintiff about the obtaining of necessary revised

permission from the proforma defendant. The defendants

further stated that if such consent or assurance was not made,

they would not have raised the construction by way of

expending Rs. 1.5 lakhs, which ultimately become the property

of the plaintiff and for which the plaintiff collected the rent up

to the month of August 2003. The defendants further stated

that on 04/09/2003 they were compelled to request the

proforma defendant with a prayer to approve the revised plan

of construction and for regularization of construction and

deposited Rs. 9,748/- as fees for the said purpose. The

defendants further stated that as the prayer was not rejected it

has been deemed as approved and granted under the provision

of Assam Town and Country Planning Act and the defendants

are in peaceful enjoyment of the first floor of the building with

R.C.C roof thereon.

5. The defendants further stated that vide bill No.

1435 dated 01/05/2010 the plaintiff enhanced rent in respect of

suit premises for the month of May 2010 and also accepted

payment thereof vide cheque deposited in the plaintiff bank

account and hence the plaintiff could not have any further

claim in respect of the suit premises. The defendant further


stated that there was no written agreement of tenancy and the

rent is payable within the current month and at the

convenience of the tenant. The defendants further stated that

the defendant No.2 developed the premises by way of raising

construction, annual repairing etc. at their own costs and

expenses. The defendants further stated that in the month of

September 2003 while the rent collector refused to collect the

rent for the month of September 2003 the defendants vide

banker’s cheque dated 27/09/2003 along with a letter dated

29/09/2003 by registered post tendered the rent to the plaintiff

for the month of September 2003 and the plaintiff received the

same on 07/10/2003, retained the same from 07/10/2003 to

15/10/2003 and returned the same on 15/10/2003 with a letter

containing false and baseless allegation with a motive to make

the defendant defaulter. The defendants further stated that

from 02/10/2003 to 25/10/2003 the civil court was closed due

to puja vacation and on 26/10/2013 was Sunday and as such

the defendants deposited the rent in the court on 27/10/2003

including the month of October 2003. The defendants further

stated that since then and on similar refusals they started

deposit of the monthly rent in the court and cannot be said as

defaulter in respect of the payment of rent. The defendants

finally stated that the plaintiff is not entitled to any relief as

claimed in this suit and the suit is liable to be dismissed with

cost.

ISSUES

6. In this suit, the then Ld. Munsiff No.1 vide order

dated 14/03/2005, framed as many as 11 (eleven) issues for

determination of this suit. During the Course of argument

plaintiff side vide petition No. 1588 prayed for amendment of

the issue No. 5. as “Whether the defendants illegally and

unauthorisely constructed the R.C.C. first floor on the

suit premises in the month of March, 2003?” in place of

“Whether the defendant illegally constructed the roof

of the R.C.C ground floor in the month of March, 2003?”.


After perusal of the petition from plaintiff side, this court

satisfied to consider the prayer at the time of writing judgment,

being the same is within the power of the Court. On perusal of

the record of this suit, it appears that the construction of

ground floor is not at all disputed among the parties. It further

appears that the construction of the first floor by the

defendants also admitted position in this case and the only

difference is that the defendants stated that they constructed

the same with permission of the plaintiff and the plaintiff stated

that it was constructed illegally and without authority. Such

difference and controversy amongst the parties warrants the

consideration of amendment of the issue No.5 as prayed by the

plaintiff. Such amendment of issue No.5 will not cause any

prejudice to the parties. Accordingly, the prayer of the plaintiff

in petition No.1588 is allowed and the issue No.5 is amended

accordingly. The issues framed for determination of this suit

and amended by virtue of petition No. 1588 are reproduced

hereunder:

(1) Whether the suit is maintainable in law and

fact?

(2) Whether the plaintiff has right to sue?

(3) Whether the suit is barred by principle of waiver,

estoppel and acquiescence?

(4) Whether there is any cause of action to the suit?

(5) Whether the defendant illegally and

unauthorisely constructed the R.C.C. first floor on the suit

premises in the month of March, 2003?

(6) Whether the defendants failed to pay the

monthly rent from the month of Sept, 2003 and thus became

defaulter?

(7) Whether the defendants are liable to pay the

arrear of rent & compensation?

(8) Whether defendants are liable to be evicted from

the suit houses?

(9) Whether the plaintiff had received Rs. 1,50,000/-

as a security deposit money from the defendants for the double

storied building?


(10) Whether the plaintiff is entitled to relief as

prayed for?

(11) What other relief /reliefs the parties are

entitled to?

ADDITIONAL ISSUES

7. During the pendency of this suit, the defendants

were blessed with an order to amend the written statement

incorporating some facts in respect of the enhancement of the

rent etc. The defendant filed the amended written statement

and against the same the plaintiff also submitted rejoinder

denying the plea of the defendants. Being the pleading are

additional to the original, 3 (three) additional issues are framed

in this suit vide order dated 23/07/2012, which is reproduced as

under:

(1) Whether the plaintiff enhanced the rent for the

suit premises with effect from May, 2010, and the defendants

have been continuing the payment of enhanced rent?

(2) Whether the payment of enhanced rent tendered

by the defendants with effect from May, 2010 is unauthorized,

illegal and without the consent of the plaintiff?

(3) Whether the payment of enhanced rent or

tendering of payment is to be considered as changed

circumstances, and if so, have any effect in the merit of this

suit?

8. Both the sides in support of their pleadings adduced

evidence in this suit. Plaintiff side has examined 2 (two)

witnesses i.e. two of its office bearers. The defendant side also

examined 3 (three) witnesses including the defendant No.2.

The record speaks that the court also examined and allowed to

be cross examined one witness (Sri. Sushil Baruah) vide order

dated 18/09/2006 and 06/11/2006.

9. Heard the argument advanced by the Ld. Counsel

for the both sides. From the pleadings of the parties and after


due consideration of the both documentary and oral evidence

of the parties this court arrived at the issue wise findings as

follows:

DETERMINATION OF THE ISSUES,

DISCUSSION, DICISIONS AND REASONS THEREOF

10. Issue No. 5. Whether the defendant illegally

and unauthorisely constructed the R.C.C. first floor on

the suit premises in the month of March, 2003?

11. The subject involved in this issue is one of the

grounds of the eviction of the defendants and hence the said

issue is taken before the other issues. The plaintiff claimed in

this suit that the defendants illegally and unauthorisely

constructed the first floor of the suit premises. The defendants

in para No. 14.9 of their written statement stated that they had

raised the construction of RCC roof on the first floor with due

permission and consent of the plaintiff. Ld. Counsel for the

defendants submitted that the roof of the RCC premises was

constructed in the year 1990, which started leakage problem,

damaging the building as well as the goods of the defendants

and the shortage of accommodation, which compelled the

defendants to approach the plaintiff for construction of first

floor and the plaintiff permitted them to proceed with the

construction work with an assurance to obtain necessary

permission from proforma defendant. Ld. Counsel for the

defendants further submitted that the acts of the defendants

are in quite compliance of the clause (m) and (o) of the

Sec-108 of Transfer of Property Act, 1882. On the other hand,

Ld. Counsel appeared for the plaintiff side submitted that the

defendants violated the provision of clause (p) of the Sec-108

Transfer of Property Act, 1882. Hearing the submission, this

court finds it necessary to read again the clause (m), (o) and

(p) of the Sec-108 of Transfer of Property Act, 1882. It appears

that the clause (m) and (p) of the Sec-108 of Transfer of

Property Act, 1882 related to the occupation of the leased


property and not beyond that. The Clause (p) of the Sec-108 of

Transfer of Property Act, 1882 only permitted the construction

of permanent structure by the tenant for agricultural purpose

only. Admittedly, there was nothing in the record to support the

fact that the defendants constructed the first floor of the suit

premises for agricultural purpose. Ld. Counsel for the

defendants further submitted that the only allegation is that

the defendant failed to remove the construction or dismantle

the construction. Ld. Counsel for the defendants further

submitted that the plaintiff failed to bring Mr. Dipak Lohia in the

witness box of the court knowing the fact that the said person

permitted the defendants to carry out the construction works

and the non-production such witness deprived the defendants

to prove the fact that the permission was granted to them for

construction. Ld. Counsel for the defendants further submitted

that at the time of inception of the tenancy, the defendants

was permitted to make necessary construction and the said

construction work was carried in view of the public and the suit

premises is situated about 100 meters away from the office of

the plaintiff. It appears that the Sec-6 of the Assam Urban

Areas Rent Control Act, 1972, provides the duties of the

landlord and the necessary repairing of the premises under the

occupation of the tenant. Sec-7 of the said Rent Control Act

also provides the remedies where the landlord failed or

neglected to repair the premises under the occupation of the

plaintiff. There is nothing found in the record that the

defendants made any effort thorough the process of law for

repairing of the leakage of the roof of the RCC or protection of

said building or goods of them from damage including the

necessity of accommodation of their own. Ld. Counsel for the

defendants relied on the decision of the Hon’ble Supreme

Court, in G. Reghunathan Vs. K. V. Varghese, reported in

AIR 2005 SC 3680, wherein it was held that the landlord

failed to prove the fact that the acts of alteration of the

building by the tenant destroyed or reduced the utility of the

building material and permanently and on that score the order

of eviction of the tenant was set aside. On careful reading of


the aforesaid decision, it is found that for the arrangement of

the business there was some replacement of doors and

windows were made in an old building. The law governing the

said decision and the facts involved in this suit are clearly

distinguishable from the instant suit. Ld. Counsel for the

defendants also relied on the decision of the Hon’ble Calcutta

High Court, in Edmound Francis Heberlet and another

Vs. Mustt. Fatima Khatoon and others, reported in AIR

2011 CALCUTTA 13, wherein it was held that the word ‘prior’

is not incorporated in the clause (p) of Sec-108 of the Transfer

of Property Act, 1882 and it does not necessarily mean that

consent should be taken before making any permission. It was

held in the said decision that even after construction if no

action was taken the consent can be inferred and the burden to

prove no consent lies on the landlord as it is within his special

knowledge U/S. 106 of the Evidence Act. In the case in hand it

appears that the construction started in the month of March

2003 and the landlord issued notice on 25/04/2003 to stop

construction and to remove the illegal construction and the

said fact is admitted by the defendants. Hence, the aforesaid

decision also found distinguishable from the circumstances

involved in the instant suit. Ld. Counsel for the defendants

further relied on the decision of the Hon’ble Calcutta High

Court, in Dayananda Gupta Vs. Gobinda Lal Bangur and

others, reported in AIR 2007 Cal 247, wherein it was held

that the removal of tin shade in the roof of kitchen and store

space by cement concrete slab and construction of brick built

passage leading to the roof of such construction, which does

not materially impaired the value and utility of tenancy and

cannot be treated as construction of permanent structure. In

the instant suit there is an allegation of unauthorized

construction of R. C. C. floor over the suit premises and such

construction is apparently a permanent structure and

materially impaired the value and utility of the tenancy. Hence,

this decision is also distinguishable from the facts and

circumstances involved in this suit.


12. PW-1 and PW-2 in their evidence testified the fact

that the defendants illegally and unauthorisely constructed the

first floor of the suit premises. DW-1 in cross examination

admitted that no notice issued to the plaintiff for repairing of

leakage of RCC roof of the ground floor. DW-1 in cross

examination also admitted that no written permission was

taken from the plaintiff for construction of the said first floor.

DW-1 further admitted that they are silent about the

construction of first floor on and from 1990 to 2003 and also

did not request the plaintiff for taking any steps for the

construction of first floor. DW-1 further admitted that the

construction of the first floor of the suit premises was

unauthorized. DW-1 in cross examination further stated that

Ext-2 and Ext-4 was issued to him and on receipt of the same

they did not furnish any reply but stopped the construction.

DW-2 in cross examination stated that on receipt of Ext-3 they

failed to comply with as the construction of the first floor was

already completed. DW-3 in cross examination stated that the

construction of the roof and pillars of the first floor was

completed within a month and the wall was not constructed

yet. It appears that, Ext-2 is the show cause notice issued on

17/04/2003, Ext-3 letter dated 25/04/2003 issued by the

plaintiff and Ext-4 is the letter dated 24/06/2033 issued to the

Defendant No.2 by the proforma defendant. DW-1 in cross

examination further admitted that he had applied for

construction permission to the proforma defendant without the

knowledge and permission of the landlord along with one site

plan of construction. DW-1 also admitted that after the

construction he had applied for permission. DW-1 in cross

examination also admitted that vide Ext-M he applied for

regularization of the construction on 04/09/2003, which

signifies that as like owner and without the knowledge of the

plaintiff he had prayed for approval of revised site plan as R. C.

C. roof in place of Assam Type House. It is true and acceptable

that the plaintiff obtained permission for construction of the

double storied building in the year 1990 and failed to construct

the first floor though constructed the ground floor of the suit


premises. The non-construction of first floor by the plaintiff for

the reason best known to them does not itself authorized the

defendants to construct the same and by way of change of

same from Assam Type to RCC roof. DW-1 in cross examination

stated that he could not say the depth of foundation of the

construction carried out in 1990. Ld. Counsel for the plaintiff

relied on the decision of the Hon’ble Supreme Court, in

Venkatlal G. Pittie and another Vs. M/S. Bright Brothers

(Pvt) Ltd., reported in AIR 1987 SC 1939, wherein the

circumstances has been well defined the nature of structures

which are known as permanent structure. It appears that the

only test is that the structures which cannot remove easily is

known as permanent structure and the R. C. C. roof

constructed by the defendant is well within the meaning of

permanent structure. Since the defendant constructed the

same and it is proved with all probability that that it was

carried out without consent of the plaintiff and even the site

plan was changed as R. C. C. roof in place of Assam Type roof.

Hence, it can be said without any hesitation that the defendant

constructed the first floor of the suit premises illegally and

unauthorisely. The issue No. 5 is decided in favour of the

plaintiff and against the defendants.

13. Issue No. 6: Whether the defendants failed to

pay the monthly rent from the month of Sept, 2003 and

thus became defaulter?

14. The plaintiff stated that the defendant No.1 and 2

failed to pay the rent for the suit premises on and from the

month of September 2003. The defendant in the written

statement stated that the rent for the month of August 2003

for occupation of the suit premises was paid on 19/08/2003. In

the written statement defendants further stated that the rent

collector of the plaintiff refused to accept the rent for the

month of September 2003 and then they suspected some foul

play in the matter. The defendants further stated that on

27/09/2003 they along with a letter send the rent for the month


of September 2003 by a banker cheque to the plaintiff and the

plaintiff refused and returned the same to them vide order

latter dated 15/10/2003 with some baseless allegations. The

defendant further stated as the civil court was closed from

02/10/2003 to 25/10/2003 and 26/10/2003 was Sunday, they

deposited the rent to the Court on 27/10/2003 and since then

depositing the rent regularly. Ld. Counsel for the defendant

submitted that the agreement of tenancy was not produced in

this suit and there is no evidence about the settlement of the

terms and conditions of the tenancy or by whom. Ld. Counsel

for the defendant side relied on the decisions of the Hon’ble

Gauhati High Court, in Tushar Kanti Dey Vs. Sultana

Choudhury and others, reported in 2002 (1) GLT 51, and

Hon’ble Gauhati High Court, in Prasanna Kumar Khemani

Vs. Bishwanath Chirania, reported in 2005 (3) GLT 284,

wherein the proof of due date of the rent was held an essential

criteria to determine the tenant as defaulter. PW-1 and PW-2 in

their evidence deposed that the rent for the suit premises is

payable on the first day of each month in advance. PW-1 in

cross examination denied that rent for the suit premises was

agreed to be paid within the current month at the convenience

of the defendants. PW-2 in his cross examination stated that

rents for the suit premises paid for the months together as per

convenience of the defendant. DW-1 in their cross examination

admitted that since the beginning of the tenancy the bills for

the payment of rent of the suit premises were raised on the

first day of every month in advance. DW-2 in cross examination

also admitted that the plaintiff used to raise the bill on the first

day of each month in advance. The evidence of the DW-1 and

DW-2 supported the fact that the bill for the payment of rent

used to raise on the first day of month and in advance. Hence,

it can be said that the rent for the suit premises fallen due from

the first day of each month in advance. PW-1 and PW-2 in their

evidence corroborated the fact that the defendants failed to

pay the rent for the month of September 2003. In the written

statement defendants stated that the rent collector refused to

collect rent from them in the month of September 2003. DW-1


and DW-2 in their evidence stated that the rent collector of the

plaintiff did not visit them in the month of September for

collection of rent. Hence, the evidence of the DW-1 and DW-2

are found contradictory to the pleading of them in respect of

visit by the landlord in the month of September 2003. In the

written statement the defendants stated that on 27/09/2003

they tendered the rent for the month of September 2003

through banker’s cheque. Plaintiff side also admitted the fact

that they received letter with banker’s cheque from the plaintiff

but returned it with a note of refusal. DW-1 in cross

examination admitted that neither he nor the DW-2 visited the

office of the plaintiff in the month of September 2003 for

tendering the rent. DW-1 in his cross examination admitted

that the rent collector of the plaintiff refused to accept the rent

in the first week of September 2003 for the month of

September 2003. Sec-5(4) of the Assam Urban Areas Rent

Control Act provides that where the landlord refused to accept

the lawful rent for the suit premises, the tenant may within a

fortnight of its becoming due, deposit in the court the amount

of such rent together with process fee for service of notice

upon the landlord. It appears from the cross examination of

DW-1 that the rent collector refused to accept the rent for the

month of September 2003 in the first week of the month of

September 2003. So, the question of re-tendering the rent on

27/09/2003 for the month of September 2003 with the banker’s

cheque is found beyond the sanction of law. Had the

defendants deposited the rent directly to the court within the

fortnight of refusal by the rent collector, there case would be

considered U/S. 5(4) of the Assam Urban Areas Rent Control

Act. Hence, the both tender of rent through banker’s cheque

dated 27/09/2003 alongwith a letter dated 29/09/2003 and

deposit of rent in the court on 27/10/2003 could be not termed

either valid tender or valid deposit. Since, the defendants had

failed to pay the rent for the month of September 2003 within

the due date and also failed to deposit the same within the

fortnight, the only ways to follow and say that the defendants

are defaulter in payment of rent for the month of September


2003. The issue No. 6 also decided in favour of the plaintiff and

against the defendant.

15. Issue No.1. Whether the suit is maintainable

in law and facts?

16. In the written statement, the defendant simply

stated that the suit is not maintainable. During the course of

argument, Ld. Counsel for the defendant submitted that the

suit property is not described properly. Ld. Counsel for the

defendant referred the Para No.13.1 of the written statement

and submitted that the actual area of the suit premises is 3978

Sq. feets. and consist of two parts i. e. R. C. C. roofed building

on the northern side measuring 2866.50 Sq. feets and CI sheet

roofed building on the on the northern side measuring 1111.50

sq. feets. It appears that the schedule of the suit premises

mentioned in the plaint speaks that it is a RCC premises about

2866.50 Sq. Feets and marked as house No.16, Block–O,

situated at A.T. Road, Tinsukia. PW-1 in cross examination

rightly admitted that the suit premises as mentioned in the

Ext-2 and Ext-4 are not correct. It appears that the Ext-2 and

Ext-4 issued in respect of the alleged illegal construction and

the same could not be come under the suit premises

mentioned in the schedule of the plaint. DW-1 in his evidence

also admitted that the suit house is No.16, Block–O. DW-1 in his

cross examination stated that there is no document submitted

by him. Where the suit property has been identifiable by the

parties well, it cannot be said that the suit is bad for splitting

up the tenancy. Ld. Counsel for the defendant further

submitted that attorney holder cannot depose in place of

principal and relied with the decision of Hon’ble Supreme

Court, in Janki Bashudeo Bhojwani and another Vs.

Indusind Bank Ltd. and others, reported in AIR 2005 SC 439.

On careful reading and perusal of the said decision, it appears

that the said decision stands on different footing and could not

be taken into account in this suit. The facts alleged in this case

is relating to the business concern of the company and not of


independent character, what specified by the Hon’ble Supreme

Court in the said decision.

17. The defendant side in the written statement further

stated that the defendant No.1 is a HUF and the defendant

No.2 is the Karta. But the DW-1 and DW-2 in their evidence

admitted that the letters issued to the plaintiff by the

defendant side marked as Ext-5 and Ext-P signifies that the

defendant No.1 is a proprietorship concern. DW-1 and DW-2 in

their cross examination also admitted that in a criminal revision

instituted before the Hon’ble Gauhati High Court, the status of

the defendant No.1 is shown as proprietorship firm. A party to

the proceeding cannot be allowed to take the benefit of his

choice and in the case in hand it is found that the defendants

for their necessity stated the defendant No.1 as proprietorship

firm but while the liability arose they stated it as HUF. Hence,

both grounds of the defendants challenging the maintainability

of the suit is failed. Hence, the suit found maintainable. The

issue No.1 is answered accordingly.

18. Issue No. 2. Whether the plaintiff has right to

sue?

19. In the written statement, the defendants simply

stated that the plaintiff has no right to sue. It appears that the

plaintiff is a landlord and the defendants are tenant. Being the

landlord the plaintiff has the every right to institute the suit

against the defendant for violation of the terms or conditions of

the tenancy agreed by the tenant or recognized by the law. The

allegation of defaulter and unauthorized construction are the

grounds recognized under law to claim eviction. Hence, this

issue is also decided in affirmative.

20. Issue No. 3. Whether the suit is barred by

the principle of waiver, estoppel and acquiesance?

AND

Additional Issue No. 1. Whether the plaintiff

enhanced the rent for the suit premises with effect from


May, 2010, and the defendants have been continuing

the payment of enhanced rent?

AND

Additional Issue No. 2. Whether the payment

of enhanced rent tendered by the defendants with

effect from May, 2010 is unauthorized, illegal and

without the consent of the plaintiff?

AND

Additional Issue No. 3. Whether the payment

of enhanced rent or tendering of payment is to be

considered as changed circumstances, and if so, have

any effect in the merit of this suit?

21. All the issues are co-related with each other and

taken together. In the written statement the defendant stated

that the suit barred by the principles of waiver, estoppel

acquiesance. It is required to be mentioned here that during

the cause of continuance this suit the defendants were allowed

to amend written statement according to the order of the

Hon’ble Gauhati High Court passed in C.R.P No. 351/10 and the

plaintiff also filed rejoinder in pursuance to the amendment of

written statement. On perusal of the additional written

statement submitted by the defendants and the rejoinder

submitted by the plaintiff this court vide order dated

23/07/2012 framed aforesaid three additional issues. The

defendant stated that on 01/05/2010 the plaintiff vide bill No.

1435 enhanced rent by the suit premises at Rs. 943/- per

month and the payment of said rent also paid by the

defendants vide cheque No. 0146523 dated 6/5/2010 to the

bank account of the plaintiff. The defendants further stated

that since the plaintiff enhanced the rent for suit premises

issued bill in respect of enhanced rent and the defendant also

paid the same in the bank account of the plaintiff and hence

the suit of the plaintiff is liable to be dismissed. The plaintiff in

the rejoinder submitted that the defendant never tendered the

rent for the month of May 2010 and there was no occasion for

the plaintiff to accept such rent. The plaintiff stated that the bill


No. 1435 dated 01/05/2010 was issued inadvertently. The

plaintiff further submitted that the defendant was never

authorized or asked to deposit the rent in the bank account of

the plaintiff which are unauthorized, illegal and without any

consent. The plaintiff also added that they never waived their

claim in this suit, no steps was taken for resolving the dispute

and the cause of action for this suit is still subsisting. The onus

lies on the defendant to prove the fact that the plaintiff waived

his claim in this suit and no cause of action for this suit is

subsisting or became waived by conduct. Ld. Counsel for the

defendant relied on the decisions of (i) Hon’ble Supreme

Court, in Bhuneshwar Prasad and another Vs. United

Commercial Bank and other, reported in AIR 2000 SC

2796; (ii) Hon’ble Madras High Court, in Sri

Kayaroganaswamy Neelayadhatchi Amman

Devasthanam represented by its Executive Officer,

NeelaSannadhi, Nagapattinam Town and Munsifi Vs.

Nagapattinam Co-operative Housing Society Limited

represented by its Secretary T.S. 1737,

AmaranandeeswararSannadhi, Neela East Street,

Nagapattinam Town and Munsifi, reported in 2012 (1)

RCR (Rent) 511; (iii) Hon’ble Delhi High Court, in J. S.

Panesar Vs. Santokh Singh and others, reported in 169

(2010) DLT 56; (iv) Hon’ble Madhya Pradesh High Court,

in Burhanpur Municipal Corporation Vs. Ikbal Hussain

reported in 2003 (2) MPJR 41, and in (v) Hon’ble Supreme

Court, in Neki S/O. Bakhatawar Vs. Satnarain and others,

reported in AIR 1997 SC 1334.

22. DW-1 and DW-2 in their evidence stated that on

01/05/2010 the plaintiff with intent to resolve the dispute

issued bill No. 1435 for Rs. 943/- in respect of the payment of

rent for the month May 2010 and they also agreed to the rate

of enhancement and paid the rent from the month of May 2010

to July 2010 and when the plaintiff again refused to accept the

rent from the month August 2010 they started deposit of rent

in the court from the month of August 2010. The defendant


side in their evidence also exhibited the bill No. 1435 as Ext-H.

DW-1 in cross-examination admitted that no settlement arrived

between him and the plaintiff for resolving the dispute and

after receipt of Ext-H he also do not visit the office of the

plaintiff for payment of the bill amount mentioned in the Ext-H.

DW-1 further admitted that he do not remember whether any

bills for the payment of rent for the month of June and July

2010 has been received or not and he also not visit the office

of the plaintiff for payment of the rent for the month of June

and July 2010. DW-1 in cross-examination also admitted that

since the inception of tenancy and before the issue of Ext-H, he

never deposit the monthly rent to the bank account of the

plaintiff directly. DW-2 in his cross-examination also stated that

after the receipt of Ext-H they did not visit the office of the

plaintiff and no any other bill also received from the plaintiff

except Ext-H. DW-2 in cross-examination also stated that since

the age of his knowledge there was no occasion to deposit the

rent in the bank account of the plaintiff. DW-2 in

cross-examination also admitted that he has no knowledge in

respect of any negotiation to resolve the dispute before receipt

of Ext-H. DW-2 in his cross-examination further admitted that

without any bill from plaintiff the rent for the month of June and

July 2010 deposited in the bank account of the plaintiff and

even no intimation was given to the plaintiff for such deposit.

From the evidence and the authorities relied by the defendants,

it appears that the enhancement of the rent claimed by the

defendants may be true as there was a provision for

enhancement of the rent after each five years as admitted by

the witnesses. The issue of Ext-H was neither treated as

consequence of resolving the dispute nor deposit of rent by the

defendant in the bank with consent of the plaintiff. Hence, it

cannot be said that the plaintiff waived their right to proceed in

this suit or the issue of Ext-H or payment thereto have any

effect in this suit as a change in circumstances. Since there

was no proper authority of the defendant to deposit the rent in

the bank account of the plaintiff for the month of May/June /July

2010, there cannot be any hesitation to say that such deposits


are unauthorized, illegal and without consent of the plaintiff.

Accordingly the additional issue No. 2 is decided in favour of

the plaintiff and; the issue No. 3, additional issue No. 1 and 3

are decided against the defendant.

23. Issue No. 4: Whether there is a cause of

action of this suit?

24. The plaintiff in the suit stated that the cause of

action of this suit arose on 03/03/2013 while the defendant

started unauthorized construction; on 17/04/2003 and

25/04/2003 when the noticed issued to the defendant for such

construction on 01/09/2003 when the defendant failed to pay

the rent for occupation of the suit premises. The bundle of the

facts averred by the plaintiff is required to be substantiated in

this suit. Hence it can be said that there are cause of action of

this suit. The issue No. 4 is decided in affirmative.

25. Issue No. 9- Whether the plaintiff had

received Rs. 1,50,000/- as a security deposit money

from the defendants for the double storied building?

26. It is an admission in this suit that the amount of Rs.

1,50,000/- was deposited by the defendants to the plaintiff at

the time of construction of the suit premises. The only

difference between the parties is that the defendants stated

that the said amount was deposited for construction of double

storied building and the plaintiff constructed single storied

building. It appears that in this suit the defendant neither

claimed the recovery of the amount nor the plaintiff claimed for

forfeiture of the amount. For the sake of argument, if it is

accepted that the plaintiff failed to construct the double storied

building after taking security deposit of the amount of Rs.

1,50,000/-, the said fact does not itself be a authority for the

defendant to complete the construction of double storied

building from their own. The defendant side exhibited the

receipt of the amount as Ext-C/D/E/F/G. The documents are


also silent about the consequence of such deposit and it

appears that the same was deposited for the purpose of

tenancy agreement in respect of suit premises and not for the

purpose of construction of any building. The absence of support

of documentary evidence produced by the defendant side

constrained the court to hold that the amount was deposited

for the purpose of tenancy only in between the plaintiff and the

defendant. The issue No. 9 also decided accordingly.

27. Issue No. 7. Whether defendants are liable to

pay the arrear of rent and compensation?

AND

Issue No. 8. Whether the defendants are liable

to evicted from the suit house?

AND

Issue No. 10. Whether the plaintiff is entitled

to relief as prayed for?

AND

Issue No. 11. To what relief/reliefs the parties

are entitled to ?

28. Ld. Counsel for the defendant submitted that the

bitter relationship and stained relationship between the land

lord and tenant is to be considered at the time of passing a

decree of eviction. Ld. Counsel for the defendant further

submitted that where two views are reasonable possible on the

question under examination the view which is favourable to the

plaintiff is required to be adopted by the court. Ld. Counsel for

the defendant also submitted that the hardship of the tenant,

the very object of the legislation of the tenancy Act necessarily

demands the living of tenant on the premises and let the

landlord may be allowed to get the rent. Ld. Counsel for the

defendant side relied on the decisions of (i) Hon’ble Gauhati

High Court, in Swapan Kumar Saha Vs. Biswa Nath

Sureka, reported in 2014 (133) AIC 558 (Gau); (ii) Hon’ble

Supreme Court, in Gopal Krishnaji Ketkar Vs. Mohamed

Haji Latif and others, reported in AIR 1968 SC 1413; (iii)


Hon’ble Gauhati High Court, in Md. Isha Haque Vs. Md.

Azadur Rahman Hazarika and others, reported in 1993 (1)

GLR 92; (iv) Hon’ble Gauhati High Court, in Smti. Renu

Roy and others Vs. Shri. Bolo Ram Kalita, reported in 1988

(1) GLR 330; (v) Hon’ble Gauhati High Court in Satyendra

Chandra Gupta Vs. Mahesh Kamal Bhowal, reported in

1986 (2) GLR 463, and (vi) Hon’ble Gauhati High Court, in

Mantosar Ali Borbhuya Vs. Mahmud Hasan Laskar and

others, reported in 1983 (1) GLR (NOC) 1.

29. From the decisions of the foregoing issues couple

with the materials available on record it appears that the

defendants are not only defaulter in respect of payment of rent

but also the guilty of illegal and unauthorized construction over

the suit premises. Since both the grounds are recognized by

the law to record and eviction of the tenant this court finds

every reason to hold that the defendants are liable to be

evicted from the suit premises. Similarly, it is found that the

defendants failed to tender and deposit the rent within the

parameter of law and hence they are also liable to pay the

arrear rent for occupation of the suit premises as well as

compensation thereof. In view of the above it is found that the

plaintiff is entitled to the relief claimed in this suit. The issue

No. 7,8,10 and 11 are decided accordingly.

CONCLUSION AND ORDER

30. In fine, it is concluded that the plaintiff is entitled to

get the following relieves towards the decree of this suit:

(a) The defendants No.1 and 2 including their man,

agent, employee, servant or any other person under them are

liable to be evicted from the suit premises.

(b) The unauthorized and illegal construction raised

by the defendant No.1 and 2 of the first floor of the suit


premises is required to be dismantled and the plaintiff is

entitled to get vacant khas possession of the suit premises.

(c) The plaintiff is entitled to get arrear rent and

service charge of Rs. 2,532/- from the defendant for the period

of September 2003 to June 2003.

(d) The plaintiff is also entitled to future rent at Rs.

633/- per month from the month of January 2004 and up to the

eviction of the defendant from the suit premises.

(e) The cost of this suit.

31. Prepare a decree accordingly.

32. The Judgment is written, corrected, signed, sealed,

tagged with case record, pronounced and delivered in the open

court on this 27th day of May, 2014.

Munsiff No.1 Tinsukia.


APPENDIX

The Name of witnesses of plaintiffs side :-

PW-1. Shri. Sanjay Agarwal

PW-2. Sri. Hiren Gupta

The documents exhibited by the plaintiffs side :-

Exhibit-1. The certified copy of board Resolution.

Exhibit-2. The Copy of show cause notice.

Exhibit-3. The Copy of letter.

Exhibit-4. The Copy of memo.

Exhibit-5. The Letter issued by defendant.

Exhibit-6. The Registered letter.

Exhibit-7. The Postal Registration Receipt.

Exhibit-8. The A/D card.

The Name of witness of defendants side :-

DW-1. Shri. Ramesh Kumar Chamaria.

DW-2. Shri. Piyush Chamaria.

DW-3. Shri. Shyamlal More.

The documents exhibited by the defendants side :-

Exhibit-A. The valuation list.

Exhibit-B. The Approved plan of TDA.

Exhibit-C to G. The Money receipts.

Exhibit-J to K. The Federal Bank Limited Paying slip dated

6/5/2010, 7/6/2010 and 7/7/2010.

Exhibit-M. The letter to T.D.A dated 4/9/2003.

Exhibit-N. The T.D.A’s Receipt dated 4/9/2003

Exhibit-O. The Banker’s cheque dated 27/9/2003

Exhibit-P. The Defendants letter dated 29/9/2003.

Exhibit-R. The A/D Card dated 7.10.2003.

Exhibit-S(1) to S(17). The Rent Receipts.

Exhibit-T. The Petition for deposit of rent dated 27/10/2013.

Exhibit-U(1) to U(11). The Rent deposit challans.


Exhibit-VA. The Two camera photographs.

Exhibit-VB. The Notice to admit documents.

Exhibit-VC. The Notice to produce documents.

Exhibit-VD. The Letter dated 16/04/2009.

Exhibit-VE. The Postal Registration receipt.

Exhibit-VF. The A/D Card.

Name of Witness examined by the Court:-

CW-1. Sri. Sushil Baruah.

List of documents exhibited by the Court:-

Exhibit-X. The Courts requisition for production of documents.

Exhibit-Y. The petition.

Exhibit-Z. The Courts requisition for production of documents.

Munsiff No.1 Tinsukia.

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