BIMAL DEY Vs. BASUDEV SUBBA

JUDGEMENT

(1.) This appeal preferred by the Appellant is directed against the common ex-parte decree dated 8.4.2009 passed by the learned Assistant District Judge, Shillong, in Title Suit No. 4 (H) of2006 decreeing the suit in favour of the Respondents.

(2.) The facts of the case leading to this appeal may be briefly noted at the outset The case of the Appellant is that he is the tenant of the Respondents by paying monthly rent. He deposited a sum of Rs. 360/- as the monthly rent for the months of May and June, 2009 with the Court as the Respondents refused to accept the same. He claims that he has never been a defaulter in payment of the monthly rent However, the Respondents instituted the suit before the learned Assistant District Judge, Shillong for decrees of eviction, recovery of possession and arrears of rent, etc. on the ground of irregular payment of rents, nuisance and bona fide requirement. The trial Court by the order dated 4.4.2007 directed that the suit be proceeded against him ex-parte. He then filed an application on 23.4.2007 for vacating the ex-parte order against him, which was, however, rejected by the trial Court vide the order dated 5.11.2007. Aggrieved by this, he preferred an appeal from the said order before the learned Additional District, Judge, Shillong, which was registered as F.A.O. No. 12 (H) of 2007. The appeal was dismissed by the appellate Court on 30.3.2009 on the ground that no appeal was maintainable under Order 43, Rule 1 of the Code of Civil Procedure against the order passed under Order 9, Rule 7. Thereafter, the trial Court, without allowing him to participate in the proceeding of Title Suit No. 4 (H) of 2006, passed the impugned judgment dated 30.3.2009 and decree dated 8.4.2009. Hence, this appeal.

(3.) Assailing the decree, Mr. M.F. Qureshi, the learned counsel for the Appellant, submits that the decree was passed by the trial Court without proper application of mind and without allowing the Appellant to participate in the proceeding on the ground that the suit had proceeded ex-parte: even if the suit had proceeded ex-parte the right of the Appellant to cross-examine the witness of the Respondents and to adduce his rebuttal evidence remained protected by law and, as such, the decree cannot be sustained in law. He also contends that there is no evidence on record to show that he is a defaulter in payment of rent or that there is bonafide requirement on the part of the Respondents in respect of the tenanted premises, and the findings of the trial Court in that behalf are perverse and are, accordingly, liable to be set aside. He maintains that even if the suit had proceeded ex-parte, the trial Court was not absolved of its duty to weigh the evidence adduced by the Respondents, and if no case was made out by the Respondents as in this case. It ought have dismissed the suit. It is further contended by the learned counsel that the trial Court has completely overlooked the fact that no notice under Section 106 of the Transfer of Property Act, 1882, in the absence of written tenancy agreement, had been issued by the Respondents upon the Appellant and that the conditions prescribed in Section 5(1)(c) and (e) of the Meghalaya Urban Rent Control Act, 1972 are not fulfilled by them for their entitlement to eviction of the Respondents.