BADAL GOALA Vs. SRI RANJIT GOALA

JUDGEMENT

(1.) The concurrent findings of the learned two Courts below holding the present petitioner a defaulter in a proceeding under Section 5 of the Assam Urban Areas Rent Control Act, 1972 (hereinafter referred to as 'the Act') has been called in question in the present revision petition. The learned Munsiff No.1, Cachar at Silchar decreed Title Suit No.65/2008 of his Court ex parte against the sole defendant refusing to consider the written statement belatedly filed and an appeal preferred there -against being Title Appeal No.23/2010 in the Court of learned Civil Judge No.1, Cacahr at Silchar stood also dismissed by the judgment and decree dated 23.05.2011. Aggrieved, the tenant has approached this Court challenging both the judgments and decrees passed by the learned Courts below.

(2.) To understand the respective cases of both sides it is necessary to narrate the brief facts at the beginning. Opposite party herein as plaintiff instituted Title Suit No.65/2008 in the Court of learned Munsiff No.1, Cachar at Silchar stating that the petitioner herein, the defendant in that suit, was a tenant under him with respect to the suit premises described in Schedule -2 to the plaint at a monthly rental of Rs.400/ - payable within 10th day of the next month as per English calendar. The tenant continued paying rent till November, 2005 and thereafter defaulted. The schedule -2 suit premises which is a two storied Assam Type house standing on schedule -1 land became old and dilapidated requiring reconstruction. The son of the plaintiff had also become adult in the meantime and he was in need of being accommodated. With these twin reasons the plaintiff claimed that there was bona fide requirement for demolition and reconstruction of the suit premises. The suit was accordingly instituted praying for a decree of eviction of the sole defendant along with realization of Rs.11,200/ - being arrear rent. In the body of the plaint it was the basic case of the plaintiff that the suit land described in schedule -1 to the plaint originally belonged to one Rafique Uddin Mazumdar of Madhurbond, Silchar who sold the same to the plaintiff on realization of due consideration by executing a registered deed on 01.07.1988. The plaintiff thereafter had developed the land and made construction and ultimately put the defendant in possession of one room at the ground floor and one room at the first floor at the aforesaid monthly rental of Rs.400/ -.

(3.) On being summoned the defendant appeared and by filing written statement denied the entire story pleaded in the plaint. According to the defendant, the original owner, namely, father of Rafique Uddin Mazumdar took settlement of the suit land along with Ruplal Goala, the father of the plaintiff and the defendant. Ruplal Goala, the father of the plaintiff as well as the defendant, thereafter developed the land and made construction of the suit premises and thus both the plaintiff and the defendant were enjoying the suit property. After the death of Ruplal Goala both the plaintiff and the defendant acquired right, title and interest over the suit land. The defendant denied the relationship of landlord and tenant between him and the plaintiff and repudiated the claim of default and bona fide requirement made by the plaintiff. Ultimately, the defendant prayed that the suit of the plaintiff for realization of arrear rent as well as for eviction should be dismissed. It is necessary to mention here that this written statement submitted by the defendant was beyond the statutory period of 90 days. The notice was served on the defendant on 21.04.2008 and so he was entitled to file written statement on or before 21.07.2008 although the suit was fixed for necessary order on 15.09.2008. On 15.09.2008 having noticed that the written statement was filed only on 30.08.2008, the matter was fixed for filing objection and objection hearing. In the meantime, the defendant filed an application under Section 5 of the Limitation Act praying for condonation of delay in filing the written statement. By order dated 16.03.2009 the learned trial court rejected the application filed under Section 5 of the Limitation Act holding that the Limitation Act was not applicable and so application under Section 5 thereof was also not maintainable. Consequently, the written statement filed by the defendant on 30.08.2008 remained out of record and the defendant did not file any revision petition challenging the order dated 16.03.2009. The suit thereafter proceeded ex parte.