MST. ESARUNNESSA BIBI Vs. MD. AMIR HOSSAIN

JUDGEMENT

(1.) This appeal by special leave is directed against the judgment of the High Court Division in Second Appeal No. 974 of 1967. Leave was granted to consider the question whether the view of the Appellate Court below that the bonafide requirement of the lessor would be fulfilled if only one room is spared and whether the adjustment of taxes which were paid by the tenant in pursuance of distress warrant is adjustable against the rent due.

(2.) Plaintiff-respondent instituted 2 suits in the 1st Court of Sadar, Munsif, Mymensingh. O.C. Suit No. 135 of 1964 was brought against Nurul Islam and O.C. Suit No, 136 of 1964 was brought against Esarunnessa Bibi, the predecessor of the appellants. Two suits were in respect of two distinct tenancies, which are shop rooms situated in the Municipal holding No. 7 A.B. Guha Road, Mymensingh, which the respondent claimed to have purchased by registered kabala dated 29.7.63. In the case of Nurul Islam, the decree was passed and he had been ejected. Now in the case of Esarunnessa, the trial Court found that the tenant had defaulted in paying rent to the respondent and further the respondent required the premises for starting a business of Cabinet Firm show-room. In this view of the matter, the suit was decreed. On appeal, the Appellate Court below came to the conclusion that the tenant could not be said to be a defaulter, inasmuch as the rent was not due in view of the Municipal taxes that had been paid by the tenant in pursuance of a distress warrant and the defendants, "did well in paying the arrear Municipal tax which they are entitled to adjust towards rent." As for the bonafide requirement the Appellate Court below found that "he does not require both the premises for his show room,'' considering the evidence it was concluded "for show-room one of the premises is sufficient." In this view of the matter, the judgment and decree of the trial Court was set aside and the suit was dismissed and the appeal was allowed.

(3.) The High Court Division took the view that the Appellate Court below was wrong in taking the view that the tenant was not a defaulter. It was observed: