MD. REZAUL AHSAN Vs. SALAMAT MIAH WAKF ESTATE

JUDGEMENT

(1.) This petition for Leave to Appeal is directed against the judgment and order dated 13.03.2005 passed by the High Court Division in Civil Revision No.1541 of 2001 making the Rule absolute with a direction to evict the present petitioner from the suit premises.

(2.) The relevant facts of the case are that the respondents as plaintiffs filed S.C.C. Suit No. 13 of 1996 for ejectment of monthly tenant from the suit premises alleging, inter alia, that the Salamat Mia Waqf Estate enrolled as E.C.No.4028 with the proforma defendant No.2 and that the Respondent, Amir Sultan Ali Haider was appointed Mutwalli of the said Waqf Estate and that the petitioner was inducted into the suit premises as monthly tenant through an agreement executed on 15.01.1972 at a monthly rent of TK.50.00 and that the petitioner runs a hotel under the name and style M/S."Purbarag Hotel" that the petitioner most illegally in collusion with one Khorshed Alam filed a case being House Rent Case No.264 of 1976 wherein the said Khorshed Alam was made one of the parties and thereby depositing rent in the said house rent case and that, the Waqf Estate has been depriving of the benefit and that in order to remove the misunderstanding of the parties the defendant No.2 wrote a letter on 31.12.1986 to defendant No.1 directing him to pay the rent to the respondent but the defendant No.1 ignoring the said direction continued depositing rent in the aforesaid house rent case instead of paying rent to the respondent and that the defendant No.1 having not been paying rent to the respondent as per the terms of agreement became defaulter since 1986 and is liable to be evicted being defaulted in payment of rent and that the defendant No.1 most illegally without taking consent of the plaintiff broke part of the roof of the suit premises and replaced it by affixing tin over there and opened an additional door by breaking the wall of the suit premises and sub-let the said suit premises to one Swapan Kumar and thereby the respondent was constrained to send notice under Section 106 of the Transfer Property Act by registered post with A/D through his lawyer on 20.09.1995 determining the tenancy from 1st April, 1996 and that, by that notice the defendant No.1 was asked to hand over the vacant possession of the suit premises to the respondent on the expiry of March, 1996 fairing which the defendant No.1 shall be treated as trespasser in the suit premises from 01.04.1996 and for his illegal and unauthorized occupation he has to pay Tk. 50.00 per diem till he is evicted from the suit premises and the said notice has duly been received by the defendant No.1 who acknowledged the receipt of notice but he did not vacate the suit premises, hence the suit.

(3.) The defendant No.1 contested the suit by filing written statement contending that the defendant No.1 entered into the suit premises by virtue of an agreement dated 15.01.1972 at a rent of TK.50.00 per month and that he has been running a restaurant in the name and style "M/S. Purbarag Hotel" wherefrom he earns his livelihood having no other sources of income and that he with the consent and within the knowledge of the plaintiff developed and decorated the premises at his own cost and that the plaintiff took TK.500/1000 at the time of his necessity in advance, by issuing kacha receipts against the rent and that later on when the income tax department raised objection as to the kacha receipt, they, the defendant, approached the plaintiff to issue pucca receipt but the plaintiff did not issue any pucca receipt as the pucca receipt was not printed and went on collecting rent against kacha receipt as usual and thereby misunderstanding cropped up between the plaintiff and the defendant No.1 in respect of rent receipt and that the defendant No.1 was compelled to send rent for two months by money order. The plaintiff was not available at his residence during the time when the money order was sent and as such, the money order was returned. Thereafter, the defendant No.1 again sent rent for the next months through money order which was also returned and that he came to know from, various sources that the plaintiff in not accepting the rent wanted to make him defaulter in order to evict the defendant No.1 from the suit premises in order to let the suit premises out to a third party at a higher rate of rent and as such, the defendant No.1 was compelled to file house rent Case No.264 of 1976 in the court of House Rent Controller, Rajshahi in which the plaintiff appeared and filed written objection but lastly, remained absent from contesting the case. As a result an order was passed exparte on 01.04.1986 and the defendant No.1 has been continuing to deposit rent in the said case and that he is not a defaulter and did not damage the suit premises and did not let out the same to anybody else and that he has been controlling and managing the suit premises through Managers and employees and that he earned good will and reputation and that there were many suits and cases between the beneficiaries of the suit property and some of those went up to the highest Court of the Country and that the plaintiff on various occasions issued notices upon the defendant No.1 through Advocate and Administrator of waqf and threatened evicting him from the suit premises but failed.