Bhateshwar Boro & Ors. vs M/s. North East Refractory And Minerals

Heard Mr. A.C. Sarma, learned Senior Counsel, assisted by Mr. G. Bharadwaj, learned counsel for the petitioners. Also heard Mr. M. Talukdar, learned counsel for the respondent.

In this petition, under Section 115 of the CPC, the petitioners have challenged the judgment and decree dated 26.02.2019, passed by the learned Civil Judge No. 2, Kamrup(M), Guwahati, in Title Appeal No. 35/2016, and also challenged the judgment and decree dated 29.02.2016, passed by the learned Munsiff No. 2, Kamrup(M), Guwahati, in Title Suit No. 77/2012.

It is to be noted here that vide impugned judgment and decree dated 26.02.2019, the learned Civil Judge No. 2, Kamrup(M), Guwahati (‘Appellate Court’, for short) had dismissed the appeal on contest with costs and thereby, affirmed the judgment and decree dated 29.02.2016, passed by the learned Munsiff No. 2, Kamrup(M), Guwahati (‘Trial Court’, for short), in Title Suit No. 77/2012.

It is also to be noted here that vide impugned judgment and decree dated 29.02.2016, the learned Trial Court had decreed the suit on contest with cost and dismissed the counter claim on contest.

The background facts, leading to filing of the present petition, are briefly stated as under:

Thereafter, taking the evidence of three witnesses of the plaintiff and one witness of the defendant, and also considering the pleadings and arguments of learned counsel for both the parties, the learned Trial Court had decided the issue Nos. 1 and 2 in affirmative, issue No. 3 in negative, issue Nos. 4 and 7 in negative by holding that the counterclaim is not entitled to the decree as prayed for, issue No. 5 in negative and issue No. 6 in affirmative and thereafter, decreed the suit of the plaintiff and dismissed the counterclaim.

Being aggrieved, the defendant had preferred an appeal before the learned Appellate Court and the learned Appellate Court had formulated the following points for determination:

Thereafter, the learned Appellate Court had discussed the point Nos. (A), (B), (D), (E) and (F) together and decided all the aforesaid points in favour of the respondent and thereafter, decided the point Nos. (C) and (G) in favour of the respondent against the appellant, thereby affirming the judgment and decree passed by the learned Trial Court.

Being aggrieved, the defendant has approached this Court by filing the present revision petition on the following grounds:-

Mr. Sarma, learned Senior Counsel for the petitioners submits that the petitioners herein had preferred the counterclaim on two counts i.e. (i) defaulter and (ii) bona fide requirement, and that the learned Trial Court in paragraph No. 4 of the impugned judgment and decree dated 29.02.2016, had erroneously decided the said issues. And the learned Appellate Court had also decided the same wrongly. Mr. Sarma has pointed it out that the suit land with one house was rented out to the respondent herein at the monthly rent of Rs. 1500/- for 20 years as per the rent agreement and the agreement came into force w.e.f. 30.03.1995, and its term 20 years expired on 29.03.2015. Mr. Sarma also th submits that as per the agreement, the rent was supposed to be paid on the 7 day of succeeding month, but the respondent herein had failed to deposit the rent on time and P.W.1/the plaintiff had admitted in cross-examination that he could not pay rent in time and besides the learned Courts below had failed to take note of the same in the impugned judgments.

By referring to page No. 6 of the record of the learned Trial Court, Mr. Sarma submits that for the months of May, June, July and August, the respondent herein had deposited the rent on 14.09.2012, and both the learned Courts below overlooked this aspect and dismissed the counterclaim. Mr. Sarma has also pointed it out that the learned Appellate Court, in paragraph No. 16 of the impugned judgment and decree, has held that the Assam Non-Agricultural Urban Areas Tenancy Act, 1955, more particularly Section 5 of the said Act is applicable. Taking this Court through the plaint, he has pointed it out that it was not the pleaded case of the plaintiff and that no relief was claimed under the Assam Non-Agricultural Urban Areas Tenancy Act, 1955. And as such, the findings so recorded by the learned Appellate Court as well as by the learned Appellate Court, suffer from material irregularity.

With vehemence Mr. Sarma submits that as the point being made out by the learned Appellate Court, was not the pleaded case of the respondent herein as plaintiff, nor the case of the petitioner as defendant as well as counter claimant and also the applicable Act herein is Assam Urban Areas Rent Control Act, 1972 not the Assam Non-Agricultural Urban Areas Tenancy Act, 1955.

Mr. Sarma also submits that the learned Appellate Court has not framed any point for determination with regard to the bona fide requirement of the suit premises and that this point is vital. The learned Appellate Court wrongly excluded the said issue and also not directed any discussion and thereby the appellant was prejudiced. Under the given factual and legal position, Mr. Sarma has contended to allow this petition by setting aside the impugned judgements and decrees.

In support of his submission, Mr. Sarma has referred to a decision of Hon’ble Supreme Court in the case of Siddu Venkappa Devadiga vs. Smt Rangu S. Devadiga and Ors., reported in (1977) 3 SCC 532. Under the aforementioned circumstances, Mr. Sarma has contended to allow this petition.

Per contra, Mr. Talukdar, learned counsel for the respondent submits that this revision petition is abated. He has pointed out it that Ananda Boro, Rita Boro and Sita Boro, who were the legal heirs of the original defendant, died long back and their legal representatives were not brought on record, and as such, the petition stands abated as no substitution petition was filed.

Mr. Talukdar also submits that the respondent herein were not defaulters, and the documents relating to payment of rent had duly been exhibited before the learned Trial Court. He also submits that the counterclaim filed by the petitioners herein was rejected by both the learned Courts below, and that this revision petition is not at all maintainable and therefore, he has contended to dismiss the same.

In reply to the submission of Mr. Talukdar, learned counsel for the respondent, Mr. Sarma, learned Counsel for the petitioners submits that vide order dated 30.10.2025, the names of Ananda Boro, Rita Boro Sita Boro were struck off from the array of the petitioners and as such the question of abatement does not arise.

However, later on, having gone through the order dated 30.10.2025, it has been found that the name of Sita Boro was not struck off from the array of the petitioners. Then the matter was listed again on 14.08.2026, seeking clarification. Then Mr. Talukdar submits that Sita Boro has also suffered demise. However, when asked when she died, Mr. Talukdar could not say when she died and he could not produce any proof of the same.

However, Mr. G. Bharadwaj, learned counsel for the petitioner submits that Sita Boro is still alive, and as such, her name has not been struck off from the array of the petitioners.

Since it is the categorical contention of the petitioners that Sita Boro is still alive and since Mr. Talukdar has failed to adduce any proof in support of his submission, the same cannot be countenanced.

Having heard the submissions of learned counsel for both the parties, this Court has carefully gone through the petition and the documents placed on record, and also perused the impugned judgment and decree dated 26.02.2019, passed by the learned Appellate Court and the impugned judgment and decree dated 29.02.2016, passed by the learned Trial Court, and also gone through the decision referred by Mr. Sarma, learned Senior Counsel for the petitioners.

It is to be noted here that in the case of Siddu Venkappa Devadiga (supra), Hon’ble Supreme Court by relying upon its earlier decision in the case of Trojan and Co. Ltd. vs. Rm. N.N. Nagappa Chettiar, reported in (1953) 1 SCC 456, has held that the decision of a case cannot be based on grounds outside the plea of the parties and that it is the case pleaded which has to be found. It has also been held that the High Court, therefore, went wrong in ignoring the basic principle of law, and in making out an entirely new case, which was not pleaded and was not the subject-matter of the trial. The relevant paragraph is extracted herein below:

In the instant case, as has been pointed out by Mr. Sarma, learned Senior Counsel for the petitioners, in paragraph No. 16, 17, 18 and 19 of the impugned judgment and decree passed by the learned Appellate Court, it had observed as under:

Mr. Sarma, learned Counsel for the petitioners, by taking this Court through the plaint, which is annexed with the petition as Annexure-1, at page No. 16, has pointed it out that nowhere in the aforementioned plaint, the respondent herein as plaintiff, have pleaded that the case would come under Section 11 of the Assam Non-Agricultural Urban Areas Tenancy Act, 1955. It is the categorical submission of Mr. Sarma that the case would fall under the Assam Urban Areas Rent Control Act, 1972, and in that view of the matter, the findings so recorded by the learned Appellate Court in respect of the counterclaim, is perverse and consequently, the same failed to withstand the legal scrutiny.

This Court finds sufficient force in the submission of Mr. Sarma, learned Senior Counsel for the petitioners. It appears from the para Nos. 16, 17 and 18 of the impugned judgment and order of the learned Appellate Court that, it had travelled beyond pleading and introduced a new case not pleaded in the plaint, Annexure-1. In that view of the matter, and also in view of the ration laid down in the case of Siddu Venkappa Devadiga (supra), the finding so arrived at by the learned Appellate Court, is illegal and arbitrary and it failed to withstand legal scrutiny.

Mr. Sarma has also pointed out that as per agreement, the rent has to be paid on 7 day of succeeding month and the respondents herein has failed to deposit the same in time, and admittedly, he has deposited the rent for the months of May, June, July and August on 14.09.2012, and this aspect was overlooked by both the Courts below, while dismissing the counterclaim of the petitioners. And having examined the submission of Mr. Sarma, in the light of the given facts and circumstances on the record, this Court finds sufficient force in his submission.

The learned Trial Court has dealt with the issue of defaulter in Issue No.4 and 7. Relevant paras are extracted herein below:-

Thereafter, the learned Trial Court had decided both the Issues in negative, and held that the counter claimant is not entitled to the decree as prayed for.

Notably, under the Assam Urban Areas Rent Control Act, 1972 (particularly Section 5 regarding protection from eviction and Section 5(4) on deposit of rent), the burden of proof that the tenant is not a defaulter (and is entitled to statutory protection) lies on the tenant. A full bench of this Court in Kali Kumar Sen and Another vs. Makhan Lal Biswas and Another, reported in AIR 1969 Gauhati 66, held that a tenant, who claims protection from eviction under the Rent Control Act (then Section 6(1) of the 1955 Act; corresponding to Section 5 of the 1972 Act) must strictly comply with the statutory conditions. Specifically:

This was proposition also affirmed by Hon’ble Supreme Court in the case of Rameswarlal Chaudhury vs. Ram Niranjan Mour, reported in 1995 Supp (3) SCC 44, wherein Hon’ble Supreme Court held that a tenant’s deposit of rent in court without first tendering it to the landlord (and without the landlord’s refusal) does not comply with Section 5(4) of the Assam Urban Areas Rent Control Act, 1972. Such a deposit is invalid, and the tenant remains a defaulter.

Thus, the key proposition that emerges from the aforesaid decisions and also from a bare perusal of the provision of Section 5 of the Act is as under:-

As quoted herein above, the learned Trial Court had recorded a finding that the evidence adduced by the defendant/counter claimant is not sufficient to establish the default of the plaintiff in payment of the rent in respect of the suit premises, therefore, the defendant is not entitled to the reliefs as claimed in the counter claim. Further, it had recorded a finding that in Issue No. 7, to the effect that it is clearly established that defendant/counter claimant has failed to prove that plaintiff is a defaulter in payment of rent.

However, it appears that it is the categorical contention of the counter-claimant that the respondent/plaintiff had failed to pay rent from the month of April, 2012 till filing of the suit. Further, in her evidence in affidavit, D.W-1, Smti rd Sita Boro, in page No. 3, in the 3 line, had clearly mentioned that the plaintiff (tenant) did not pay any rent from April, 2011 till filing of the suit. But, in spite of such evidence, in respect of the period of default in payment of rent, the learned Trial Court held that the D.W.1 did not state in her evidence the period for which the plaintiff/respondent defaulted in payment of rent.

Thus, the finding of the learned Trial Court in respect of default of payment of rent and in respect of shifting of burden of proof to the petitioner/counter-claimant is perverse, being contrary to the evidence on the record and also contrary to settled proposition in respect of burden of proof, as laid down in the case of Rameswarlal Chaudhury(supra) of Hon’ble Supreme Court and a full bench decision of this Court in the case of Kali Kumar Sen and Another.(supra). And on such count it is liable to be interfered with.

It is also to be noted here that in respect of default, the learned Appellate Court had formulated a point for determination as point No.(F)-“Whether the respondent is a defaulter in payment of monthly rent?” Thereafter it had held that neither party have objected to the fact that the last rent amount agreed upon was @ Rs. 3000/- per month & till the month of March, 2011, the respondent had regularly paid the rent to Bhateswar Boro. Thereafter, it had st held that the 1 question to be decided is what law/statute regarding the tenancy will govern the parties of this case. Thereafter, considering the recital in Ext. ‘A’, the learned Appellate Court had held that the same clearly shows that the lease was regarding the land and not any buildings and that the Assam Urban Area Rent Control Act will not come into play, because in order to come under the purview of this Act, the tenancy must be with regard to a house or building and here in this case, the tenancy was created with regard to only a plot of land.

This finding of the learned Appellate Court, according to Mr. Sarma, learned counsel is perverse. There appears to be substance in the submission of Mr. Sarma. However, it is a fact that in the Schedule of the Exhibit-A, there is no mention of the house. But, in the written statement filed in the counter-claim, especially in paragraph No. 6, it is admitted that the plaintiff is a tenant/ lessee under the answering defendant in respect of a factory house over a plot of land measuring 90 feet X 50 feet (4500 sq feet) covered by Dag No. 217 of K.P.Patta No. 56 and Holding No. C-35, located at Katahbari, Ghy-35 under Gorchuk police station.

Further, in paragraph No. 15 (III) of the counter-claim, it is categorically stated that the counter claimant was the owner and possessor of a chali house over land measuring 90 feet X 50 feet covered by Dag No. 217 K. P. Patta No. 56 G.M.C Holding No. C-35, located at Katahbari, Ghy-35, Mouza Jalukbari, District- Kamrup, Assam which is more specifically described in Schedule - ‘A’ of the counter claim and constitute the suit property for the purpose of counter claim. Further in the Schedule- ‘A’ of the counter-claim it has been stated that the land of the said house measuring 90 ft X 50 ft (length and breadth) covered by Dag No. 217 of K.P. Patta No. 56 and holding No. C 35 located at Katahbari, Ghy-35, under Jalukbari mouza, in the district of Kamrup, Assam which is bounded by-North:- Adarsh Plastic factory South:- Road East:- Katahbari Main road West:- Bhateswar Boго

It is worth mentioning in this context date the statement in the paragraph No. 15(III) of the counter-claim is not disputed by respondent/plaintiff, wherein it is stated that it has no comment in respect of the statement in paragraph III of the counter claim.

From the aforesaid discussion it becomes apparent that it is not the case of the respondent/plaintiff that the tenanted premises does not consist of any house. Rather, the respondent/plaintiff himself stated in paragraph 8 of the written statement to the counter claim that the house rent was paying regularly and after refusal of the house rent, he deposited the monthly rent in the Court. Therefore, this Court is inclined to record concurrence with the submission of Mr. Sarma, learned Senior Counsel for the petitioners that the finding of the learned Appellate Court is perverse.

This Court also finds substance in the submission of Mr. Sarma, learned Senior Counsel for petitioner, that the learned Trial Court had erroneously decided the Issue No.5, which relates to bona-fide requirement of the suit premises by the petitioners herein.

He also submits that the learned Appellate Court has not framed any point for determination with regard to the bona fide requirement of the suit premises and according to him, this point is vital. The learned Appellate Court had wrongly excluded the said issue and it had not directed any discussion and thereby, the petitioners herein are seriously prejudiced.

It is to be noted here that the learned Trial Court has decided the Issue No. 5 against the Defendants/Landlords/Petitioners. While dealing with the Issue No.5 the learned Trial Court has held as under:

However, Mr. Sarma, learned Senior Counsel for the petitioners, has pointed out that in para No. 15 (IX) of the written statement-cum-counter-claim, the petitioners stated that the defendant/counter claimant has no other source of income and the counter claimant wants to run a shop over the suit premises for earning his livelihood and in paragraph 6 of the Evidence on Affidavit, D.W. 1, namely, Sita Boro, had clearly stated about the requirement of suit premises by them (the defendants) for construction of shop room as the defendant No.1(a) to 1(f) have no source of their own income, and this piece of evidence remained undisputed throughout her cross-examination, which demonstrates that the suit premises is bona-fidely required by the appellants and the same was proved by the appellants, however, the learned Trial Court illegally held that the defendants/appellants made no single whisper regarding bona fide requirement of suit premises.

Having considered the submission of Mr. Sarma, in the light of the facts and circumstances on the record, this Court is of the view that the finding so recorded by the learned Trial Court is based upon complete misreading of the evidence on the record and thereby arrived at an erroneous and perverse finding and that being so it failed to withstand the legal scrutiny. In arriving at such a finding this Court derived authority from a decision of Hon’ble Supreme Court in Masjid Kacha Tank, Nahan v. Tuffail Mohammed reported in AIR 1991 SC 455, wherein it has been held that under Section 115 CPC, interference is permitted only if the findings are perverse or there has been non-appreciation/non-consideration of material evidence. Said proposition was subsequently re-affirmed in the case of Yunus Ali (Dead) through LRs v. Khursheed Akram reported in (2008) 7 SCC 248, and it has been held that interference is justified when the finding is perverse i.e., based on no evidence, complete misreading of evidence, non-consideration of material evidence, or so unreasonable that no reasonable person could have reached it.

As submitted by Mr. Sarma, learned counsel for the appellant, the learned Appellate Court has neither formulated any point for determination in the impugned judgment, nor directed any discussion to that effect, though the learned Trial Court had framed an issues on that point i.e. the Issue No. 5, with regard to the bona fide requirement.

Order 41 Rule 31 of the Code of Civil Procedure deals with contents, date and signature of judgment. It provides that the judgment of the Appellate Court shall be in writing and shall state -

A careful perusal of the provision indicates that the language uses is “shall,” and as such it is obligatory in form. But, by now it is well settled that substantial compliance is sufficient. Strict technical non-compliance such as failure to formally number “points for determination” does not automatically vitiate or render the judgment void/null, provided the Appellate Court has applied its mind to the issues, recorded reasons, dealt with the rival contentions, and if the decision shows a proper appreciation of evidence and law. Reference in this context can be made to a decision of Hon’ble Supreme Court in G. Amalorpavam & Others vs. R.C. Diocese of Madurai & Others reported in (2006) 3 SCC 224, wherein it has been held that whether there has been substantial compliance with Order 41 Rule 31 must be judged from the nature of the judgment in each case. Non-compliance with the formal requirements does not by itself vitiate the judgment or make it wholly void. It can be ignored if there is substantial compliance and the higher court can ascertain the findings of the lower Appellate Court. If the Appellate Court has considered the entire evidence, discussed it in detail, reached conclusions supported by reasons, and shown an honest endeavour to decide the controversy, the judgment is valid even without formally framing points for determination.

In the case of Nafees Ahmad & Anr. v. Soinuddin & Ors. reported in 2025 INSC 520, Hon’ble Supreme Court has held that non-compliance with Order 41 Rule 31, by itself, does not vitiate the judgment if there is substantial compliance. The rule should be reasonably construed. The various particulars (points for determination, decision, reasons, etc.) need to be mentioned in the judgment only when the appellant has actually raised certain points for determination. If no specific points are raised by the appellant, the Appellate Court is not bound to frame them.

Another notable decision in this regard is Mrugendra Indravadan Mehta & Ors. vs. Ahmedabad Municipal Corporation reported in 2024 INSC 401, where it has been held that omission to separately frame points is not fatal if the first Appellate Court has otherwise dealt with all the issues that arise. Substantial compliance is sufficient.

Thus, what can be crystallized from the aforesaid discussion is that Order 41 Rule 31 CPC uses the word “shall” and is therefore obligatory in form. However, the Supreme Court has consistently held that it is not so rigidly mandatory that every technical omission automatically renders the appellate judgment void. Substantial compliance, proper consideration of evidence, application of mind, and reasoned findings on the real issues, is enough.

In the instant case the learned Appellate Court has not framed any point for determination with regard to the bona fide requirement of the suit premises in spite of the same being a vital issue. Further, the learned Appellate Court has not directed any discussion to this point. And this failure on the part of the learned Appellate Court, to the considered opinion of this Court, caused serious prejudice to the petitioners herein and on such count, it cannot be said that the impugned judgment and decree, so passed by the learned Appellate Court, withstands the legal scrutiny.

It is to be noted here that Mr. Talukdar, learned counsel for the respondent has failed to show anything contrary to the submission, so advanced by Mr. Sarma, learned Senior Counsel for the petitioners, instead he only emphasized upon the fact that the petition stands abated in view of the death of Ananda Boro, Rita Boro and Sita Boro, as no substitution petition was filed. As discussed herein above, the name of petitioner Ananda Boro, Rita Boro were struck off from the array of the petitioners in this petition, vide order dated 30.10.2025. And it has already been held that Sita Boro is still alive. Therefore, this Court is unable to record concurrence to the submission of Mr. Talukdar.

In the result, this Court finds sufficient merit in this petition and accordingly, the same stands allowed. The impugned judgment and decree, dated 26.02.2019, so passed by the learned Appellate Court, for being perverse, stands set aside and quashed. The matter stands remanded to the learned Appellate Court to formulate appropriate point for determination, and thereafter, to decide the matter afresh by pronouncing a fresh judgment. Since the matter is pending for last several years, this Court hopes and trusts that the learned Appellate Court shall make an endeavour to dispose of the appeal as soon as practicable.

In terms of above, this revision petition stands disposed of.

Registry shall send back the records of learned Appellate Court as well as the learned Trial Court, along with a copy of this judgment and order, forthwith.