On The Death Of Raichand Bararia His Legal Heirs Laxmi Bararia And Ors. vs M/s. Kishorilal Vijay Kumar H.u.f. And Anr.

Heard Mr. S. P. Roy, the learned counsel for the petitioners. Also heard Mr. J. Sarma, the learned counsel for respondents.

This civil revision petition has been registered on filing of an application under Section 115 of the Code of Civil Procedure, 1908, by the predecessor-in-interest of the present petitioners, namely, Raichand Bararia. It is pertinent to mention herein that during the pendency of this instant revision petition, the original petitioner, namely, Raichand Bararia had expired and thereafter his legal heirs, the present petitioners were substituted in his place.

In this revision petition, the judgment and decree dated 30.09.2016, passed by the Court of learned Additional District Judge No. 1, Kamrup(M), in Title Appeal No. 79/2015 has been impugned. By the aforesaid judgment, the First Appellate Court has upheld the judgment and decree dated 19.10.2015, passed by the Court of learned Munsiff No. 1, Kamrup(M), in Title Suit No. 37/2012, whereby the suit filed by the present respondents for eviction of the predecessor of present petitioners from the suit premises was decreed on the ground of bona fide requirement as well as on the ground of defaulter in payment of rent of the suit premises.

The facts relevant for consideration of the instant revision petition, in brief,are that the present respondents, namely, M/S Kishorilal Vijay Kumar, a Hindu Undivided Family (HUF), represented by Respondent No. 2, Smt. Kusum Mour as its Karta had filed a suit for eviction of the defendant, Raichand Bararia on the ground of defaulter in payment of rent as well as for bona fide requirement. The said suit was registered as Title Suit No. 37/2012.

It was contended in the plaint by the present respondents that the plaintiff No. 1i.e., the Hindu Undivided Family, M/S Kishorilal Vijay Kumar is the absolute owner of a shop room measuring 450 square feet situated in Ward No. 29 of Guwahati Municipal Corporation at Kedar Road, Guwahati with holding No. 9. The said suit premises was let out on rent to the predecessor of the present petitioners by executing a tenancy agreement on 1^st of April, 2008 for a period of three years at a monthly rent of Rs.5,321/- (Rupees Five Thousand Three Hundred and Twenty-One). In the plaint filed by the present respondents before the Trial Court, it was contended that the suit premises was required by the present respondents for expansion of their own business and, therefore, on the ground of bona fide requirement, the eviction of the predecessor of the present petitioners was sought for.

It was also contended that the predecessor of the present petitioners defaulted in payment of rent since 01.04.2011 and on that ground also, his eviction was sought for. The predecessor of the present petitioners contested this suit by filing written statement wherein he took usual defence like that of non-maintainability of the suit, absence of cause of action and other general defences. It was also denied that he has defaulted in payment of rent as well as also denied the plea of bona fide requirement by the present respondents. On the basis of pleadings of both the parties, the Trial Court framed following issues:-

In support of the contentions made by the plaintiffs in the suit, the son of present respondent No. 2, namely, Abhishek Mour was examined as PW-1 by the plaintiffs and ten documents were exhibited by the plaintiffs’ side.

On the other hand, the defendant, namely, Raichand Bararia examined himself as DW-1 and exhibited certain documents including some records of Misc. Non-Judicial Cases before the Trial Court. However, ultimately, the Trial Court, i.e., the Court of the Munsiff No. 1, Kamrup(M), by its judgment th dated 19 of October, 2015 decided all the issues in favour of the present respondents and held the predecessor of the present petitioners as defaulter in payment of rent and also held that the suit premises is required bona fide by the present respondents and accordingly decreed the suit against the predecessor of the present petitioners.

Being aggrieved by the judgment of the Trial Court, the predecessor of the present petitioners preferred an appeal before the Court of learned Additional District Judge No. 1, Kamrup(M). The said appeal was registered as Title Appeal No. 79/2015. However, the appeal was also decided against the predecessor of the present petitioners by the appellate court by its judgment dated 30.09.2016. This revision petition has been filed by the predecessor of the present petitioners before this Court impugning the aforesaid judgment of the First Appellate Court.

Mr. S. P. Roy, the learned counsel for the petitioners has submitted that both the Trial Court as well as the Appellate Court erred in not taking into consideration the fact that though a plea of maintainability was raised by the predecessor of the present petitioners in the written statement filed by him and though the tenancy as regards the suit premises was in between the present petitioners as well as M/S Kishorilal Vijay Kumar, which is a Hindu undivided family, however, the courts below failed to take into consideration that it was not represented by proper person in the suit filed before the Trial Court.

He submits that a female Hindu cannot be a Karta of a Hindu Undivided Family as has been shown in the plaint filed by the present respondents before the Trial Court. He submits that though the son of late Kishorilal Vijay Kumar was an adult at the time when the suit was first filed. However, he was not made a party in the suit filed by the present respondents. He submits that even after amendment of the Hindu Succession Act, 1956 in the year 2005, only a daughter has a right to be treated as a coparcener. However, he submits that, in the instant case, Smti Kusum Mour is the widow of the late Vijay Kumar and she cannot be regarded as a coparcener in the M/S Kishorilal Vijay Kumar Hindu Undivided Family (HUF). Hence, he submits that the filing of suit by the Hindu Undivided Family showing Smt. Kusum Mour as its Karta is a defective filing and same is not maintainable. In support of his submission, he has cited following rulings of the Apex Court:-

He further submits that though Smt. Kusum Mour was made as plaintiff No. 2 by name in the aforesaid suit. However, she never deposed before the Trial Court as a witness in the said suit and, therefore, a presumption would arise that the case set up in the plaint by the plaintiff is not correct. The learned counsel for the petitioners further submits that if a party abstains from entering into witness box, it would give rise to an inference adverse against such a party. In support of his submission, he has cited following rulings:-

He submits that the sole witness examined by the plaintiff in this case is the son of the plaintiff Kusum Mour. However, he was not authorized by theHindu Undivided Family to depose on its behalf as the said witness failed to show any such authority.

The learned counsel for the petitioners further submits that it was the contention of the plaintiff before the Trial Court that the suit premises was required by the son of plaintiff No. 2 for the purpose of expanding his business. However, during the pendency of the litigation between the parties, it came to the notice of the petitioners that the son of the plaintiff No. 2 Smt. Kusum Mour, namely, Abhishek Mour has a full-time job in Mumbai as a Vice Legal in an Infra Investment Company by the name “Global Infrastructure Partner”. He submits that though this fact came to the notice of the petitioners after passing of the impugned judgment, during the pendency of the instant revision petition and same has been brought to the notice of this Court by filing an additional affidavit by the petitioners on 09.05.2024, however, the law in this regard is well settled that the bona fide requirement must continue throughout the progress of the litigation and must also exist on the date of the decree of the final Court in the said litigation. He submits that as it has been admitted by the respondent sides that the son of the respondent No. 2 resides at Mumbai and having a permanent job there, the plea of bona fide requirement of the respondent fails. In support of his submission, the learned counsel for the petitioners has cited the ruling of the Apex Court in the case of “Hasmat Rai and another Vs. Raghunath Prasad” reported in “(1981) 3 SCC 103”.

The learned counsel for the petitioners has also submitted that the Trial Court as well as the appellate court also failed to take the fact into consideration that documents submitted by the plaintiff, i.e., the present respondents before the Trial Court were not submitted at proper stage. He submits that same were submitted after framing of issues, however, no leave for doing so was taken by the plaintiffs under Order 13 Rule 1(2) of the Code of Civil Procedure, 1908. He submits that on this count also, documents filed by the plaintiffs cannot be relied upon by the Trial Court. However, the said fact has not been taken into consideration by the Trial Court, neither same was taken into consideration by the First Appellate Court. He submits that on this count also, the impugned judgment is liable to be set aside. In support of his submission, the learned counsel for the petitioners has cited following rulings: -

The learned counsel for the petitioners has further submitted that the Appellate Court as well as the Trial Court also erred in holding the predecessor of the present petitioners as defaulter of rent without taking into consideration the fact that the rent for the suit premises used to be collected by the plaintiff No. 2 together for three or four months and there was no fix date for payment of rent to her. He submits that the plaintiffs used to collect the rent by way of cheque from the predecessor of the present petitioners and deposit the same for encashment in the bank. He further submits that the Appellate Court as well as Trial Court also failed to take into consideration the evidence of the DW-1 to the effect that the rent for the month of April, 2011 was offered to the landlady and on her refusal to accept the same, the rent was deposited before the Court. In support of his submission, the learned counsel for the petitioners has cited a ruling of a Co-ordinate Bench of this Court in the case of “Sri Jugal Kishore Joshi Vs. Sri Babulal Kucheria and others” reported in “2016 (3) GLT 72”.

The learned counsel for the petitioners has further submitted that as the rent for the suit premises was deposited in the Court by the predecessor of the present petitioners, he had prayed for calling for of the records of Non-Judicial Cases to prove the fact of deposit of rent by him in the Court. However, said prayer was rejected by the Trial Court, on 20.04.2015, hence, the predecessor of the petitioners was prevented from establishing the due deposit of rent for the suit premises in the Court after refusal of the same by the plaintiffs. He submits that the Appellate Court as well as the Trial Court has thus arrived at a perverse finding regarding the bona fide requirement of the suit premises by the plaintiffs as well as also treating the predecessor of the present petitioners to be defaulter of rent under the facts and circumstances of this case. As such, he submits that the impugned judgment of the First Appellate Court is liable to be set aside and reversed. Consequently, the judgment and decree of the Trial Court is also liable to be reversed.

On the other hand, Mr. J. Sarma, the learned counsel for the respondents has submitted that there is no infirmity in the judgment of the appellate Court as well as the Trial Court in decreeing the suit of the plaintiffs on the ground of bona fide requirement as well as defaulter of payment of rent after considering the evidence of record, as such, same is not liable to be interfered with in exercise of its revisional jurisdiction by this Court.

He submits that though the predecessor of the present petitioners, in his written statement filed before the Trial Court, took the plea of maintainability of the suit, however, nothing was pleaded therein as to on what count the suit was not maintainable. He submits that the Trial Court, accordingly, in its judgment dated 19.10.2015, passed in Title Suit No. 37/2012, while deciding the issue No. 1 regarding maintainability of the suit has rightly held that the defendant has failed to show during the trial of the suit as well as during argument by the defendant side as to how and under what provision of law the suit is not maintainable. He further submits that even in the memo of appeal filed by the predecessor of the present petitioners before the appellate court, nothing was stated therein as to why the suit is not maintainable. He further submits that even in the instant revision petition, the petitioners have not taken any specific plea as to why the suit is not maintainable. He submits that under such circumstances, the petitioners are estopped from raising the plea of maintainability of the suit before this Court in the instant revision petition.

The learned counsel for the respondents further submits that the instant suit has been filed by two plaintiffs, namely, the HUF M/s Kishore Lal Vijay Kumar, as well as by Smti Kusum Mour as its Karta. He submits that the impediment of a female Hindu becoming a Karta of Hindu Undivided Family has been done away with after amendment of Section 6 of the Hindu Succession Act, 1956 in the year 2005. He submits that Section 6 of the Hindu Succession Act, 1956 being a socially beneficial legislation giving equal rights of inheritance to a Hindu male and female, there may not be any impediment in the plaintiff No. 2 becoming Karta of plaintiff No. 1 HUF after the death of her husband, who was earlier the Karta of the plaintiff No. 1 HUF. He submits that since at the time of execution of the tenancy agreement with the predecessor of the present petitioners, the son of the plaintiff No. 2 was a minor, there is no impediment in plaintiff No. 2 to act as Karta of the plaintiff No. 1 HUF. He further submits that since this question was not raised by the predecessor of the petitioners either before the Trial Court or the Appellate Court, there are insufficient material on record for this Court to delve into the issue at this stage in this revision petition. Hence, he submits that the plea of maintainability raised by the learned counsel for the petitioners during argument stage of instant revision petition is unsustainable and same should be rejected by this Court.

He further submits that the petitioners have also acknowledge the respondent No. 2 as the Karta of the respondent No. 1 HUF in the tenancy agreement which has been exhibited as Exhibit-1 by the plaintiffs’ side. He submits that even in the evidence of DW-1 there is acknowledgement to the fact that the rent of the tenanted premises used to be collected by the plaintiff No. 2. He further submits that the predecessor of the present petitioners also filed a title suit before the Court of Munsiff No. 1 wherein he had prayed for declaring him to be lawful tenant under the plaintiffs and the said suit was decreed by judgment dated 18.01.2013, passed in Title Suit No. 133/2011, as such he submits that the petitioners cannot now question the fact that the plaintiffs/present respondents are their lawful land owner in respect of the suit premises. In support of his submission, the learned counsel for the respondents has cited following rulings: -

The learned counselfor the respondents has further submitted that as regards the plea of the learned counsel for the petitioners regarding the fact that as the son of the respondent No. 2 is having a permanent job at Mumbai the suit premises is no longer bona fidely required by the plaintiffs, he submits that the evidence on record in this regard is clear that the suit premises is required bona fidely not for the son of the respondent No. 2 but for expansion of business of the respondent No. 1 HUF. He submits that the business of the respondent No. 1 HUF is looked after by the respondent No. 2 and the contention that the son of the respondent No. 2 is having permanent job at Mumbai is of no relevance in this regard. He submits that the Trial Court has rightfully held, after considering the evidence on record that the suit premises is bona fidely required by the plaintiffs and same has been rightly upheld by the Appellate Court. As such, he submits that the contention raised by the learned counsel for the petitioners regarding lack of bona fide requirement of the suit premises by the plaintiffs/respondents does not have any force and same may be rejected.

The learned counsel for the respondents has further submitted that the Trial Court as well as the First Appellate Court has rightfully held the predecessor of the petitioners to be a defaulter in payment of rent for the month of April, 2011 in respect of the suit premises after considering the evidence on record including the tenancy agreement which was exhibited as Exhibit-1. He submits that Clause 2 of the tenancy agreement stipulates the rent for each month shall be payable in the first week of every month as per English calendar. However, he submits that the Trial Court was correct in holding that the defendant has failed to adduce any reliable evidence regarding compliance of the provisions of the Clause 2 of the tenancy agreement for the month of April, 2011 in respect of the suit premises. He further submits that the Trial Court has also rightly held that the defendant has failed to adduce any evidence that he had offered the rent for the month of April, 2011 in the first week of May, 2011 and that on refusal by the plaintiffs same has been deposited in the Court. He submits that the Trial Court also rightly took into consideration the evidence that the defendants during his cross-examination have admitted that he offered the rent for the month of April, 2011 in the said month itself which is in breach of Clause 2 of the tenancy agreement.

The learned counsel for the respondents submits that regarding refusal of the Trial Court to grant permission to call for Non-Judicial Case record, there is nothing to show that the predecessor of the present petitioners has impugned the such denial by the Trial Court to call for the Non-Judicial Case record before any higher forum, as such, he submits that now the petitioners are estopped from raising that plea at this stage. He submits that the evidence on record also shows that the defendant/predecessor of the present petitioners failed to prove that while depositing rent before the Court the process fee, notices as well as deposits of challan were made as per law, as such, the decision of Trial Court and the Appellate Court holding the predecessor of the present petitioners to be defaulter in payment of rent in respect of suit property may not be faulted with. He, therefore, prays for dismissing the instant revision petition with cost.

I have considered the submissions made by the learned counsel for both sides and have gone through the materials available on record. I have also gone through the rulings cited by the learned counsel for both sides in support of their respective submissions.

At theoutset, it is to be taken note of the fact that this revision is directed against a concurrent finding of two courts below holding the predecessor of the present petitioners to be defaulter of rent and also that the suit premises is required bona fide by the plaintiffs for expansion of their business.

While exercising revisional powers under Section 115 of the Code of Civil Procedure, 1908, this Court has to be conscious about the limitations of exercising such powers. This Court is conscious about the legal proposition that the revisional power mainly pertains to supervisory jurisdiction of this Court. It cannot interfere with the impugned judgment, unless it comes to a conclusion that the Appellate Court or the Trial Court exercised a jurisdiction not vested in it by law; or it failed to exercise the jurisdiction so vested; or it acted in exercise of its jurisdiction illegally or with material irregularity. The error in the impugned judgment has to be a jurisdictional error to invoke the revisional powers of this Court. This Court cannot re-evaluate or re-weigh the evidence to substitute its own finding for those of the courts below. Even if this Court is of opinion that it would have arrived at a different finding on facts from that of the courts below, it cannot interfere unless the findings arrived at are completely perverse or based on no evidence at all. In such a backdrop, let us examine the impugned judgmentvis-à-vis the grounds taken by the petitioners in the appeal.

As regards the plea of non-maintainability of the suit on the ground that the petitioner No. 2, being a female, cannot be Karta of a Hindu Undivided Family (HUF) and as such cannot represent the plaintiff No. 1 in the suit, is concerned, it is pertinent to note that said plea was never taken by the petitioners specifically before any of the two courts below. Neither before the Trial Court nor before the Appellate Court, the petitioners specifically took the aforesaid plea. Even in the instant revision petition, the petitioners have failed to take the aforesaid ground specifically. Under such circumstances, this Court is of considered opinion that the petitioners are estopped from taking the plea of maintainability of the suit on the aforesaid ground.

However, even though let us examine the issue raised by the petitioners. This Court is of considered opinion that though under Hindu law, a widow cannot become a Karta of a Hindu Undivided Family, however, under certain circumstances she may act as de facto Manager of such an HUF for limited purposes. For example, if the sole male coparcener, who was the Karta of an HUF expires and there is no eligible son or daughter to act as Karta such an HUF, a widow can certainly act as a de facto Manager of such an HUF. To ascertain whether such a circumstance existed in the instant case, the question of facts is to be gone into and for that specific plea to that effect has to be made in the pleadings. In the instant case, no such specific pleading is there in the written statement or memo of appeal or the instant revision petition filed by the petitioners, as such, said question cannot be gone into in this revision petition as said question is a mixed question of law and fact. In the instant case, the materials on record clearly shows that the predecessor of the present petitioners had acknowledged the respondent No. 2 to be Karta of respondent No. 1 HUF. In any view of the matter, even if there is any legal bar for the respondent No. 2 to act as Karta of the respondent No. 1 HUF, this Court is of considered opinion that there is no bar in treating the respondent No. 2 to be the de facto Manager of respondent No. 1 HUF after the death of her husband and under such circumstances she is entitled to represent the respondent No. 1 HUF as its de facto Manager in the eviction suit filed by the plaintiff No. 1. Under aforesaid circumstances, the objection regarding maintainability of the suit is hereby rejected.

As regards the plea of bona fide requirement of the suit premises by the plaintiff is concerned, the evidence on record clearly indicates that the suit premises was required for expansion of business of the plaintiff No. 1 HUF and the Trial Court as well as Appellate Court has rightly arrived at the said finding. As such, this Court in exercise of its revisional power is refraining itself from reappreciating the evidence on record on the basis of which both the courts reach the aforesaid conclusion. Otherwise, this Court would become the second Appellate Court.

Same is the approach of this Court is in regard to the finding arrived by the Appellate Court on the issue of the defaulter of payment of rent. The Trial Court as well as the First Appellate Court, after considering the materials on record, have rightly reached the conclusion regarding defaulter of payment of rent for the month of April, 2011 by the predecessor of the present petitioners in respect of the suit property. The petitioners have failed to demonstrate any perversity on the part of the Appellate Court or the Trial Court. As such, this Court, owing to the limitation in exercise of its revisional powers is refraining itself from re-assessing and re-appreciating the evidence on record.

As regards the plea of violation of provisions contained in Order 13 Rule 1(2) of the Code of Civil Procedure, 1908 for not taking leave of the Court for producing the documents, which were not earlier produced before settlement of issues, during the examination of plaintiffs’ witness, it appears that while the Trial Court allowed the PW-1 to exhibit such documents, there is nothing to indicate that any objection was raised by the present petitioners. Moreover, the petitioners have accepted the respondents as their landlords in respect of the suit premises and once by adducing oral evidence, it is established that the suit premises is required bona fide by them and that the defendant is a defaulter of rent, the burden shifts on the defendant to prove the contrary, which the defendant has failed to prove. The Trial Court as well as Appellate Court committed no illegality or material irregularity in that regard.

As regards the plea that the PW-1 did not produce any authority to depose on behalf of HUF, this Court is of considered opinion that the Trial Court was correct in holding that since the PW-1 who was the son of the plaintiff No. 2 and has stated that he has personal knowledge about the subject matter involved in the suit, no authority is required to depose as a witness for the plaintiff in the said suit.

In view of the discussions made and reasons stated in the foregoing paragraph, this Court is of considered opinion that the petitioners have failed to make out a case to show that while passing impugned judgment the Appellate Court has committed any illegality or material irregularity in upholding the judgment of the Trial Court by decreeing the suit of the plaintiffs on the ground of bona fide requirement as well as defaulter of payment of rent in respect of the suit property.

This civil revision petition is dismissed with cost.

Send back the records of the court below to the respective courts along with a copy of this judgment.