High Court Division
(Civil Revisional Jurisdiction)
Md. Abdur Rashid J
Jebun Nessa Zaman and Others…………………… Petitioners
Hosne Ara Lili…………..Opposite Party
March 16, 2001.
Shafique Ahmed with Shahidul Islam, Advocates- For the Petitioners.
Jamiruddin Sircar with Bazlul Ghani, Advocates- For the Opposite Party.
Civil Revision No. 3630 of 1998.
Md. Abdur Rashid J.- This Rule was obtained by defendants upon making an application under section 115 of the Code of Civil Procedure against judgment and decree dated 14-07-98 passed by Assistant Judge, 5th Court at Dhaka in Title Suit No.127 of 1997 decreeing the suit for possession.
2. Opposite party as plaintiff instituted the suit under section 9 of the Specific Relief Act for recovery of possession of the suit shop. Plaint case, in short, is that the plaintiff took monthly lease of the suit shop on 01-07-87 from the petitioner No.1 on the basis of an agreement. As per terms of the agreement, the plaintiff deposited Taka 90,000 with said petitioner as security. It was stipulated, the same amount would be returned to the plaintiff at the time of vacating the suit premises. On 29-05-95 a fresh agreement was executed in between the parties for a period of one year and the plaintiff deposited further Taka 90,000 as security with said petitioner and rent was enhanced from Taka 1,600 to 2,000. The plaintiff was carrying on the business of making and selling sweets as before. The plaintiff employed the petitioners No.2 to 5 as her employees as they were found to be expert in sweets making. Then, the plaintiff entered into an oral agreement on 11-09-95 with said petitioner Nos.2 to 5 on the stipulations that they would use the plaintiffs business establishment including goodwill, capital, furniture etc, and they would pay the plaintiff Taka 7,000 per month in lieu thereof, said petitioner Nos.2 to 5 in collusion with petitioner No.1 stopped paying the agreed money since May, 1996. On 15-07-96 petitioner No.1 refused to renew the agreement of monthly lease and also refused to return the security money. Hence, the suit.
3. The petitioners as defendants No.1 to 5 contested the suit by filing a joint written statement denying the case of the plaintiff.
4. Defence case, in brief, is that the plaintiff was monthly tenant under defendant No.1 first at a rent of Taka 1,600 and then at 2,000. The plaintiff was running her business under the name and style “The Tangail Porabari Sweets” but it was not being seen since 01-08-95. In its place appeared signboard, “Adi Bikrampur Mistanya Bhandar” and defendant No.2 was found doing business in the premises. Defendant No.1 then learnt from defendant No.2, in the month of August, 1995, the plaintiff inducted defendant No.2 in the suit shop in violation of the terms of the lease, and without any consent of the landlord, defendant No.1 at a monthly rent of Taka 7,000 and also on receipt of Taka 50,000 as security. The plaintiff sold away all her movables in the shop and left the premises voluntarily. Before leaving, the plaintiff left the bill of Taka 30,000 of WASA, Taka 46,000 on account of Gas unpaid. Bill of Taka 10,000 on account of electricity also remained unpaid. The plaintiff left the premises without any notice or intimation to the landlord. In the circumstances, the suit for recovery of possession of the suit shop is not maintainable.
5. On the pleadings 5 issues were framed of which issue No.3 and 4 are whether the plaintiff was in possession of the suit shop and thereafter, whether she was dispossessed. In support of their respective cases, plaintiff examined 3 witnesses while defendants examined 2 witnesses.
6. The trial Court decreed the suit as stated earlier and also directed the defendants to restore possession of the premises to the plaintiff within 45 days from date by the impugned judgment and decree.
7. Mr. Shafique Ahmed, learned Counsel appearing for the petitioners, submits that the learned Assistant Judge committed serious error of law resulting in an error of his decision occasioning failure of justice in holding that the defendants dispossessed the plaintiff. He also submits that the trial Court erred in law in decreeing the suit in the absence of any finding on the date of dispossession. In view of the evidence of defendant No.2 as DW 2, the plaintiff sold away all her movables and left the shop voluntarily, the Court below erred in law in holding that there was dispossession.
8. On the other hand, by filing an affidavit-in-opposition, Mr. Jamiruddin Sircar took much pain to take me through the plaint and the depositions of the witnesses and submits that in the facts and circumstances, the date of dispossession must be held to be the date i.e. 31-05-96 when the period of monthly lease of the plaintiff expired. He also submits that possession of any other person including defendants Nos. 2 to 5 must be taken to be the possession of the plaintiff.
9. I have perused the revision application and the record of the case. I have also heard the learned senior Counsels.
10. It is admitted that the plaintiff was a tenant under the defendant No.1 in the suit shop first at a rent of Taka 1,600 and then, finally at Taka 2,000 under defendant No.1. It is not disputed that the plaintiff inducted the defendants No.2 without any intimation to or consent of the landlord. It is also not disputed that under the agreement of lease sub-lease is prohibited.
11. Cause of action for the suit as averred in paragraph 4 of the plaint is hereunder,
“????????? ???? ??????????? ???????? ???? ???? ? ?????? ??????? ??? ?? ????? ?????????????? ??????? ?? ??? ???? ?????? ???????? ??????? ????? ‘?? ??????? ???????? ?????’ ? ?-?-?? ?????? ?????? ? ????? ???????? ????? ???? ???? ???? ??????? ??? ???? ??????…?”
So, the plaintiff claimed that on 01-06-96 she and her husband were driven out of the suit shop “The Tangail Porabari Sweets”, of course, who ousted them has not been stated in the paragraph.
12. In order to succeed in the suit, the plaintiff was required to prove the above cause of action. The plaintiff examined 3 witnesses including herself. Plaintiff examined herself as PW1. I could not find a word in her long testimony on any such assertions as she averred in her cause of action for the suit, namely, she and her husband were dispossessed on 01-06-96, that they were dispossessed from the above suit shop and/or that on 01-06-96 there was still any signboard of “The Tangail Porabari Sweets” in the suit shop. PW 2 and PW 3 also did not say a word on the above claims of the plaintiff.
13. The plaintiff was doing the business of making and selling sweets since 1987. Why she could not adduce any evidence in support of her cause of action will be found in her plaint In paragraph No.1 of the plaint, she has averred that she herself had run the business up to 11-09-95 when she entered into an oral agreement with the defendant Nos.2 to 5 and put them into possession of the suit shop on the stipulations that they would run the business using her furniture, goodwill capital etc. on the condition of paying her Taka 7,000 per month in lieu thereof. While they were paying Taka 7,000 per month since, said defendants betrayed her and collusively entered into a monthly tenancy with defendant No.1. This was her case as, averred in the body of the plaint.
14. A suit under section 9 of the Specific Relief Act is a summary procedure and a prompt remedy for the person who was dispossessed of immovable property without his consent. The section gives a special privilege to such person in possession and entitles him to recover possession if he can simply prove that-
a. he was in possession;
b. he was dispossessed by the defendant;
c. the dispossession was not in due course of law; and
d. the dispossession took place within six months of the institution.
The suit is to be decided without reference to the title. Possession under the section must be understood to mean and include both physical and constructive.
15. Admittedly, the plaintiff was a tenant under her landlord, defendant No.1. It must not lost be sight of the nature of such possession of a tenant which was nothing more than constructive possession of her landlord through her. Of course, the landlord is not entitled to dispossess a tenant a without due course of law.
16. On 27-08-96 the plaintiff instituted the suit. In order to succeed she must prove the factum of dispossession within six months. Leaving aside her cause of action for the suit as considered above for the moment, I find her story of dispossession has got other two versions as well, namely, first, she claimed to have employed defendant Nos. 2 to 5 as,. her employees in the shop and secondly, on 11-09- 95 she inducted those on the basis of an oral agreement as stated earlier, according to Mr. Jamiruddin Sircar it was an arrangement of sharing profit out of the business.
17. Regarding these versions also, the plaintiff failed to adduce any credible evidence on her case of employment of or delivering possession to the defendant Nos. 2 to 5 for the purpose of business. None of her other two witnesses did say a word on these assertions of the plaintiff. Her case of employment flatly denied by defendant No.2 as DW2. He testified that he took possession of the shop at a rental of Taka 7,000 per month and on payment of Taka 50,000 as security on a receipt as a sub lessee under the husband of the plaintiff who promised to get the tenancy regularised with defendant No. 1. In cross-examination, he said that sub-lease was given at a rental of Taka 7,000 per month which started from 05-08-95. As the sub-lease commenced from a part of the month so he paid Taka 3,000 only as part rent for the month of August. He also said that he took possession on 05-08-95. He was never in the shop between 01-06-87 to 04-08-95. He was never an employee of the plaintiff. He further testified that the plaintiff sold away the glasses of the suit shop to a neighboring shop and took away some other articles to her poultry farm. Defendant No.1 as DW1 testified that the signboard the ‘Tangail Porabari Sweets’ was never seen after 1995. Such evidence of the defendant No.1 and 2 cannot be so easily brushed aside.
18. From the above evidence, it appears that the plaintiff miserably failed to prove that she was dispossessed from the suit shop on 01-06 96 She also failed to prove that defendants No. 2 to 5 entered into the suit shop as her employees and then, continued, say, as business partners. Consequently, possession of defendant No. 2 is proved to be that of a sub-lessee with effect from 11-09-95 at latest if the plaintiffs version is accepted or from 05-08-95 if the version of defendant No. 2 is relied on. But the result remains the same for the suit Firstly the plaintiff voluntarily discontinued her possession by giving possession to defendant No. 2 Such entry of defendant No. 2 into the suit shop cannot be said to be through dispossession. Secondly, the institution of the suit on 27-08-96 is far beyond the period of six months from the date of entry into the suit shop of defendant No. 2 as sub-lessee i.e. either on 05-08- 95 or 11-09-95. Such suit is therefore not maintainable for want of dispossession, and also becomes barred by limitation.
19. Mr. Sircar also submits that the last agreement for lease of the shop was executed on 01- 06-95. Then, on 16-07-96 legal notice was sent to said defendant for renewal of the lease. But the lease was not renewed. Dispossession must be deemed to be from that date 31-05-96. There is no scope of deeming in respect of possession and dispossession which are very real things in life. In view of clear cause of action as averred in the plaint to have arisen on 01-06-96, there is hardly any scope for such academic exercise. As found earlier, the plaintiff has miserably failed to prove her cause of action.
20. In the facts and circumstances of the case, the nature of the possession of defendant No. 2 also demands consideration for the decision in the suit. It is not disputed that, under the monthly lease agreement any kind of sub-lease was prohibited. Possession of the plaintiff as a monthly tenant was the constructive possession of her landlord, defendant No.1. If such monthly tenant allows someone as sub-lessee to enter into possession of the leased shop by infracting that terms of the lease, and without the consent of the landlord, the possession of such sub-lessee cannot be termed to be the constructive possession of the tenant, for purpose of a suit under section 9 of Specific Relief Act Because in case of dispute, such tenant is not entitled to maintain a suit for ejectment of such sub lessee under the laws of monthly tenancy. Therefore, there is no escape from the conclusion that such a monthly tenant cannot maintain a summary suit under the section for possession from her sub-lessee.
21. The trial Court appears to have failed to take into consideration of the cause of action as averred by the plaintiff in her plaint It also did not consider the entire evidence on record on issue of possession and dispossession it noticed some of the evidence, but failed to comprehend the legal effect of those evidence. It also failed to give any decision on the date of dispossession and how dispossession took place. It failed to raise, and decide on, the important issue of limitation and also nature of the possession of the plaintiff. In the absence of clear findings that the plaintiff was in possession and dispossessed by the defendants within six months of the institution of the suit, the trial Court fell in serious error of law in decreeing the suit for possession which has resulted in miscarriage of justice. Such decree for possession cannot be sustained in law. The submissions of Mr. Jamiruddin Sircar have no substance.
22. In the result, the Rule is made absolute. No order as to costs. The impugned judgment and decree dated 14-07-98 of the Assistant Judge, 5th Court at Dhaka in Title Suit No.127 of 1997 is hereby set aside and the suit is dismissed. The order of stay granted at the time of issue of the Rule is recalled.
Send down the records at once.