Solaiman (Md) -Vs- Sufia Akhtar Alam being dead her heirs Narjesa Rahamatullah and others, 49 DLR 288; Selina Begum -Vs- Azizun Nessa, 6 BLC (AD)115; Zaher Ahmed -Vs-Manik Sardar, 6 MLR(AD) 44; Shambhnath Vs. Alfajuddin, 41 DLR (AD) 27 ref.
Mr. Abdul Wadud Bhuiyan with
Mr. Syed Mokaddas Ali, Advocates.
…For the Petitioner
No one appears
… For the Opposite Parties
Mr. Shahidul Islam, J.
This Rule was issued calling upon the opposite parties to show cause as to why the judgment and decree dated 20.4.1999 passed by the Senior Assistant Judge, Sadar, Mymensingh in Small Cause Court Suit No. 7 of 1996 should not be set aside and / or such other or further order or orders passed as to this Court may seem fit and proper.
- 2. Facts relevant for disposal of the Rule are that the plaintiff of the suit is the petitioner before this court who instituted S. C. C. Suit No. 6 of 1993 on 24.06.1993 before the Senior Assistant Judge, Mymensingh contending inter alia that the suit premises belonged to his father, who by an will dated 17.7.1973 devided the suit premises and land in favour of his sons, daughters and widows. His father died on 25.12.1973. Thereafter his wife named Rawshan Ara rented the suit premises in favour of the defendant upon certain terms and conditions. An agreement for lease was executed by his mother as being landlord and the defendant as tenant on 17.05.1976. The tenants were parted with possession in the suit premises. The defendant started paying rent as per the terms of the agreement and were possessing the suit premises. It is the plaintiff’s further case that he purchased the shares of his other brothers and sisters by 2 registered kabala deeds dated 2.12.1991 and 3.12.1992 and became absolute owner of the suit premises. The defendant was verbally informed about his purchase and was requested to hand over vacant possession of the suit premises in his favour but in vain. Another premises named Asma store was adjacent to the suit premises and the tenant of that premises had handed over vacant possession in favour of the plaintiff as he was requested. The plaintiff being aware of the fact of purchase has defaulted paying rent and as such a notice under Section 106 of the T. P. Act (exhibit-1) was sent on 10.1.1993 to the defendant and the defendant received the same on 1.11.1993. The defendant was requested to hand over vacant possession after 31.1.1993. Upon receipt of the said 106 notice, the defendant sent a reply to the same and denied the fact of his previous knowledge of the alleged purchase made by the plaintiff. It is the further case of the plaintiff that the suit premises is in need of his bonafide requirement for the purpose of construction of a MultistorriedBuilding. The defendant having had failed to hand over vacant possession of the suit premises upon receipt of the 106 notice (exhibit-1) the plaintiff was compelled to institute the suit for eviction of the defendant from the suit premises.
- 3. The defendant No. 1 contested the suit by filing a written statement denying the material statements made in the plaint and contending inter alia that the defendant became a tenant under the mother of the plaintiff on the strength of exhibit-1. In the agreement dated 17.05.1976, the plaintiff was an witness and had signed his name as an witness. As per the terms of agreement the defendant had to make payment of rent of every month on the first day of the next month and if defaulted to pay rent for consecutive 3 months, in that case he would be a defaulter. It was the further case the defendant that, the plaintiff did not inform him about his purchase and did not request him to pay rent and to hand over vacant possession of the suit premises. It is the specific case that, he paid rent regularly till October, 1991 and went to pay rent on the first of December, 1991 for the month of November, 1991 but Rawshan Ara, the mother of the plaintiff did not receive rent. Thereafter he started depositing rent with the Rent Controller vide House Rent Control Case No. 01 of 1992 and has been depositing rent regularly as per the terms of agreement. He pleaded that he is not a defaulter and there is no bonafide requirement of the plaintiff in the suit premises.
- 4. Upon the pleadings of the parties the learned S. C. C. Judge framed the following issues;
Is the suit maintainable in its present form?
(a) Is the defendant a habitual defaulter in paying rent?
(b) Is there any bonafide requirement of the plaintiff in the said land?
(c) Is the plaintiff entitled to a decree as prayed for?
(d) What more relief the plaintiff is entitled to?
- 5. The plaintiff examined himself as PW-1 and examined his mother, the original landlord named Rawshan Ara Begum as PW-2. The original agreement of the tenancy dated 17.05.1776 was marked as exhibit-1. A plan approved by the Administrator, MymensinghMunicipality dated 15.02.1993 was marked as exhibit-2, acknowledgement of the notice sent under Section 106 of the Transfer of Property Act was marked as exhibit the 3 and 3 ‘Ka’. The 106 notice determining tenancy was marked as exhibit 3 “kha”. Reply given by the defendant against the 106 notice was marked as exhibit-3 “Ga”. The Kabala deed dated 2.12.1991 executed by the mother and other brothers and sisters in favour of the plaintiffs was marked as exhibit-4 “ka” another kabala deed dated 03.12.1992 executed by Nazir Hossain, brother of the plaintiff transferring his share in the suit premises in favour of the plaintiff was marked as exhibit-5. The registered “will” dated 17.03.1973, executed by the father of the plaintiff in favour of his sons, daughters and wife settling his properties was marked as exhibit-6.
- 6. During continuation of the trial of the suit the defendant died and his heirs were substituted. The defendant No. 1 ‘Ka’ was examined as DW-1 and one Nurul Islam was examined as DW-2 and another Md. Hakim was examined as Dw-3. The agreement for lease dated 17.05.1976 was marked as exhibit-“ka”. The part of the money order form showing refusal to accept rent for the month of November 1991 ( the money so remitted received back) was marked as exhibit-‘Kha’/1. Another agreement dated 27.11.1989 executed by the defendant as well as co-tenant Hamida Khatun transferring the share of later in the business in favour of the defendants was marked as exhibit-‘Ka’/1. Chalan showing deposite of rent with the Rent controller, since 1.1.1992 were marked as exhibit-‘Ga’ series (86 in numbers).
- 7. The learned Assistant Judge upon considering the evidence on record dismissed the suit by the impugned judgment and decree dated 20.04.1999 holding that, the defendant was not a defaulter in paying rent and no attornment was made as required by law and the defendant is entitled to protect her interest under section 18(5) of the Premises Rent Control Ordinance and also found no bonafide requirement of the suit premises by the plaintiff.
- 8. Being agreement by the impugned judgment and decree the plaintiff has obtained the instant Rule.
- 9. Mr. Abdul Wadud Bhuiyan with Mr. Syed Mokaddas Ali, the learned Advocates, appeared for the plaintiff petitioner. None entered appeared for the defendant opposite party.
- 10. Mr. Abdul Wadud Bhuiyan, took me through the impugned judgment and decree passed by the S. C. C. Judge. He read out the 106 notice and the evidence of PW-2. After placing the facts of the parties as well as the evidence, on record. Mr. Bhuiyan, formulated the following points of argument in support of the Rule;
(a) Whenever the tenancy is admitted and whenever there is no dispute about the service of notice under section 106 of the Transfer of Property Act, a suit for eviction of a tenant can be instituted by the landlord on the ground of defaulter as well as bonafide requirement.
(b) Secondly submitted that attornment can be made verbally and there is no necessity of sending a written notice for attornment of tenancy. He submitted that, in the instant case the defendant has amended his petition of House Rent Control Case No. 01 of 1992 and added the name of the plaintiff as opposite party No. 2 and started depositing rent in the name of original landlord as well in the name of the plaintiff and as such attornment was completed but the trial court has committed an error of law holding that no attornment was made. In support of his contention Mr. Bhuiyan relied upon the case law of Solaiman (Md) –Vs- Sufia Akhtar Alam being dead her heirs Narjesa Rahamatullah and others, reported in 49 DLR (HD) page-288, relevant para 10 and 11. Mr. Bhuiyan, submitted that the trial court has misunderstood the provision of section 109 of the Transfer of Property Act. He prayed for setting aside of the findings about the question of attornment. Mr. Bhuiyan, further refered to the case law of Selina Begum –Vs- Azizun Nessa, 6 BLC (Ad) page-115.
(c) Thereafter he submitted that the case of bonafide requirement of the premises by the plaintiff has been established and the S. C. C. Judge was not lawful to ignore the question of bonafide requirement. He submit-ted that the plaintiff has got an approved plan for making a MultiStoriedBuilding upon the suit premises and as such the suit was liable to be decreed. Mr. Bhuiyan, refered to the case law Zaher Ahmed -Vs-Manik Sardar, 6 MLR(AD) page-44
- 11. Mr. Bhuiyan, by submitting a supplementary affidavit, today, has coated some portion of the application filed in House Rent Control Case No. 1 of 1991 and order dated 13.06.1992 and the order dated 13.06.2010 passed by the learned Senior Assistant Judge, in the said House Rent Control Case and prayed for taking judicial notice upon those facts.
- 12. Mr. Bhuiyan, submitted that the plaintiff being the absolute owner of the suit premises was entitled to an order for eviction of the defendant but the court below has failed to discuss and consider the evidence on record as per law and as such the judgment impugned in the Rule is liable to be set aside and the suit is liable to be decreed.
- 13. I have consider the submissions made by Mr. Bhuiyan. I have gone through the plaint`s case, defence case, the oral evidence adduced by the parties and the documentary evidences admitted into evidence. As per the submission made by Mr. Bhuiyan as well as upon going through the materials on record this Court is required to answer the following questions for deciding the maters in controversies and for lawful disposal of the Rule:
(a) Whether any relationship as landlord and tenant was established between the plaintiff and the defendant on the date of sending the notice under Section 106 of the Transfer of Property Act?
(b) Whether the addition of the name of the plaintiff in the petition of House Rent Control Case No. 01 of 1992 of the senior assistant Judge and S. C. C. Judge, Mymensingh proved attornment as required under section 109 of the Transfer of Property Act?
(c) Whether any attornemnt was at all made by the plaintiff acknowledging the defendant to continue the tenancy with him as before?
(d) Whether the suit for eviction by the purchaser during subsistence of tenancy with the transferer of the plaintiff is maintainable without effective altornent?
(e) Whether the defendant was a habitual defaulter or defaulter in paying rent?
(f) Whether the case of bonafide requirement itself is enough for allowing eviction of a tenant?
(g) Whether the impugned judgment and decree are sustainable in law?
- 14. Let us answer to the question No. (a) whether any relationship as landlord and tenant was established between the plaintiff and the defendant on the date of sending the notice under section 106 of the Transfer of Property Act?
Admittedly the defendant entered into the suit premises as a monthly tenant under the landlordship of the mother of the plaintiff. An agreement for monthly lease was executed on 17.05.1976 (Exbt-1) between them. Admittedly the plaintiff was an witness to the said agreement as an witness in serial No. 4. I have gone through the said agreement. As per the terms of agreement the defendant agreed upon to pay rent for each month within the first day of the next month. It was agreed upon that, if the defendant failed to pay rent for consecutive 3 (three) months then he would be a defaulter. Admittedly the defendant paid rent directly to the mother of the plaintiff for the month of October 1991. It is the defendant`s case that he went to pay rent for the month of November 1991 on the 1st of December but the landlord (mother of the plaintiff_) refused to accept rent and thereafter he transmitted the rent through post by money order. That money was returned back undelivered and thereafter he started depositing rent with the Premises Rent Controller Vide H.R.C case No. 1 of 1992 and deposited rent for each and every month as per the terms of agreement. Exhibit ‘Kha’ is the part of money order form by which the rent for November 1991 was transmitted. Exhibit ‘Ga’ series are the challans showing deposit of rent with the Rent controller. The suit premises belonged to the father of the plaintiff is admitted. After the death of his father his mother Rawshan Ara rented out the suit premises to the defendant is admitted. It is the plaintiff case that by 2 (two) Kobala deeds dated 2.12.1991 and 3.12.1992 exhibit 4 (Ka) and 5 respectively the plaintiff has purchased the entire share of his other brothers and sisters and became absolute owner of the suit premises. So, it appears that the purchase of the plaintiff was made during the subsistence of the tenancy between the mother of the plaintiff and the defendant.
- 15. The first Kobala deed purchasing 8 (eight) annas share from his mother, sister, brother was made on 2.12.1991. The defendant transmitted rent for the month of November 1991 in December 1991. Exhibit “Ga” shows deposit of rent for the month of November and December in January 1992. Thereafter the plaintiff purchased the rest part of the suit premises on 3.12.1992 and become absolute owner of the suit premises. As such it is clear enough that the purchase of the plaintiff was made during continuation of the tenancy established between Rawshan Ara (mother of the plaintiff) and the defendant. There is no evidence available on record, either documentary or oral that, there was created any relationship between the plaintiff and the defendant as landlord and tenant on 10.1.1993 or on the date of filing the suit. Accordingly this question is answered negatively against the plaintiff. But since the earlier tenancy was continuing the plaintiff has stepped into the shoes of his mother.
- 16. Let us answer to the question No (b) and (c) together as whether the addition of the name of the plaintiff in the H.R.C case No. 1 of 1992 itself proved attornment as required under section 109 of the T.P Act and whether any attornment was at all made by the plaintiff acknowledging the defendant about his purchase and to continue the tenancy with him?
“To answer this question let us see what does the word Attornment mean? Attornment means the acknowledgment of a new lord on the alienation of land, and the assent or agreement of the tenant to attorn as “ I become tenant to the purchaser” A person in occupying of property may establish the relation of landlord and tenant between himself and another person by attornment , that is to say, by acknowledging that he is tenant to that other person. Halsbury`s law of England 3rd Eddition vol. 23 Page 408. We have already seen that, the house Rent control case No. 1 of 1992 was started during continuation of the tenancy between Rawshan Ara and the defendant. The House Rent Control case was instituted on 2.1.1992. The plaintiff was examined as PW1 who in his examination in chief admitted “Bj¡l j¡a¡l e¡j j¡¢e AXÑ¡l L¢lm j¡a¡ e¡ l¡M¡u 1/92 HCQ Bl j¡jm¡ ¢hh¡c£ c¡ul Ll” The first purchase was made by the plaintiff on 2.12.1991 and the last purchase was made on 3.12.1992. From the admitted fact it appears that the acquisition of complete ownership of the plaintiff, in the suit premises was made during subsistence of the tenancy established between the defendant and the plaintiff`s mother. It is not the case of the plaintiff that he informed the defendant about his first purchase on 2.12.1991.
- 17. The Pw1 in his examination of chief although added that B¢j j¡¢mL qCh¡l fl ¢hh¡c£ J a¡q¡l f¤œ ®M¡LeL S¡e¡Cz Bj¡l j¡a¡ J a¡clL S¡e¡uz Bj¡L i¡s¡ ¢ch¡l Lb¡ h¢mm ¢hh¡¢ce£ Bj¡L i¡s¡ ®cu e¡Cz” but from the record it shows that the H.R.C case No. 1 of 1992 was started on 2.1.1992 and the first purchase of the plaintiff was made on 2.12.1991 purchasing 8 (eight) annas share and the last purchase was made on 3.12.1992 purchasing the rest 8(eight) annas share of the suit premises. The notice under section 106 of the Transfer of Property Act was issued on 10.1.1993 which is within one month and eight days of the plaintiff`s becoming absolute owner in the suit premises. The contents of the 106 notice although disclosed that, the fact of purchase was acknowledged to the defendant but the said assertion is practically unbelievable in as much as the deposite of rent with the premises Rent controller was being deposited since 2.1.1992 and the purchase of the plaintiff was made during subsistence of the earlier tenancy. While the tenant, with a view to get protection from eviction was depositing rent with the Rent controller, the claim as disclosed in the 106 notice that the plaintiff had informed the defendant about his purchase is not practicably believable. When did the plaintiff informe the fact of his purchase to the defendant is not mentioned in the 106 notice. The defendant after receiving the said 106 notice has given a reply to the same on 28.1.1993. The copy of that reply has been marked as exhibit 3 (Ga). Upon perusal of the said exhibit 3 (Ga) it appears that the fact of acknowledgment of purchase has been denied by the defendant. By that exhibit 3(Ga) the defendant has requested the plaintiff for making a compromise as well as for accepting her as tenant by writing the following words” Aœ fÐ¢aš¡l c¡œ£ ¢hnÄ¡p Lle ®k, Aa:fl a¡q¡l fÐ¢a¢ùa hÉhp¡ L¡kÑ ¢hf¢š ,h¡d¡, Evf¡a, pª¢ø e¡ L¢lu¡ j¡a¡ f¤œ Ol¡u¡ Bm¡Qe¡u av¢àNl ¢hou Bf¡o ¢eÖf¢š L¢lu¡ Hhw 1/92 (HCQ,Bl) ®j¡LŸj¡u EW¡Cu¡ ¢eu¡ j¡¢mL i¡s¡¢Vu¡ p¤pÇfLÑ hS¡u l¡¢Mu¡ Aœ fÐ¢aš¡l c¡œ£l hÉhp¡ f¢lQ¡me¡u pqk¡N£a¡ L¢lhez C¢a aw 28/1/1993 CwÓ In view of the above I am inclined to hold that no attornment was made on the date of issuing the notice under section 106 of the T.P. Act to the defendant.
- 18. Now let us see whether the addition of the name of the plaintiff as a party in the H.R.C case No. 1 of 1992 itself is an attornment and that is enough for eviction of the defendant? The actual date of adding the plaintiff in the H.R.C case No. 1 of 1992 as opposite party is not available in the record. From exhibit G (61), chalan showing deposit of rent, it a appears that, rent for the month of February 1993, was deposited in the name of Rowshan Ara alone. Thereafter the name of the plaintiff was added as opposite party No. 2 in the said case. That addition of the plaintiff is certainly an attornment within the meaning of section 109 of the Transfer of Property Act in as much as the defendant, after coming to know about the plaintiff`s purchase has made him a party. That addition is not enough to evict the defendant from the suit premises in as much as the plaintiff has accepted the earlier tenancy existing between his mother and the defendant as the sole agreement for tenancy. That tenancy was not determined and admittedly no new tenancy was established between the plaintiff and the defendant. From the discussion as made above I am inclined to answer the question No. (b) and (c) in the affirmative. At the same time I am inclined to hold that the attornment made afterwords will not affect the status of the defendant. That claim of attornment is not enough to file a suit for eviction of the defendant. Moreover the original landlord , the mother of the plaintiff was examined as Pw2 who in her cross-examination admitted the fact that She did not inform the defendant about her transfer made to the plaintiff by adducing the following words” B¢j c¢mm Ll ®ch¡l BN ¢hh¡c£clL c¢mm pÇfLÑ ¢LR¤ h¢m e¡C ah Bj¡l ®juL hm¢R” She further admitted that she did not notify the defendant about her transfer by adding the following words” B¢j j¡¢mL¡e¡ qÙ¹¡¿¹ll ®L¡e ¢m¢Ma ®e¡¢Vn ¢hh¡c£L ®cC e¡C ah j¤M hm¢R a¡l¡ Bj¡l L¡R i¡s¡ ¢ca ®Nmz “ If this admission is considered along with other evidence on record it would be clear enough that no effective attornment was made at the time of issuing notice under section 106 of the T.P Act. So no effective attornment was made as it appears from the evidence on record. This view finds support from the case law of shambhnath V.S. Alfajuddin 41 DLR (A.D) 27 wherein it has been held that mere deposit of rent ipsofact did not prove attornment.
- 19. Let us answer to the question No. (d) as to whether the suit by new purchaser was maintain-able without any effective attornment?
We have already seen that the plaintiff has instituted the suit acting upon the agreement for lease (Exbt-1) establis-hed between his mother and the defendant and he made his first purchase after started depositing rent with the Rent Controller by the defendant. We have also seen that no effective attornment was made after the purchase was made by the plaintiff. In such a situation a suit for eviction of the defendant lies only if the defendant is found to be a defaulter in paying rent as per the terms of agreement (exhibit-1) other wise the suit would be not maintainable in law. If the defendant defaulted in paying rent in favour of the landlord, the subsequent purchaser, as an assignee can maintain a suit for eviction of the tenant, without any effective attornment and on the ground of defaulter. This view finds support from the case law of section Khatoon Vs. Ajijur Ness 6 BLC (A.D)-115- in as much as the plaintiff has stepped into the shoes of the original landlord and the tenancy continues.
- 20. Let us answer to the question No. (e) as to whether the defendant was a habitual defaulter or defaulter before the purchase was made by the plaintiff?
Admittedly the defendant paid rent regualarly till October 1991. Admittedly he went to pay rent for the month of November on 1.12.1991 and he was refused and thereafter he transmitted the said rent through post by money order. Admittedly that rent was not accepted by the landlord (Pw2). Admittedly the defendant, thereafter, started depositing rent with the rent controller through exhibit “Ga” series. I have examined the exhibit ‘Ga’ series. The agreement for lease between the plaintiff`s mother and the defendant has been marked as exhibit 1. I have gone through the said agreement very carefully. As per the terms of agreement the defendant had to pay rent for each month by the first day of the next month and he would be a defaulter, if failed to pay rent for consecutive 3 (three) months. Exhibit “Ga” series show that the rent was deposited regularly satisfying the terms of agreement. The defendant did not make any default in paying rent. The Pw1 in his examination in chief has admitted the said fact. The Pw1 in his cross-examination has further admitted the following – “ j¡a¡l Ll¡ i¡s¡¢Vu¡ Q¤¢š² fœ a¡q¡L j¡¢mL cMmL¡l ®mM¡ BRz 3 j¡p i¡s¡ ®Mm¡f£ qCm EµRc Ll¡ k¡Ch ®mM¡ BR Q¤¢š² fœ……………Q¤¢š² fœ naÑ BR ®k, f¤œ ®f±¢œ Ju¡¢lncl fÐ¢a L¡kÑLl b¡¢Lhz …………Bj¡l j¡a¡L ¢hh¡c£ i¡s¡ ¢cu¡Rz The Pw2 (Mohter of the plaintiff) has admitted in her cross-examination that the defendant has been depositing rent with the Rent controller admitting the following” ¢hh¡c£l¡ ®L¡VÑ i¡s¡ ¢caR J I ®j¡L¡Ÿj¡a B¢j fÐ¢aà¢¿¹a¡ Ll¢Rz Considering the above admission as well as the exhibit ‘Ga’ seires I am led to hold that the defendant is not a defaulter in the eye of law. The case law of Selina Begum V.S. Ajimun Nessa 6 BLC (A.D) page 115 goes against the plaintiff petitioner. In the said case law the defendant was found to be a defaulter and as such the order of eviction was passed. The case law of solaiman (Md) V.S sufia Akter and other 49 DLR (H.D) 288 has got no manner of application in the instant case, as the facts of the said case law is quite distingui-shable from the fact of the instant case.
- 21. Section 18 of the Premises Rent Control ordinance provides the provision that NO ORDER OF EJECTMENT ORDINARILY TO BE MADE IF RENT PAID AT ALLOWABLE RATE : Since the defendant has been paying rent as per terms of agreement he is entitled to be protected, from eviction. These points are accordingly decided negatively against the plaintiff.
LET US TAKE UP THE POINT NO (6) FOR DECISION WHETHER THE CASE OF BONAFIDE REQUIREMENT ITSELF IS ENOUGH FOR EVIC-TION OF TENANT.
- 22. The plaintiff has pleaded his bonafide requirement for constructing a multi storied building upon the suit premises in the 106 notice issued on 10.01.1993. Perused the said notice. In the said notice it has been specifically asserted that after acquiring full title over the suit premises, the plaintiff has undertaken a plan for construction of a multistoried building for his own use. It has further been asserted that “afn£m h¢ZÑa J Eq¡l pwmNÀ ®q¡¢ôwàul i§¢ja Ah¢ÙÛa f¤l¡ae S£ZÑ n£ZÑ Nªq¡¢c i¡¢‰u¡ Bj¡l j’m Bu hª¢Ül SeÉ avÙÛm hýam ¢h¢nø Bd¤¢eL ®c¡L¡e …q¡¢c ¢ejÑ¡el f¢lLÒfe¡ NËqe L¢lu¡RezÓ The plaintiff has got a plan approved from the Mymensingh Municipality on 15.3.1993 and that has been marked as exhibit 2. I have perused the said approved plan. It appears that the said plan has been approved for construction of a 5 (five) storied building upon the land of the suit premises. The plaintiff as Pw1 has substant-iated the said case, adducing evidence. That part of evidence has not been denied by the defen-dant. The defendant although has been found to be not a defaulter but the case of bonafide requir-ement having been proved by adducing evidence and having been established that can not be overlooked by a court of law as section 18 (e) of the premises rent control ordinance provides the provision for eviction of a tenant on the ground of bonafide requirement. Section 18 (e) of the premises Rent Control ordinance runs thus:-
18. NO ORDER FOR EJECTMENT ORDINARILY TO BE MAD IF RENT PAID AT ALLOWABLE RATE-(1) Notwithstanding anything contained in the Transfer of Property Act, 1882, or the Contract Act, 1872, no order or decree for the recovery of possession of any premises shall be made as long as the tenant pays rent to the full extent allowable by this Ordinance and perform the conditions of the tenancy:-
Provided that nothing in this sub-section shall apply:-
(a) Where the tenant has done any act contrary to the procisions of clause (m), clause (o) or clause (p) of section 108 of the Transfer of Property Act, 1882, or
(b) Where, in the absence of any contract to the contrary, the tenant has, without the consent in writing of the landlord, sublet the premises in whole or in part, or
(c) Where the tenant has been guilty of conduct which is a nuisance or any annoyance to occupiers of adjoining or neighboring premises, or
(d) Where the tenant has been using the premises or part thereof or allowing the premises or part thereof to be used for immoral or illegal purposes, or
(e) Where the premises are bonafide required by the landlord either for purposes of building or rebuilding or for his own occupation or for the occupation of any person for whose benefit the premises are held, or where the landlord can show any cause which may be deemed satisfactory by the court.
Upon perusal of the said provision it appears to me that the defendant although paid rent in full as per the terms of agreement (exhibit 1) but for the cause of bonafide requirement he is liable to be evicted. In the case of 6 BLC (A.D)-36 it has been hold that “If bonafide requirement is proved, the landlord has the option to evict any of the tenant. Accordingly this point for determination is answered in the affirmative. The defendant was liable to be evicted. The court below has failed to understood the provision of section 18 (e) of the Premises Rent Control Ordinance.
- 23. Whether the impugned judgment and decree are sustainable in law?
We have seen that the defendant is not a defaulter and has been paying rent regularly. We have also seen that the plaintiff has stepped into the shoes of his mother. The tenancy was created on 17.05.1976. In the meantime more than 35 years have passed. Multistoried buildings are being constructed in all the District town as well as in the upazilla level town. The exhibit 2 proved it beyond doubt that the plaintiff has got a plan approved for construction of a multi storied building. Section 18 (e) has provided the provision for eviction, specially for bonafide requirement. Considering the said provision of law as well as the decision reported in 6 BLC (A.D)-36 I am of the view that the impugned judgment and decree is not sustainable in law and is liable to be set-aside. The suit is liable to be decree
- 24. In the result I find merit in the Rule. Accordingly the Rule is made absolute however without any order as to cost. The S.C.C suit NO. 7 of 1996 is decreed. The defendant petitioner is directed to handover vacant possession of the suit premises in favour of the plaintiff petitioner within 30 days of receiving the record by the trial court failing which the plaintiff would be at liberty to execute the decree as per law. Record be send down.
HIGH COURT DIVISION
(Special Original Jurisdiction)
|Mr. Moyeenul Islam Chowdhury, J.
Ms. Naima Haider, J..
|Md. Mahfuzur Rahman and another.
Government of Bangladesh and others.
Constitution of Bangladesh, 1972
The petitioners have challenged the Memo cancelling their admission into Sher-e-Bangla Agricultural University directing the respond-ent Nos. 2-5 to re-admit the petitioners and they have also challenged the decision of the respo-ndent No. 4 by a further Rule Nisi.
It transpires that the earlier order dated 19-11-2008 virtually merged with the subsequent decision of the respondent No. 4 dated 27-11-2008. After considering the review applications of the petitioners, the University Syndicate undoubtedly made the decision dated 27-12-2008 for which it cannot be said that they were condemned unheard while making the decision on 27-12-2008 affirm-ing the earlier order dated 19-11-2008. The defect, irregularity and illegality affecting the order dated 19-11-2008 was cured. The petitioner rem-ained mysterious silence over the allegations of fraud and forgery levelled against them. The petitioners resorted to fraud and forgery at the time of their so-called admission to the University in collusion with some university functionaries. As the petitioners did not appear in the admission test in the academic session-2004 their names were not mentioned in the OMR sheets. The auth-ority competent to make an order has the power to undo the same. It is well settled that fraud vitiates everything. The perpetration of fraud and forgery could not be detected at the initial stage and when it was detected by the inquiry comm.-ittee, it was found that the petitioners had prosecuted their studies for some years. They cannot take advantage of their misdeeds negate-