Nezma Khatun Chowdhury Vs. Abdul khaleque

Appellate Division Cases

(Civil)

PARTIES

Nezma Khatun Chowdhury. …………………………………Appellant

-vs-

Abdul khaleque …………………………………………….Respondent

JUSTICE

Md. Ruhul Amin J

Syed J. R.Mudassir Husain  J

JUDGEMENT DATED : 11th November 2003

Evictable tenant.

The Transfer of Property Act (IV of 1882), Section 106.

The since the respondent is not a defaulter as found by S. C. C Judge and as per approved plan (Exhibit-2) by the Sylhet Municipality for construction of the first floor over the existing ground floor of the suit shop, it is not necessary to evict the respondent form the ground floor of the suit shop. But the learned S. C. C Judge without considering the above aspect of the case erroneously held that the plaintiff has been able to prove bonafide requirement and the learned Single Judge of the High Court Division after the consideration of the case of the parties, exhibits and deposition of both the parities rightly held that the appellant failed to make out a case of requirement. He also argued that the finding of the learned Single Judge is based on proper appreciation of materials on record and as such there is no question of failure of justice (6)

Civil Appeal No. 27 of 2001

(From Judgment and Order dated 22nd July, 1999 passed by the High Court Division in Civil Revision No. 1637 of 1998)

Mahbubey Alam, Senior Advocate, instructed bv Chowdhury Md. Zahangir, Advocate-on-Record For the Appellant.

Aynuddin, Advocate, instructed by Ataur Rahman, Advocate-on-Record For the Respondent.

JUDGMENT

1. Syed J. R Mudassir Husain J:- This appeal arises out of leave granted by this Division in Civil petition for leave to Appeal No. 1302 of 1999 against the judgment and order dated 22-7-1999 passed by a Single Bench of the High Court Division in Civil Revision No. 1637 of 1998.

2. The case of the appellant was that the respondent is an evictable tenant under her (appellant) in respect of the suit shop at a rental of Tk. 700/- per month; that the appellant decided to construct a building after demolishing the shop in existence and obtained necessary permission from Sylher Pourashava and for which, she requested the respondent to vacate the suit premises through her constituted attorney after paying rent of December 1990 but this was not complied with, rather the respondent was depositing the rent in the account of the appellant’s son Md. Ehtesham Ahmed Chowdhury in Pubali Bank, Mohila College Branch, Sylhet with bad motive. It was further alleged by her that the respondent is a defaulter as he did not pay the rent of December, 1990. It was also alleged that the respondent demolished the pucca wall of the suit shop illegally and without her permission and amalgamated the suit shop with the shop adjacent to west of the suit shop which caused loses of TK. 10,000/Upon all these allegations, the appellant issued notice under Section 106 of the Transfer of Property Act for terminating the tenancy but despite of such notice the respondent did not vacate the possession of the suit shop. Hence the suit was filed.

3. The respondent as defendant contested the suit by filing written statement and denied all the material allegations made in the plaint. His case was that the suit is not maintainable in its present form, barred by limitation and the respondent is not a defaulter, that the plea of bonafide requirement by the appellant is false and malafide and the suit is also bad for defect of parties as his brother Abdul Quddus though a necessary party was not made party in the suit. It was further contended that the notice under Section 106 of the said Act is defective. The whole case of the respondent is that the suit shop originally belonged to Al haj Sirajul Islam Chowdhury, the father of present appellant under whom the respondent was a tenant since long before, that the respondent and his brother Abdul Quddus a former tenant and subsequently owner by purchase of another shop adjacent to suit shop in the year 1962 with prior consent of the then landlord removed the partition wall and started joint business in hte name and style “Motimohol” and has been continuing their business there in, that the original landlord Al-haj Sirajul Islam Chowdhury and the present respondent executed a joint Ekrarnama on 19-04-1968, that as per terms of the Ekrarnama the respondent took settlement of a piece of and land measuring 10’x 3′ adjacent to the south of the suit shop from Sylher Pourashava and amalgamated the same with the suit shop at his own cost and increased the area of the shop and has been continuing the business as a tenant under Al-haj Sirajul Islam Chowdhury, that during liberation war of 1971, the suit shop was destroyed and the respondent and his brother jointly rebuilt the suit shop with three storied foundation after taking necessary permission from Sylher Pourashava and with full consent of the then landlord and as such there is no necessity of rebuilding of the suit shop, that initially the rent of the suit shop was TK. 50/- and ultimately it was increased TK. 700/- per month that the deposit of the respondent in Pubali Bank, Mohila Branch Sylhet was under written instruction of the owner through her son and constituted attorney Ehtesham Ahmed Cowdhury and rent was paid up to December 1991, that subsequently on the refusal to received the rent by the appellant the respondent had to file rent deposit case No. 27 of 1991 and has been depositing rent in the Rent Case; that in 1992 with the consent of the then landlord Haji Sirajul Islam Chowdhury, the respondent and his. brother amalgamated both the shops after removing the partition wall and has been running the business and as such question of demolition of partition wall in 1990 does not arise, that the respondent also filed an additional written statement and stated that the present appellant though claiming that she became owner by way of gift from his father but deed of gift does not attract the suit shop and as such the S. C. C Suit is liable to be dismissed.

4. Upon hearing the parties, the learned Assistant judge decreed the suit on 29-051994 against which the defendant respondent moved the High Court Division in revision by Civil Revision No. 1637 of 1998 and the Rule issued thereupon was made absolute by reversing the judgment and decree of the S. C. C Judge.

5. Mr. Mahbubey Alam, the learned Advocate appearing for the appellant, after placing all the relevant papers, contended that while decreeing the suit for ejectment on the ground of bonafide requirement, the learned S. C. C Judge having considered oral evidence of Pw.l and the plan approved by the Municipality (Exhibit-2), the High Court Division committed an error in reversing the judgment of the learned S. C. C Judge holding that no ground of bonafide requirement was made by the plaintiff.

6. Mr. Aynuddin, the learned Advocate appearing for the respondent in support of the Judgment of the High Court Division, contended that the since the respondent is not a defaulter as found by S. C. C Judge and as per approved plan (Exhibit-2) by the Sylhet Municipality for construction of the first floor over the existing ground floor of the suit shop, it is not necessary to evict the respondent form the ground floor of the suit shop. But the learned S. C. C Judge without considering the above aspect of the case erroneously held that the plaintiff has been able to prove bonafide requirement and the learned Single Judge of the High Court Division after the consideration of the case of the parties, exhibits and deposition of both the parities rightly held that the appellant failed to make out a case of requirement. He also argued that the finding of the learned Single Judge is based on proper appreciation of materials on record and as such there is no question of failure of justice.

7. We have heard the learned Counsel of both sides and considered their submissions. On perusal of the records and facts and circumstances of the case, we are of the view that the learned Single Judge of High Court Division rightly decided the case and we find no cogent ground to take a different view. We are fully in agreement with the findings and decisions of the learned Single Judge of the High Court Division. For the reasons, we find no merit in the appeal. Accordingly this appeal is dismissed with costs.

Ed

Source : III ADC (2006), 143.

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