Md. Chand Miah Vs. Md. Khademul Islam, (Md. Moinul Islam Chowdhury, J.)

Case No: Civil Revision No. 637 of 2016

Judge: Md. Moinul Islam Chowdhury, J

Court: High Court Division,

Advocate: Ms. Rona Nahrin, Advocate, Mr. Md. Fazlur Rahman Khan, and Mr. Md. Dawood Khan Zubair, Advocates,

Citation: 2019(1) LNJ

Case Year: 2017

Appellant: Md. Chand Miah

Respondent: Md. Khademul Islam

Subject: Premises Rent Control Act

Delivery Date: 2019-11-26

HIGH COURT DIVISION

(CIVIL REVISIONAL JURISDICTION)

Md. Moinul Islam Chowdhury, J

 

Judgment on

28.11.2017

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Md. Chand Miah

. . Defendant-Appellant-Petitioner

-Versus-

Md. Khademul Islam

. . . Plaintiff-Respondent-Opposite party

Premises Rent Control Act (III of 1991)

Section 15(5)

The present-flat owner-opposite party has a legal right to evict the tenant on expiry of a valid agreement and to get property back. In the instant case, I have seen  from the notices served to the present-opposite party explaining the personnel necessity of the flat on the ground of academic purpose of real personnel necessity of the Flat but the present-petitioner being define tenant continued to remain in possession without paying rent to the present-plaintiff-opposite party which is not acceptable to this Court and conduct of such kind of tenant should be dealt with an appropriate measurement of action by way of paying compensation and loss suffered by the landlord. The attitude shown by the present-petitioner as a tenant is an arrogant and not permissible under the provision of Premises Rent Control Act, 1991. In view of provisions of section 18(5) of Premises Rent Control Act, 1991 and terms of the agreement the present-defendant-petitioner has been an illegal occupant as being a defaulter of rent as well as the utility bills for certain period of time who is under an obligation to pay the arrear rent and bills upto the satisfaction of the present-plaintiff-opposite party.  The petitioner was directed to vacate the premises after paying rent upto February, 2018. . . . (15, 16, 22 and 23)

Ms. Rona Nahrin, Advocate

. . . For the Petitioner

Mr. Md. Fazlur Rahman Khan, and

Mr. Md. Dawood Khan Zubair, Advocates

. . . For the Opposite Party

JUDGMENT

Md. Moinul Islam Chowdhury, J:  At the instance of the defendant-appellant-petitioner, Md. Chand Miah, this Rule has been issued calling upon the opposite-party to show cause as to why the impugned judgment and decree dated 01.12.2015 passed by the learned Additional District Judge, 6th court, Dhaka in Title Appeal No.70 of 2015 dismissing the appeal thereby affirming the judgment and decree dated 11.01.2015 passed by the learned Senior Assistant Judge, 2nd court, Dhaka in Title Suit No.230 of 2011should not be set aside.

2.             The relevant facts for disposal of this Rule, inter-alia, are that the present-opposite party as the plaintiff filed the Title Suit No.230 of 2011 before the learned Senior Assistant Judge, court No.2, Dhaka for evicting the monthly tenant from the schedule flats and for claiming the arrear of the rents. The plaint case is that the present-plaintiff-opposite party Md. Khademul Islam was the owner of the suit flats mentioned in the schedule described in the plaint. A monthly tenancy agreement was executed on 01.09.2003 for the tenure of five years i.e. up to 31.08.2008 between the present-opposite party and the petitioner. The said agreement was renewed and extended for further two years i.e. up to 31.08.2010 the tenancy agreement was renewed by the mutual agreement but the present-plaintiff-opposite party required the flats for his own necessity, as such, the monthly tenancy agreement was not renewed after August, 2010, thereafter, the plaintiff served a legal notice to the present-defendant-petitioner under Section 106 of the Transfer of Property Act on 02.03.2011which the defendant denied. 

3.             The present-petitioner as the defendant contested the suit by filing a written statement contending, inter-alia, that he has been a monthly tenant under the present-plaintiff-opposite party initially from September 2001 to August, 2010. The plaintiff ensured the defendant by oral commitment for renewal from September 2010 to December 2016 at the monthly rent of Tk.18,250/- with two yearly increase of 5% but the tenancy agreement was not renewed despite the assurance. He received a notice served by the present-plaintiff-opposite party under Section 106 of the transfer of property Act on 03.03.2011 which he also responded. The respondent sent the rent to the plaintiff on 07.04.2011 through a postal money order which the present-plaintiff-opposite party did not receive, therefore, he filed Rent Control case No.83 of 2011 (renumbered as 98 of 2011) and he has been paying rent through court. 

4.             After hearing the parties the learned trial court decreed the suit in favour of the present-plaintiff-opposite party after considering the evidence produced by the respective parties by his judgment and decree dated 11.01.2015. Being aggrieved the present-petitioner as the appellant preferred the Title Appeal No.70 of 2015 in the court of the learned District Judge, Dhaka, which was heard by the learned Additional District Judge, 6th court, Dhaka on transfer, who by his judgment and decree dated 01.12.2015 dismissed the appeal and thereby affirming the judgment of the trial court. This revisional application has been filed under Section 115(1) of the Code of Civil Procedure challenging the legality of the said impugned judgment and decree passed by the learned appellate court and the present Rule has been issued thereupon.

5.             Ms. Rona Nahrin, the learned Advocate appearing for the petitioner submits that admittedly the petitioner is not a defaulter and he has been paying the monthly rent of the suit premises through court in the House Rent Suit No.83 of 2011 but in this regard the learned trial court did not consider that admitted fact need not be proved and gave a wrong finding that “but in support of the above contention defendant has been hopelessly failed to adduce any oral or documentary evidence” and in this regard the learned appellate court arrived at a wrong finding thereby, both the courts below committed illegality in decreeing the suit of the plaintiff which caused occasioning failure of justice and the same are liable to be set aside. 

6.             The learned Advocate also submits that the learned trial court and also the learned appellate court did not consider that bonafide requirement of the landlord which must be proved by evidence and thereby the learned courts below committed an error of law resulting in an error occasioning failure of justice and the Rule is liable to be made absolute. 

7.             The Rule has been opposed by the present-opposite party by filing a counter-affidavit contending, inter-alia, that the defendant-appellant did not show any respect to the notice for vacating the flat rather illegally staying in the flat by force taking the advantage of the plaintiff legal step, thereafter, the defendant by complete breach of agreement and showing complete disrespect to law as well as to the plaintiff continuing his illegal occupation in the flat till today.      

8.             Mr. Md. Fazlur Rahman Khan, the learned Advocate appearing along with Mr. Md. Dewan Khan Zubair for the opposite party, submits that the learned trial court after hearing the parties and considering the material evidence both documentary and oral by a deposition came to a lawful conclusion to decree the suit in favour of the flat owner, the plaintiff-opposite party, and the learned appellate court concurrently found in favour of the present-opposite party by dismissing the appeal preferred by the present-petitioner by affirming the judgment of the learned trial court but the present-petitioner obtained this Rule by misleading the court, therefore, this Rule should be discharged.

9.             The learned Advocate further submits that under the provision of the Premises Rent Control Act, 1991 a flat owner has right not to extent any tenure of a monthly tenancy agreement and also to ask the tenant to vacate the rented property on requirement for any real necessity, therefore, a required notice was served upon the tenant under Section 106 of the Transfer of the Property Act on the ground of a real necessity of the plaintiff-opposite party which the present-defendant-petitioner refused and remained as the illegal possessor of the flat in order to cause financial loss and mental suffering for the opposite party, as such, this Rule is liable to be discharged.   

10.         Considering the above submissions made by the learned Advocates appearing for the respective parties and also considering the revisional application filed under Section 115(1) of the Code of Civil Procedure along with Annexures therein, in particular, the impugned judgment and decree passed by the appellate court and also considering the counter-affidavit filed by the present-opposite party and also after perusal of the materials in the lower court records,  it appears to me that the present-opposite party as the plaintiff filed a title suit for evicting the monthly tenant under Section 106 of the Transfer of Property Act, which the present-petitioner contested the suit by filing a written statement.

11.         There are some admitted position between the parties which are that there was an agreement of tenancy for letting out the property known as Flat Nos.5-A and 5-B (4th floor) of “Apan Nibash” Ka-31, Police Station-Gulshan, District-Dhaka. The initial monthly tenancy agreement was for the tenure of five years beginning from September 01, 2003 to August 31st, 2004; 2nd tenancy agreement was executed from September 2004 to August, 2006; 3rd tenancy agreement was executed for September, 2006 to August, 2008; and lastly the said tenancy agreement was extended by mutual agreement for the tenure 1st  September, 2008 to August 31st, 2010 and these documents have been exhibited as Exhibits-1(Ka), 1(Kha), and 1(Ga) respectively. The another admitted position is that there was no tenancy agreement by and between the parties after August, 2010 for letting out the said two flats by the present-opposite party to the present-petitioner.

12.         However, there are some disputes between the parties which are that the present-plaintiff-petitioner claimed that some legal notices were served under Section 106 of the Transfer of Property Act for eviction to the present-tenant-petitioner and the petitioner refused to vacate the property as per the said notices. The present-petitioner received the said notices but remained in the property by paying rent, firstly, through postal money order, thereafter, through a court pursuant to the Rent Control Case No.83 of 2011 in the court of the learned Assistant Judge, court No.1 and the Rent Control, Dhaka.

13.         Now in view of the above situation, this Court has to take a decision whether the tenant has right to continue in the rented house while the flat owner-opposite party served a notice under Section 106 of the Transfer of Property Act can remain in possession or he is under an obligation to vacate the property. In order to another these questions, I have carefully examined the documents, in particular, of the agreements made by and between the parties for letting out the flats mentioned above which have been exhibited in this case. All these agreements have been headed by writing “j¡¢mL J E®­µRc­®k¡NÉ i¡s¡¢Vu¡l Q¥¢J²fH” and the said tenancy agreements contain Clause-12 and Clause-16, which read as follows:

12. Q¥¢J²l ®ju¡c EJ£Ñe qCh¡l f§®­hÑC ¢àa£u fr-i¡s¡¢Vu¡, i¡s¡L«a gÓÉ¡V R¡¢su¡ ¢c­®a CµR¤L qq~­®m j¡¢mL fr®­L 2(c¤C) j¡­®pl ANË£j ®e¡¢Vn fËc¡e L¢l­®a qC­®hz Ae¤l¦f i¡­®h j¡¢mL fËbj frJ i¡s¡ Q¥¢J²l ®ju¡c EJ£Ñe qCh¡l f§­®hÑC k¢c i¡s¡¢Vu¡­®L EW¡C­®a Q¡­®qe a®­h 2(c¤C) j¡­®pl ANË£j ®e¡¢Vn fËc¡e L¢l­®a qC­®hz

17. ¢àa£u fr-i¡s¡¢Vu¡, AH Q¥¢J²l naÑ ®j¡a¡­®hL j¡¢pL i¡s¡, ¢hc¤Év ¢hm, NÉ¡p ¢hm Hhw f¡¢el ¢hm ¢eu¢ja f¢l­®n¡d e¡ L¢l­®m ¢Lwh¡ Q¥¢J²f­®Hl ®L¡e HL¢V naÑ iwN Ll­®m j¡¢mL J i¡s¡¢Vu¡l pÇfLÑ ¢Ræ qCu¡­®R d¢l­®a qC­®h Hhw ¢àa£u fr i¡s¡L«a h¡s£ qC­®a E­®µRc qC­®hez

14.         From the above two Clauses in the tenancy agreement, it appears that the flats were subject to eviction upon two months notices either on service of notice prior to and\or in violation of any terms and conditions. In the instant case a notice was served by the flat owner-opposite party for vacating the property on 05.06.2008 Exhibit-3 and also on 14.02.2011 Exhibit-4 and lastly on 02.03.2011 Exhibit-5. Even after receiving the some notices by the present-petitioner he did not vacate the flat and handed over same to the plaintiff-opposite party instead filed a Rent Control Case No.83 of 2011 and started to pay rent through court instead of paying rent to the flat owner-opposite party and also failed to pay electric bill, gas bill, building service charges and water bills after the expiry of the monthly tenancy agreement.

15.         I am of the view that the present-flat owner-opposite party has a legal right to evict the tenant on expiry of a valid agreement and to get property back. In the instant case, I have seen  from the notices served to the present-opposite party explaining the personnel necessity of the flat on the ground of academic purpose of real personnel necessity of the Flat but the present-petitioner being define tenant continued to remain in possession without pay rent to the present-plaintiff-opposite party which is not acceptable to this Court and conduct of such kind of tenant should be dealt with an appropriate measurement of action by way of paying compensation and loss suffered by the landlord. The attitude shown by the present-petitioner as a tenant is an arrogant and not permissible under the provision of Premises Rent Control Act, 1991, Section 18(5) of the said Act contains the following provision:- 

“(5) No tenant shall be entitled to the benefit of this section in respect of any premises unless he pays the rent  due by him in respect of such premises to the full extent  allowable by this Ordinance within the time fixed in the contract with his landlord or, in the absence of such contract, by the fifteenth day of the month next following that for which the rent is payable, or in the cases provided for in section 19, unless the tenant has deposited such rent or any subsequent rent in respect of such premises as provided in that section together with, in the case mentioned in sub-section (1)(b) of that section, the cost of transmission referred to in that sub-section within the time specified in that section.”

16.         In view of the above provisions and the terms of the agreement the present-defendant-petitioner has been an illegal occupant as being a defaulter of rent as well as the utility bills for certain period of time who is under an obligation to pay the arrear rent and bills upto the satisfaction of the present-plaintiff-opposite party. 

17.         Now, I am inclined to consider the judgment and decree passed by the courts below. The learned trial court came to a lawful conclusion  to decree the suit in favour of the plaintiff-opposite party on the basis of the following findings:-

“So, in the glow of above discussion of evidences on record both oral and documentary adduced by both sides to this suit I am constrained to come to a judicial conclusion that the plaintiff has been succeeded to prove the instant suit as such plaintiff is entitled to get decree as prayed for.”

18.         The learned appellate court also came to a concurrent finding in favour of the present-plaintiff-opposite party by dismissing the appeal against the present-petitioner on the basis of the following finding:

“Moreover, the appellant could also have adduced evidence at appellate stage, but he did not take any step to that end. As such, I have reason to believe that the appellant had never wanted to avail the opportunities to contest the suit by adducing evidence and hence, he is not in as position to argue that he was deprive of the opportunity defending his written statement.”

19.         In view of the above discussions and after examining the judgment and decree passed by the courts below concurrently finding against the present-defendant-petitioner committed no error of law and there is no misreading or non consideration on the part of the learned courts below. I am, therefore, not inclined to interfere into the impugned judgment and decree passed by the learned appellate court.

20.         Accordingly, I do not find merit in the Rule.

21.         In the result, the Rule is discharged.

22.         The present-defendant-petitioner namely, Md. Chand Miah son of late Adel Uddin Hawlader is hereby directed to vacate the premises of Apan Nibash, Flat Nos.5/A and 5/B, Police Station-Gulshan, District- Dhaka by 28th February, 2018 after handing over the possession in a rentable condition to the present-plaintiff-opposite party Md. Khademul Islam son of late Abdul Aziz.

23.         The present-defendant-petitioner is also directed to pay the rent upto February, 2018 and the present-plaintiff-opposite party is hereby directed to withdraw the rent deposited in the Rent Control Case No.83 of 2011 renumbered



Civil Revision No. 637 of 2016