The New Nation - Internet Edition

APPELLATE DIVISION (Civil)

Mohammad Fazlul Karim-J.

Amirul Kabir Chowdhury-J.

Md. Joynul Abedin-J.

CIVIL PETITION FOR LEAVE TO APPEAL No. 599 of 2005

(From the judgment and order dated 13th March, 2005 passed by the High Court Division in Civil Revision No. 1541 of 2001).

Md. Rezaul Ahsan

tttttPetitioner.

Vs.

Salamat Miah Wakf Estate, represented by the Mutwalli Amir Sultan Ali Haider and others

ttttt.Respondents

For the Petitioner : Mr. Mahbubey Alam, Senior Advocate, instructed by Mr. Md. Nawab Ali, Advocate-on-Record.

For Respondent

No.1 : Mr. S.M. Monir,

Advocate, instructed by Mr. Md. Aftab Hossain, Advocate-on-Record.

For Respondent No.2 : None represented.

Judgment: 3 May, 2007

Premises Rent Control Act, 1991-

Section 18-Payment of rent for three months at a time makes the tenant/defendant defaulter-

In a suit for ejectment where the defendant· paid the rents of the suit premises for 3(three) months together at a time, this shows the defendant, a monthly tenant, is a defaulter in the regular payment of rent and as such, thereby rendered himself liable to be evicted.

The defendant as well failed to prove payment of rent regularly rendering him a defaulter, inasmuch as payment of rent together for 3 months itself made the defendant a defaulter. Accordingly, the suit was decreed. The defendant No.1 is directed to vacate. the suit premises and hand over the vacant possession of the suit premises to the plaintiff within 3(three) months from the date of receipt of the order failing which the plaintiff shall execute the decree through the Court ttttt (Para 7)

JUDGMENT

MOHAMMAD FAZLUL KARIM-J:

This petition for Leave to Appeal is directed against the judgment and order dated 13.03.2005 passed by the High Court Division in Civil Revision No. 1541 of 2001 making the Rule absolute with a direction to evict the present petitioner from the 'suit premises:

2. The relevant facts of the case are that the respondents as plaintiffs filed S.C.C. Suit' No. 13 of 1996, for ejectment of monthly tenant from the suit premises alleging, inter alia, that the Salamat Mia Waqf Estate enrolled as E.C. No. 4028 with the proforma defendant No.2 and that the respondent, Amir Sultan Ali Haider was appointed Mutwalli of the said Waqf Estate and that the petitioner was inducted into the suit premises as monthly tenant through an agreement executed on 15.01.1972 at a monthly rent of Tk. 50.00 and that the petitioner runs a hotel under the name. and style M/S. "Purbarag Hotel" that the petitioner most illegally in collusion with one Khorshed Alam filed a case being House Rent Case No.264 of 1976 wherein the said Khorshed Alam was made one of the parties and thereby depositing rent in the said house rent case and that the Waqf Estate has been depriving of the benefit and that in order to remove the misunderstanding of the parties the defendant No.2 wrote a letter on 31.12.1986 to defendant No.1 directing him to pay the rent to the respondent but the defendant No.1 ignoring the said direction continued depositing rent in the aforesaid house rent case instead of paying' rent to the respondent and that the defendant No.1 having not been paying rent to the respondent as per the terms of agreement became defaulter since 1986 and is liable to be evicted being defaulter in payment of rent and that the defendant No.1 most illegally without taking consent of the plaintiff broke part of the roof of the suit premises and replaced it by affixing tin over there and opened an additional door by breaking the wall of the suit premises and sub-let the said suit premises to one Swapan Kumar and thereby the respondent was constrained to send notice under Section 106 of the Transfer of Property Act by registered post with A/D through his lawyer on 20.09.1995 determining the tenancy from 1st April, 1996 and that, by that notice the defendant No.1 was asked to hand over the vacant possession of the suit premises to the respondent on the expiry of March, 1996 failing which the defendant No.1 shall be treated as trespasser in the suit-premises from 01.04.1996· and for his illegal and unauthorised occupation he has to pay Tk. 50.00 per diem till he is evicted from the suit premises and the said notice has duly been received by the defendant No.1 who acknowledged the receipt of notice but he did not vacate the suit premises; hence the suit.

3. The defendant No.1 contested the suit by filing written statement contending that the defendant No.1 entered into the suit premises by virtue of an agreement dated 15.01.1972 at a rent of Tk.50.00 per month and that he has been running a restaurant in the name and style. "M/S. Purbarag Hotel" wherefrom he earns his livelihood having no other sources of income and, that he with the consent and within the knowledge of the plaintiff developed and decorated the premises at his own cost and that the plaintiff took Tk: 500/1000 at the time of his necessity in advance, by issuing kacha receipts against the rent and that later on, when the income tax department raised objection as to the kacha receipt, then the defendant, approached the· plaintiff to issue pucca receipt but the plaintiff did not issue any pucca receipt as the pucca receipt was not printed and went on collecting rent against kacha receipt as usual and thereby misunderstanding cropped up between the plaintiff and the defendant No.1 in respect of rent receipt and that the defendant No.1 was compelled to send rent for two months of money order. The plaintiff was not available at his residence during the time when the money order was sent and, as such, the money order was returned. Thereafter, the defendant No.1 again sent rent for the next month through money order which was also returned and that he came to know from various sources, that the plaintiff in not accepting the rent wanted to make him defaulter in order to evict the defendant No.1 from the suit prepress in order to let the suit premises out to a third party at a higher rate of rent and, as such, the defendant No. 1 was compelled to file house rent Case No.264 of 1976 in the court of House Rent Controller, Rajshahi in which the plaintiff appeared and filed written objection but lastly, remained absent from contesting the case. As a result an order was passed ex parte on 01.04.1986 and the defendant No. 1 has been continuing to deposit rent in the said case and that he is not a defaulter and did not damage the suit premises and did not let out the same to anybody else and that he has been controlling and managing the suit premises through Managers and employees and that he earned goodwill and reputation and that there were many suits and cases between the beneficiaries of the suit property and some of those went upto the highest. Court of the country and that the plaintiff on various occasions issued notices upon the defendant. No.1 through Advocate and Administrator of Waqf and threatened for evicting him from the suit premises but failed.

4. Mr. Mahbubey Alam, learned Counsel, appearing for the petitioner, submits that in the Civil Revision serious question of law was involved and legality of the claim made by the petitioner was also involved but the learned High Court Division without entering into the merit of the case passed the impugned judgment and order hence the impugned order is liable to be set aside; that the High Court Division was wrong in holding that the petitioner is a defaulter though the respondent No.1 admitted in his plaint of the S.C.C. suit and in the deposition of PW 1 of the suit, in the notice under Section 106 of the Transfer of Property Act, that the petitioner is depositing the rent in the house rent case No.264 of 1976 but despite those admissions of payment of rent the High Court wrongly held that the defendant-petitioner did not prove that he made payment of rent hence the judgment and decree of the High Court Division being tainted with legal infirmity is to be set aside. That the High Court Judge was wrong in holding that the respondent No.1 alleged to take Tk. 500-1000 from the hotel which the petitioner did not maintain by account for the amount and it was believable despite the fact the respondent No.1 in his written objection filed in the house rent case in the S.C.C No. 13 of 1996 stated that he received the rent of the premises and the High Court Division by decreeing the suit acted illegally, hence the impugned judgment and decree is liable to be set aside. That the High Court Division was wrong in holding that the petitioner changed the nature of the suit premises without permission of the landlord though the respondent stated in his cross examination in S.C C suit that the premises is a two storied building, comprising ground floor consisting of 9 shops including the suit premises and the 1st floor is a residential hotel. So there was no allegation of damaging the roof and it was not even proved by the plaintiff hence the impugned judgment and decree is liable to be set aside.

5. Lastly, Mr. Alam further submits that the petitioner sub-let the suit premises to one Mr. Dilip Kumar though later as DW-2 of the S.CC suit stated in his deposition that he and his brother Swapan Kumar are the managers of the hotel under the petitioner and accordingly, the trial Court on consideration of the evidence on record and exhibits dismissed the plaintiff's suit but the High Court Division without reversing the findings of the trial Court set aside the judgment and order of the trial Court, hence the impugned judgment and order is liable to be set aside.

6. It appears from the record that the High Court Division while reversing the findings of the. Court below was of the view that the decision of the trial Court should be interfered with as the same is against the weight of evidence on record. The High Court Division found no material on record that admittedly the petitioner in order to develop and decorate the hotel and earn more profits changed the rented premises without the permission from the landlord instead damaged the premises by breaking the part of the roof, converted it into a kitchen and let out the premises to one Swapon Kumar.

7. The defendant as well failed to prove payment of rent regularly rendering him a defaulter, inasmuch as payment of rent together for 3 months itself made the defendant a defaulter. Accordingly, the suit was decreed. The defendant No.1 is directed to vacate the suit premises and hand over the vacant possession of the suit premises to the plaintiff within 3(three) months from the date of receipt of the order failing which the plaintiff shall execute the decree through the Court.

8. In view of the above, we do not find any substance in the submissions of the learned Advocate for the petitioner.

9. Accordingly, this petition is dismissed.