Decreeing judgment in a suit for eviction of tenants
In the Court of Small Causes, Rajshahi
Present:
-, Senior Assistant Judge, Rajshahi
Tuesday,
09 November 2021
Small Causes Suit No. 01/2020
Mst. Nurun Nahar, Plaintiff Versus Mr. Shahana Ahmed, Defendant
The
suit coming on trial ended and arguments were heard.
In the presence of
Mr........………….……....……Learned
Advocate for the Plaintiff.
Mr..................................….Learned Advocate for the Defendant.
And having stood for consideration to this day, the Court delivered the following judgment: This is a small-causes-suit instituted with a prayer for the eviction of the tenant from the suit shop house scheduled to the plaint.
The Plaintiffs’ Plaint in
the nutshell:
The shophouse in question along with the
Prachi boarding once belonged to one Karimon Nesa. There was a sports shop
belonging to the defendant, just adjacent to the show house in question. On the
spur of urgency for repairing the defendant's sports shop, the defendant
executed a tenancy agreement with Karimon Nesa that the defendant would be
paying at the rate of 1500 Taka per month to Karimon Nesa for the time
beginning from January to December in 1995. Due to the incompleteness of
reparation work, the defendant executed another tenancy agreement 0n 01.01.1996
with Karimon Nesa for 6 months beginning from January to June with one installment
payment of Taka 9000. Karimon Nesa left for America after executing a deed named
“power of attorney” in favor of his son Nazmul Ahsan in order to collect
monthly house rent from the defendant. After the expiry of the six months of
the execution of the agreement between the defendant and Karimon Nesa, neither
the tenancy agreement was renewed, nor did the defendant evacuate the shophouse
in favor of Nazmul Ahasan.
After returning from America, Karimon
Nesa transferred his ownership and title to the shophouse through deed No. 402
executed on 19/ 01/2000 in favor of his elder son Nazmul Ahasan. Although
other tenants regularly keep paying monthly house rent to Nazmul Ahsan, the
defendant neither paid his house rent nor renewed his tenancy agreement.
Instead, the defendant instituted suit the other class suit No. 96/2002 and a suit
for permanent injunction No. 125/2001 against the plaintiff; but both suits
resulted in dismissal.
Later on, Nazmul Hasan transferred his shophouse through a sale deed No. 8273 executed on 07/08/2004 in favor of the plaintiff. The plaintiff then served legal notice under section 106 of the Transfer of Property Act on 23/11/2004 to the defendant with the direction to evacuate the shophouse. Although the legal notice was duly served upon the defendant, the defendant did not comply with the direction given by the plaintiff by his legal notice. The plaintiff contended that the defendant disregarded the stipulation of the tenancy agreement and that's why, he become a defaulter in tenancy, and hence the suit.
The Written
Statement in Brief:
On the other hand, Defendant
contested the suit by filing a written statement denying the material
averments made in the plaint. He contended, inter
alia, that the Plaintiff lacks in locus
standi, the impugned facts are fabricated and fraudulent, and the very suit
is legally untenable, unjustifiable; and dismissible for the cloudy cause of
actions.
Defendant stated that the shophouse in question is a two-story building, a part of which
is the disputed shophouse. The defendant executed a tenancy agreement with the
house proprietor Karimon Nesa and thus, the defendant started dealing in that
Shophouse. In 1996, another tenancy agreement was executed with the house
proprietor Karimon Nesa, who took up house rent at a time from the dependent. After
departing to America, Karimon Nesa orally empowered one Fokrul Hansan for collecting
the rent house from the dependent for the shophouse in question. Fokrul Hansan
collected rent house from the defendant at times, but no written receipt was
exchanged between them. Defendant paid all his house rent in good faith and
took no receipt therefor.
The defendant claims that there was also an
increment in house rent in an oral composition with Fokrul Hansan. Once the defendant
went to the house of Fakrul Hasan in order for paying house rent on 05/01/2002,
but he was found absent at his home and nobody could tell about his whereabouts.
As a result, in order to avoid legal consequences, the dependant started paying
house rent through Postal Services in favor of the address of Fokrul
Hansan's adobe. In the event of the return of the sent money from the Postal
Service, the defendant instituted a rent control suit No. 06/2002 for paying
house rent. Likewise, from the very inception of the tenancy, he has been paying
the required house rent for the shophouse in question. Hence, the plaintiff is
not entitled to get any reliefs as prayed for and the suit is liable to be
dismissed.
Issues:
Considering the parties’ pleadings, the issues are framed with
modifications for discussion in the following way:
1.
Whether the suit is
maintainable in the present form and manner.
2.
Whether there was a tenancy
between the plaintiff and the defendant in relation to the property in
question.
3. Whether the plaintiff is entitled to get remedy as prayed for.
Discussions and Decisions
In proof of the claims, Plaintiff examined herself as PW. 01 and produced documentary shreds of evidence marked as Exhibit No. 01-21. On the other side, Defendant examined himself as DW 01 but produced no documentary evidence.
Issue
No. 01-03:
All issues are taken together for the pertinence and convenience in advancing discussions and making decisions on the issues framed hereinbefore. The plaintiff filed the suit before this small causes-court having competent jurisdiction; and paid proper court fees. The suit is instituted with a prayer for evicting the defendant as a tenant from the shophouse scheduled to the plaint. Section 18 of the 1991 Premises Rent Control Act (hereinafter, PRCA) is available to the landlord for filing a suit for eviction. However, a landlord must serve a notice under Section 106 of the TPA before filing a suit for eviction. Lease of immovable property is created under Section 105 of the TPA and as such, statutory notice must be given under Section 106 of the TPA for termination of tenancy. Exhibit No. 12-15 envisages that the plaintiff served a notice upon the defendant under Section 106 of the TPA before filing this suit for eviction. Since there appear no contrary materials to the aforesaid premise, the suit is found to be maintainable in the current form and manner. Hence, issue No. 01 is settled in the plaintiff’s favor.
02. On perusal of the materials available on record, it appears that the plaintiff claims that the shophouse in question once belonged to one Karimon Nesa, with whom the defendant executed a tenancy agreement with stipulation for paying at the rate of TK. 1500 Taka per month to Karimon Nesa for the time beginning from January to December in 1995 [ext: 16]. Another tenancy agreement was also executed 0n 01.01.1996 with Karimon Nesa for another 6 months beginning from January to June with one installment payment of Taka 9000. As DW-01, the defendant asserted explaining backgrounds that Karimon Nesa was the shop house proprietor, and he executed a tenancy agreement with her and started paying house rent to her. So, the defendant’s relation to the suit premises is admittedly “tenancy”.
03. Now question arises whether the defendant is a defaulter or not. In deciding whether the defendant is a defaulter, it is pertinent to decide to whom the defendant was liable to pay rents for premises. The plaintiff claims as PW-01 that Karimon Nesa transferred his ownership and title [ext: 01-03] to the shophouse through deed No. 402/2000 to his elder son Nazmul Ahasan [ext: 04]. Nazmul Ahsan, Nazmul Hasan then transferred the suit premises through a sale deed No. 8273/2004 Kamrul Ahsan [ext: 05]. Kamrul Ahsan again conveyed the suit premises to the plaintiff via 4819/06 [ext: 08]. In cross-examination, the DW-01 just asserted that he does not know anything about it. On perusal of the materials on record, it appears that all these transferees are from the cognate family. Consequently, the tenant defendant was in most possibility presumed to be known to the devolution of rights and interests to the landlords who were or are entitled to receive rents from them. However, it is made clear that no question of title to the premises is being decided in this small causes-court.
04. On the other hand, the plaintiff makes rejoinders in his evidence [PW-01] in ways that unlike other tenants regularly paying monthly house rent to Nazmul Ahsan and thereafter her, the defendant neither paid his house rent nor renewed his tenancy agreement to date from June of 1996, despite the expiry of the tenancy agreement. As a result, the plaintiff then served legal notice under section 106 of the Transfer of Property Act on 23/11/2004 to the defendant with the direction to evacuate the shophouse. Instead, as she (plaintiff) claims that the defendant instituted suit the other class suit No. 96/2002 and a suit for permanent injunction No. 125/2001 against the plaintiff; but both suits resulted in dismissal. However, it is surprising that the defendant submitted no documentary proof of his payment of rents for the premises in question before the court. Instead, he appears to just claim in his oral evidence that he has been paying rents without any default. Although the defendant claims that a suit No. 06/2002 is instituted by him to pay the rents for the premises in question when he was not able to find the true owner at his usual home address. But, no best evidence is led by the defendant in this regard. Accordingly, the court is of opinion that the burden of proof is not discharged by the defendant on his part.
The legal position is that once a defaulter is always a defaulter; and also, no defaulter can retain in possession against the true owners. It is also the considering elements that if a landlord is to ensure eviction of the tenant, then the landlord must have additional reasons for eviction apart from the expiry of the period of the lease and those reasons must fall within any of the grounds listed by Section 18(1) of the PRCA. In our case, non-continuation of rent payments to the plaintiff landlord and the expiry of the period of the tenancy agreement act as mischief to the aforesaid provisions. In consideration of the materials on record, it is decided that there was a tenancy between the plaintiff and the defendant concerning the property in question, and thus, the issues Nos. 02 and 03 also are decided in the plaintiff’s favor. It is, therefore, held that the plaintiff is entitled to get the relief as prayed for. Accordingly, in the light of the discussions and decisions and the consideration of pleadings, facts, surrounding circumstances, evidence both oral and documentary on record as well as relevant laws, the court is of view that the suit deserves to be decreed on the contest.
Court fee paid is sufficient.
Hence, it is ordered that the suit be decreed on the contest against Defendant with costs. The defendant is hereby ordered to evacuate the premises scheduled to the plaint in favor of the plaintiff within 60 days from the date. In default, the plaintiff may take steps through the court as per the laws.