In the Supreme Court of Bangladesh

High Court Division

     (Civil Revisional Jurisdiction)

Present:

Mr. J ustice Md. Lutfor Rahman Civil Revision No. 2508 of 2025

In the matter of:

Md. Abul Kalam.

...... Defendant-Petitioner.                               -Versus-

Md. Kawsar Amir Ali

      .. ....Plaintiff-Opposite party

Mr. Md. Quamrul Islam, Advocate

……. for the petitioner.

Mrs. Salina Akter, Advocate. With

Mrs. Samia Afroz Khan, Advocate

.. ....Plaintiff-Opposite party.

 Heard  on 21.10.2025, 05.11.2025, and judgment on: 23.11.2025.

Md. Lutfor Rahman, J.:

This Rule was issued calling upon the opposite party to show cause as to  why  the  judgment  and  decree  dated  24.03.2025  (decree  signed  on 24.03.2025) passed by the learned Judge, Small Cause Court, Bogura in S.S.C. Suit No. 17 of 2020 decreeing the suit filed by the plaintiff opposite party for evicting the defendant petitioner from the suit land should not be set aside and/or pass such other or further order or orders as to this Court may seem fit

and proper.

Material facts relevant for disposal of the Rule, briefly, are that the opposite-party as plaintiff filed S.C.C. Suit No. 17 of 2020 praying for evicting the defendant-petitioner from the suit premises i.e the shop described in the schedule of the plaint and also for getting back the possession of the scheduled shop alleging inter alia that the scheduled shop of District and Police station- Bogura, Mouza-Sutrapur, J.L. No. 82 Khatian No. 758, 759/1 Plot No. 1589

and 1590, Bogura Pourashava Ward No. 5, Holding No.  Aziz Mansion Market,  Shop  No.  9/1,  North  side  of  Kazi  Nazrul  Islam  Road  (Satmatha, Bogura)  along  with  other  properties  originally  belonged  to  father  of  the plaintiff.  The  plaintiff  and  other  co-sharing  owners  of  the  Aziz  Mansion Market jointly executed a Power of Attorney in favour of A.A.M. Wares Ali for maintenance of the property. The defendant (herein petitioner) took the scheduled shop on rent on 07.05.2003 and has been running his business.

Thereafter  the  owners  of  Aziz  Mansion  Market demarcated  their respective portions by an amicable settlement and the plaintiff obtained the right and title of the scheduled shop vide registered Partition deed No. 23860 dated 25.11.2011 among the co-sharers. That Wazed Ali, one of the executants of  Power  of  Attorney  died  on  18.05.2017and  for  that  the  said  power  of Attorney deed became inoperative. The plaintiff as the landlord served a notice on  28.01.2019  and  another  notice  along  with  A/D  on  02.02.2019  to  the defendant-tenant requesting him to execute a fresh deed of agreement with him but the defendant-tenant did not respond to the said notices.

On the contrary, the defendant-tenant filed H.C.R.Suit No. 15 of 2019 as plaintiff before the learned Senior Assistant Judge, 1st Court, and Small Cause Court,  Bogura  impleading  all  the  owners  of  Aziz  Mansion  Market  as defendants  after  hearing,  the  said  suit  was  dismissed  vide  order  dated 16.09.2019. Thereafter the defendant tenant preferred Mis. Appeal No.120 of

2019 before the District Judge, Bogura which was disallowed vide judgment and order dated 12.04.2022. Then the defendant-tenant filed Civil Revision No. 4025 of 2022 in the High Court Division and got a Rule which was discharged on contest on 30.05.2023 and Hon’ble High Court Division was pleased to impose a penalty/fine of Tk.50,000/- on the defendant-tenant. The defendant- tenant thereafter filed C.P. No. 3710 of 2023 before the Hon’ble Appellate Division which was also dismissed on 26.04.2024.

The plaintiff-landlord filed the instant SCC suit No. 17 of 2020 on 14.12.2020 against the defendant tenant praying for a decree of eviction of the defendant tenant from the scheduled premises of the shop and recovery of possession in his favour.

That the defendant-tenant contested the suit by filing written statement denying all material averments made in the plaint and stating inter alia that the owners of all the shops of Aziz Mansion Market executed a Power of Attorney in  favour  of  A.A.M  Wares  for  maintenance  of  the  said  property  and subsequently the said Power of Attorney holder executed a tenancy deed with him and received Tk. 1,50,000/- (one lac and fifty thousand taka) in advance on 03.09.2003.  But  from  January,  2019  the  said  Attorney  wilfully  denied  to receive rent of the said shop from him. Thereafter the defendant-tenant sent the rent money of the month of January, 2019 by Money Order through Bogura Post  Office  and  filed  H.R.C  Suit  No.  15  of  2019  in  the  Court  of  Senior Assistant Judge, 1st court and Small Cause Court, Bogura and also had been paying money vide challan in accordance with law. Subsequently the said H.R.C. Suit No. 15 of 2019 was dismissed on 16.09.2019 and thereafter the defendant-tenant preferred Miscellaneous Appeal No. 120 of 2021 before the District Judge, Bogura. The said Miscellaneous appeal was also disallowed vide judgment and order dated 12.04.202 against which the defendant-tenant preferred Civil Revision No. 4025 of 2022 before the Hon’ble High Court Division and obtained Rule and stay. The said revisional application was then pending before this Hon'ble Division for hearing and the petitioner had been paying all rents and managing his business and he is not a habitual defaulter at all and as such the suit is liable to be dismissed.

During trial 6 (Six) issues were framed which are as fallow:

1.  Whether the suit is maintainable 2. Whether the defendant is the

tenant of the plaintiff 3. Whether notice under section 106 of the Transfer of Property Act, 1882 was given 4. Whether the defendant is a habitual defaulter 5. Whether the plaintiff requires the shop for his own use 6. Whether the plaintiff is entitled to get any relief as prayed for. All these issues were decided in the affirmative on elaborate discussions.

The plaintiff landlord adduced himself as a single witness and exhibited documents as Exhibit Nos. 1-6 series. The defendant-tenant cross examined the plaintiff  but  adduced  none  as  witness.  Thereafter  on  24.03.2025,  after conclusion of the trial, the learned Judge, Small Cause Court, Bogura was pleased to pass a judgment decreeing the suit for evicting the defendant-tenant from  the  suit  property  vide  judgment  and  decree  dated  24.03.2025.  The defendant-tenant as the petitioner filed the instant Civil Revision against the judgment and decree of the trial court and obtained the Rule and the interim order of stay.

I have heard the learned advocates from both the sides, perused the civil revisional application and other materials on records.

Mr.  Md.  Quamrul  Islam,  the  learned  advocate  for  the  defendant petitioner submits that the court below without proper appreciation of the facts, law and materials on record came to the erroneous decision of decreeing the suit occasioning failure of justice.Learned counsel further submits that the defendant-petitioner is not a habitual defaulter tenant at all. That in spite of death of wazed Ali, one of the executants of Power of Attorney, the said Power of Attorney is still in force as it has not been cancelled in accordance with law. He added that AAM wares Ali, the holder of the Power of Attorney denied to receive rent of the shop in question from January,2019 and then the petitioner sent the rent money by Money Order through post office and filed H.R.C. Suit No. 15 of 2019 and had been paying rent money vide challan in accordance with law. Thus he prays for making the Rule absolute. 

Mrs.  Salina  Akter  along  with  Mrs.  Samia  Afroz  Khan,  the  learned advocate on behalf of the opposite party submits that the defendant-petitioner was a tenant under the plaintiff through a constituted attorney. The Power of Attorney  became  ineffective  since  the  death  of  Wazed  Ali,  one  of  the executants  of  the  Power  of  Attorney  on  18.05.2017.  Moreover  Power  of Attorney holder AAM Wares Ali due to old age relinquished his power on

18.01.2019 and terminated the tenancy agreement and told the defendant tenant by sending registered notice in writing on 28.01.2019 to enter into tenancy agreement directly with the owner and the said notice was received by the tenant on 29.01.2019. Thereafter the plaintiff-opposite party as the owner of the  shop  requested  the  defendant  tenant  on  02.02.2019  and  several  times onwards to enter into tenancy agreement with him afresh and to pay his arrear rents  but  the  tenant  abstained  from  making  any  response.  Thereafter  the plaintiff-landlord again sent him a notice by registered post on 19.02.2019 inviting him to execute a tenancy agreement with him within 15 days from the date of receipt of the said notice. The defendant-tenant received the said notice on 20.02.2019 and by ignoring the notice, he filed H.R.C suit No. 15 of 2019 in the court of Senior Assistant Judge, 1st court, and Small Cause Court Bogura. The said suit was dismissed on contest on 16.09.2019. In the mean time, the defendant-petitioner  became  a  defaulter  tenant.  Thereafter  the  plaintiff- opposite  party  sent  him  a  notice  on  04.11.2020  under  section  106  of  the Transfer of Property Act, 1882 to quit the suit premises which was received by him on 05.11.2020. But the tenant did not quit the suit premises and continued legal fight in that suit upto the Apex court of Bangladesh but he had been defeated at every stage.

Learned counsel submits that it was earlier found by the Hon'ble High Court Division that the defendant-petitioner is a habitual defaulter in depositing the  rent  to  the  Rent  Controller  The  Hon'ble  High  Court  Division  in  its judgment and order dated 30.05.2023 passed in Civil Revision No. 4025 of 2022 observed as hereunder:

"The Petitioner is a habitual defaulter in depositing the rent to the Rent Controller. Section 18 (5) (ka) of the Premises Rent Control Act, amongst other stipulates that no tenant shall be entitled to the benefit of section 18 unless he pays the rent within the time fixed in the contract with his landlord and section 18 (5) (Kha) stipulates that in the case provided for in section 19 he shall also not be entitled to such benefit unless he deposits rent to the Rent Controller within the time specified therein. Section 19(1) (2) (3) and (4) stipulate that the tenant can only be allowed to deposit the rent to the rent controller within 15 days from the date fixed thereunder, respectively. Since the Petitioner did not pay or deposit the rent to the Rent Controller within the said fixed time he was not allowed by law to deposit the rent at his sweet will or at any time."

Thus  it  was  decided  by  the  Hon'ble  High  Court  Division  that  the

petitioner-tenant Party is a habitual defaulter in depositing his rent within the stipulated time and accordingly the Hon’ble High Court Division discharged the  rule  issued  in  the  said  Civil  Revision  by  judgment  and  order  dated 30.05.2023.

She further submitted that the defendant-petitioner did not come before the Hon'ble High Court Division with clean hands rather he has filed the aforesaid Civil Revision to disguise his own misdeeds and to obtain undue advantage from the Hon'ble Court. It is pertinent to mention in this regard that defendant-petitioner  declined  to  enter  into  any  tenancy  agreement  with  an ulterior motive to deprive the plaintiff-opposite party of his lawful rights and that he was found a defaulter tenant by the Hon’ble High Court Division in a previous suit and as such, the instant rule is liable to be discharged.

I have heard the learned advocates for both the parties and perused the materials on records.

From  discussions  made  above,  it  appears  that  the  essence  of  the

plaintiff’s suit is that he had filed the suit for evicting the tenant form his suit property  for  three  consecutive  reasons.  The  first  reason  is  that  the  tenant declines to enter into a tenancy agreement with him, the second reason is that the tenant is a tenant at sufferance and he is a habitual defaulter, the third reason is that the landlord is in bonafide requirement of his suit premises for his own use and purpose.

The trial court properly framed necessary issues for arriving at a correct decision in respect of a suit for eviction. All the issues were decided in the affirmative in favour of the plaintiff-landlord on elaborate discussions. In Md. Fazlur  Rahman  Shah  Vs.  Md.  Arifur  Rahman  @  Badshah  reported  in  48 DLR(AD)128 and also in 1 MLR(AD)258, the Supreme Court of Bangladesh established that for a rent controller (Small Cause Court) to have jurisdiction, there must be an established landlord-tenant relationship and the tenant must be a defaulter or the premises must be required for landlords bonafide use. A legal Notice in writing under Section 106 of the Transfer of Property Act, 1882 is required to be served upon the tenant prior to file an eviction petition. In this suit,  there  is  no  dispute  regarding  the  existence  of  landlord  and  tenant relationship between the parties. Moreover, it has been established that the tenant is a habitual defaulter and that the landlord requires the premises for his bonafide use. Moreover a notice under section 106 of the Transfer of Property Act, 1882 to quit the suit premises had been served properly.

That defendant petitioner as tenant earlier instituted Rent Control Case No.15 of 2019 in the Court of Senior Assistant Judge, 1st court, and Small Cause Court Bogura against the landlord-instant opposite party. The trial court took up the case for a hearing on its maintainability and upon such hearing the trial court by the judgment and order dated 16-9-2019 dismissed the suit. Being aggrieved by the said judgment and order of the trial court, the petitioner as appellant preferred Miscellaneous Appeal No 120 of  2021 in the court of learned  District  Judge,  Bogura.  The  appellate  court  after  hearing  both  the parties dismissed the appeal and thereby affirmed the judgment and the order of trial court. The petitioner filed Civil Revision being No. 4025 of 2022 against the Judgment and order of the appellate court before the Hon'ble High Court Division and the Hon’ble High Court Division dismissed the said Civil

Revision with the finding that

 "the Petitioner is a habitual defaulter in depositing the rent to the Rent Controller. Section 18 (5) (ka) of the Premises Rent Control Act, amongst other stipulates that no tenant shall be entitled to the benefit of section 18 unless he pays the rent within the time fixed in the contract with his landlord and section 18 (5) (Kha) stipulates that in the case provided for in section 19 he shall also not be entitled to such benefit unless he deposits rent to the Rent Controller within the time specified therein. Section 19(1) (2) (3) and (4) stipulate that the tenant can only be allowed to deposit the rent to the rent controller within 15 days from the date fixed thereunder, respectively. Since the Petitioner did not pay or deposit the rent to the Rent Controller within the said fixed time he was not allowed by law to deposit the rent at his sweet will or at any time.

Thereafter  the  defendant  petitioner  filed  Civil  Petition  for  Leave  to

Appeal No. 3710 of 2023 against the judgment and order dated 30 May, 2023 passed by the Hon'ble High Court Division in Civil Revision No. 4025 of 2022 and the Hon'ble Appellate Division dismissed the Civil Petition for Leave to Appeal for default by an order dated 28.04.2024. Thus it appears that the petitioner is a habitual defaulter in depositing the rent has finally been settled in the eye of law.

It appears that the plaintiff is admittedly the owner of the Shop No. 9/1 of Aziz Mansion  Market  described  in  the  schedule  of  the  plaint.  The  defendant- petitioner took the said shop on rent in 2003 by an agreement through their agent namely AAM Wares Ali, Power of Attorney holder. The said Power of Attorney became ineffective since the death of one wajed Ali, one of the executants of the said Power of Attorney on 18.05.2017. Moreover, Power of Attorney  holder  AAM  Wares  Ali  voluntarily  relinquished  his  Power  and terminated  the  tenancy  agreement  on  18.01.2019  due  to  his  old  age  and physical infirmity and informed the defendant-petitioner of this termination by sending a registered notice in writing by post on 28.01.2019 and the said notice was received by the tenant on 29.01.2019. Thereafter the plaintiff-opposite party as the landlord (the owner of the scheduled suit premises i.e the shop) requested the defendant-petitioner, the tenant on 02.02.2019 and several times onwards to enter into a tenancy agreement with him afresh and to pay his arrear rents  but  the  defendant  petitioner  abstained  from   making  any  response.

Thereafter  the  plaintiff  again  sent  him  a  notice  by  registered  post  on 19.02.2019 inviting him to execute a tenancy agreement within 15 days and it was received on 20.02.2019 but ignored by the defendant-petitioner, rather he filed the H.R.C suit No. 15 of 2019 in the court of Senior Assistant Judge, 1st court, Bogura. The said suit was dismissed on contest and subsequently he moved upto the Apex court of the country, i.e the Hon’ble Appellate Division but he lost the suit at every stage on the finding and observation that he is a habitual defaulter in depositing the rent to the rent-controller and thus he is not entitled to the benefit of section 18 of the Premises Rent Control Act, 1991. In the meantime, the defendant–petitioner became a tenant in default and the plaintiff opposite party sent him a notice to quit the premises under section 106 of the Transfer of Property Act, 1882 by registered post on 04.11.2020 and it was received on 05.11.2020. Thereafter he filed the instant suit on 14.12.2020 for eviction of the tenant and recovery of the suit premises.

I observe that since the defendant denied or declined the invitation or request of the plaintiff-opposite party to come under the purview of his tenancy by way of executing an agreement or entering into a contract in writing, he cannot at all be said a valid tenant under the plaintiff-opposite party, let alone the habitual defaulter. The defendant-petitioner is merely a tenant at sufferance and also the tenancy itself is at sufferance. The defendant-petitioner had been a regular  tenant in the  eye  of  law  since 2003  till  18.01.2019.The  Power of Attorney initially became inoperative on 18.05.2017 with death of one of the executants  namely  Wazed  Ali  and  finally  it  became  ineffective  on  the voluntary relinquishment by AAM Wares Ali of his Power as Attorney on 18.01.2019 and serving a notice dated 28.01.2019 by registered post upon the tenant  terminating  the  tenancy  which  was  received  by  the  tenant  on 29.01.2019.   

Thereafter  the  defendant-petitioner  declined  to  execute  a  tenancy agreement afresh and became a tenant at sufferance as he has been continuing to  occupy  the  suit  premises  after  the  expiry  of  his  lease  without  a  new agreement in place and also without consent and against the wishes of the landlord. As a tenant at sufferance the defendant-petitioner after rightfully being in possession of rented premises continuing after his right has terminated such tenant has no entitlement of tenancy but only naked possession without right and stands in no privity to landlord. In spite of that the landlord is not entitled to evict the tenant at sufferance as well as a defaulter tenant without due  process  of  law  and  accordingly  the  plaintiff-opposite  party  gave  him notices times and again to execute-a-tenancy agreement with him which the defendant ignored and defied and at last the plaintiff-opposite party finding no other  alternative  issued  a  notice  of  termination  under  section  106  of  the Transfer  of  Property  Act,  1882  on  04.11.2020  in  accordance  with  law prevailing in Bangladesh. Moreover, the plaintiff-opposite party served notice to quit the suit premises under section 106 of the Transfer of Property Act, 1882  stating  that  the  defendant-petitioner  was  a  defaulter  tenant  and  also stating that the plaintiff required the suit premises i.e shop for his own use. So suit for eviction of a tenant on the ground of being habitual defaulter tenant and on the ground of bonafide requirement of the suit premises by the landlord for his own use is maintainable.  

The trial court found that plaintiff was successful in proving his case by sufficient oral  and documentary  evidence.  On  the  contrary,  the defendant- petitioner though cross-examined the plaintiff, but he did not adduce any oral or any documentary evidence and failed to prove any case in his favour.

So,  it  is  clear  from  the  abovementioned  facts  and  circumstances  that  the plaintiff-opposite party being the admitted landlord of the suit premises is entitled to the rents of the same and the defendant-petitioner by declining to enter into any agreement of tenancy with the landlord lost his entitlement as a tenant under the plaintiff since 18.01.2019, on the voluntary relinquishment of Power as Attorney of the landlord and termination of tenancy agreement on 28.01.2019 by the Power of Attorney holder. The defendant though an illegal possessor of the suit premises, he claims himself as a tenant under the plaintiff and has been found and declared as a defaulter tenant by the High Court Division in Civil Revision No. 4045 of 2022 by judgment and order dated 30.05.2023.  Moreover,  the  plaintiff-landlord  has  successfully  been  able  to prove his bonafide necessity of the suit premises for his own cause.

I am of the view that the defendant petitioner is not only a habitual defaulter tenant, but also a tenant at sufferance as well as the tenancy itself is at sufferance and thus the defendant-petitioner is not entitled to any protection of law as tenant in respect of holding over the suit premises and liable to be evicted.

For all these reasons, I find that the trial court has arrived at a correct finding and decision in decreeing the suit in favour of the plaintiff-opposite party.

Considering the facts and circumstances stated above I find no substance

in this Rule.

Accordingly, the rule is discharged without any order as to costs. 

The  judgment  and  decree  dated  24.03.2025  (decree  signed  on

24.03.2025) passed by the learned Judge, Small Cause Court, Bogura in S.S.C. Suit No. 17 of 2020 decreeing the suit filed by the plaintiff opposite party for evicting  the  defendant  petitioner  from  the  suit  premises  described  in  the schedule of the plaint is hereby affirmed and upheld.

The petitioner is directed to handover the possession of the suit premises i.e. the shop described in the schedule of the plaint along with all arrear rents, if any to the opposite party within 30 (thirty) days from the date of receipt of this order passed by this court.

The order of the stay granted earlier by this Court is hereby vacated.

 Send down the Lower Court records with a copy of the Judgment to the courts below at once.

(Md. Lutfor Rahman)

Md. Atikur Rahman, A.B.O