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1995 DIGILAW 41 (GAU)

Gouranga Chandra Saha v. Rajendra Chanra Paul

1995-02-14

N.G.DAS

body1995
This second appeal is directed against the judgment and decree of learned Additional District Judge, West Tripura, Agartala dated 7th of April, 1993 affirming the judgment and decree that were passed by the learned Munsiff Khowai, West Tripura in Tittle Suit No. 13 of 1988. 2. I have heard Mr. AK Bhowmik, the learned senior counsel appearing on behalf of the appellant and Mr. MK Dutta, the learned counsel appearing on behalf of the respondents. 3. To appreciate the contentions canvassed at the Bar by learned counsel of the parties, the facts relevant for the purpose may be stated as under. 4. The appellant herein took lease of a shop premises for a period of 3 years under a registered deed of agreement with effect from 1st day of Baisakh, 1392 BS to last day of Chaitra, 1394 BS at a rental of Rs.290/- per mensem. As per the lease deed dated 17.9.85 the appellant was to vacate the suit premises after 30th day of Chaitra, 1394 BS but the appellant did not vacate the suit premises in spite of the repeated approach by the respondent-landlord after expiry of the term of lease. The respondent, therefore, sent a notice to the appellant through his counsel asking Him to vacate the suit premise's but the appellant turned a deaf ear to that notice. The respondent, therefore, filed the suit for evietipn of the appellant from the suit premises and also for a decree of compensation. 5. The appellant, herein resisted the suit by filing a written statement contending, inter alia, that as per the agreement time was not the essence of the agreement and that the appellant was not bound to vacate the suit premises by effluxion of time. The further contention of the appellant was that by utilising the suit premises he was earning his livelihood and hence he would be thrown to starvation if he was evicted therefrom. It was also averred that the plaintiff had no bonafide need for occupation of the suit premises. 6. Upon the pleadings, learned trial Court framed 7 issues for determination of the suit. Both the parties adduced evidence and after evaluation of the evidence that was adduced by the parties, learned trial Court decreed the suit. The present appellant filed an appeal before the learned District Judge, West Tripura, Agartala? 6. Upon the pleadings, learned trial Court framed 7 issues for determination of the suit. Both the parties adduced evidence and after evaluation of the evidence that was adduced by the parties, learned trial Court decreed the suit. The present appellant filed an appeal before the learned District Judge, West Tripura, Agartala? ' Learned Additional District Judge who heard the appeal also dismissed the appeal and hence this second appeal. 7. The first point of criticism advanced by Mr.AK Bhowmik, the learned senior counsel appearing on behalf of the appellant is that although time was not the essence of the agreement, the Courts below did not attach any importance to that aspect of the case and made the finding against the appellant. Mr. Bhowmik took me to the agreement and has quite strenuously argued that the recitals of the agreement would show that there was a clause that the appellant would be bound to vacate the suit premises when the respondent would be in need of that premises. But on perusal of the conditions, particularly the condition laid down under item No.3,1 find that it was specifically stated and it was made a condition that the appellant would vacate the suit premises after expiry of the period of lease, i.e. after 30th day of Chaitra, 1394 BS. I am, therefore, unable to agree with the submission of Mr. Bhowmik that the respondent failed to comply with these provisions of the agreement. 8. The next point which has been urged before, me by Mr. Bhowmik is that the notice which was served upon the appellant was not in accordance with the law inasmuch as that notice is an invalid one in the eye of law. But Mr. Dutta, the learned counsel appearing on behalf of the respondent has repelled that contention by making a reference to section 111 of the TP Act wherein it will be found that a lease of immovable property is determined by efflux of the time limited thereby. In the instant case there cannot be any sort of controversy that as per the condition laid down under the agreement dated 17.9.85 the appellant was bound to vacate the suit premises after expiry of the period of lease. Admittedly the lease was for a period of 2 years. In the instant case there cannot be any sort of controversy that as per the condition laid down under the agreement dated 17.9.85 the appellant was bound to vacate the suit premises after expiry of the period of lease. Admittedly the lease was for a period of 2 years. In this context the decision of the Apex Court rendered in the case of Firm Sardari Lal Vishwa Nath & others vs. Pritam Singh, reported in AIR 1978 SC, 1518 may be referred to. Thfc Apex Court under para 1 of the judgment observed as under : "A statutory tenant is not entitled to notice as envisaged by S. 106 of the TP Act before an action in ejectment is commenced against him under any of the enabling provisions of the relevant Rent Restriction Act...... Where the lease determines by efflux of time and the tenant continues in possession under the protection of the Rent Restriction Act he acquires a status of irremovability unless there is something to show that he is a tenant holding over......" In the instant case it is an admitted fact that the Tripura Building (Lease and Rent Control) Act is not applicable to Khowai Sob-Division and as already stated a perusal of the agreement will clearly show that there was a specific stipulation that the appellant would, vacate the suit premises after expiry of the period of lease i.e. after 30th day of Chaitra, 1394 BS. So, in view of the dictum of the Supreme Court I am of the view that the question of service of notice does not arise. 9. The next point which has been argued by Mr.Bhowmik is that the compensation which has been awarded by the first appellate Court was excessive in consideration of the fact that the plaintiff-respondent did not adduce any evidence whatsoever in this respect and that the trial Court also did not allow any short of compensation. On this point there was some discussion between the learned lawyers of the parties. Mr. Dutta, the learned counsel for the respondent stated that his client suffered a loss and since the price of essential commodities rose too high the compensation which was awarded by the appellate Court should be maintained. But Mr.Bhowmik submits that the appellant would be ruined in case compensation as allowed by the appellate Court is affirmed. Mr. Dutta, the learned counsel for the respondent stated that his client suffered a loss and since the price of essential commodities rose too high the compensation which was awarded by the appellate Court should be maintained. But Mr.Bhowmik submits that the appellant would be ruined in case compensation as allowed by the appellate Court is affirmed. Considering the circumstances, I am of the view that the appellant should, at least, pay compensation at the rate of Rs.3,480/- a year to the respondent. 10. The last point which has been urged by Mr.Bhowmik is that the judgment passed by the learned Court is not in consonance with the provisions laid down under Order 41 Rule 31 of CPC. But on perusal of the judgment I find that the learned appellate Court after all dealt with all the points which were raised before him and also gave decision thereon. Those may not be systematically dealt with but for that reason it cannot be said that the judgment should be set aside and sent back to the trial Court for fresh trial. 11. For the reasons stated above this appeal is dismissed with costs but the appellant is given 2 months time from today for vacating the suit premises. The decree of the appellate Court is modified to the extent indicated above. The money which has been paid by the appellant towards the decretal sum be deducted. It is, however, made clear that the respondent would be entitled to get the compensation provided he pays court fees thereon within a period of 15 days.