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2000 DIGILAW 156 (ORI)

PARSURAM MISHRA v. PADMALOCHAN NAYAK

2000-03-19

P.K.MISRA

body2000
P. K. MISRA, J. ( 1 ) THE defendant has filed this appeal against a confirming decision. ( 2 ) SUIT was filed for eviction from the disputed house and for realisation of arrear house rent from the month of December, 1995. It is not disputed that the defendant-appellant was a tenant under the plaintiff-respondent in respect of the disputed, house. After issuing notice under section 106 of the TRANSFER OF PROPERTY ACT, 1882 (in short, the T. P. Act') suit was filed. The defendant in his written statement pleaded that he was not a monthly tenant but he was a yearly tenant and the notice issued by the plaintiff was invalid. ( 3 ) THE trial Court found that the defendant was a monthly tenant and the tenancy was validly terminated by issuing appropriate notice. It was found that the defendant had not paid rent and the plaintiff was entitled to recover the rent at the rate of Rs. 200/- per month from 1st december, 1995. The said decision having been confirmed in appeal, the present appeal has been filed. ( 4 ) THE main question raised in this appeal relates to the validity of the notice under Section 106 of the T. P. Act. It is contended by the counsel for the appellant that the defendant was preparing and selling food articles such as, sweetmeat and as such, it should be taken that the house was taken for manufacturing purpose and it must be taken that the tenancy was from year to year. The Courts below negatived such contention saying that even though sweetmeats are prepared, it cannot be taken that the defendant was engaged in manufacturing process. ( 5 ) I do not agree with the submission of the counsel for the defendant that preparation of food articles such as, aluchop, bara or any other sweetmeats can be taken to be manufacturing process or to be a part of the manufacturing process so as to raise a presumption that the tenancy was from year to year. The materials on record rather indicate that the defendant was a monthly tenant and as such, fifteen days' notice must be taken to be valid. The materials on record rather indicate that the defendant was a monthly tenant and as such, fifteen days' notice must be taken to be valid. ( 6 ) THE learned counsel appearing for the appellant submitted that even assuming that the decree would be confirmed, reasonable time should be allowed to the appellant to vacate the premises and to make alternative arrangement. The learned counsel appearing for the respondent has vehemently opposed to such statement. ( 7 ) IT appears that during the pendency of the appeal, the appellant has deposited the amount due towards the arrear rent before the executing Court. Having regard to the facts and circumstances of the case, I think interest of justice would be served by directing the appellant to remain in possession of the disputed premises till the end of December, 2000, subject to appellant's furnishing an undertaking to vacate the premises with effect from 1st January, 2001. Such undertaking should be furnished before the executing Court by 30th June, 2000. If such undertaking is not furnished, this direction would not be operative and the executing Court shall be free to execute the decree for eviction. However, if such undertaking is given, the appellant shall be permitted to occupy the house till the end of december, 2000. If in spite of such undertaking the appellant does not vacate the house, in addition to other remedies appropriate proceeding for the contempt of Court may be initiated. Until the appellant vacates the disputed house he shall pay/deposit Rs. 200/- (Rupees two hundred) per month by 15th of each current month, i. e. to say, the amount for the month of april, 2000, should be paid by 15th April, 2000 and so forth and so on. The respondent is permitted to withdraw the amount lying in deposit or to be deposited. ( 8 ) SUBJECT to the aforesaid direction, the appeal is disposed of. Appeal dismissed.