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2006 DIGILAW 636 (ORI)

Shadiram Sharma @ Dhanchalia v. Dinesh Kumar Modi

2006-09-01

M.M.DAS

body2006
JUDGMENT M. M. DAS, J. — Though both these Second Appeals were listed for admission and both the parties have entered their appearance, they were taken up for hearing with regard to the question as to whether the appeals involve any substantial question of law. 2. The facts of the case reveal that the respondent No. 1-in R.S.A. No. 646 of 2003, as plaintiff, filed Title Suit No. 67 of 2001 (T.S. No. 23/98) before the learned Civil Judge (Junior Division), Cuttack praying for eviction of the appellants and the respondent No. 2 and for other consequential reliefs. The plain¬tiff pleaded that he is the owner of the Holding No. 266 of Ward No.11 of the Cuttack Municipal Corporation and the defendants are monthly tenants with respect of the said house since 1977. As they defaulted in payment of monthly rent, an application under Section 7 of the Orissa House Rent Control Act, 1967 (which was in force then) was filed for eviction of the tenants which was registered as H.R.C. No. 53/1983. An objection to the said appli¬cation was filed by the tenants denying the allegations with regard to non-payment of rent and further pleading that the plaintiff is not entitled to maintain the proceeding under the said House Rent Control Act as he was not the landlord. In the said case, the plaintiff also prayed for fixation of fair rent. Eventually, by judgment dated 6.2.1996, the House Rent Controller while fixing the fair rent of the tenanted premises at Rs. 350/- per month with effect from the date of the application, rejected the prayer for eviction of the tenants. The said judgment was challenged by the plaintiff in H.R.C. Appeal No.2 of 1996 so far as it relates to the rejection of the prayer for eviction of the tenants-defendants. It appears that during pendency of the said appeal under the Orissa House Rent Control Act, 1967, the plain¬tiff having attained majority, issued notice under Section 106 of the Transfer of Property Act to the defendants-tenants and there¬after filed the suit for eviction. 3. In the written statement filed by the defendants, the question of maintainability of the suit at the behest of the plaintiff was raised on the ground that the original owner of the property was one Rukmani Devi and the land over which the house stands is a Khasmahal land. 3. In the written statement filed by the defendants, the question of maintainability of the suit at the behest of the plaintiff was raised on the ground that the original owner of the property was one Rukmani Devi and the land over which the house stands is a Khasmahal land. The father of the defendants was inducted as tenant by the said Rukmani Devi in the year, 1967 and the father of the defendants expired in the year 1973 after which the defendants continued as tenants by paying rent to the said Rukmani Devi. Rukmani Devi died in the year 1977 leaving behind her son Hiralal Modi and daughter Jamuna Devi, as legal heirs. The plaintiff is one of the son of the said Hiralal Modi who filed H.R.C. case in the year 1983 during his minority being represented by his father Hiralal Modi. The prayer for eviction in the said H.R.C. case having been rejected, the said order has become final. The notice issued to the defendants under Section 106 of the Transfer of Property Act cannot be construed to be a valid notice under the said provision and the plaintiff who claims his title on the basis of the Will said to have been executed by the said Rukmani Devi cannot claim exclusive title to the property on the basis of the said 'Will’ which has been ob¬tained by fraud. 4. In R.S.A. No. 646 of 2003, the defendants in the suit are the appellants and the plaintiff is the respondent whereas in R.S.A. No. 92 of 2004, the plaintiff is the appellant and the defendants are the respondents. The defendants have preferred the second appeal against the judgment and decree of eviction passed by the learned trial Court and confirmed by the learned lower appellate Court whereas the plaintiff has filed the second appeal as his prayer for decreeing damages at the rate of Rs. 100/- per day with effect from 30.1.1998, was not allowed by the learned trial Court and the cross appeal filed by the plaintiff in that regard before the learned lower appellate Court has also been rejected. 5. After hearing Mr. S.S. Rao, learned counsel appearing on behalf of the defendants and Mr. 100/- per day with effect from 30.1.1998, was not allowed by the learned trial Court and the cross appeal filed by the plaintiff in that regard before the learned lower appellate Court has also been rejected. 5. After hearing Mr. S.S. Rao, learned counsel appearing on behalf of the defendants and Mr. S.P. Mishra, learned senior counsel appearing on behalf of the plaintiff, I find that the substantial questions of law which arise for determination in R.S.A. No. 646 of 2003 are as follows: (i) Whether there is a valid notice under Section 106 of the Transfer of Property Act, on the basis of which the tenancy of the defendants is claimed to have been terminated ? and (ii) Whether the judgment passed by the House Rent Controller in H.RC. No. 53/ 1983 which was challenged in an appeal by the plaintiff but subsequently the appeal was withdrawn, can operate as res-judicata in the present suit ? The substantial question of law which arises for determina¬tion in R.S.A. No. 92 of 2004 is as follows: “Whether the learned Courts below having found that the notice under Section 106 of the Transfer of the Property Act under Ext. 5 was a valid notice by which the tenancy was termi¬nated with effect from 30.1.1998, have committed an illegality in refusing to grant a decree for damages at the above rate in favour of the plaintiff, against the defendants ?” Learned counsel for the respective parties were called upon to address this Court on the above question of law. 6. Mr. Rao, learned counsel for the appellant submitted that though the plaintiff-respondent No. 1 claimed that the tenancy was as per Marwari Calendar Month and relied upon Ext. 5 to show that there was valid termination of the tenancy but no explanation has been given by the plaintiff in the plaint as to why the second notice in Ext. 5 was issued after issuance of the notice under Ext. 3 seeking termination of the tenancy as per English Calendar Month. He further submitted that there being no pleading in the plaint that the tenancy was governed by the Marwari Calendar, issuance of both the notices under Exts. 5 was issued after issuance of the notice under Ext. 3 seeking termination of the tenancy as per English Calendar Month. He further submitted that there being no pleading in the plaint that the tenancy was governed by the Marwari Calendar, issuance of both the notices under Exts. 5 and 3 purported to have been under Section 106 of the Transfer of Property Act contradict each other and thus, on that basis, it should be held that there is no valid notice under Section 106 of the Transfer of Property Act and the suit should have been dis¬missed. 7. Mr. S.P. Mishra, learned counsel appearing on behalf of the respondents-plaintiff in reply submitted that the first notice being a defective one, there being no express term of termination of the tenancy, the said notice was ignored and the second notice as per Marwari Calendar Month, under which the tenancy was governed, was therefore issued by the plaintiff and is a valid notice. He further submitted that this is evident from the notice under Ext. 5 itself, that the plaintiff mentioned in the said notice regarding issuance of the previous notice and further intimated that the tenancy is governed as per Marwari Calendar Month. He also contended that a reply was sent to the notice under Ext. 5 by the defendant No. 1 which has been exhib¬ited as Ext.6 during trial of the suit and the said defendant No. 1 has never denied in the said reply that the tenancy is not governed by Marwari Calendar Month. 8. Reliance was placed by the learned counsel for the parties on various decisions of the Supreme Court as well as this Court with regard to interpretation of a notice under Section 106 of the Transfer of Property Act. It is trite to mention that it is well settled that a notice under Section 106 of the Transfer of Property Act should not be construed with a desire to find fault in it so that it would be found defective but it must be construed Ut res magis valeat, guam pereat (See Bhagaban Das Agarwal v. Vagaban Das Kanhu and others, AIR 1977 SC 1120 ). Interpreting the notice under Section 106 of the Transfer of Property Act, given by the plaintiff which has been marked as Ext. 5, I fail to find any defect in the said notice. Interpreting the notice under Section 106 of the Transfer of Property Act, given by the plaintiff which has been marked as Ext. 5, I fail to find any defect in the said notice. I, there¬fore, hold that the notice under Section 106 of the T.P. Act under Ext. 5 is a valid notice by which the tenancy was terminat¬ed. 9. Coming to the question as to whether the judgment passed by the House Rent Controller in H.R.C. Case No. 53/1983, operates as res-judicata against the plaintiff, it would suffice to say that unless the issues raised in the House Rent Control case with regard to eviction of the tenant-appellants are same as the issues raised in the present suit, the said judgment cannot operate as res judicata. 10. The eviction under the Orissa House Rent Control Act was contemplated on the grounds stated in Section 7 of the said Act. In the said section, it envisages that a landlord as defined in the said Act can seek for eviction on the ground of default in payment of rent which has been subsequently interpreted as “Wilful Default”, bona fide requirement of the tenanted house by the landlord and if the tenant causes damage to the demised premises. 11. The House Rent Controller has no jurisdiction to decide the title of the landlord over the tenanted premises. In a suit for eviction under Section 5 of the Specific Relief Act, no such condition for eviction as provided under Section 7 of the Orissa House Rent Control Act are required to be fulfilled to initiate an action for eviction of the tenant. A person entitled to the possession of the specific immovable property can recover the possession by filing a suit for eviction under Section 5 of the Specific Relief Act. Thus, a person, to maintain a suit for eviction should be entitled to the possession of the property in question or in other words should have subsisting title over the said property. Thus, a person, to maintain a suit for eviction should be entitled to the possession of the property in question or in other words should have subsisting title over the said property. The House Rent Controller which is a statutory authority under the Orissa House Rent Control Act has no juris¬diction to decide the question of title of a person in a proceed¬ing under the said Act but its jurisdiction is limited to the question as to whether the person seeking eviction of the tenant is a landlord as defined in the said Act and as to whether any of the grounds contemplated under Section 7 of the said Act have been proved to exist. 12. In view of the above position, it cannot be said that the finding of the House Rent Controller that the plaintiff is not entitled to an order for evicting the appellants-tenants will operate as res-judicata to the present suit. The said findings can at best be held to be a conclusion of the House Rent Control¬ler that the grounds for eviction as enumerated under Section 7 of the said Act were not proved to be in existence. Thus, the judgment in the House Rent Control Case will not operate as res-judicata and as such, the claim of the plaintiff for recovery of the possession of the tenanted premises/eviction of the tenants, made in the suit, cannot be held to be barred by applying the principles of res-judicata, inasmuch as the House Rent Controller having allowed the prayer for fixation of fair rent, I find that the relationship between the plaintiff and defendants has been found by the said Controller to be that of landlord and tenants and the defendants are bound by the said finding. 13. I, therefore, find no merit in the second appeal filed by the defendants being R.S.A. No. 646 of 2003, which is accord¬ingly dismissed. 14. Now coming to the questions involved in R.S.A. No. 92 of 2004, as I have held that the notice under Ext.5 was a valid notice under Section 106 of the Transfer of Property Act and the tenancy in favour of the defendants was terminated by the said notice, the defendants under law are liable to pay damages for the period for which they remained in occupation after termina¬tion of the tenancy i.e. with effect from 30.1.1998. As it is inconceivable that a monthly tenant whose tenancy was terminated by a valid notice under Section 106 of the Transfer of Property Act would remain in occupation of the tenanted premises free of cost after such termination of tenancy, it would be inevitable to conclude that on and from the date when the tenancy was terminat¬ed, a tenant would be liable to pay damages to the landlord for unauthorized/illegal possession of the tenanted premises. In the instant case, therefore, the relationship of the landlord and the tenants having come to an end with effect from 30.1.1998, the defendants are liable to pay damages till the date they vacate the premises in question. The plaintiff clearly mentioned in the said notice under Ext.5 as follows: “For the reasons stated above, I am constrained to serve you this notice under Sec. 106 of T.P. Act terminating the tenancy with effect from Pausa Sudi 15 Vikram Sambat 2054 as per Marwari Calendar, which is equivalent to 12th of January, 1998 as per English calendar month and you are directed to give vacant possession of the schedule premises on or before that date fail¬ing which you shall be treated to be a trespasser with effect from Magha Badi 1 i.e. 13th January, 1998 and I shall be con¬strained to initiate appropriate proceedings against you in the Court of law for your eviction and criminal liberty for withhold the premises illegally as a trespasser. Please take further notice that with effect from Magha Badi 1 i.e. 13th January, 1998 you shall also be liable to pay damages to the extent of Rs. 100/- per day till the date you give vacant possession and you shall also be liable for the cost of the litigation throughout and cost of this notice.” 15. However, Title Suit No. 20 of 1998 was filed by the plaintiff on 19.1.1998 i.e. prior to the date from which damages were claimed from the defendants in the notice under Ext. 5 i.e. prior to 30.1.1998. 16. The learned lower appellate Court dealing with the cross objection/ appeal of the plaintiff, has held as follows: “The Cross Objection did not appear to have been served on the appellants and they have not filed their reply to it. However, the respondent was entitled to advance arguments claim¬ing damage under Or. 41 Rule 33 C.P.C. even without filing cross objection. However, the respondent was entitled to advance arguments claim¬ing damage under Or. 41 Rule 33 C.P.C. even without filing cross objection. Be that as it may, the basis of claim of damages and the calculation made therefor were not deposed to by the respond¬ent in his evidence. Merely it was deposed by him that he claimed damages at Rs. 100/- per day from 13.1.1998. It was a money claim and in case of such claim assessment should have been made basing on certain facts. In such circumstances, for the paucity of evidence in this respect in the suit, I am not able to grant such relief to the respondent, accordingly the Cross Objection is hereby rejected.” 17. Mr. S.P. Mishra, learned counsel appearing for the plaintiff vehemently argued that since the daily damage was mentioned by the plaintiff in the notice under Section 106 of the Transfer of Property Act at Rs. 100/ - per day and the plaintiff also deposed in Court that the defendants are liable to pay damages at the above rate, the learned Courts below should have allowed the claim of the plaintiff and should have decreed the suit also for damages to be recovered from the defendants. In this regard, Mr. Mishra relied upon the decision/judgment of a learned Single Judge of the Rajasthan High Court in the case of Hanuman Bux v. Dev Dutt, AIR 1952 Rajasthan 111. In the said case, the learned Single Judge has held as follows : "(2) It will be noticed that Ss. 3 and 5 both can be made applicable to the cases where the relationship of the land¬lord and tenant exists between the parties. These sections do not apply to the cases where a lease has been determined and the relationship of landlord and tenant does not continue between the parties. The learned advocate of the defendant has argued that by virtue of Section 8 of the Rent Control Order, the tenancy should be deemed to have been continued after it had been determined by the service of a notice under S. 106 of the Transfer of Property Act. The learned advocate of the defendant has argued that by virtue of Section 8 of the Rent Control Order, the tenancy should be deemed to have been continued after it had been determined by the service of a notice under S. 106 of the Transfer of Property Act. It may be pointed out that Section 8 of the Rent Control Order simply provides that even after the determination of the tenancy no landlord shall be entitled to eject a tenant without first obtaining a certificate of the Rent Controller on certain specified grounds mentioned in the order. In accordance with the provisions of Section 8, a landlord cannot eject a tenant even after the determination of the tenancy, but this does not mean that the relationship of landlord and tenant continues between the parties even after the determination of the tenancy. Once the tenancy has been determined by service of a notice under Section 106 of the Transfer of Property Act, the tenancy cannot be con¬sidered to be still existing between the parties, simply because the landlord is debarred from taking the possession of the property from the tenant, by S. 8 of the Rent Control Order. The position of the tenant after the determination of the tenancy in such a case would be that of licensee or a trespasser. The licen¬see may be liable in such a case to pay damages to the landlord at a rate mentioned in the notice served upon the licensee and impliedly accepted by him. The defendant in the present case is therefore, liable to pay damages to the plaintiff at the rate specified in the notice served by the plaintiff upon the defend¬ant. This appeal succeeds and decree of the trial Court is re¬stored and the decree of the first appellate Court is amended so as to increase the amount of the damages to Rs. 100/-. The plain¬tiff shall be entitled to costs of this appeal and of both the Courts.” I do not find any plausible reason to differ with the above view of the Rajasthan High Court. 18. It is seen from the records of the present case that in the notice under Section 106 of the Transfer of Property Act (Ext.5) as quoted above, the plaintiff clearly stated that the tenants (defendants) would be liable to pay damages at Rs. 18. It is seen from the records of the present case that in the notice under Section 106 of the Transfer of Property Act (Ext.5) as quoted above, the plaintiff clearly stated that the tenants (defendants) would be liable to pay damages at Rs. 100/ - per day till the date of giving vacant possession to the plain¬tiff. In the reply given by the defendants under Ext. 6, the said claim towards damages was not countered nor any rebuttal evidence has been adduced by the defendants to show that such claim to¬wards damages is either excessive or not awardable. Applying the ratio of the decision in the case of Hanuman Bux (supra), I find that the plaintiff, i.e., the appellant in R.S.A. No. 92 of 2004 is entitled to recover damages at the rate of Rs. 100/- per day with effect from 30.1.1998 till the date of delivery of vacant possession of the tenanted premises to the plaintiff or till the date of recovery of the possession of the said premises. 19. In view of the above, finding of the learned lower appellate Court rejecting the cross appeal filed by the plaintiff is set aside and R.S.A. No. 92 of 2004 is accordingly allowed. 20. However, I direct that the cost of these second appeals will be borne by the respective parties. Ordered accordingly.