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2015 DIGILAW 19 (ORI)

Sadhana Ausadhalaya, DACCA v. Tapasi Roy

2015-01-09

D.DASH

body2015
JUDGMENT The unsuccessful defendants have challenged the judgment and decree passed by the learned Civil Judge, (Senior Division) first Court Cuttack in C.S. (1) Case No.410 of 2002. The suit filed by the respondent has been decreed directing the appellants to deliver vacant possession of the suit premises to the respondent and pay rent Rs 968 per month w.e.f. 01.04.2002 to 31.10.2002 and to pay damages Rs 2000/- per month from 01.11.2002 till the date of actual vacation of the suit premises. For the sake of convenience to avoid confusion and for proper appreciation, the parties hereinafter are being referred to as they have been arrayed in the original suit. 2.The case of the plaintiff is that she is the owner of the said shop room and the defendants were inducted as tenant for running one Ayurvedic Medicine shop on payment of rent of Rs.880/- per month. When the defendants gave the proposal on 08.04.2002 for enhancement the rent there was no response from the side of the plaintiff being no more interested in continuance of the tenancy. She admits to have received rent till March, 2002. It is further stated that she for the purpose of expansion of the business of her son needed of the suit premises. So finally notice under Section 106 of the T.P. Act was served asking the defendants to vacate the suit premises within six months, while indicating therein that they were habitual defaulters in payment of monthly rent. The defendants in response requested for continuance the tenancy. However, finally the suit premises being not vacated by the defendants the suit was filed for eviction along with claim of damage of Rs 15,000/- per month from April, 2002 till October, 2002 and future damages at that rate. 3.While traversing the plaint averments, the defendants raised some technical objections as regards maintainability of the suit for non-joinder of the parties, wrong description of the dimension of the shop room; and that the defendant No.1 being not a proprietorship concern for having been wrongly described as such. The purpose of requirement of the suit premises as stated in the notice under Section 106 of the T.P. Act by the plaintiff was denied and so also it is said to be invalid. It is also sated that the defendant were under not legal obligation to vacate the suit premises and pay damage as claimed. The purpose of requirement of the suit premises as stated in the notice under Section 106 of the T.P. Act by the plaintiff was denied and so also it is said to be invalid. It is also sated that the defendant were under not legal obligation to vacate the suit premises and pay damage as claimed. It is specifically pleaded that defendant No.1 is the occupation of the two rooms measuring 23 feets and 14.2 feets at a monthly rent of Rs 800/- in 1995 and they were paying the rent regularly as per instruction of the plaintiff. The plaintiff wanted an advance of a sum of Rs 50,000/- from the defendant for carrying out some renovation work and the defendants paid the same on 03.03.1996 by Bank draft. The repayment of the advance amount was to be within three years as per the agreement with adjustment of half of the monthly rent towards this advance and that would not be any enhancement of the rent till full adjustment of the said advance. It is also stated that the plaintiff agreed that if he would repay the defence within three years, then there would be enhancement of 10% in every three years. The plaintiff failed to repay the advance within three years, but under one Bank draft dated 05.03.2002 the plaintiff sent Rs 17,000/- to defendant No.1 who had accepted said sum. It is further stated that though the defendant sent rent for April, 2002 to June 2002 by M.O., the same not received and finally the suit has been filed. 4.The trial Court has framed six issues including the technical issues such as the maintainability; suit is bad for non-joinder of necessary parties; lack of cause of action etc. Issue No.4 and 5 relate to the validity of notice under Section 106 of T.P. Act and as regards the defendants liability for eviction from the suit premises, for payment of damage charges. 5.The trial Court having taken into consideration, the rival pleadings, also the contentions and upon examination of evidence on record has negated the objections as regards the maintainability of the suit, and the same being had for non-joinder of necessary parties. The other two issues relating to the validity of the notice under Section 106 of T.P. Act and also the question of the defendants vacating the suit premises have answered in favour of the plaintiff. The other two issues relating to the validity of the notice under Section 106 of T.P. Act and also the question of the defendants vacating the suit premises have answered in favour of the plaintiff. The claim of damages has been awarded at a lesser rate than claimed. It may be stated here that the respondent has filed a cross objection claiming the relief of enhancement for damage by setting aside award of the trial Court being made on a lower side. 6.The main contention of the learned counsel for the appellant is that the plaintiff has utterly failed to prove that the defendants were habitual defaulter in making payment of monthly rent. Therefore, according to him, when such is the assigned reason for termination of tenancy in the notice under Section 106 of T.P. Act, the said notice given is not valid in the eye of law, as it adversely affects the defendants by bringing stigma to them. It is also his submission that no such evidence on record stand as regards the bona fide requirement of the suit premises by the plaintiff. In view of the same, he urges that the judgment and decree passed by the trial Court are unsustainable in the eye of law. However, he also contends that the findings on other issue concerning permanent tenancy etc are against the weight of evidence and are liable to be set aside. Learned counsel for the defendants on the other hand supports the findings rendered by the trial Court on all the issues. According to him, there remains no legal ground whatsoever to disturb the findings of the trial Court which has been rendered on proper appreciation of the evidence on record in the touch stone of the rival pleadings of the parties as well as the settled position of law. He further contends that the trial Court’s award of damage is unreasonable land without assigning cogent reason and thereby the damage as claimed by the plaintiff has been illegally refused. 7.The relationship of the landlord and tenant between the parties stands admitted. In the Court below the defendants had taken a plea that it was a permanent tenancy and for the purpose reliance was placed on Ext.B, a letter dated 10.09.1995 said to have been given by plaintiff. Admittedly no document showing such creation of permanent tenancy is forth coming. 7.The relationship of the landlord and tenant between the parties stands admitted. In the Court below the defendants had taken a plea that it was a permanent tenancy and for the purpose reliance was placed on Ext.B, a letter dated 10.09.1995 said to have been given by plaintiff. Admittedly no document showing such creation of permanent tenancy is forth coming. More so, this defendant No.2 during his evidence has given a good bye to such a plea by deposing on oath that there exists no written agreement about the period of tenancy. In this connection another letter dated 22.11.1995 Ext. D sent to the plaintiff is also projected as the reason to hold so. By that letter the defendants have requested the plaintiff to accept their proposal that no enhancement of rent would be made till either full adjustment of advance of Rs 50,000/- and till then 50% of the rent would get adjusted every month. Next Ext. F is the response of the plaintiff advancing a query that the advance if paid within three years whether there remains scope for enhancement of rent @ 10% or not. This has been replied by defendants vide letter dt. 23.02.1996 (Ext.H), agreeing enhancement of rent by 10% on expiry of three years w.e.f. 01.01.1996 if the advance is repaid within three years. Admittedly, Rs 50,000/-, the advance was not paid within three years. The Ext. P was went by plaintiff showing detail adjustment of advanced amount and seeking defendants response on the proposal as regards the payment of rest. In that letter the plaintiff had requested for repayment of advance at one go. Ext. L, the letter of the defendant shows the request of monthly repayment of advance from monthly rent up to March, 2002 and payment of a sum of ‘ 17,000/- March end by Bank draft. Payment of Rs 17,000/- by the plaintiff is not disputed and that has been candidly admitted by D.W.1. Thus, it clearly shows the absence of any agreement for creation of permanent tenancy and from these letters exchanged between the parties no such permanent tenancy can be construed when rather the conducts of the parties as those emanate there from show otherwise. So, the issue has been rightly answered in negative. Thus, it clearly shows the absence of any agreement for creation of permanent tenancy and from these letters exchanged between the parties no such permanent tenancy can be construed when rather the conducts of the parties as those emanate there from show otherwise. So, the issue has been rightly answered in negative. In view of above, now coming to the validity of the notice under Section 106 of the T.P. Act, in the present case that Ext.2 is dated 17.04.2002 which is prior to the amendment of the provision of Section 106 of the Act by Amendment Act, 2002, coming into force w.e.f. 31.12.2002. On carefully going through the contents of the said notice under Section 106 of the Act which is marked Ext.2, this Court finds the same to be wholly in consonance with the provision of law. Law does not mandate that in the case of termination of tenancy by serving notice under Section 106 of the Act any such ground is the requirement to be stated in support of such termination so as to say that in case said ground is either false or not proved, the termination does not take effect for the tenant to incur the liability of vacation of the tenanted premises. 8.Learned Senior Counsel for the appellant in course of argument has not placed any such authority in support of his submission. Moreover his apprehension regarding inviting stigma to the appellant does not appear to be well founded, when it is seen that the trial Court has not given any positive finding on that score that it would be adversely running after the appellant, so far as his conduct is concerned and, standing on the way of his hope of being inducted as a tenant for other premises if any for being adversely viewed by other landlord as a conduct blame worthy for a tenant. Therefore, the submission of the learned counsel for the appellant is not acceptable. This being the sole ground on which the defensibility of the finding rendered by the trial Court as well as the ultimate result being questioned, this Court feels no further necessity to delve into the other findings. 9.Now, coming into cross-objection with regard enhancement of quantum of demand, it is seen that the trial Court has awarded damage of Rs 2000/- per month w.e.f. 01.11.2002. 9.Now, coming into cross-objection with regard enhancement of quantum of demand, it is seen that the trial Court has awarded damage of Rs 2000/- per month w.e.f. 01.11.2002. The plaintiff advanced the claim of Rs 15,000/- per month towards damage. Admittedly, the rent paid at last stands at Rs 968/- per month. The claim of the plaintiff is more than fifteen times the last rent paid and that appears to be without any basis and not backed by any reasonable justification. As it appears the plaintiff has neither pleaded nor led evidence in support of such claim. Thus the judgment and decree passed by the trial Court stand confirmed. 10.In the result, the appeal stands dismissed and the cross objection is also found to be devoid of merit. The parties are appear respectively all throughout. Appeal dismissed.