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2018 DIGILAW 22 (ORI)

K. Taviti Raju v. Govinda Ram Dhanji

2018-01-03

D.DASH

body2018
JUDGMENT : This appeal under section 100 of the Code has been filed questioning the judgment and decree passed by learned District Judge, Rayagada in R.F.A. No. 21 of 2013 confirming the judgment and decree passed by the learned Civil Judge (Senior Division), Rayagada in C.S. No. 75 of 2012. The appellant being unsuccessful in the suit as well as in the first appeal under section 96 of the Code of Civil Procedure, in the present appeal seeks to upset the concurrent findings returned by the courts below in finally rendering the judgments and decrees against him. 2. For the sake of convenience, in order to avoid confusion and bring in clarity, the parties hereinafter have been referred to as they have been arraigned in the trial court. 3. The plaintiff stating himself to be a tenant in respect of the suit shop room, has averred to have been so continuing since the time of his father stretching over the period of about eighteen years by the time of suit. It is stated that the parties had their lease agreements for the purpose and the last one dated 01.01.2009 (Ext. 1=Ext. A) was for a period of 11 months. It is further stated by the plaintiff that after expiry of the term of lease, he continued to occupy the said shop room as a tenant and went on paying rent to the defendant who unhesitatingly accepted the same. It is next stated that as in the month of July, 2012 none came to collect the rent, the plaintiff sent a demand draft under coverage letter dated 11.07.2012 which have been received by the defendant. The defendant on 01.08.2012 proposed to the plaintiff in presence of witnesses to extend the period of lease for five years more on a monthly rent of Rs. 6,000/- on his depositing a sum of Rs.75,000/- which would be refundable at the end. It is stated that pursuant to the same, the defendant again wanted to execute a registered deed of lease for a period of five years with the conditions that the rent would be revised every four years with an increase of 5% per annum. The plaintiff also paid a sum of Rs.75,000/- towards deposit as agreed upon with the condition that the same would be refunded after expiry of the period of lease. The plaintiff also paid a sum of Rs.75,000/- towards deposit as agreed upon with the condition that the same would be refunded after expiry of the period of lease. The defendant however did not come to execute the deed of lease. When the plaintiff sent the rent of Rs. 6,000/- by demand draft for the month of August 2012 under letter dated 11.08.2012, the defendant received the same. In the meantime, the defendant had issued notice asking the plaintiff to deliver vacant possession of the said suit shop room by the end of August, 2012. The plaintiff getting said notice replied that since there has been a prior concluded contract between them for the extended period of lease for five years and is surviving, the question of evicting the plaintiff from the said suit room as per demand can’t arise. The defendant in his reply denied all such facts stating to be imaginary for the purpose. He has stated to have returned the amount of Rs. 6,000/- sent towards the monthly rent. The plaintiff’s present suit is with the prayer for specific performance of contract directing the defendant to execute the registered deed of lease, extending the period of lease for five years with effect from the date of expiry of period of 11 months under the prior lease deed dated 01.01.2009. The defendant in his written statement denied to have any such agreement with the plaintiff as regards the extension of period of lease by five years with effect from August, 2012 on payment of agreement of Rs. 6,000/-per month and refundable deposit of Rs. 75,000/-. He also stated to have never received any such amount of Rs. 75,000/- towards refundable deposit from the plaintiff. It is stated the defendant by issuing notice has duly terminated the tenancy with effect from the end of the month of August, 2012. 4. The trial Court on such rival pleadings has framed as many as five issues. In my view, the contentions issue in the case is as to “Whether there was any agreement between the parties for the extension of period of tenancy in respect of the suit shop room in favour of the plaintiff under the defendant-landlord for a period of five years w.e.f. August, 2012; and whether the parties have further acted upon it and if so whether it is specifically enforceable.” 5. The trial court on analysis of evidence on the back drop of rival pleadings has found that there was no such agreement between the parties, there was no payment of rent pursuant to the same and that no such deposit had been made by the plaintiff with the defendant for the purpose for being refunded after expiry of period of five years. The findings above have been given on detail discussion of the oral and documentary evidence on record; the trial court has finally dismissed the suit. The first appellate court being moved by the unsuccessful plaintiff has also recorded the same finding upon re-appreciation of evidence at its level. Both the courts below have disbelieved the payment of Rs. 75,000/-(Rupees seventy five thousand) by the plaintiff to the defendant towards that refundable deposit in the so called agreed extension of tenancy for a period of five years as projected by the plaintiff. 6. Learned counsel for the appellant at the outset fairly submits that the plaintiff has remained in occupation of shop room for all these years and is continuing as such. Being confronted with the fact that being on the last week of December, 2017, the prayer made in the suit in respect of execution of the said deed of lease by the defendant has lost its efficacy as that very extended period as stated has already expired by the end of August, 2017, he concedes that though it was so surviving when the appeal had been presented on 09.10.2015, it does not at present so survives for consideration. Learned counsel for the respondent submits that the defendant had never entered into that agreement and thus he urges for dismissal of the appeal in limini without further going to search out as to if there arises any substantial question of law meriting admission of this appeal as that would serve no useful purpose at the moment. 7. In the wake of aforesaid, the appeal stands dismissed. In the facts and circumstances of the case, no order as to cost is passed.