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2018 DIGILAW 25 (ORI)

K. TAVITI RAJU v. GOVINDA RAM DHANJI

2018-01-03

DEBABRATA DASH

body2018
JUDGMENT : Debabrata Dash, J - 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. 20 of 2013 confirming the judgment and decree passed by the learned Civil Judge (Senior Division), Rayagada in C.S. No. 69 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 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's case is that he is the owner of the suit shop room and had let out the same to the defendant on a monthly rent of Rs. 5,000/- under lease deed of dated 01.01.2009 (admitted in evidence and marked as 'Ext. 1' from the side of the plaintiff and also as 'Ext. A' from the side of the defendant). It is stated that the defendant had agreed to vacate the suit shop room on expiry of the term of a period of 11 months, computed w.e.f. 01.01.2009. It is next stated that the defendant did not vacate the suit shop room after expiry of the duration of the lease. The defendant, however, accepted the monthly rent, thereafter and thus permitted him to occupy the said suit shop room till the end of July, 2012. The plaintiff then wanted the suit shop room for his use for business purpose. So, he issued a notice dated 07.08.2012 asking the defendant to vacate the suit premises by the end of August, 2012. The defendant having received the notice, on 13.08.2018 replied that the plaintiff must execute the deed of lease for a period of five years and register the same in view of and pursuant to prior agreement that he would continuing to remain as tenant (lessee) for further period of five years on payment of rent of Rs. 6,000/- per month and non-refundable deposit of Rs. 75,000/- which he had already taken. 6,000/- per month and non-refundable deposit of Rs. 75,000/- which he had already taken. So, he asked the plaintiff to come forward to execute a registered deed of lease which he didn't. It is stated that he further sent a sum of Rs. 6,000/- by way of Demand Draft which the plaintiff had returned expressing surprise over the same. The defendant having vacated the suit shop room despite notice, the plaintiff had no other option but to file the suit for taking delivery of possession by driving out the defendant from the suit shop room. 4. The defendant in the written statement while admitting his status as tenant in so far as the suit shop room is concerned as such his relationship with the plaintiff, projected a case, that after the expiry of the period of lease under the last lease deed dated 01.01.2009, the plaintiff had agreed for further extension of the lease by five years more and that for the purpose he had taken a sum of Rs. 75,000/- as agreed between them towards refundable deposit to be paid back after the completion of five years of duration of lease and had also received a sum of Rs. 6,000/- towards rent as agreed upon. So, it is stated that the suit is maintainable and is liable to be dismissed. 5. At this juncture, it is pertinent to state that the defendant had filed a suit with the prayer for specific performance of contract in directing the plaintiff to execute a deed of lease for a period of five years and register the same for continuance of the said lease till the end of August, 2017. The suit, first appeal, having been dismissed, he had then filed Second Appeal No. 395 of 2015 which has been dismissed as having no merit as no such substantial question surfaced for being so answered. The plaintiff's prayer on that score has fallen flat with the specific factual finding that there was no such agreement between the parties at any point of time and therefore the question of the parties further stepping forward pursuant to the same does arise at all. 6. The plaintiff's prayer on that score has fallen flat with the specific factual finding that there was no such agreement between the parties at any point of time and therefore the question of the parties further stepping forward pursuant to the same does arise at all. 6. The trial court has dismissed the suit by the following order:- "The suit be and the same is decreed on contest against the defendant is directed to given vacant delivery of possession of the suit shop room and to pay arrear monthly rent of Rs. 5,000/- from August, 2009 to August, 2012 and damage of Rs. 5,000/- per month thereafter till vacation of the suit shop room within one month hence, to the plaintiff". 7. The lower court has passed the order under while disposing the appeal:- "The appeal be and the same is dismissed on contest with costs. Subject to the aforesaid modification as to the arrear rents, the decree is affirmed. The defendant is directed to vacate the suit shop room within a period of one month and pay the arrear monthly rent of Rs. 5,000/- for the month of August 2012 and damages @ Rs. 5000/- per month till vacation." 8. Learned counsel for the parties in course of hearing on admission of the appeal fairly submitted that the only substantial question of law which may arise in the appeal is as to "Whether the termination of tenancy is in accordance with law " This in turn goes to the root of the matter as regards the maintainability of the suit and the tenability of claim of reliefs as prayed for. 9. Learned counsel for the appellants submits that the termination of tenancy has been in accordance with law as provided under section 106 of the T.P. Act and therefore no such relief as prayed for by the plaintiff ought to have been granted in the present suit and the defendant ought to have been directed to deliver/vacant possession of the suit shop room. 10. Learned counsel for the respondent submits that both the courts below on detail scrutiny of the evidence on record have arrived at a conclusive finding that there has been due termination of tenancy as required under section 106 of the T.P. Act by serving 15 days clear notice upon the tenant i.e. the defendant. 10. Learned counsel for the respondent submits that both the courts below on detail scrutiny of the evidence on record have arrived at a conclusive finding that there has been due termination of tenancy as required under section 106 of the T.P. Act by serving 15 days clear notice upon the tenant i.e. the defendant. According to him, when there remains no such perversity in returning those findings, the same is liable to be interfered with. He also submits that even on examination of evidence from any angle, this Court can't arrive at a position to give a finding that there has been proper termination of tenancy disagreeing with the findings of the courts below. 11. On the above rival submissions of the parties, let me proceed to find out as to whether there arises any substantial question of law as aforesaid meriting admission of the second appeal under section 100 of the Code. With the in disputed relationship between the parties, admittedly the prior fixed period of lease expired at the end of July, 2012 stood extended as is evident from the later conduct of the plaintiff in accepting the rent after the expiry of the period of lease under deed lease dated 01.01.2009 vide Ext. 1. This has been established by the documents i.e. Ext. 6 series which are the rent receipts showing payment and receipt of monthly house rent from June, 2009 to June, 2012. It was a tenancy continuing from month to month and therefore terminable by clear 15 day's notice. The plaintiff does not deny to have received the rent for the month of June, 2012 by Bank Draft sent under a covered letter dated 11.07.2012 by the defendant. He states to have issued a notice on 07.08.2012, Ext. 2 terminating the tenancy directing vacation of the suit shop room on expiry of August 2012. It is a clear 15 days notice. On the face of such termination of tenancy, there cannot be continuance of tenancy with erstwhile relationship as landlord and tenant merely because of acceptance of the rent at the enhanced rate sent by way of draft with a coverage letter under registered post. It is a clear 15 days notice. On the face of such termination of tenancy, there cannot be continuance of tenancy with erstwhile relationship as landlord and tenant merely because of acceptance of the rent at the enhanced rate sent by way of draft with a coverage letter under registered post. The courts below having concurrently held the termination of tenancy to be in accordance with law, on going through the pleadings as well as the evidence both oral and documentary evidence on record and viewing those through the spectrum of settled position of law holding the field, this Court views no such infirmity therein. 12. In the wake of the aforesaid, this Court finds that no such substantial question of law arises in the case meriting the admission of this appeal. 13. The appeal thus stands dismissed. In the facts and circumstances of the case, no order as to cost is passed.