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2021 DIGILAW 202 (ORI)

Biswadev Roy v. Prem Khemani

2021-04-23

D.DASH

body2021
JUDGMENT 1. The Appellant by filing this Appeal under Section-100 of the Code of Civil Procedure (hereinafter called as the Code) has assailed the judgment and decree dated 30.09.2019 & 20.12.2019 respectively passed by the learned 1st Additional District Judge, Rourkela in RFA No.11 of 2017. 2. By the same, the judgment and decree passed by the learned Civil Jude (Sr. Division), Rourkela in C.S. No.122 of 2014 have been confirmed. Accordingly, the Suit filed by the Appellant as the Plaintiff has been dismissed and the counter claim lodged by the Respondents being the Defendants therein has been allowed. Thus, the Appellant has been denied with the relief of being entitled to remain in physical possession of the suit premises/property and his prayer for issuance of permanent injunction against the Respondents has been declined; whereas the counter claim filed by the Respondents has been allowed, directing the eviction of the Appellant from the suit premises/property. 3. 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. 4. The Plaintiffs case is that one Basudev Khemani who happens to be the husband of Defendant No.1 and father of Defendant No.2 had inducted him as tenant in respect of the part of the suit premises way back in the year, 2003. An agreement to that effect had come into being on 31.01.2003. It was for a period of five years w.e.f. 1st day of January, 2003. For the said occupation, the Plaintiff was paying Rs.1,200/- with the mode of payment as half yearly rent at a time in advance. The Plaintiff had further undertaken to pay the electricity charges as per actual consumption. It is sated that in course of time, the Plaintiff was inducted as a tenant in respect of all the six rooms in the said building and although he was paying more rent, that was shown as Rs.1,200/- per month as per the request of the landlord. The Plaintiff in the said tenanted premises has been carrying out the activities relating to the Offset Printing Press under the name and style of M/s. B.S. Arts Press which had its due registration with District Industry Centre (DIC) as also Steel Authority of India Limited (SAIL). It has also its registration with the Government of Odisha to carry on said business. It has also its registration with the Government of Odisha to carry on said business. The Plaintiff has taken the telephone connection and has been paying the license fee to the Municipality for carrying out all said activities. It is his case that on expiry of the period of agreement, fresh agreement had been entered into with Defendant No.1 on 01.04.2010 and then the monthly rent had been enhanced to Rs.1,500/- per month. The said agreement was again for the period of five years w.e.f. that date with the mode of payment as half yearly rent together in advanced with further condition that every year, the monthly rent would be enhanced by five per centum (5%). The Plaintiff claims to have been regularly paying the rent to the Defendant No.1. It is stated that on 18.06.2014, the Defendants asked the Plaintiff to vacate the suit premises and gave a deadline of seven days for the same, otherwise to face forcefully dispossession. The Plaintiffs request that at least the period fixed under the agreement be adhered to was not paid any heed to. The Defendants also did not listen to the request of the Plaintiff for his continuance in occupation of the tenanted premises till arrangement of an alternative accommodation. When all such attempts to convince the Defendants failed, the Plaintiff filed the Suit claiming the relief that he be allowed to remain in possession of the suit premises till April, 2015 or his eviction following due process of law. 5. The Defendants denied the assertion of the Plaintiff that he was paying more monthly rent but as per the oral request of Basudev was showing less. It is stated that on 12.04.2014, they had sent the notice under Section-106 of the Transfer of Property Act to the Plaintiff terminating the tenancy with a request to vacate the tenanted premises. The notice however received no response from the side of the Plaintiff as also the reminder being sent, it did not yield any fruitful result. The defendants thus filed the counter-claim in the suit filed by the Plaintifftenant seeking a decree for eviction of the Plaintiff from the suit premises. The Plaintiff has filed his written statement to the said counter claim stating therein that the notice in question is invalid in the eye of law being contrary to the terms of the agreement. The defendants thus filed the counter-claim in the suit filed by the Plaintifftenant seeking a decree for eviction of the Plaintiff from the suit premises. The Plaintiff has filed his written statement to the said counter claim stating therein that the notice in question is invalid in the eye of law being contrary to the terms of the agreement. They pleaded that the counter claim bears no merit. 6. On the rival pleadings, the Trial Court framed ten issues. Going to decide the crucial issues as to the claim of Plaintiff to remain in possession vis-a-vis, the counter claim of the Defendants as to Plaintiffs eviction, from the suit premises in his occupation as tenant, the Trial Court answered the said issues against the Plaintiff and in favour of the Defendants. That answer has practically provided the answers to all other issues in finally leading to the dismissal of the Suit and grant of the reliefs to the Defendants as prayed for in the Counter Claim. The Plaintiff being aggrieved by the said judgment and decree passed by the Trial Court in dismissing his Suit and directing him to vacate the suit premises had carried an Appeal under section-96 of the Code which has also been dismissed. Now, therefore, the Plaintiff is before this Court with the present Appeal. 7. The Appeal has been admitted on the following substantial questions of law:- 1) Whether the Courts below have completely erred in law by decreeing the counter claim of the Defendants when the Defendant No.2 examined as D.W.1 has clearly admitted to have received rent after the said notice as to termination as tenancy; thereby rendering the said notice totally ineffective in law for the purpose of termination of the tenancy and thus the consequential action for eviction based on that was no more permissible? 2) Whether the Courts below have misinterpreted the notice under Section-106 of the T.P. Act terminating the tenancy of the Plaintiff -tenant even though the Defendants-Landlords have received rent thereafter and thus have waived the claims as to termination of tenancy and their demand of vacant possession thereby? 8. 2) Whether the Courts below have misinterpreted the notice under Section-106 of the T.P. Act terminating the tenancy of the Plaintiff -tenant even though the Defendants-Landlords have received rent thereafter and thus have waived the claims as to termination of tenancy and their demand of vacant possession thereby? 8. Learned counsel for the Appellant (Plaintiff) submitted that the Courts below have completely erred in law by decreeing the Counter Claim of the Defendants when the Defendant No.2 examined as D.W.1 has clearly admitted to have received rent after the said notice as to termination of tenancy; thereby making the said notice wholly ineffective for the purpose of termination of the tenancy and thus the consequential action for eviction based on that was no more permissible. He submitted that the Defendants having received the notice have expressed clear intention to no more further press the termination of tenancy and rather, intended in favour of occupation of the Plaintiff in respect of the tenanted premises as such. According to him in the Counter Claim founded upon above said notice, the Courts below have erred in granting the relief of eviction. Highlighting the above, he further submitted that in view of such clear admission of D.W.1, the Courts below ought not have decreed the Counter Claim for eviction of the Plaintiff. It was submitted that when there was no termination of tenancy as required under law in support of the relief prayed for in the Counter Claim, the Courts below ought to have dismissed the same and decreed the Suit of the Plaintiff, leaving the Defendants to work out their remedy in a duly constituted proceeding. In view of all the above, the substantial questions of law has to find their answers in favour of the Plaintiff in decreeing the Suit granting the reliefs as prayed for and dismissing the counter-claim. He further submitted that in all fitness of things and in the facts and circumstances, the Plaintiffs genuine request for grant of time to vacate the tenanted premises till availability of alternative accommodation should stand for consideration at this time. He further submitted that in all fitness of things and in the facts and circumstances, the Plaintiffs genuine request for grant of time to vacate the tenanted premises till availability of alternative accommodation should stand for consideration at this time. Learned counsel for the Respondents (Defendants) having entered through submitted that the concurrent findings on the facts that there has been due termination of tenancy by serving proper notice under Section-106 of the T.P. Act upon the Plaintiff are not liable to be interfered with as there appears no absolutely perversity in it. According to him, the First Appellate Court has elaborately touched upon all those required aspects in finally accepting the view taken by the Trial Court. He submitted that the formulated substantial questions of law have to be answered in favour of upholding the judgments and decrees passed by the Courts below. He submitted that when the Plaintiff has gone on dragging the litigation for all these period since the year 2014, allowing further time to him to vacate the tenanted premises would amount to grant of bonus. 9. Keeping in view the submissions made, I have carefully perused the impugned judgments of the Trial Court as well as the First Appellate Court. The written note of submission filed by the learned counsel for the Respondents (Defendants) with citations taken on record has been gone through. 10. The relationship between the Defendants and Plaintiff as Landlords and Tenant stands undisputed. In the instant case, when the Plaintiff-Tenant filed the Suit for permanent injunction with the principal relief of restraining the Defendants from evicting him without following due process of law; the Defendants-Landlords in their written statement have set up a Counter Claim seeking the eviction of the Plaintiff having pleaded therein that there has been due termination of tenancy in accordance with law. Practically, the fate of the Suit as well as the Counter Claim depend upon the answer on Issue No.(ix) framed in the Suit. In case the answer on the said issue is rendered in favour of the Defendants then the inevitable answer upon issue No.(v) would be against the Plaintiff which has been done by the Courts below. In other words, if the answer of Issue No.(ix) is recorded in favour of the Defendants then the answer of Issue No.(v) would run as consequential and in favour of the Plaintiff. In other words, if the answer of Issue No.(ix) is recorded in favour of the Defendants then the answer of Issue No.(v) would run as consequential and in favour of the Plaintiff. At this juncture, the written statement of the Plaintiff to the Counter jClaim bears importance and needs little elaboration. The Plaintiff states that the Defendants had not served any notice on him as to termination of tenancy in respect of the Suit shop rooms in terms of the last agreement and subsequently, it is stated that the notice is contrary to the term as finds mention under paragraph-2 of the said agreement. So, it is said that there was no cause of action for the Defendants to lodge the Counter Claim for eviction of the Plaintiff from the tenanted premises and accordingly, the Defendants are not entitled to any reliefs thereunder. 11. The Counter-Claim having been set up under Order-8 Rule-6A of the Code, it would be in effect as cross-suit as provided in Order-8 Rule-3 of the Code. The said Counter Claim being treated as plaint for the purpose as indicated in Order-8 Rule-4 of the Code, the Rules relating to written statement come to apply to a written statement filed by the Plaintiff in the answer to a Counter Claim. Order-8 Rule-6E of the Code provides that if the Plaintiff makes the default in putting reply to the Counter-Claim made by the Defendants, the Court may pronounce the judgment against the Plaintiff in relation to the Counter-Claim made against him or make such order in relation to the Counter-Claim, as it thinks fit. These being the position of law, the Plaintiff having not specifically averred in his written statement to the Counter-Claim of the Defendants in resisting the same by specifically pleading therein that in view of the subsequent conduct of the Plaintiff expressing clear intention thereof in waiving the said notice under section-106 of the T.P. Act as to termination of tenancy and thus not further pressing it into service, said notice has lost all its force Counter-Claim is said to be founded upon did no more survive, the contention as has been advanced by the learned counsel for the Appellant (Plaintiff) cannot be countenanced with. 12. In case of Dharam Pal Vrs. 12. In case of Dharam Pal Vrs. Harbans Singh; (2006) 9 SCC 216 , it has been held as under:- 'Law is well settled that an objection as to invalidity or insufficiency of notice under Section 106 of the Transfer Property Act should be specifically raised in the written statement failing which it will be deemed to have been waived.' In that case even though the objection was taken in the written statement that the notice issued by the plaintiff was illegal, null and void and ineffective upon the right of the defendant, the same was not held to be in specific terms and thus the waiver was held. The High Court of Delhi in case of Bandhu Machinery vs. Om Prakash: AIR 2009 Delhi 33 has followed the ratio of the above decision. It is worthwhile to state here that in case of Dharam Pal (Supra) when even as in consonance with the provisions of Section 106 of the T.P.Act as it stood prior to the amendment effected by T.P.(Amendment) Act, 2002 w.e.f. 13.01.2002 which was holding the field so far as that case is concerned, the twin requirements of a valid notice (i) it must give clear 15 days time for the tenant to vacate; and (ii) the notice must expire with end of the month of the tenancy were not satisfied, still those were not allowed to be raised by the tenant applying the principle of waiver on account of want of any specific defence in that regard in the written statement. The trial court thus even having not framed any issue on that score, no fault was found for the same. In fact this Court in cases of Bijili vs. Gourishankar: (1981) 52 CLT 389 and Debi Dayal vs. Ramesh Kumar :AIR 2009 Orissa 19 has held that want of notice under Section 106 and 114-A of the T.P.Act had to be specifically pleaded and in the absence of the pleading being there in the written statement the court did not permit those questions to be raised at a later date. As above discussed, in my considered opinion, the objection as regards sufficiency and valid service of notice under Section 106 of the T.P.Act having been waived being not been so specifically pleaded in defence in the written statement to the Counter-Claim, the contention on that score here is untenable. 13. As above discussed, in my considered opinion, the objection as regards sufficiency and valid service of notice under Section 106 of the T.P.Act having been waived being not been so specifically pleaded in defence in the written statement to the Counter-Claim, the contention on that score here is untenable. 13. Next on merit, as to whether acceptance of rent by the Landlord after issuance of notice under Section-106 of the T.P. Act would amount to waiver of notice to quit as provided under Section-113 of the T.P. Act; admittedly, the Plaintiff here did not vacate the suit house after service of notice vide Ext.A, terminating the tenancy and the demand of vacant delivery of possession as made by the Defendants was thus not acceded to. Even accepting for a moment the case projected by the Plaintiff that he had paid the rent thereafter which has been received by the Defendants, the same is of no avail in the eye of law so as to conclude that the notice of termination of tenancy had thereby been waived by the Defendants as such of their intention is not emanating from the evidence as to their subsequent conduct or any such voluntary or conscious act. It being the case of the Plaintiff that they wanted his eviction giving a deadline and refused to accept his request for continuance of possession for further period which drove him to file the Suit under the apprehension of forcible dispossession, rather negate such an intention. The law is well settled that acceptance of rent itself does not amount to waiver of notice and there has be clear expression of the intention to treat the lease as subsisting by way of conduct or by such conscious and voluntary act which can be taken as nullifying the effect of termination of tenancy made before hand by said notice. 14. In case of Sarup Singh Gupta vs. S. Jagdish Singh; AIR 2006 SC 1734 , where the landlord had received the house rent after service of notice terminating the tenancy and before the institution of the suit, the Honble Apex Court refused to take that itself into consideration to hold that the same constitutes waiver. Under the circumstance, it was not taken to be the intention on the part of the landlord to treat the lease as subsisting. Under the circumstance, it was not taken to be the intention on the part of the landlord to treat the lease as subsisting. So in the absence of any other evidence to otherwise establish that the landlord intended to waive the notice already served and thus to have treated it as if subsisting, the contention of waiver has been repelled. Tender and acceptance are not sufficient to constitute waiver under section 113 of the T.P.Act. It has been held therein:- 'Where a person has instituted a suit seeking eviction, it is difficult to accept the contention at the first blush that he still intended to treat the lease as subsisting. It has to be proved through other evidence showing the facts and circumstances vis-a-vis the conduct of the parties then. Such tender and acceptance of rent may stand to lend support to that favouring waiver. Illustration (a) to section 113 of the T.P.Act, must be understood and applied in consonance with the principle underlying the section and with due reference to the intention of the lessor. There is no warrant for the view that the mere receipt of rent, notwithstanding the intention of the lessor, should, of its own force and divorced from the circumstances of the case, be regarded as amounting to waiver. The termination of tenancy which has been made a cause of action for filing a suit cannot be done away with on the grounds of alleged waiver by the acceptance of a certain amount towards the house rent. The burden of proving all these above lies on the party taking the defence of waiver to non-suit the suitor. In the instant case, barring the factum of tender and acceptance, no other evidence being let in by the defendants, the burden of proof has been found to have not been discharged and no fault is found therein.' The learned counsel for the Respondents has also placed a decision rendered by this Bench of the Court in case of Nanda Kishore Swain & Another vs. Sri Sarat Kumar Sahu (deceased) & others in RSA No. 278 of 2009 decided on 02.05.2017 (MANU/OR/0853/2017). It has been held therein that- ' para 17 last & para-18 (marked)'. It has been held therein that- ' para 17 last & para-18 (marked)'. It has been further placed by him that the move to challenge said findings before the Honble Supreme Court in SLP (C) No. 20449 of 2017 has failed as that has been dismissed on 30.10.2017. 15. Aforesaid discussion and reason accordingly provide the answers to the substantial questions of law in favour of affirmation of the flawless findings recorded by the Courts below on the termination of tenancy as required under law in negating the contention of the Plaintiff relating to waiver. Thus the Plaintiffs move to upset the judgments and decrees passed by the Courts below thus fails. 16. Having said this, taking into account the last limb of submission of learned counsel for the Appellant (Plaintiff) and the response thereto, while dismissing this Second Appeal, the Plaintiff is hereby directed to deliver vacant possession of the suit house to the Defendants on or before the 30th day of October, 2021 provided he would give an undertaking before the Trial Court by 15th Day of May, 2021 to above effect with further undertaking to clear up the arrear house rent and/or damage with the house rent and/or damage at the running rate as per the case of the Plaintiff for the period till vacation as above directed, in three equal instalments i.e. 1st one by end of June, 2021; next one by end of August, 2021 and the last one on or before the final vacation i.e. end of October, 2021. 17. In the result, the Appeal stands dismissed. No order as to cost. As the restrictions due to resurgence of COVID-19 situation are continuing, learned counsel for the parties may utilize a printout of the order available in the High Courts website, at par with certified copy, subject to attestation by the concerned advocate, in the manner prescribed, vide Courts Notice No.4587, dated 25th March, 2020 as modified by Courts Notice No.4798 dated 15th April, 2021.