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2023 DIGILAW 204 (ORI)

Devi Tent House v. Prafulla Chandra Patra

2023-11-13

D.DASH

body2023
JUDGMENT D.Dash, J. The Appellant, by filing this Appeal under Section-100 of the Code of Civil Procedure, 1908 (for short, 'the Code'), has assailed the judgment and decree dated 25.08.2023 and 04.09.2023 respectively passed by the learned District Judge, Khurda-at Bhubaneswar in R.F.A. No.325 of 2022 confirming the judgment and decree dated 28.11.2022 & 03.12.2022 respectively passed by the learned Senior Civil Judge, (LR & LTV), Bhubaneswar in Civil Suit No.215 of 2021. The Respondent as the Plaintiff had filed the suit for eviction of the Appellant (Defendant) from the suit house seeking further relief of realization of arrear house rent and damage. The suit having been decreed, the Appellant being the aggrieved Defendant under the sufferance of the said judgment and decree passed by the Trial Court had carried Appeal under section-96 of the Code. The Appeal has been dismissed. Hence, the present Second Appeal is at the instance of the Defendant who has been unsuccessful before the Trial Court as well as the Appellate Court. 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 who is now aged about 80 years has asserted in the plaint that he owns the two storied building over the land under Plot No.305 in Rameswarpatna, Bhubaneswar near Mausima Temple. The two storied building is having pump house and temporary garage. The ground floor of the building comprises of a puja room, store room, three bed rooms, kitchen and two toilets and big verandah, better described in Lot-1 on the schedule of the plaint and it was having in its front a house measuring 17 ft. X 23.5 ft., facing the main road. It was some time in the month of October, 2016; the Defendant approached the Plaintiff to take the said house on rent as tenant. The Plaintiff then inducted the Defendant as a tenant in respect of the said house w.e.f. 01.11.2016 on payment of agreed rent of Rs.16,000/- per month. An agreement to that effect being executed on 31.10.2016, the Defendant advanced a sum of Rs.50,000/- to be kept with the Plaintiff towards security to be refunded after due adjustment towards the damage if any caused to the house during the period of occupation of the Defendant as a tenant. An agreement to that effect being executed on 31.10.2016, the Defendant advanced a sum of Rs.50,000/- to be kept with the Plaintiff towards security to be refunded after due adjustment towards the damage if any caused to the house during the period of occupation of the Defendant as a tenant. It was agreed that the Defendant would pay the monthly rent was Rs.10,000/- and would bear electricity and water charges separately. The Defendant raised a brick wall by removing iron grill gate fixed on the outer side of the building without knowledge of the Plaintiff. He also demolished the pump house and garage and constructed the house and utilized the northern portion adjoining premises in running his business in the name and style of M/s. Devi Electricals. The Plaintiff having arrived in Bhubaneswar in the month of December, 2016, asked the Defendant for removing the structure and demanded payment of compensation for such illegal demolition of garage and pump house. The Defendant thereafter having requested the Plaintiff to let out the said house on payment of Rs.1200/- per month for a period of three years; with the condition that the cost of construction of the house would be adjusted towards the house rent, the Plaintiff agreed to the same. In this way, as agreed, the arrangement continued for a period of three years. The Plaintiff thereafter terminated the tenancy on expiry of 31.10.2019 and demanded vacant possession of the tenanted premises from the Defendant. However, again on approach of the Defendant, the tenancy continued for one year more with enhancement of monthly rent by 10%. It is said that the Defendant failed to pay the agreed rent in time and therefore, the Plaintiff finally terminated the tenancy on expiry of 31.10.2020 and asked the Defendant to give vacant delivery of the possession of the suit house by paying the arrear rent and damage. That having not been done by the Defendant, the suit came to be filed. 4. The Defendant despite service of notice, did not appear in the suit. During tenancy of the suit, the Defendant although had filed the written statement that was not accepted by the Trial Court. The suit thus, proceeded exparte. That having not been done by the Defendant, the suit came to be filed. 4. The Defendant despite service of notice, did not appear in the suit. During tenancy of the suit, the Defendant although had filed the written statement that was not accepted by the Trial Court. The suit thus, proceeded exparte. The Trial Court basing upon the unchallenged the testimony of the Plaintiff examined as P.W.1 and another resident of the locality examined as P.W.2 as well as the documents admitted in evidence and marked as Ext.1 to 4 on behalf of the Plaintiff, decreed the suit by passing the following order:- "The suit of the plaintiff be and the same is decreed exparte against the defendant and in the circumstances without cost. The plaintiff is entitled to vacant delivery of possession of Lot-1 and Lot-2 houses in the plaint along with realization of the claimed arrear rent of Rs.1,90,400/- with pendent lite and future interest @ 6% per annum until full realization thereof, within two weeks from this order. In case of non-compliance of the order by the defendant the plaintiff is at liberty to take resort to the course of law of getting the defendant evicted from the said houses and realization of the arrear rent with future arrear rent with future and pendent lite interest stated herein." 5. The Defendant being aggrieved by the said ex-parte decree, challenged the same by carrying the Appeal under section-96 of the Code which having been dismissed. That is how he is now with the present Second Appeal before this Court. 6. The Appeal is admitted to answer the following substantial question of law:- "Whether the Courts below are right in holding that there has been due termination of tenancy between the Plaintiff and the Defendant as required under section-106 of the Transfer of Property Act, 1982?" 7. Heard Mr. B.C. Panda, learned Counsel for the Appellant and Mr. Rajjeet Roy, learned Counsel for the Respondent. 8. The relationship between the parties of the landlord and tenant is not in dispute. It is the evidence of P.W.1, the Plaintiff that he had issued notice through his counsel on 11.12.2020 terminating the tenancy and demanding the vacant possession of the tenanted premises and payment of arrear house rent within fifteen (15) days. 8. The relationship between the parties of the landlord and tenant is not in dispute. It is the evidence of P.W.1, the Plaintiff that he had issued notice through his counsel on 11.12.2020 terminating the tenancy and demanding the vacant possession of the tenanted premises and payment of arrear house rent within fifteen (15) days. From the copy of the notice which has been proved as Ext.3; there is absolutely no challenge to the said evidence. The Defendants has chosen not to contest the suit by leading evidence in counter and therefore, the Courts below having held the tenancy to have been duly terminated in accordance with the provision contained in 106 of the Transfer of Property Act; this Court answers the substantial question of law in favour of the Plaintiff in holding that the suit granting the reliefs aforestated has been rightly decreed. 9. Having said as above, keeping in view the submission of the learned Counsel for the Appellant (Defendant) for granting some breathing time to the Defendant to vacate the suit house and premises in shifting to the new place where he would establish his business which in the facts and circumstances of the case appears to reasonable; this Court while refusing to interfere with the judgments and decrees passed by the Courts below directs the Defendant to pay a sum of Rs.1,25,000/- (Rupees one lakh twenty five thousand), towards the arrear rent on or before the expiry of three months from today with the Executing Court for being paid to the Plaintiff and in case the deposit is so made by the Defendant, he would continue to remain in possession for further period of three (3) months i.e. in total six (6) months from today paying the balance amount in terms of the order of the Trial Court.