Orissa High Court
Afr Truptimayee Bastia And Ors vs Subhalaxmi Mishra And Others on 24 December, 2025
Author: Sashikanta Mishra
Bench: Sashikanta Mishra
IN THE HIGH COURT OF ORISSA AT CUTTACK
RSA No.256 of 2025
[In the matter of an appeal under Section 100 of CPC from
Judgment dated 23.12.2024 passed by the learned Addl.
District Judge, Bhubaneswar in RFA No. 10 of 2024,
arising out of the judgment dated 20.12.2023 and decree
dated 05.01.2024 passed by the learned Senior Civil Judge
(LR & LTV), Bhubaneswar in C.S. No. 678 of 2021]
AFR Truptimayee Bastia and Ors. .... Appellants
-Versus-
Subhalaxmi Mishra and others .... Respondents
Advocate(s) appeared in this case:
For the Appellants :Mr. Dwarika Prasad Mohanty, T.K.
Mohanty, P.K. Swain, M. Pal, R.
Mohanty, S. Rath & S.K. Rout,
Advocates.
For Respondents :Mr. Siva Prasad Kar (in Person)
M/s.Lingaraj Mohanty, P.K.Pattanaik,
Tathagata Sahoo, Advocates.
[ For R 3 & 4]
M/s. Siva Sai Mohapatra, Akash
Acharya, Surya Mohapatra.
[For R 1)
CORAM:
JUSTICE SASHIKANTA MISHRA
Page 1 of 23
JUDGMENT
th 24 December, 2025 SASHIKANTA MISHRA, J.
This is an appeal filed by the defendants against a confirming judgment. The judgment passed by learned Additional District Judge, Bhubaneswar in RFA No.10 of 2024 on 23.12.2024 followed by decree in confirming the judgment passed by learned Senior Civil Judge (L.R. & L.T.V.), Bhubaneswar in C.S. No.678 of 2021 on 20.12.2023 followed by decree, is impugned.
2. For convenience, the parties are referred to as per their respective status before the Trial Court.
3. The plaintiff's case, briefly stated, is that her husband (proforma defendant No.6) is the rightful owner of the schedule land and the building standing thereon. The plaintiff took the suit land from her husband on an oral understanding to run a hotel business in the name and style of 'Hotel Lavender'. She resided in the top floor of the building with her family and also ran a marriage mandap in a portion thereof. The defendant Nos.2 to 5 approached Page 2 of 23 the plaintiff and her husband for hiring the suit land on monthly rent basis, to which they agreed. Accordingly, a tenancy agreement was executed between the defendant Nos.1 to 3 and the plaintiff w.e.f. 01.10.2019 wherein, the monthly rent was fixed at Rs.4,00,000/- excluding 18% GST. The defendants ran the hotel but did not pay the agreed monthly rent. On the contrary, the defendant Nos. 2 to 5 threatened the plaintiff and her husband with dire consequences. Defendant No.4 filed a suit being C.S. No.1238 of 2020, in which the plaintiff, after appearing pursuant to summons found that defendant Nos.2 and 4 had manufactured a fake and fraudulent lease agreement dated 02.09.2019 by taking signatures of the plaintiff and her husband forcefully with the monthly rent being fixed at Rs.1,00,000/-. The plaintiff issued notice under section 106 of Transfer of Property Act for non-payment of monthly rent to defendant Nos.1 to 3 asking them to vacate the suit premises and to clear the outstanding arrear rent of Rs. 49,84,000/- by 30.12.2020 along with damages of Rs.50,000/- per day. Since the defendants did not comply, Page 3 of 23 the plaintiff filed the suit for eviction, realization of arrear rent and damages etc. 3.1 Defendant numbers 2 to 4 contested the suit by filing a joint written statement. It was stated that they being partners of M/s. Village Inn, entered into a lease agreement with the plaintiff and her husband on 02.09.2019 and thus, the commercial operation of the hotel came to their hands for a period of 5 years. As per the agreement, the defendants paid Rs.24,00,000/- as an interest free refundable security deposit and the monthly rent was fixed at Rs.1,00,000/. The above amounts being paid, the plaintiff and her husband delivered possession of the property to them. The defendant firm invested Rs.80,00,000/- for development of the hotel and started its operation since October 2019 and has been paying rent regularly without any default. It is further stated that because of COVID-19 pandemic, the hotel business came to a halt for which they were unable to pay the monthly rent from April, 2020 to August, 2020 for which the plaintiff and her husband threatened the defendants to Page 4 of 23 vacate the suit premises. Finding no other way, the defendants filed a complaint case being ICC Case No. 3049 of 2020 against the plaintiff and her husband. It is further stated that the plaintiff and her husband were collecting regular monthly rent from the defendants but they tried to evict them from the suit premises without following the due process of law.
3.2 On such rival pleadings, the Trial Court framed the following issues for determination.
"(i) Whether the suit is maintainable?
(ii) Whether there is cause of action for the plaintiff to file the suit?
(iii) Whether the suit of the plaintiff is barred by limitation?
(iv) Whether the lease agreement submitted by the plaintiff is genuine one?
(v) Whether the notice u/s.106 of the T.P. Act dated 30.12.2020 served on the defendants is valid and proper?
(vi) Whether the plaintiff is entitled to a decree for eviction of the defendants from the suit premises?
(vii) Whether the plaintiff is entitled to a decree for realization of outstanding arrear rent?
(viii) Whether the plaintiff is entitled to a decree for damages for unauthorized occupation of the suit premises by the defendants @ ₹50,000/- per day w.e.f 05.02.2021?
(ix) Whether the plaintiff is entitled to a decree for damages of ₹20,50,000/- towards the cost of damage to the hotel property?Page 5 of 23
(x) Whether the plaintiff is entitled to a decree to forfeit the security money deposited by the defendants?
(xi) To what other relief(s) the plaintiff is entitled?"
4. The Trial Court took up issue Nos.(iv), (v) and
(vi) for consideration at the outset. After going through the oral and documentary evidence and particularly, the lease agreement, marked Ext-1, the Trial Court did not accept the plea of the defendants that Ext-1 is a forged document. The original lease deed (Ext.1) was claimed to have been torn into pieces by the defendants. Nevertheless, the plaintiff produced the agreement by joining the torn pieces by means of transparent cello-tape. The Trial Court, on examination of the documents found that no damage had been caused to the contents of the agreement and that the mutilation cannot be a ground to disbelieve it. Moreover, the matter had been referred to the Police by the plaintiff and her husband, of which there was sufficient evidence. The Trial Court further held that the defendants not having produced any document to show the existence of any genuine agreement or any evidence to disprove the claim of Page 6 of 23 the plaintiff relating to the incident of mutilating the agreement into pieces, the plea of the defendants that Ext-1 is a fabricated document cannot be accepted. Moreover, the defendants, who are signatories to the agreement, did not come forward to depose before the Court. As regards the quantum of rent, the Trial Court was inclined to believe the contention of the plaintiff that the same was Rs.4,00,000/- per month and not Rs.1,00,000/- per month as claimed by the defendants. It was further found that the notices issued by the plaintiff were refused by defendant No.3 and received by defendant Nos.1, 2 and
4. Since the defendants failed to vacate the suit premises despite service of notice to quit and continued in possession without paying any rent, they are to be treated as tenants-at-sufferance and hence, liable to be evicted. 4.1 On issue No.(vii), the Trial Court held that the defendants are liable to pay the unpaid rent from April, 2020 to February, 2020 along with charges for electricity, water, GST and interest as per the agreement in all amounting to Rs.53,75,000/-.
Page 7 of 23 4.2 On issue No.(viii), the Trial Court held that the damages @ Rs.27,000/- per day shall be levied. 4.3 On issue Nos.(ix) & (x), the Trial Court while rejecting the claim for imposing special damages for damages towards the cost of hotel properties held that the security amount of Rs.16,00,000/- is to be adjusted towards the liability of the defendants without any interest. 4.4 In view of the findings on the central issues as referred above, the remaining issues were answered accordingly and the suit was decreed by directing the defendants to handover possession of the suit premises and to pay Rs.53,75,000/- towards arrear rent for the period from April, 2020 to February, 2021 along with interest @ 12% per annum from April 1st, 2020 and damages @ Rs.8,10,000/- per month from March, 2021 till vacation of the suit premises along with interest @ 6%. It was further ordered that the security deposit of Rs.16,00,000/- shall be adjusted and the remaining amount shall be paid within one month.
Page 8 of 23
5. Being aggrieved, the defendants carried appeal. Be it noted that the appeal was dismissed by the First Appellate Court, against which the defendants filed Second Appeal before this Court being RSA No.179 of 2024. By judgment dated 06.09.2024, this Court remanded the matter to the First Appellate Court to consider the appeal afresh after allowing the petition filed by the defendant-appellants for adducing additional evidence, giving due opportunity to the plaintiff to adduce rebuttal evidence, if any. The First Appeal was thus, heard afresh. 5.1 After taking note of the contentions raised, vis- à-vis the findings of the Trial Court, the First Appellate Court framed the following questions for determination.
"(i) Whether the plaintiff is entitled to decree for eviction of the defendants from the suit premises?
(ii) Whether the plaintiff is entitled to realization of arrear rent and damages from the defendants?"
5.2. After scanning the evidence on record, the First Appellate Court held that the lease agreement (Ext-1) relied upon by the plaintiff being alleged to be a fabricated document, the burden of proof lay on the Page 9 of 23 defendants. Proceeding on such premise and finding that the defendants had not produced any material before the Court to discredit the lease agreement (Ext-1), it cannot be held that the same is a forged document. Defendant No.4 was not a signatory and the defendants, who had signed on Ext-1, never came forward to depose before the Court. The defendants never produced copy of the agreement which ought to have been in their possession. 5.3. As regards the monthly rent, the First Appellate Court took note of the copy of agreement produced by the defendants before GST authority mentioning the monthly rent of Rs.1,00,000/-. However, since Ext-1 was already held to be a genuine document, the First Appellate Court did not place any reliance on the copy of the agreement produced by the defendants. 5.4. The First Appellate Court further took note of the notices issued by the plaintiff under Section 106 of the TP Act and the failure of the defendants to either pay the arrear rent or to vacate the suit premises, which according to it, was in violation of the terms of the lease agreement. It Page 10 of 23 was therefore, held that the defendants are liable to be evicted by the Trial Court.
5.5. On such findings, the First Appellate Court found no reason to interfere with the judgment and decree passed by the Trial Court and therefore, dismissed the appeal
6. Being further aggrieved, the defendants have preferred the present second appeal, which was admitted on the following substantial questions of law.:
"(i) Whether the learned lower Appellate Court has committed gross error of law by not exhibiting the documents filed under order-XLI, Rule-27 of C.P.C.
even after allowing the petition for additional evidence by its order dated 25.11.2024?
(ii) Whether the Learned Lower Appellate Court committed error by not considering the documents obtained under the Right to Information Act filed under Order XLI Rule 27 of the CPC, which goes to show that the Appellant No.1 had submitted the copy of the rent agreement and the electricity bill in the month of October 2019 for obtaining the CGT certificate and accordingly certificate was issued on 18.10.2019, putting a question mark on the allegation of forceful taking of signature of the Plaintiff and her husband on blank papers?"
7. Heard Mr. D.P. Mohanty, learned counsel for the defendant-appellants; Mr. S.S. Mohapatra, learned counsel for the plaintiff-respondent No.1; the proforma Page 11 of 23 defendant No.6(Respondent No.2-Siva Prasad Kar) in person and Mr. L. Mohanty, learned counsel for Defendant Nos. 3 & 5(Respondent Nos. 3 & 4).
8. Mr. D.P. Mohanty would argue at the outset that in the meantime the defendants having delivered vacant possession of the suit premises, the only question to be decided in the present appeal is regarding payment of arrear rent. On the first substantial question of law framed, Mr. Mohanty would argue that this Court on the earlier occasion had remanded the matter to the First Appellate Court for hearing the first appeal afresh with a specific direction to allow the petition filed by the defendant-
appellants for adducing additional evidence. The First Appellate Court though allowed the application but did not formally admit the documents in question into evidence.
Mr. Mohanty fairly submits that the said question has become irrelevant since in the meantime this Court, by order dated 05.12.2025, exercising power under Order XLI Rule 27 of CPC has already admitted the documents into evidence as Exts- 'B' and 'C' with objection from the side of Page 12 of 23 the respondents. Substantial question No.(i) therefore, no longer requires to be answered. Mr. Mohanty further submits that substantial question No.(ii) as framed basically revolves around the lease agreement and the monthly rent fixed therein. Though the plaintiff claims Ext-1 as being the valid and genuine agreement wherein Rs.4,00,000/- was fixed as the monthly rent exclusive of GST, according to the defendant-appellants, the agreement marked 'Ext-B' is the genuine agreement wherein the monthly rent is fixed at Rs.1,00,000/- per month. In this regard, Mr. Mohanty draws attention of the Court to Ext-B to submit that said document was submitted online by the defendants before the GST authorities, which being accepted, the certificate vide Ext.C was issued. Said document was undisputedly filed on 18.10.2019, which is prior to the time when the dispute arose. On the other hand, the documents vide Ext-1 is a torn and mutilated document on which no reliance can be placed.
9. Per contra, Mr. S.S. Mohapatra, as well as Mr. S. Kar both argue that the defendants are guilty of Page 13 of 23 suppression of facts inasmuch as in their written statement they have admitted to have the original lease agreement in their possession. So, they ought to have produced the same before the Court. Secondly, though defendant Nos. 2 and 3 are signatories to the agreement vide Ext-1, they never came to the witness box to depose nor questioned their signatures appearing therein. It is further argued that both the Courts below have, upon personal examination of the documents, found the same to be genuine.
10. This Court finds that the Trial Court has examined the genuineness of Ext-1 and found that the same bears the signature of defendant Nos. 2 and 3 on each page as also the signature of the plaintiffs. Even though the documents were torn into pieces, no damage was caused in the process to the contents thereof and therefore, was of the opinion that such mutilation cannot be a ground to disbelieve the document. The First Appellate Court has also concurred with such factual findings. It has not been demonstrated before this Court as to how such Page 14 of 23 findings are erroneous or incorrect. Furthermore, as held by the First Appellate Court, Ext-1 was executed before the Notary Public. On the other hand, copy of the agreement under Ext-B was one that was submitted by the defendants before the GST authority. This Court is not inclined to place any reliance on such document as it would be a case of admission by the defendants in their own favour. Section 21 of the Evidence Act specifically bars admissibility of such admissions in the following manner.
"21. Proof of admissions against persons making them, and by or on their behalf.-- Admissions are relevant and may be proved as against the person who makes them, or his representative in interest; but they cannot be proved by or on behalf of the person who makes them or by his representative in interest, except in the following cases:--
(1) An admission may be proved by or on behalf of the person making it, when it is of such a nature that, if the person making it were dead, it would be relevant as between third persons under section
32.
(2) An admission may be proved by or on behalf of the person making it, when it consists of a statement of the existence of any state of mind or body, relevant or in issue, made at or about the time when such state of mind or body existed, and is accompanied by conduct rendering its falsehood improbable.
Page 15 of 23 (3) An admission may be proved by or on behalf of the person making it, if it is relevant otherwise than as an admission.
Illustrations
(a) The question between A and B is whether a certain deed is or is not forged. A affirms that it is genuine, B that it is forged.
A may prove a statement by B that the deed is genuine, and B may prove a statement by A that deed is forged; but A cannot prove a statement by himself that the deed is genuine, nor can B prove a statement by himself that the deed is forged.
(b) A, the captain of a ship, is tried for casting her away.
Evidence is given to show that the ship was taken out of her proper course.
A produces a book kept by him in the ordinary course of his business showing observations alleged to have been taken by him from day to day, and indicating that the ship was not taken out of her proper course. A may prove these statements, because they would be admissible between third parties, if he were dead, under section 32, clause (2).
(c) A is accused of a crime committed by him at Calcutta.
He produces a letter written by himself and dated at Lahore on that day, and bearing the Lahore post-mark of that day.
The statement in the date of the letter is admissible, because, if A were dead, it would be admissible under section 32, clause (2).
(d) A is accused of receiving stolen goods knowing them to be stolen.
He offers to prove that he refused to sell them below their value.
Page 16 of 23
A may prove these statements, though they are admissions, because they are explanatory of conduct influenced by facts in issue.
(e) A is accused of fraudulently having in his possession counterfeit coin which he knew to be counterfeit.
He offers to prove that he asked a skilful person to examine the coin as he doubted whether it was counterfeit or not, and that that person did examine it and told him it was genuine.
A may prove these facts for the reasons stated in the last preceding illustration."
11. Therefore, the defendants cannot seek to benefit from their own document and even though the same relates to an undisputed period as it being a self- serving one, has no value. This is being said for the reason that nothing has been placed to disbelieve the genuineness of the agreement vide Ext.1. The signatories to the agreement i.e., defendant No. 2 and 3 chose not to come to the witness box nor questioned their signatures appearing on the document. Under such circumstances, both the Courts below have rightly believed Ext-1 as being a valid document. This Court concurs with such findings.
12. Coming to the quantum of arrear rent, once it is accepted that Ext-1 is the actual agreement, then the Page 17 of 23 monthly rent has to be accepted as Rs.4,00,000/- per month exclusive of GST. The First Appellate Court has taken the above as the basis and calculated the arrear rent for the period from April, 2020 to February, 2021. Nothing has been placed before this Court so as to persuade it to find fault with the calculation as above.
13. This Court however, observes that the Trial Court has imposed interest @ 12% per annum. The agreement vide Ext-1 does not specify the rate of interest to be imposed for non-payment of rent. Under such circumstances, the prevailing bank rate can be imposed, which is 7.5% per annum.
14. Coming to the damages, Clause-25 of the agreement (Ext-1) reads as follows:
Clause 25-That, in case the 2nd party violate any terms and conditions of this agreement, then the 1ª party is at liberty to vacate the premises by serving a two months' notice and in that case the 2nd party will be treated as a trespassers in the premises. In case the 2nd party does not vacate the leased premises after the lease period or termination of this agreement due to early violation of any stipulated case as stated above or does not enter into a fresh agreement on mutually agreed terms and condition then they will be treated as trespassers and be liable to pay damages at the Page 18 of 23 double the amount of rent till evicted. They will also be liable for criminal proceeding under IPC."
15. Relying on the above clause, the Trial Court deemed it proper to levy damages on the defendants for unauthorised occupation and use of the suit premise. The relevant portion of the analysis made by the Trial Court is reproduced below:
"Issue Nos. (viii) In view of the aforesaid analysis in this judgment when the defendants are in possession over the suit premises after termination of the lease, the plaintiff is entitled for damages for unauthorized occupation and use of the suit premises. D.W.1 in his cross-examination has admitted that the leased out hotel consists of G+3 floors and it has AC restaurant, kitchen, reception in the ground floor and AC marriage hall with multiple pillars in the 1"
floor. There are 10 nos. of AC room available in the 2nd floor and another 4 nos. of AC rooms are available in the 3rd floor for lodging facility. The case of the plaintiff does not reveal the rent at which such rooms and the AC marriage hall can be leased out. It is however not disputed that the suit premises is situated at a commercially viable place in the rising city of Bhubaneswar. In that view of the matter, this court is of the view that damages @ 27,000/- per day will better serve the interest of justice and it will also be in conformity with the condition laid down in the agreement that in case of failure by the defendants to vacate the suit premises after termination of tenancy, they shall be liable to pay twice the amount of rent as damages. Thus, the plaintiff is entitled to damages @ 27,000/-- per day, i.e, 28,10,000/ per month from March, 2021 from the defendants until full realization thereof. The plaintiff is not entitled for realization of the damages as the aforesaid rate Page 19 of 23 from the 05.02.2021 but from the first March, 2021.
Hence this issue is accordingly decided in favour of the plaintiff.
16. This Court fails to understand as to how the existence of AC restaurant, kitchen, reception etc. as also the number of air-conditioned rooms can be relevant to quantify the damages. The Trial Court appears to have applied the provisions in Clause-'25' rigidly without making the necessary enquiry as to what would be a reasonable compensation. Section 74 of the Contract Act reads as follows:
"74. Compensation for breach of contract where penalty stipulated for.--When a contract has been broken, if a sum is named in the contract as the amount to be paid in case of such breach, or if the contract contains any other stipulation by way of penalty, the party complaining of the breach is entitled, whether or not actual damage or loss is proved to have been caused thereby, to receive from the party who has broken the contract reasonable compensation not exceeding the amount so named or, as the case may be, the penalty stipulated for.
Explanation.--A stipulation for increased interest from the date of default may be a stipulation by way of penalty.
Exception.--When any person enters into any bail- bond, recognizance or other instrument of the same nature, or, under the provisions of any law, or under the orders of the 2 [Central Government] or of any 3 [State Government], gives any bond for the performance of any public duty or act in which the Page 20 of 23 public are interested, he shall be liable, upon breach of the condition of any such instrument, to pay the whole sum mentioned therein.
Explanation.--A person who enters into a contract with Government does not necessarily thereby undertake any public duty, or promise to do an act in which the public are interested.
Illustrations
(a)A contracts with B to pay B Rs. 1,000, if he fails to pay B Rs. 500 on a given day. A fails to pay B Rs. 500 on that day. B is entitled to recover from A such compensation, not exceeding Rs. 1,000, as the Court considers reasonable.
(b)A contracts with B that, if Apractises as a surgeon within Calcutta, he will pay B Rs. 5,000. A practises as a surgeon in Calcutta. B is entitled to such compensation; not exceeding Rs. 5,000, as the Court considers reasonable.
(c)A gives a recognizance binding him in a penalty of Rs. 500 to appear in Court on a certain day. He forfeits his recognizance. He is liable to pay the whole penalty.
(d)A gives B a bond for the repayment of Rs. 1,000 with interest at 12 per cent. at the end of six months, with a stipulation that, in case of default, interest shall be payable at the rate of 75 per cent.
from the date of default. This is a stipulation by way of penalty, and B is only entitled to recover from A such compensation as the Court considers reasonable.
(e) A, who owes money to B a money-lender, undertakes to repay him by delivering to him 10 maunds of grain on a certain date, and stipulates that, in the event of his not delivering the stipulated amount by the stipulated date, he shall be liable to deliver 20 maunds. This is a stipulation by way of penalty, and B is only entitled to reasonable compensation in case of breach.
(f) A undertakes to repay B a loan of Rs. 1,000 by five equal monthly instalments, with a stipulation Page 21 of 23 that in default of payment of any instalment, the whole shall become due. This stipulation is not by way of penalty, and the contract may be enforced according to its terms.
(g) A borrows Rs. 100 from B and gives him a bond for Rs. 200 payable by five yearly instalments of Rs. 40, with a stipulation that, in default of payment of any instalment, the whole shall become due. This is a stipulation by way of penalty."
17. It is thus, clear that in case when the amount is fixed in the nature of penalty only reasonable compensation can be awarded not exceeding the penalty so stated. The liquidated amount or penalty mentioned in the contract is to be treated as the upper limit beyond which the Court cannot grant compensation. Here, the Court has decided the award/damages for unauthorised occupation of the suit premises by the defendants. As already stated, no effort has been made to ascertain as to what would be a reasonable compensation under such head. The finding of the trial Court as concurred with by the First Appellate Court is therefore, rendered vulnerable.
18. Having regard to the fact that the defendants have already vacated the suit premises in the meantime and the decree directing the payment of arrear rent is otherwise found to be correct, in the considered view of this Page 22 of 23 Court, ends of justice would be best served if damages to the tune of ten percent (10%) of the monthly rent per month from March, 2021 to September, 2024 are imposed on the defendants. The substantial question of law No.(ii) is answered accordingly.
19. From a conspectus of the analysis of facts, law and the contentions raised, this Court while concurring with the decree, holds that the rate of interest shall be modified to 7.5 % and the direction to pay damages shall also be modified to the extent of 10% of monthly rent for every month of unauthorised occupation i.e., from March, 2021 to September, 2024.
20. In the result, the appeal is allowed in part. The decree of the trial Court is modified to the extent indicated in the previous paragraph. There shall be no order as to costs.
...............................
Sashikanta Mishra, Judge Orissa High Court, Cuttack The 24th December, 2025/ A.K. Rana, P.A. Signature Not Verified Digitally Signed Signed by: AJAYA KUMAR RANA Page 23 of 23 Designation: P.A. Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 24-Dec-2025 17:45:42