Niranjan Patra vs Bhagaban Patra (Since Dead)
2021 Latest Caselaw 10939 Ori

        IN THE HIGH COURT OF ORISSA AT CUTTACK

                            RSA NO.220 OF 2006
       From the judgment and decree learned Addl. District Judge,
Deogarh in Title Appeal No.03 of 2004 in confirming the judgment and
decree passed by the learned Civil Judge (Junior Division), Deogarh in
Title Suit No.15 of 1996.

       Niranjan Patra                                ::::    Appellant.

                                 -:: VERSUS ::-

       Bhagaban Patra (since dead)
       & Others                                      ::::    Respondents.
   Appeared in this case by Hybrid Arrangement (Virtual/Physical) Mode.
              For Appellant         ::::     Mr. B. Tripathy, P.K. Kuanr,
                                             Advocates.
              For Respondents ::::           Mr. B. Pradhan, S. Pradhan,
                                             V. Narasingh,
                                             Mrs. M.R. Behera,
                                             A.K. Sahoo, U.K. Sahoo,
                                             B.K. Nayak, K.K. Gaya,
                                             Advocates, (For Res. No.1)
                                             M/s. A.P. Bose, D.J. Sahoo, \
                                             S.K. Hota, S.S. Dash,
                                         Advocate, (For Res. Nos.2 & 3).
                                      .........

PRESENT :

THE HON'BLE MR. JUSTICE D.DASH

------------------------------------------------------------------------------------ Date of Hearing:: 30.09.2021 : Date of Judgment :: 26.10.2021

------------------------------------------------------------------------------------

The Appellants by filing this Appeal under Section-100 of the

Code of Civil Procedure (hereinafter called as 'the Code') have assailed

the judgment and decree passed by the learned Addl. District Judge,

Deogarh in Title Appeal No.03 of 2004.

// 2 //

By the impugned judgment and decree in the First Appeal filed

by the present Appellant under Section-96 of the Code, the lower

Appellate Court having dismissed the Appeal has confirmed the

judgment and decree passed by the learned Civil Judge (Junior

Division), Deogarh in Title Suit No.15 of 1996.

The Appellant being the Plaintiff before the Trial Court has been

non-suited, as his suit has been dismissed with the refusal to pass a

decree in his favour declaring him as the subsisting lessee in respect of

the Room No.1 situated in Rani Jyoti Manjari Market Complex under

Deogarh Municipality and declaring the original Respondent No.1 as

not the sub-lessee under him in respect of the said suit shop as also the

consequential relief of injunction.

It may be mentioned here that Respondent No.1 having died

during pendency of the Appeal, his legal representatives have come to

be arraigned as Respondent Nos.1(a) to 1(c).

Deogarh Municipality represented by the Chairman-cum-

Administrator and the Executive Officer have been arraigned as

Defendant Nos.1 and 2, who are the present Respondent Nos. 2 & 3.

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 assigned the position in the Trial Court.

// 3 //

3. Plaintiffs' Case:-

Deogarh Municipality being the owner of Rani Jhoti Manjari

Market Complex, the Plaintiff had applied for getting lessee of shop

No.1 in that Market Complex on payment of monthly rent. Said shop

room was allotted in his favour with the condition as to payment of

monthly rent of Rs.40/-. As directed therein in the allotment order, he

had deposited a sum of Rs.600/- as Salami and paid Rs.200/- as

donation. An agreement has been executed in this regard. The Plaintiff

possessed the said shop room. It is further stated that monthly rent was

enhanced from time to time which the Plaintiff was paying regularly

and during the year, 1996, when the suit was filed he was paying a sum

of Rs.114/- towards monthly rent for the occupation of the said shop

room. The rent has been paid up-till the month of July, 1996.

It is his further case that he had opened a grocery shop in that

shop room and subsequent thereto, he was running a readymade

garment shop in the name and style of 'Omkar Fashion Centre'. It is

also stated that one Dhaneswar Patra was the salesman in the shop

being under the employment of the Plaintiff. The Plaintiff during all the

period was selling coconut and other such items used in Puja and other

religious functions by displaying those in the front verandah of the said

shop room through another salesman. Said salesman Dhaneswar wanted

to have separate business for himself and accordingly he introduced his // 4 //

brother Bhagaban, Defendant No.1, the Plaintiff to work in his place as

the salesman. When the matter stood thus, the Defendant No.3 vide

letter dated 01.11.1996 called upon the Plaintiff to show-cause as to

why for his act of subletting the shop room to Defendant No.1, his lease

would not be cancelled. It is his case that by that time, Defendant No.1

had left the service and in his place, one Dillip Paikaray had been

appointed as salesman. Plaintiff having received the notice on

28.05.1996; it is stated that on 28.05.1996, taking advantage of the

absence of the Plaintiff, the Defendant No.1 damaged the lock of the

front door of the shop room. So, after having again locked the shop

room, the Plaintiff had to inform the matter to the local Police Station.

It is alleged that on 03.06.1996, the Defendant No.1 came to the

shop room and threw away the coconuts on the road and started falsely

asserting that he having paid an advance of Rs.50,000/- to the Plaintiff

unless the money refunded, he would take away all the articles from the

shop room. The matter had been reported at the Police Station and as a

preventive measure; the parties were directed not to open the shop

room. Since then the shop room has remained closed. The Defendant

No.3 was then approached by the Plaintiff to hold him out of the

situation. After a long lapse of time, the Defendant No.2, however, gave

the clearance to Defendant No.1 to open the shop. This action is

challenged as illegal and without jurisdiction. It is the case of the // 5 //

Plaintiff that Defendant Nos.2 and 3 having not terminated the lease in

accordance with law have illegally allotted the shop room in favour of

Defendant No.1. The suit thus came to be filed seeking the relief(s) as

already stated.

5. The Defendant No.1 in his written statement submitted that he

was not aware about the grant of any lease of the shop room to the

Plaintiff. However, on 01.02.1996, the Plaintiff had entered with an

agreement with him for leasing out the said shop room and for the

purpose, he had taken a sum Rs.50,000/-. It was agreed that the

Defendant No. 1 would be paying the monthly rent of Rs.1,000/- for the

said occupation of the said shop room. It is his case that, he started the

Omkar Fashion Centre in the said shop room and was selling

readymade garments. For the first time, in the 1st week of June, 1996,

the Plaintiff started to create the disturbance and therefore on

04.06.1996, the Defendant Nos.2 and 3 served a notice on him, asking

him to explain as to how he was occupying the same.

The Defendant Nos. 2 and 3 however have stated that the

possession of the shop room was given to the Plaintiff as licensee and

when was found that he had sub-let the shop room to Defendant No.2,

the allotment being cancelled, it has been rightly given to the Defendant

No.1.

// 6 //

6. The trial on the above rival case having framed 11 issues has

finally answered all those against the Plaintiff. Accordingly, the suit

being dismissed, the unsuccessful Plaintiff had carried the First Appeal.

That Appeal having failed, now the unsuccessful Plaintiff is before this

Court in the Second Appeal.

7. The present Second Appeal has been admitted on the following

substantial question of law:-

1. Whether the learned Courts below were justified in concluding that the notice to show-cause along with the closure of the shop for a pro-long period pre- supposes termination and eviction of the Appellant (Plaintiff) from the shop room?

8. Mr. B. Tripathi, learned counsel for the Appellant (Plaintiff) and

Mr. D.P. Satpathy, learned counsel for the Respondent Nos.1 (a) to 1(c)

advanced their rival submissions on the substantial questions of law.

Mr. A.P. Bose, learned counsel for the Respondent Nos. 2 and 3

submitted that the findings of the Courts below that there had been

termination of the license in accordance with law are unassailable.

9. Keeping in view the submissions made, I have carefully read the

judgments of the Courts below. I have also gone through the

depositions of the witnesses as well as the documents admitted in

evidence from the side of the parties.

// 7 //

10. The Trial Court in order to find out the relationship between the

Plaintiff and the Defendant Nos. 2 and 3 in respect of the said shop

room and to ascertain the nature of occupation of the same by the

Plaintiff has examined the most important document i.e. the agreement

under Ext.1. Having under taken that exercise, it has come to a

conclusion that the Plaintiff was not a lessee. It has been categorically

held that the Plaintiff was a licensee in respect of the suit shop room.

The same view has also been taken by the First Appellate Court by

interpreting the document Ext.1 as a license.

Having said so, the Trial Court in the factual settings of the case

as emanating from the evidence on record has held the cancellation of

the license to be proper. The First Appellate Court having made

extensive discussion of evidence, side by side referring to the pleadings

has repelled the contention raised from the side of the Plaintiff that

cancellation was not illegal.

11. Admittedly, the Plaintiff was given the possession of the shop

room pursuant to the agreement under Ext.1. The allotment order being

first issued, that Ext.1 had come into being. Ext.1 being given a plain

reading leaves no room of doubt that the Plaintiff was never a lessee in

respect of the shop room but he was granted with the license to occupy

the said shop room in the market complex and as a licensee. It had been

clearly mentioned therein that the licensee will be evicted with prior // 8 //

notice of 15 days. The Plaintiff has admitted in the plaint to have

received the letter of show-cause dated 01.01.1996 and given his show-

cause on 12.08.1996. Thereunder, he has admitted that the shop room

was lying closed since 1996. He has not proved any receipt showing

payment of any sum for his occupancy as licensee of the shop room

from August, 1996 onwards. The suit has been filed on 28.08.1996.

Both the Courts below upon discussion of evidence on record have

arrived at a conclusive finding that the Plaintiff had been evicted long

before the filing of the suit and not during its pendency. This Court

having careful scrutinized the evidence on record finds no such

perversity in the said findings of the Courts below.

12. It may be also noted that the Plaintiff in response to the notice of

Defendant Nos. 2 and 3 received on 28.05.1996 had intimated about the

closure of the shop from the year, 1996 and again on 03.11.1997, he

had also intimated the Sales Tax Authority about the closure indicating

therein that the shop room has already been allotted in favour of

Defendant No.1. In all these factual settings, this Suit with the relief of

declaration as to subsistence of the relationship between the Plaintiff

and Defendant Nos.2 and 3 as the lessor and lessee with other

consequential reliefs as claimed is clearly not maintainable in the eye of

law. The remedy available to the Plaintiff as to forcible eviction without

following due process of law by filing the duly constituted suit within // 9 //

the time having not been availed, the prayer as advanced in this suit are

clearly not allowable so as to restore the possession of the suit shop

room in favour of the Plaintiff.

In view of the aforesaid, the Courts below having dismissed the

suit in declining to grant the relief that the Plaintiff is the subsisting

lessee in respect of said shop room and refusing to hold the termination

of Ext.1 as illegal are found to have committed no such error. The

substantial question of law thus finds its answer against the Plaintiff and

there stands no reason to interfere with the ultimate result of the Suit

dismissing the same holding the plaintiff as not entitled for the reliefs

claimed therein.

13. In the result, this Appeal stands dismissed. No order as to cost is

passed.

(D. Dash), Judge.

Narayan