Devi Tent House vs Prafulla Chandra Patra
2023 Latest Caselaw 14391 Ori

           IN THE HIGH COURT OF ORISSA AT CUTTACK

                           R.S.A. NO.427 OF 2023
    In the matter of an Appeal under Section 100 of the Code of Civil
    Procedure, 1908 assailing 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.
                                  ----

         Devi Tent House                       ....            Appellant
                                   -versus-

         Prafulla Chandra Patra                ....           Respondent

Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode):

                For Appellant      -      Mr. B.C. Panda,
                                          Advocate.
                For Respondents -         Mr. Rajeet Roy,
                                          Advocate.
    CORAM:
    MR. JUSTICE D.DASH

Date of Hearing : 08.11.2023 :: Date of Judgment: 13.11.2023

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.

RSA No.427 of 2023 {{ 2 }}

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

RSA No.427 of 2023 {{ 3 }}

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. 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

RSA No.427 of 2023 {{ 4 }}

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. 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 ex-

parte against the defendant and in the circumstances without cost. The plaintiff is entitled to vacant delivery

RSA No.427 of 2023 {{ 5 }}

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

RSA No.427 of 2023 {{ 6 }}

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

RSA No.427 of 2023 {{ 7 }}

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.

(D. Dash), Judge.

Narayan

Signature Not Verified Digitally Signed Signed by: NARAYAN HO Designation: Peresonal Assistant Reason: Authentication Location: OHC Date: 15-Nov-2023 17:17:57

RSA No.427 of 2023