[Cites 8, Cited by 0]

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

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,

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

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?

(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

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/-.

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.

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

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

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

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

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

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

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.

(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).

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.

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

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

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

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

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

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.