Manas Mohanty vs Uttara Sahoo
2025 Latest Caselaw 882 Ori

Orissa High Court

Manas Mohanty vs Uttara Sahoo on 4 July, 2025

Author: Sashikanta Mishra

Bench: Sashikanta Mishra

    IN THE HIGH COURT OF ORISSA AT CUTTACK
               RSA Nos.294 and 297 of 2024

[In the matter of the appeals under Section 100 of the Code
of Civil Procedure, 1908.]


Manas Mohanty                        .....   Appellant


                         -Versus-


Uttara Sahoo                         ..... Respondent


Advocate(s) appeared in this case:


For the Appellant        : Mr. A.K. Jena, Advocate


For Respondent           : Mr. S.K. Dash, Sr. Advocate
                           Mr. A.K. Otta, Advocate



CORAM:
         JUSTICE SASHIKANTA MISHRA

                       JUDGMENT

04.07.2025

SASHIKANTA MISHRA, J.

These are defendant's appeals against a partly

confirming and partly reversing judgment. The suit filed by

the plaintiff for eviction of the defendant from the suit

premises and ancillary relief was decreed by the Trial

Court. In appeal, the decree was confirmed but the cross

appeal filed by the plaintiff for grant of damages was

decreed by reversing the finding of the Trial Court.

2. The facts of the case, briefly stated, are that the

plaintiff is the owner of a commercial complex consisting of

shop rooms over the suit plot. She entered into an

agreement with the defendant on 30.12.2012 for letting out

one of the shop rooms on monthly rent basis. The

defendant ran a retail medicine counter in the tenanted

premises. On 27.10.2013, the plaintiff, citing absolute

necessity served a legal notice on the defendant calling

upon him to vacate the shop room within sixty days in

terms of the agreement. The defendant was given liberty to

collect the security deposit and unutilized cheques while

delivering vacant possession of the tenanted premises. It

was specifically indicated that in case of failure to comply

with the notice by the defendant, he shall be liable to pay

damages @ Rs.500/- for each day of unauthorized

occupation i.e., from 01.01.2014 till delivery of actual

physical possession. The defendant received notice and

replied on 11.12.2013 that the tenancy continues till

29.12.2017 and that the termination of the tenancy within

a short period hardly after one year from its

commencement is likely to affect his goodwill in the market

and that he would not be in a position to arrange an

alternative accommodation. The defendant thus, refused to

comply with the terms of the notice. Hence, the suit.

3. The defendant contested the suit by filing his

written statement admitting the tenancy, the notice dated

27.10.2013 and his reply dated 11.12.2013. He questioned

the legality of the notice during subsistence of the tenancy.

He, further pleaded that he was running a medicine shop

by investing Rs.50,00,000/- and therefore, suddenly asking

him to vacate the suit premises was highly impractical. It

was also stated that the plaintiff is not entitled to receive

any damages. He also took the plea of a previous suit and

negotiations between him and the plaintiff and of his offer

to enhance the monthly rent from Rs.2200/- to Rs.2500/-

from June 2008, which was accepted by the plaintiff. He

claims to have paid such rent. It was agreed between the

parties that a fresh tenancy shall continue till the end of

the year 2020.

4. Basing on the rival pleadings the Trial Court

framed several issues out of which issue Nos.(iii) and (iv)

being important are quoted below:-

" xxx xxx xxx xxx

(iii) Whether the plaintiff is entitled for the decree of eviction of the defendant from the suit schedule property?

(iv) Whether the plaintiff is entitled for the decree of damages against the defendant by recovering a sum of Rs.500/- per day from 01.01.2014 till delivery of actual physical possession?"

5. The Trial Court took up both the aforesaid issues

for determination at the outset. After considering the oral

and documentary evidence, the trial Court found that the

plea of the defendant regarding fresh tenancy till the year

2020 is not at all established. Further, the plaintiff being

the owner of the land has every right, title and interest over

it and as such entitled to get back vacant possession.

Insofar as damages are concerned, the Trial Court held that

the plaintiff failed to establish as to what the damages

occurred to the suit property and hence, she is not entitled

to anything towards damages. The suit was thus decreed

by directing the defendant No.2 to vacate the suit premises

and clear the arrear rents if any, to the plaintiff.

6. Being aggrieved, the defendant preferred first

appeal wherein, the plaintiff preferred cross

appeal/objection challenging the refusal of the Trial Court

to award damages.

7. The First Appellate Court, after re-appreciating the

evidence on record found no reason to interfere with the

findings of the Trial Court particularly referring to the

clause of the tenancy agreement relating to termination of

tenancy. The Trial Court also found nothing wrong in the

notice under Section 106 of the TP Act served by the

plaintiff on the defendant. As regards the claim of the

defendant regarding enhancement of rent, the First

Appellate Court held that the same was not established by

the defendant. However, with regard to the claim of

damages, the First Appellate Court, referring to clause 9 of

the lease agreement held that the defendant is liable to pay

damages @ Rs.500/- per day from the date of vacation of

suit premises. The defendant's appeal was thus dismissed

while the cross appeal filed by the plaintiff was allowed by

modifying the decree of the Trial Court.

8. Being further aggrieved, the defendant has

preferred both these appeals which were admitted on the

following substantial question of law.

"(1) Whether the notice under Section 106 of the Transfer of Property Act is mandatorily required to mention the date of termination of the tenancy ?"

9. Heard Mr. A.K. Jena, learned counsel for the

defendant-appellant and Mr. S.K. Dash, learned Senior

counsel with Mr. A.K. Otta, learned counsel for the

plaintiff-respondent.

10. Mr. Jena would argue that the termination of the

tenancy hardly after one year of its commencement caused

serious hardship to the defendant inasmuch as he had

invested substantial amount for running the medicine shop

over the suit premises. In any case, the notice terminating

the tenancy is bad in law as it does not contain the date of

termination of the tenancy as required under Section 106

of the TP Act. Mr. Jena further argues that award of

damages by the First Appellate Court is entirely arbitrary

and unreasonable being contrary to law.

11. Per contra, Mr. S.K. Dash, learned Senior

counsel would argue that the language employed in Section

106 of the TP Act does not admit of the interpretation that

the date of termination of tenancy is mandatorily required

to be mentioned therein. The tenancy being admittedly

created on monthly basis and there being a provision for its

termination by either of the parties by giving prior notice to

the other party, mere non-mentioning of the date of

termination of the tenancy in the notice is of no

consequence. On the question of damages, Mr. Dash would

argue that the First Appellate Court has rightly relied upon

the ratio decided by the Supreme Court in the case of

Bhavanji Vrs. Himatlal AIR 1972 SC 819 to hold that

the possession of the tenant becomes unlawful after the

date of termination of the tenancy for which he is liable to

pay damages. .

12. Before adverting to the rival contentions raised,

it would be apt to mention that creation of the tenancy with

effect from 30.12.2012 is admitted and that such tenancy

was on monthly basis is not disputed. It is also admitted

that the plaintiff served a legal notice on the defendant on

27.10.2013 purporting to be one under Section 106 of the

TP Act. The defendant received the notice and replied to the

same on 11.12.2013 inter alia, taking the stand that the

tenancy continued till 29.12.2017. This particular stand of

the defendant has not been established by any evidence.

Thus, from the evidence on record as has been accepted by

both the Courts below, it shows that the tenancy

commenced from 30.12.2012 on monthly basis and the

notice was issued by the plaintiff landlord on 27.10.2013

terminating the tenancy. There is also no dispute that the

tenancy agreement contains a provision at clause 13

empowering both the parties to terminate the agreement

prematurely giving clear notice of sixty days to the other

party. So, the plaintiff, being the landlord cannot be faulted

with for serving the notice of termination of the tenancy.

13. Now, coming to the contentions raised with

regard to the correctness of the notice, it would be proper

to refer to Section 106 of the TP Act, which is reproduced

below.

"106. Duration of certain leases in absence of written contract or local usage

(1) In the absence of a contract or local law or usage to the contrary, a lease of immovable property for agricultural or manufacturing purposes shall be deemed to be a lease from year to year, terminable, on the part of either lessor or lessee, by six months' notice; and a lease of immovable property for any other purpose shall be deemed to be a lease from month to month, terminable, on the part of either lessor or lessee, by fifteen days' notice. (2) Notwithstanding anything contained in any other law for the time being in force, the period mentioned in sub-section (1) shall commence from the date of receipt of notice.

(3) A notice under sub-section (1) shall not be deemed to be invalid merely because the period mentioned therein falls short of the period specified under that sub-section, where a suit or proceeding is filed after the expiry of the period mentioned in that sub-section. (4) Every notice under sub-section (1) must be in writing, signed by or on behalf of the person giving it, and either be sent by post to the party who is intended to be bound by it or be tendered or delivered personally to such party, or to one of his family or servants at his residence, or (if such tender or delivery is not practicable) affixed to a conspicuous part of the property."

14. In view of sub-Section 4, the notice has to be

given in writing, signed by and on behalf of the person

giving it and delivered personally to the other party. All

these are requirements of law. All the three requirements

have been satisfied in the instant case as would be evident

from the narration of facts hereinbefore. There is no

requirement of law that such notice should mandatorily

contain the date of termination of the tenancy. In fact, law

is also well settled that even if the notice does not comply

with the requirements the same may still be accepted by

the party served with the notice and if he and that party

accepts and acts upon it, he would be estopped from

questioning its validity subsequently. Reference in this

regard may be made to the case of The Calcutta Credit

Corporation Ltd. and Anr. v. Happy Homes (Pvt.) Ltd.,

AIR 1968 SC 471, wherein the Supreme Court held as

follows:

"....a notice which is defective may still determine the tenancy, it is, accepted by the landlord. A notice which complies with the requirements of Sec. 106 of the Transfer of Property Act operates to terminate the tenancy, whether or not the party served with the notice assents thereto. A notice which does not comply with the requirements of Section 106 of the Transfer of Property Act in that it does not expire with the end of the month of the tenancy, or the end of the year of the tenancy, as the case may be, or of which the duration is shorter than the duration contemplated by Section 106, may still be accepted by the party served with the notice and if that party accepts and acts upon it, the party serving the notice will be estopped from denying its validity. The defect in the notice served by one party may undoubtedly be relied upon by the other party and he may plead that the tenancy does not stand determined, but after the notice is accepted by the other party who acts upon it, the party serving the notice cannot contend that the notice served by him was defective, and on the account the tenancy was not determined. The reason of the rule is clear. A tenancy is determined by service of the notice in the manner prescribed by Section 111 (h) read with section 106 of the Transfer of Property Act. If the notice is duly given, the tenancy stands determined on the expiry of the period of the tenancy. Even if the party served with the notice does not want thereto, the notice takes effect. If the notice is defective, it does not operate to terminate the tenancy by force of the statute. But a tenancy is founded in contract, and it is always open to the parties thereto to agree that the tenancy shall be determined otherwise than by notice served in the manner provided by section 106 of the Transfer of Property Act, or by a notice of a duration shorter than the period provided by the Act. If the parties so agree, the tenancy will come to an end."

In the instant case, as has already been stated hereinbefore

the defendant received the notice and also submitted a

reply. He never questioned the validity of the notice but

took a stand that the tenancy continued till 29.12.2017. He

therefore, cannot at a belated stage question the validity of

the notice. Even otherwise, it is no longer res integra that

even filing of the suit is itself a notice to quit on the tenant

entitling the landlord to a decree of eviction. The above

view was taken by the Supreme Court in the case of M/s

Nopany Investments (P) Ltd. Vrs. Santokh Singh (HUF)

(2008) 2 SCC 728. The contrary argument advanced in

this regard by Mr. Jena is therefore, not acceptable.

15. Though, a specific substantial question of law

relating to the award of damages was not framed, yet both

parties having addressed the Court on the point, it was

deemed proper to also examine the same. The Trial Court

had refused the relief of damages on the ground that the

plaintiff could not establish as to what damages occurred to

the suit premises by the defendant during tenure of the

tenancy period. This finding is obviously based on a

misconception as regards the award of damages. Damages

are in the form of penal charges imposed on a party acting

in breach of an agreement. The Trial Court has proceeded

by construing damages as actual physical damages to the

suit property, which obviously is untenable.

16. The First Appellate Court was inclined to award

damages by relying upon Clause 9 of the lease agreement

whereby, the defendant had agreed to pay penal charges of

Rs.500/- per day from the date of vacation of the premises

till the date of final refund. In the instant case, as held by

both the Courts below, the defendant could not establish

his plea of the tenancy subsisting after service of the notice

to quit by the plaintiff on him. Though, he took a plea that

he had offered enhanced rent from Rs.2200/- to 2500/- the

same also could not be proved by him. Thus, as things

stood, it would be reasonable to hold that the defendant-

tenant continued in possession of the suit premises after

termination of tenancy without paying any rent. This was

obviously without the consent of the landlord. Hence, he

becomes a tenant-at-sufferance and therefore, liable to pay

damages as per the lease agreement. The First Appellate

Court has more or less held as above, though it stopped

short of describing the defendant as a tenant-at-sufferance.

Be that as it may, this Court finds nothing wrong in the

award of damages by the First Appellate Court.

17. For the foregoing reasons therefore, this Court

finds no reason to interfere with the findings of the First

Appellate Court so as to be persuaded to interfere

therewith. The substantial question of law is answered

accordingly.

18. In the result, both the appeals being devoid of

merit, are dismissed. There shall be no order as to costs.

............................

Sashikanta Mishra Judge

Orissa High Court, Cuttack.

The 4th of July, 2025/P. Ghadai, Jr. Steno

Designation: Junior Stenographer

Location: High Cocurt of Orissa, Cuttack. Date: 08-Jul-2025 10:32:40