The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK R.S.A. No.344 of 2018 In the matter of an Appeal under Section 100 of the Code of Civil Procedure assailing the judgment and decree dated 26.03.2018 & 02.04.2018 respectively passed by the learned 1st Additional District Judge, Rourkela in R.F.A. No.02 of 2017 setting aside the judgment and decree dated 20.12.2016 & 05.01.2017 respectively passed by the learned Civil Judge, Senior Division, in C.S. No.115 of 2014. ---- Rajesh Kumar & Another …. Appellants -versus- Shamshud Bano …. Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellant- Mr. Goutam Mukherji, Sr. Advocate For Respondent- Mr. G. N. Sahu, Advocate
Legal Reasoning
CORAM: MR. JUSTICE D.DASH Date of Hearing: 05.12.2023 :: Date of Judgment: 20.12.2023 D.Dash,J. The Appellants, by filing this Appeal, under Section 100 of Code of Civil Procedure, 1908 (for short, ‘the Code’), have assailed the judgment and decree dated 26.03.2018 & 02.04.2018 respectively passed by the learned 1st Additional District Judge, Rourkela in R.F.A. No.02 of 2017. The Respondent as the Plaintiff had filed Civil Suit No.115 of 2014 in the Court of Civil Judge, Senior Division, Rourkela seeking a decree for eviction of the Appellants (Defendants) from the suit shop rooms and realization of the arrear rent and damage. The suit stood dismissed. So the Page 1 of 7 R.S.A. No.344 of 2018 {{ 2 }} present Respondent being the unsuccessful Plaintiff had filed the Appeal under section 96 of the Code. The First Appeal has been allowed and thereby the suit filed by the Respondent (Plaintiff) has been decreed. Hence the present Second Appeal is at the instance of the Appellants, who are the aggrieved Defendants. 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 suit. 3. Plaintiff’s case is that the husband of the Plaintiff had inducted Defendant No.1 as a tenant in respect of one shop room on 30.01.2007 for a period of three years which was evidenced by an agreement entered into between them on 30.01.2007, which was effective with effect from 05.02.2007. The other room was let out to the Defendant No.1 on rent by the father-in-law of the Plaintiff in the year 1962 on a monthly rent of Rs.500/-. The Defendant No.1 used first shop room as its go-down and the other room as the shop room. There was no written agreement between the father-in-law of the Plaintiff or the Plaintiff with the Defendant No.1 in respect of the schedule ‘B’ shop room. After the death of father-in-law of the Plaintiff, the Defendant No.1 continued to occupy the said shop room as a tenant under her husband on payment of monthly rent of Rs.500/-. The Defendant No.1 over schedule ‘B’ shop room was having an electrical equipments selling point in the name and style of M/s. Rajesh Kumar and Brother. The Plaintiff became the owner after the death of her husband in respect of both the shop rooms. She having consented, Defendant No.1, continued as tenant under her in respect of both shop rooms in payment of monthly rent of Rs.2200/- for the first room and Rs.500/- for the room taken on rent from her father-in- law. The Defendant No.1 having defaulted in making the payment of rent Page 2 of 7 R.S.A. No. 344 of 2018 {{ 3 }} from June, 2013, the Plaintiff thereafter when wanted to start her own business, issued notice on 14.09.2013 asking the Defendant No.1 to vacate the shop rooms and hand over the vacant possession of the same by paying the arrear rent. The notice being received by the Defendant No.1, the suit rooms were however not vacated. Hence the Plaintiff filed the suit for eviction, claiming arrear of rent and damage. 4. Defendant No.1 in his written statement admitted his status as a tenant in respect of schedule ‘A’ shop room. He further stated that schedule ‘B’ shop room was let out to M/s.Rajesh Kumar and Brother, which is a different entity altogether and therefore, he is not occupying the schedule ‘B’ shop room. It was later on stated that M/s.Rajesh Kumar and Brother being a proprietor concern, its proprietor is Defendant No.2. 5. At this stage, it be stated that the Plaintiff had filed the suit only against Defendant No.1, arraigning him as the sole Defendant and against him, the relief of eviction etc. had been sought for in respect of both the shop rooms. However, Jignesh Kumar (Defendant No.2) who asserts to be the proprietor of M/s. Rajesh Kumar and Brother finally got himself impleaded in the suit as Defendant No.2 finally by virtue of an order passed by this Court on 21.08.2015 in CMP No.763 of 2015. 6. The Defendant No.2 then filed the written statement stating that he is the proprietor of said proprietorship concern M/s. Rajesh Kumar and Brother and was inducted by the Plaintiff’s father-in-law as a tenant in respect of the said shop room in the year 1962. He also admitted that after the death of the father-in-law of the Plaintiff, Plaintiff’s husband became landlord and on the death of the husband of the Plaintiff, the Plaintiff is the land lady. It is stated that the rent in respect of the said room in schedule ‘B’ was being paid to the R.S.A. No. 344 of 2018 Page 3 of 7 {{ 4 }} Plaintiff, who initially used to issue rent receipts in favour of M/s. Rajesh Kumar and subsequently, in the name of M/s.Rajesh Kumar and Brother. It has also been stated that initially, the name of the firm in the year 1962-1989 was M/s. Rajesh Kumar and subsequently, it underwent change as above. His case is that there has been no default in payment of rent of Rs.500/- per month for the schedule ‘B’ room. It is pleaded that after the death of the husband of the Plaintiff, the Plaintiff herself entered into an oral agreement with M/s.Rajesh Kumar and Brother creating the tenancy in perpetuity in respect of the schedule ‘B’ shop room and the very tenancy commenced from April 2011, on agreed monthly rent of Rs.500/- to be paid by the Defendant No.2 to the Plaintiff. He states that an advance of Rs.29,000/- has also been paid. It is therefore, stated that the Defendant No.1 has acquired the non-evictable right in respect of schedule ‘B’ shop room. 7. The Trial Court on the above rival pleadings having framed six issues, surprisingly came to a finding as against the very admission of the parties that the Plaintiff has failed to prove that she is the lessor in the suit shop room. Having so held, the suit was dismissed. The unsuccessful Plaintiff then having carried the First Appeal, the First Appellate Court on the admitted case of the parties set aside the finding of the Trial Court that the Plaintiff is not the lessor in respect of the suit shop rooms and then based on the admitted position that the Defendants are the tenants, direction has been given for their eviction; paying the arrear house rent and damage being computed at the rate of Rs.2700/- per month with effect from September, 2014 till vacation. Hence the present Second Appeal is at the instance of the Defendants. 8. The Appeal has been admitted to answer the following substantial question of law:- R.S.A. No. 344 of 2018 Page 4 of 7 {{ 5 }} “Whether the Courts below are right in decreeing the present suit directing the Defendants to hand over the vacant possession of shop rooms in the absence of a valid notice under section 106 of the Transfer of Property Act as regards the termination of tenancy?” 9. Mr. G. Mukherji, learned Senior Counsel for the Appellants (Defendants) submitted that no notice under section 106 of the Transfer of Property Act having been served upon the Defendant No.2, who is the tenant in respect of schedule ‘B’ shop room, the First Appellate Court did commit grave error in directing eviction of the Defendants from both the shop rooms by paying the damage. 10. Mr. G. N. Sahu, learned counsel for the Respondent (Plaintiff) submitted that the Defendant No.2 having himself got impleaded in the suit and thus having come to the arena, there was no occasion for the Plaintiff to serve the notice upon him terminating his tenancy. He further submitted that when having come to know about institution of the suit, the Defendant No.2 came to contest the suit for all practical purpose; the purpose of service of notice of tenancy upon him has lost all its significance both on fact and law. 11. Keeping in view the submissions made, I have carefully gone through the judgments passed by the Courts below. I have also read the averments taken in the plaint and written statement and have perused the evidence both oral and documentary let in by the parties as placed. 12. Plaintiff’s case from the beginning was that the Defendant No.1 was the tenant in respect of both the shop rooms. However, the Defendant No.1 when came to admit his tenancy in respect of one shop room in saying that the other shop room is in occupation of Defendant No.2 as the tenant in Page 5 of 7 R.S.A. No. 344 of 2018 {{ 6 }} perpetuity on behalf of M/s. Rajesh Kumar and Brother, the Defendant No.2 then came up with the prayer to be impleaded as Defendant No.2. He ultimately succeeded in getting himself impleaded as one of the Defendants by invoking the jurisdiction of this Court under Article 227 of the Code. He himself admits to have been inducted as a tenant in respect of schedule ‘B’ shop room while inter alia pleading that the tenancy is for perpetuity. Having failed to prove the Defendant No.2’s tenancy to be for perpetuity in respect of schedule ‘B’ shop room, the First Appellate Court directed for his eviction from that schedule ‘B’ shop room. The view of the First Appellate Court that no case of permanent tenancy of the Defendant No.2 is made out to be accepted holding the Defendant No.2 to be having non-evictable right in the facts and circumstances which have been stated above, as no error is found therein; this Court finds it to be a case that there was no necessity for service of notice of termination of tenancy under section 106 of the Transfer of Property Act which the Defendant No.2 in fact has waived. 13. The substantial question of law is accordingly answered against the Defendants which in turn leads to confirm the judgment and decree passed by the First Appellate Court. 14.
Decision
In the result, the Appeal stands dismissed. There shall however be no order as to cost. 15. Having said as above, at this stage of parting, the alternative submission of the learned Senior Counsel for the Defendants stands for consideration. The Defendants are in occupation of the suit shop rooms for quite a long period. They are using the same for their business purpose and earning their livelihood. Therefore, in such a situation, they need some Page 6 of 7 R.S.A. No. 344 of 2018 {{ 7 }} breathing time to shift the place of business activity to another selected place in causing least inconvenience which cannot be so readily available. 16. In that view of the matter, this Court finds it reasonable to allow the Defendants to occupy the suit shop rooms till end of July, 2024 subject to payment of damage being computed at the rate of Rs.2700/- per month with effect from September, 2014 by the end of March, 2024 and further going on paying the damage at that rate every month from April 2024 onwards till end of July, 2024 by the 15th day of the succeeding month. It is made clear that in the event, the Defendants do not pay the damages as aforesaid to the Plaintiff by the end of March, 2024, the Execution Proceeding No.12 of 2018 pending in the Court of Civil Judge, Senior Division, Panposh shall proceed for its culmination in accordance with law. (D. Dash), Judge. Gitanjali Signature Not Verified Digitally Signed Signed by: GITANJALI NAYAK Reason: Authentication Location: OHC Date: 22-Dec-2023 12:47:07 R.S.A. No. 344 of 2018 Page 7 of 7