The High Court
Case Details
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 Page 1 of 14 the plaintiff for eviction of the defendant from the suit premises and ancillary relief was decreed by the Trial
Legal Reasoning
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 Page 2 of 14 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 Page 3 of 14 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 Page 4 of 14 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 Page 5 of 14 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 ?”
Legal Reasoning
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. Page 6 of 14 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 is of no Page 7 of 14 in the notice 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 Page 8 of 14 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. Page 9 of 14 (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 Page 10 of 14 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: than the duration “….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 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.” Page 11 of 14 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 Page 12 of 14 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 Page 13 of 14 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
Decision
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 Signature Not Verified Digitally Signed Signed by: PUSPANJALI GHADAI Designation: Junior Stenographer Reason: Authentication Location: High Cocurt of Orissa, Cuttack. Date: 08-Jul-2025 10:32:40 Page 14 of 14