RSA No. 448 of 2014. Case: Rajesh Vig Vs Shiv Prakash Mundra. High Court of Orissa (India)

Case NumberRSA No. 448 of 2014
CounselFor Appellant: D.N. Lenka, B.N. Lenka, Srikant Mohanty, Manoranjan Mishra, S.R. Kar, R.B. Sinha, R.N. Pal, Satya Sindhu Kashyap, Samapika Mishra and Prakash Ku. Mishra, Advs.and For Respondents: Bhakta Hari Mohanty, Sr. Adv., D.P. Mohanty, R.K. Nayak, T.K. Mohanty, P.K. Swain and M. Pal, advs.
JudgesD. Dash, J.
IssueCode of Civil Procedure, 1908 (CPC) - Order VII Rule 11; Order VIII Rule 3, 4, 5, 6E, 6A, 6C; Section 80; General Clauses Act 1897 - Section 27; Kerala Buildings (lease And Rent Control) Act, 1965 - Section 11(3); Specific Relief Act 1963 - Section 42; Transfer Of Property Act, 1882 - Sections 106, 111
CitationAIR 2015 Ori 161
Judgement DateJune 17, 2015
CourtHigh Court of Orissa (India)

Judgment:

D. Dash, J.

  1. This appeal has been filed challenging the judgment and decree passed by the learned Addl. District Judge, Champua in RFA No. 15/53 of 2011-2009 allowing the appeal in part and also the counter-claim in part and directing the appellant to vacate the tenanted premises within a year of passing of the decree with payment of arrear house rent till the date of disposal of the appeal in four equal quarterly installments within that period. For the sake of convenience, in order to bring clarity and avoid confusion, the parties hereinafter have been referred to as they have been arrayed in the court below.

  2. The present appellant as the plaintiff filed the suit i.e. C.S. No. 44 of 2004 in the Court of learned Civil Judge (Sr. Divn.), Champua praying for issuance of permanent injunction against the defendant-respondent restraining him from disturbing in his possession in respect of the suit house and from evicting him without following due process of law.

    The plaintiff admitted his status as a tenant under the original house owner one Debendra Prasad Pandiya. It is stated that after purchase of the house by the defendant, he continued to remain as such under the defendant so far as the tenanted premises is concerned. The original rent which was being paid to the erstwhile owner and with whom he had an agreement, was increased and the plaintiff has been paying rent to the defendant every month. In the month of April, 2004 when the rent offered by the plaintiff was not accepted by the defendant, he had sent it by money order which was accepted. Again the same got repeated and lastly the rent for the month of June and July was not accepted by the defendant even though sent by money order. It is further stated that there was an attempt to evict the plaintiff by force which was somehow thwarted. Therefore, the plaintiff had to approach the Court with the suit claiming the relief as stated above.

    The defendant-respondent filed the written statement admitting the relationship. It is stated in the written statement that on 2-10-2004 i.e. during pendency of the suit which was instituted on 30-8-2004, he had sent a notice to quit to the plaintiff terminating the tenancy and seeking vacant possession of the suit house with effect from 1-11-2004 and as the plaintiff did not vacate, in the said written statement filed by the defendant, he advanced a counter-claim seeking relief of eviction of plaintiff from the suit house with prayer for realization of arrear house rent from June, 2004 onwards at the rate of Rs. 630/- per month till the end of October, 2004 and further claiming damage at the rate of Rs. 30/- per diem from the 1st day of November, 2004 till actual eviction.

    The counter-claim though was served upon the plaintiff, he preferred not to file any written statement.

  3. The trial Court dismissed the suit decreed the counter-claim directing the plaintiff to vacate the suit house and pay the arrear rent and damage.

  4. The plaintiff being aggrieved by the said judgment and decree passed in the suit and counter-claim preferred one appeal and sought for a decree to be passed in his suit praying further to dismiss the counter-claim.

    The lower appellate Court so far as the principal relief in the suit and counter-claim are concerned confirmed the judgment and decree passed by the trial Court. However, those were modified so far as the claim of damage as advanced by the defendant.

  5. The appeal has been admitted on the following substantial questions of law being certified to be answered:---

    (i) Whether the lower appellate Court is right in holding that the evidence on record is insufficient to prove due service of notice under Section 106 of the T.P. Act and thereby taking a contrary view to what had been held by the trial Court?

    (ii) Whether the lower appellate Court having concluded that the evidence being insufficient to prove due service of notice under Section 106 of the T.P. Act is right in holding that the averment in the written statement filed by defendant is sufficient notice of termination of tenancy in conformity with law?

  6. Learned counsel for the appellant submits that the findings of the Courts below that there has been valid service of notice under Section 106 of the T.P. Act terminating the tenancy of the plaintiff by the defendant are contrary to law and the Courts below have erred in law by arriving at the finding that there has been due termination of tenancy as required under law. Therefore, he contends that the proper course ought to have been to decree the suit of the plaintiff and dismiss the counter-claim of the defendant leaving him to work out his remedy, if so advised, in a properly constituted suit being filed in the competent Court.

  7. Learned counsel for the respondent having entered appearance submits that the concurrent findings of fact that there has been due termination of tenancy by serving proper notice under Section 106 of the T.P. Act upon the plaintiff are not liable to be interfered with since there remains absolutely no perversity in it. According to him, the lower appellate Court has further in an elaborated manner held the service of said notice to have been made upon the plaintiff especially when that fact has remained uncontroverted by not filing the written statement to the counter-claim in denial of the termination of tenancy as well as questioning the validity of notice to quit. The Court below had rightly held the said fact to have been proved on account of remaining non-traversed.

  8. The relationship between the defendant and plaintiff as the landlord and tenant stands admitted. In the instant case, when the tenant filed the suit for permanent injunction with the principal relief of restraining defendant from evicting him without following the due process of law, the defendant in the said written statement has set up a counter-claim for eviction of the plaintiff having pleaded that there has been due termination of tenancy in accordance with law. Practically, the fate of the suit and counter-claim has been decided by the Courts below in answering issue Nos. 5 and 6. It has been clearly held that the plaintiff is not liable to be evicted by force without following due process of law. The only controversy remains here is with regard to the termination of tenancy. There is no legal bar for a defendant in a suit filed by the tenant for permanent injunction restraining the landlord from evicting him without following due process of law, to advance a counter-claim with the relief of eviction, arrear house rent and damage. In view of the admitted relationship, such a counter-claim can never by said to be not maintainable in the eye of law. The controversy boils down only with regard to termination of tenancy of the plaintiff, if is in accordance with law. In the counter-claim when the factum of issuance of notice terminating the tenancy has been pleaded so also its valid service of notice, the same has gone totally uncontroverted. The plaintiff has not filed any written statement to the same and therefore, the rule of non-traverse very well comes into operation. So, it was not required for the defendant to further prove those facts which have to be deemed to have been admitted as per the provision of Order 8, Rule 5 of the Code of Civil Procedure. However, as it is seen from the judgment of the lower appellate Court that it has gone to discuss the factual aspects by examining the evidence, as regards the notice sent by registered post with A.D. It has been held by the trial Court that service of notice is to be presumed. It has again been said that when in the written statement, the defendant has clearly expressed about said termination of the tenancy and delivery of vacant possession to the plaintiff, the same itself is a notice of termination of tenancy and therefore, the plaintiff having not vacated tenanted premises, the deficiency even if any gets wiped out and pales into insignificance.

    The lower appellate Court has of course held the address given for service of notice to be insufficient and therefore has refused to draw the presumption under Section 27 of the General Clauses Act. However, it has taken a view that the service of notice under Section 106 of the T.P. Act can be taken to be the date of filing of service of copy of the written statement...

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