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2017 Supreme(Ori) 184
IN THE HIGH COURT OF ORISSA, CUTTACK
D. DASH, J.
Nanda Kishore Swain and another - Appellants
Versus
Sarat Kumar Sahu - Respondent
R.S.A. No. 278 of 2009
Decided On : 02-05-2017
Advocate Appeared:
For the Appellants : Mr. N. Sahu, M/s. D. Chatterjee, A.K. Mishra (2)
For the Respondent: M/s. B. Pradhan, B.D. Pradhan, D.P. Mohanty, S. Pradhan, D. Mishra, S. Mohapatra, M/s. G. Rout, R.K. Das
The main legal point established in the judgment is that acceptance of rent does not necessarily constitute waiver of notice, and there must be clear evidence of intention to treat the lease as subsisting.
Headnote:
T.P. Act - Termination of Tenancy - 106, 113 - The court discussed the provisions of Section 106 and 113 of the Transfer of Property Act, 1882, and their interpretations. The court affirmed the finding of the lower appellate court on the termination of tenancy as required under law and negated the contention of the defendants relating to waiver.
Fact of the Case:
The plaintiff filed a suit seeking eviction of the defendants from the suit house and recovery of arrear house rent. The trial court decreed the suit only for recovery of arrear house rent, but the first appellate court allowed the relief of eviction to the plaintiff. The substantial question of law was whether the lower appellate court misinterpreted the notice under section 106 of the T.P. Act terminating the tenancy of the appellants even though the landlord received rent thereafter.
Finding of the Court:
The court affirmed the finding of the lower appellate court on the termination of tenancy as required under law and negated the contention of the defendants relating to waiver.
Issues: The issues included the termination of tenancy, waiver of notice to quit, and the validity of the notice under section 106 of the T.P. Act.
Ratio Decidendi: The court discussed the provisions of Section 106 and 113 of the Transfer of Property Act, 1882, and their interpretations. It emphasized that acceptance of rent itself does not amount to waiver of notice and there must be clear expression of intention to treat the lease as subsisting. The burden of proving waiver lies on the party taking the defence of waiver.
Final Decision: The second appeal was dismissed, and the defendants were directed to deliver vacant possession of the suit house to the plaintiffs by a specified date and clear the arrear and current house rent in three equal instalments.
JUDGMENT :
This appeal has been filed challenging the judgment and decree passed by the learned Addl. District Judge, Angul in RFA No. 01 of 2004 decreeing the suit filed by the respondent as plaintiff and directing the eviction of the appellant-defendants from the suit house and delivery of its vacant possession followed by the order of payment of arrear house rent.
The present respondent as the plaintiff had filed Title Suit No. 171 of 1999 in the court of learned Civil Judge (Sr. Divn.), Angul.
The suit is with the prayer for a direction to the appellant-defendants for vacating the suit house and delivery of its vacant possession as well as recovery of arrear house rent of Rs.37,800/- as standing in the month of April, 1998 as well as future house rent. The suit was decreed, in part. The prayer for eviction of the appellant-defendants from the suit shop house was refused. It was decreed only for recovery of arrear house rent of Rs.37,800/- as claimed by the respondent-plaintiff @ Rs.1800/- per month for the period commencing from August, 1996 to April, 1998 with further sum of Rs.25,200/- for the period commencing from December, 2000 to January, 2002 and direction for payment of interest @ 8% per annum on the arrear house rent for the blocked period.
2. The plaintiff-respondent being aggrieved by the dismissal of the suit in so far as the relief of eviction of the respondent-defendants from the suit house is concerned had carried the first appeal.
Learned Addl. District Judge in that appeal has set aside the dismissal of that part of the suit concerning refusal of the relief of eviction, holding the finding in that regard to be unsustainable both in fact and law. The lower appellate court thus has allowed the said relief to the respondent-plaintiff. The suit as laid and for the reliefs claimed has been decreed.
It may be stated here that the appellant-defendants had neither questioned the decree passed against them for recovery of the arrear house rent etc. by filing regular first appeal nor they had presented any cross-appeal or cross objection after receiving the notice of hearing of the first appeal filed by the respondent-plaintiff as provided in law.
3. For the sake of convenience, in order to bring in clarity and avoid confusion, the parties hereinafter have been referred to as they have been arraigned in the trial court.
4. The plaintiff’s case is that he is the absolute owner of the suit house and had inducted the defendants as tenants therein on payment of agreed monthly rent of Rs.1800/-. It is stated that agreement to that effect had come into being and tenancy commenced on and from the 1st day of April, 1994 (1.4.1994). The defendants having thus income into the occupation of the suit house started a grocery shop. The plaintiff states to have received a sum of Rs. 48,600/-towards house rent from the defendants for the period commencing from 1.4.1994 to July, 1996. It is alleged that the defendants thereafter stopped paying the rent and sub-let portions to one Pradeep Kumar Jena for running a STD booth and another namely, Manoj Kumar Routray for selling betel and other items. It is further alleged that the defendants also did some alteration and addition in the suit house without the consent and thereby closed the passage of the plaintiff to the inner premises of the suit house. Thus, the defendants are said to be willful defaulters in paying the rent and also to have sub-let portions to different persons and made further alteration and addition without the consent and permission of the plaintiff. Accordingly, it is said that they have grossly violated the terms and conditions of the agreement.
The plaintiff in view of all these above, issued a notice dated 5.8.1998 demanding the payment of arrear house rent from the defendants from July, 1996 to July 1998 and asking him to drive out the subtenants. However, the defendants failed to pay the arrear house rent and they also did not take any step to remove the tenants under
