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IN HE HIGH COURT OF ORISSA, CUTTACK
D. Dash, J.
M/s. Bharat Motors & Others - Appellants
Versus
Savitri @ Savitri Devi Bhawsinka & Others - Respondents
R.S.A. NO. 337 OF 2017
Decided On : 03-01-2022
LANDLORD AND TENANT - EVICTION - RENT - DAMAGE - FAIR AND EQUITABLE RENT - DETERMINATION - FACTORS TO BE CONSIDERED - LONGSTANDING TENANCY - SPECIAL RELATIONSHIP BETWEEN PARTIES - SURROUNDING CIRCUMSTANCES - CONSTRUCTION PUT UP BY TENANT - CAPABILITY OF TENANT - PREVAILING COMMERCIAL ACTIVITY - ADVANTAGES OR DISADVANTAGES.
Fact of the Case:
The Plaintiff, as the owner of the premises, filed a suit for eviction of the Defendants from the suit premises and delivery of vacant possession with direction for payment of arrear house rent and damage with interest. The Defendants had been occupying the tenanted premises since 1946 under an agreement with the Plaintiff. The agreement came to an end in July 2008, and the Defendants continued to occupy the premises without vacating it. The Plaintiff had requested the Defendants to vacate the premises, but they failed to do so. The Plaintiff then served a notice terminating the tenancy and asking the Defendants to vacate the premises on or before 31.03.2014. The Defendants did not vacate the premises, and the suit was filed.
Finding of the Court:
The Trial Court found that the Defendants were liable to be evicted from the suit premises and directed them to pay a sum of Rs.40,000/- per month as rent for the period from August 2008 to October 2013; @ Rs.40,000/- for the period November 2013 to March 2014 and damage @ Rs.80,000/- per month; from April 2014 till actual vacation of the suit premises. The First Appellate Court modified the quantum of arrear rent to Rs.30,000/- per month instead of Rs.40,000/- per month for the period running from August 2008 to October 2013.
Issues: 1. Whether the ultimate direction given by the First Appellate Court to the Defendants to pay the rent for the period from August 2008 to October 2013 @ Rs.30,000/- per month, November 2013 to March 2014 @ Rs.40,000/- per month and damage to be paid by the Defendants to the Plaintiffs @ Rs.80,000/- per month w.e.f. April 2014 till actual vacation of the suit premises is the outcome of perverse appreciation of evidence on record as also wholly against their weight, thus suffer from the vice of arbitrariness and unreasonableness?
Ratio Decidendi: The Court held that the First Appellate Court had erred in relying solely on the prevailing market rent of similar premises in the locality to determine the fair and equitable rent for the suit premises. The Court observed that in the case of a long-standing tenancy, the rent is not solely determined by the market rent but also by various other factors such as the special relationship between the parties, the surrounding circumstances, the constructions put up by the tenant, the capability of the tenant, the prevailing commercial activity, and other advantages or disadvantages. The Court also noted that the Plaintiff had received the rent of Rs.10,000/- per month after the expiry of the tenancy agreement on protest, and that there was no convincing evidence to support the claim that the Plaintiff had agreed to receive the same as the fair and equitable rent.
Final Decision: The Court allowed the Appeal in part and modified the judgment of the First Appellate Court. The Court directed the Defendants to pay the rent from August 2008 till July 2011 by fixing the rent with straightway enhancement of 50%, i.e., @ Rs.15,000/- (rupees fifteen thousand) per month and thereafter from August 2011 to March 2014 @ Rs.22,000/- (rupees twenty-two thousand) per month; and damage @ Rs.35,000/- (rupees thirty-five thousand) per month from April 2014 till actual vacation.
JUDGMENT :
D. Dash, J.
The Appellants by filing this Appeal under Section-100 of the Code of Civil Procedure (hereinafter called as ‘the Code’) have assailed the judgment and decree passed by the learned District Judge, Cuttack in RFA No.10 of 2016.
By the said judgment and decree, the First Appellate Court has allowed the Appeal filed by these Appellants-Defendants under section-96 of the Code, in part only to the extent of determination of the fair and equitable rent of the tenanted premises for the period from August, 2008 to October, 2013. The First Appellate Court has fixed the same @ of Rs.30,000/- per month instead of Rs.40,000/- as had been so awarded by the Trial Court for said period. It may be stated that rest part of the order of the Trial Court in directing the Defendants to vacate the possession of the suit premises; pay arrear rent @ of Rs.40,000/- per month from November, 2013 till March, 2014 and damage @ of Rs.80,000/- per month w.e.f. 01.04.2014 till actual vacation of the suit premises have been given the seal of approval.
The cross-objection filed by the Respondents-Plaintiffs for enhancement of monthly rent and damage for the aforesaid period has, however, been rejected.
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 assigned the position in the Trial Court.
3. Plaintiffs Case:-
One Ramesh Kumar Bhawsinka as the Plaintiff had filed the above noted suit for eviction of the Defendants from the suit premises and delivery of vacant possession with direction for payment of arrear house rent and damage with interest.
It is pertinent to state here that during the pendency of the suit, said original Plaintiff having died, his legal representatives coming on record have pursued the suit and they are called the Plaintiffs.
The original Plaintiff is the owner of the premises which is the subject matter of the suit. It is stated to be covering an area of Ac.0.200 decimals with four rooms and other constructions standing over the same. On 28.11.1946, a lease agreement has been executed in favour of Ganesh Lal Didwania, one of the Directors of M/s. Bharat Motors (Defendant No.1) for running a show room, garage/workshop. The rent agreement was for a period of 21 years w.e.f. 01.12.1946. On completion of the aforesaid period, the tenancy agreement between the original Plaintiff and M/s. Bharat Motors (Defendant No.1) through its partner came into being on 19.07.1985 and then it was for a period of four years w.e.f. 01.08.1984 till 21.07.1988. The rent was fixed thereunder at Rs.2,100/- per month with a stipulation that the same would stand increased @ 20% after expiry of the lease period. In this way, the tenancy continued till July, 2008 when the monthly rent being accordingly enhanced as per the said stipulation and agreed upon was Rs.10,000/- per month.
It is stated that before completion of the period of tenancy on 02.07.2008, the Plaintiff had requested the Defendants to handover the possession of the suit premises on or before the expiry of the month of July, 2008 i.e. with effect from 01.08.2008. It is stated that the Defendant No.1 through one of its partner i.e. Defendant No.2 had then made a request to the original Plaintiff to have a fresh negotiation for execution of a new agreement in expressing the desire to continue with the tenancy by paying Rs.10,000/- as rent every month. The Defendants did not then vacate the suit premises. The Plaintiff, however, at that time could not take effective step against the Defendants for vacation of the suit premises because of his health condition due to ailments. It is further stated that Defendant No.2 on behalf of Defendant No.1 then had given an assurance to the original Plaintiff that they would pay rent of Rs.50,000/- per month for a period of six months, when they would be shifting to another premises. However, despite such assurance, as per that old rate, a sum of Rs.10,000/- w
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