Acknowledgment of tenancy and participation in legal proceedings can waive the necessity for service of termination notice under the Transfer of Property Act, allowing for lawful eviction.

JUDGMENT :

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 1^st 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 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 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.