Gopal Chandra Sahu vs Kunja Singh and Others

K.B. Panda, J.—Dismissal of Misc. Case No. 15 of 1972 filed by the Appellant judgment-debtor-tenant by the Subordinate Judge, Kendrapara on 7.4.1973 has occasioned this appeal. The background of the case is thus: The Appellant is a tenant in respect of a room belonging to the Respondents lying in the town of Kendrapara. The Appellant carries on gold-smith, business there for a long time. The landlord-Respondents started a House Rent Control Case (No. 30 of 1968) for this eviction on the ground that the Appellant was a defaulter. Decree for eviction was passed on 10-4.1970. The Respondents preferred an appeal before the Additional District Magistrate (Judicial), Cut tack (Appeal No. 45 of 1970) but without any success. Thereafter the Respondents filed a writ application (0. J.C. No. 936 of 1970) in the High Court which was dismissed on 2.11.1970. Then the landlord Respondents levied Execution Case No. 94 of 1970 for taking possession of the house through the Court of the Munsif. Kendrapara. There the Appellant raised an objection u/s 47, Civil Procedure of Civil Procedure on the ground that the property had not been properly described and that subsequent to the termination of the tenancy, the landlord had accepted rent and thus there was a fresh tenancy created. On this, Misc. Case No. 125 of 1971 was registered. But that was dismissed by the Munsif against which the Appellant preferred a misc. appeal before the Subordinate Judge who remanded the case. Finally the case was again dismissed by the Munsif on 1.8-1972. The Appellant then preferred Misc. Appeal No. 15 of 1972. Before the Subordinate Judge, Kendrapara who confirmed the order of dismissal. As against that order of the Subordinate Judge, the present appeal has been filed.

2 The sole question for consideration is if there has been a fresh tenancy on the acceptance of rent for the months of September, October, November and December, 1970 and January, February, March and April. 1971. The Petitioner specifically took the stand that on the Sripanchami day of 1971 before certain people the Respondent No. 1 accepted the house rent and allowed him to continue as a tenant. This fact the Appellant has been unable to substantiate. The learned Courts below have discussed this factual aspect of the case and have concurred in that there is no evidence worth the name that on the Sripanchami day of 1971, there was a new contract entered into between the land lord and the tenant. The acceptance of the rent for these months under money orders have been explained by the Respondent that he received those amounts as damages since the judgment-debtor -tenant was holding over after losing the case in all the Courts. Admittedly the landlord had started Execution Case No. 94 of 1970 to take possession of the house. It is in evidence of the Respondent that he is not in talking terms with the tenant-Appellant after institution of the suit. They are close neighbours yet money was being sent through money order though it is alleged by the Appellant that there was a fresh contract on the Sripanchami day of 1971. In view of the execution case that was proceeding and in view of the prior litigation between the parties, the plea advanced by the tenant that there was a fresh contract can hardly be accepted. On behalf of the Appellant, my attention was drawn to a citation reported in Sadhu Charan Nayak v. Kanhei Lenka and Ors. 1974 (1) C.W.R. 379, wherein it is stated that

A tenancy can be created only when parties instead to create a tenancy and mere payment or acceptance of a sum of money in lieu of possession cannot create a tenancy. But where the parties were in the position of landlord and tenant which relationship the landlord had terminated on account of the default of the tenant in the matter of payment of rent and subsequently a sum of money by way of rent is received for a later period, it is difficult to hold that there is no intention to create the tenancy,

That was a case between the landlord and tenant for declaration of his tenancy right in the disputed property and for ancillary reliefs not under the House Rent Control Act. Besides, what has been held there is that the intention of the parties had to be taken into consideration. In the instant case and in the background of the execution case that was still hanging, acceptance of money sent through money order does not speak of an intention on the part of the landlord to create a fresh tenancy. Besides the specific evidence is that he received it by way of damages: In a house rent control case, reported in Ghulam Ghouse Saheb Vs. Chowdri D. Raja Rao, , it has been held that

The Appellant is not a lessee remaining in possession of the property after the determination of the lease. He is a person wrongfully remaining in possession beyond the date on which he had been directed by the House Rent Controller under the provisions of Madras Act 15 (XV) of 1946 to give obsession to his landlord. No new tenancy was, therefore, created; and, on the facts, there seems to be no reason to differ from the conclusion reached by the learned principal Judge. That the Respondent received payment of the rent without undertaking not to evict the Appellant. He filed the execution petition for the eviction of the Appellant on the day after the date on which the Appellant should have given possession, and he proceeded with it in spite of the payment made by the Appellant.

Accordingly that appeal was dismissed. In the instant case in spite of receipt of the rents, the landlord was pursuing the execution case and in that background it can hardly - be said that there was any new contract entered into between them. The learned Courts below have rightly rejected the contention of the -judgment-debtor Appellant. As it appears, the tenant is dragging on this litigation with the obvious object of sticking to the house in spite of the order for eviction.

In the result, I find no merit in the appeal and hence it is dismissed with costs throughout.