Hiralal Dey VsRanibala Malakar <BR>Ranibala Malakar VsHiralal Dey

S.C. Das, J.—The second appeal and the cross objection were taken up together for hearing and this common judgment shall govern both the case.

Late Dwijendra Chandra Malakar, predecessor of the present respondents, as plaintiff, (hereinafter mentioned as ''plaintiff'') instituted Title Suit No. 10 (Ejection) of 2001 in the Court of Civil Judge (Senior Division), North Tripura, Kailashahar seeking ejection of defendant-appellant, Sri Hiralal Dey (hereinafter mentioned as ''defendant'') from the suit premises on the ground of non-payment of rent of the rented suit premises and also for compensation @ Rs. 150/- per diem from December, 2000 until vacation of the suit premises. After the plaintiff filed T.S. 10 (Ejection) of 2001, the defendant also filed a counter claim, which was registered as T.S. No. 18 of 2001 against the plaintiff seeking declaration that the defendant is a tenant in the suit premises in terms of agreement dated 28.02.1999 and that the ejectment notice was illegal, inoperative and not binding on him and also prayed for permanent injunction against the plaintiff from disturbing his tenancy in the suit premises. Both the suit were taken up together for trial by the learned Trial Judge (Civil Judge, Senior Division, North Tripura, Kailashahar) and on prayer of learned counsel of both side, the learned trial Judge took up the trial of T.S. No. 10 (Ejection) of 2001 and both the parties led evidence in that suit and it was held that the judgment in T.S. No. 10 (Ejection) of 2001 shall govern both the suit. Accordingly, by impugned judgment dated 03.11.2003 passed in T.S. No. 10 (Ejection) of 2001, the counter suit, i.e. T.S. No. 18 of 2001 was also disposed of.

Heard learned senior counsel, Mr. K.N. Bhattacharji, for the defendant-appellant and learned counsel, Mr. D.K. Biswas, for the plaintiff-respondents.

The second appeal has been admitted for hearing on the following substantial questions of law:-

"i) Whether a notice not served in terms of Section 106 of the Transfer of Property Act will terminate the tenancy or not?

ii) Whether during the existence of a contract contrary to the provision under section 106 of the Transfer of Property Act for eviction of a tenant, the tenant can be evicted by serving a notice under section 106 of the said Act?

iii) Whether for adjudication of the case, the agreement dated 28.2.99 (Ext. 2) was rightly construed?"

The cross objection has been admitted for hearing on the following substantial questions of law:-

"(i) Whether the court below rightly held that the demand for compensation arising out of the tenancy should be made by a separate suit and not in the suit for eviction?

(ii) Whether amount of compensation demanded after being found bona fide and genuine can be rejected on the ground of deficit Court Fee?"

There are certain undisputed facts pleaded by both side, those are:-

The plaintiff is the landlord of the suit premises described in the schedule of the plaint, which was given on rent to the defendant on 28.03.1990 pursuant to a registered deed of tenancy at a monthly rent of Rs. 201/-. The defendant used to deal with the business of sales and service of watch in the rented shop premises. The plaintiff landlord had other shop huts also which were given on rent to other people. All those shop huts of the plaintiff including the shop hut given on rent to the defendant were gutted with a devastating fire on the intervening night of 6th and 7th February, 1999. After that incident, on 28.02.1999 the plaintiff and defendant entered into an unregistered agreement, mutually agreeing thereby, that the plaintiff will take up construction of new building in the gutted shop premises for which the defendant will afford an amount of Rs. 1,00,000/-. Rs. 50,000/- was paid on 28.02.1999 itself and the rest amount of Rs. 50,000/- was agreed to be paid within 30.04.1999. It was further stipulated in the agreement that if the rest amount of Rs. 50,000/- was not paid within 30.04.1999, the defendant will be responsible for compensation for the loss likely to be suffered by the plaintiff. It was also stipulated in the agreement that the defendant shall make construction over there with pacca wall in the gutted premises in which the defendant was a tenant and shall continue to run his business till the new building comes up and the defendant shall continue to pay rent for the premises @ Rs. 325/- per month and such rent shall be paid within the 1st day of every month following English Calendar and shall take receipt of the payment. It was further held that the defendant will be treated as a temporary evictable monthly tenant under all circumstances. It was also stipulated that after construction of new building, the defendant will be inducted in one room measuring 10'' x 10'' and in that event the defendant will hand over the suit premises to the plaintiff and in case, the defendant fails to do so, the plaintiff will issue a notice of seven days for evection of the defendant.

The plaintiff in his plaint and in his written statement filed in the counter claim contended that the defendant violated the terms of agreement dated 28.02.1999 since the defendant in terms of agreement did not make payment of Rs. 50,000/- within 30.04.1999. It is also contended by the plaintiff that the defendant paid rent of the suit premises @ Rs. 325/- per month up to February, 2000 and obtained receipt thereof. Thereafter he made payment of rent of the month of March and April by money order and after that the defendant stopped payment of rent and for such nonpayment of rent the plaintiff issued notice under Section 106 of the Transfer of Property Act for eviction of the defendant from the suit premises and that notice was sent on 10.11.2000 and the notice was received by the defendant on 14.11.2000. The defendant since did not make payment of rent of the suit premises, the plaintiff sought decree for eviction of the defendant from the suit premises.

The defendant in his written statement in T.S. 10 (Ejection) of 2001 as well as in his plaint in the counter claim of T.S. No. 18 of 2001 contended that he offered the amount of Rs. 50,000/- to the plaintiff on several occasions, but the plaintiff refused to accept the same and that he has also remitted an amount of Rs. 2,925/- by money order towards the arrear amount of rent, but the plaintiff refused to receive the amount. He has contended that there was no default on his part in payment of rent and so, he cannot be evicted from the suit premises and that in terms of agreement dated 28.02.1999 he should be inducted in one of the rooms constructed by the plaintiff for running his business.

The trial Court considering the pleadings of the parties framed six issues, namely:-

"1. Is the suit maintainable in its present form and nature?

Whether there is any cause of action for filing the suit?

Whether the plaintiff is entitled to get eviction of the defendant from the suit premises?

Whether the plaintiff is entitled to get the compensation as prayed for in the plaint?

Whether the plaintiff is entitled to get the decree as prayed for?

What other relief/reliefs the parties are entitled to?"

In course of trial, the plaintiff examined himself as PW 1 and also examined two more witnesses, namely, PW 2, Sri Satyendra Kumar Chakraborty and PW 3, Smti. Minati Bhattacharjee. The plaintiff also proved the following documents:-

"1. Exhibit-1: Deed of Agreement dated 28.3.1990.

Exhibit-2: Un-registered deed dated 28.2.1999.

Exhibit-3: Copy of notice u/s. 106 of T.P. Act.

Exhibit-4: postal receipt.

Exhibit-5: Certified copy of sale deed dated 15.3.2000.

The defendant examined himself as DW 1 and also examined two more witnesses, namely, DW 2, Sri Sailesh Chanda and DW 3, Sri Satyendra Chanda. The defendant also proved the following documents:-

"1. Exhibit-A: unregistered deed of agreement dated 28.2.1999.

Exhibit-B: Certified copy of Varanama dated 28.3.1990.

Exhibit-C: Copy of notice,

Exhibit-D, E & F: Postal receipts.

The trial Court dismissed the suit holding that the defendant offered rent to the plaintiff, but the plaintiff refused to receive the rent and so, the plaintiff has failed to prove the allegation of non-payment of rent by the defendant and the trial Court further held that the notice as required under Section 106 of the T.P. Act was not served on the defendant as per requirement of law and hence, dismissed the suit.

Aggrieved, the plaintiff preferred Title Appeal No. 08 of 2003 in the Court of learned District Judge, North Tripura, Kailashahar and the learned Additional District Judge (Fast Track Court) by judgment dated 14.10.2004 set aside the judgment and decree passed by the learned trial Judge and decreed the suit of the plaintiff. Hence, this second appeal filed by the defendant and the plaintiff also filed cross objection seeking compensation.

Learned senior counsel, Mr. Bhattacharji, appearing on behalf of the defendant-appellant has submitted that the appellate Court utterly failed to construe the admitted agreement dated 28.02.1999 and arrived at a wrong finding. Since in agreement dated 28.02.1999 there was a stipulation that by giving seven days'' notice the plaintiff will be entitled to evict the defendant and since no such notice was given, the trial Court rightly held that the suit was not maintainable and that notice under Section 106 of the T.P. Act was not properly given. The appellate Court failed to construe the fact and arrived at a perverse finding.

Learned counsel, Mr. Biswas, on the other hand, has contended that in agreement dated 28.02.1999 it has been clearly and unambiguously stipulated that the second party, i.e. defendant, will be treated as temporary evictable monthly tenant under all circumstances. The seven days'' notice was stipulated for eviction of the defendant in case the defendant had complied with the other aspect of the agreement and since the defendant defaulted in complying the agreement in respect of payment of rest amount of Rs. 50,000/- and since the defendant was not inducted in a newly constructed room, the question of giving seven days'' notice for eviction did not arise. Unregistered agreement dated 28.02.1999 has been proved by both side as Exbt.-2 as well as Exbt.-A respectively.

It is admitted position that on the date of execution of the unregistered agreement, the defendant paid Rs. 50,000/- to the plaintiff and according to the agreement the rest amount of Rs. 50,000/- would be paid within 30.04.1999, but that has not been paid within that stipulated date. The defendant contended that subsequently he offered that amount, but the plaintiff refused to accept the same. The appellate Court appreciated the evidence on that issue and arrived at a finding that the defendant has failed to prove the payment of rest amount of Rs. 50,000/- within the stipulated time and, therefore, the defendant violated the terms of the agreement. Since the defendant has violated the terms of the agreement, he cannot claim his induction in one of the rooms newly constructed by the plaintiff to let on rent. As per agreement, had the plaintiff was inducted in a newly constructed room, in that event the plaintiff would remain bound to vacate the existing suit premises and if he failed to do so, a seven days'' notice would be issued to him. Since the defendant did not comply the terms of that agreement, the question of inducting him in a newly constructed room did not arise and consequently, question of evicting him by giving a seven days'' notice in terms of the agreement also did not arise.

The status of the defendant remained same as a monthly tenant in the suit premises, which was constructed temporarily by the defendant at his own cost. Therefore, the plaintiff decided to determine the tenancy by issuing notice under Section 106 of the T.P. Act. The notice was proved as Exbt.-3 which shows that it was sent on 10.11.2000 and it was received by the defendant on 14.11.2000. The notice clearly stipulates that the tenancy shall expire on the last day of November, 2000. So, there was nothing wrong in the notice under Section 106 of the T.P. Act. The trial Court utterly failed to construe the legal requirement of notice under Section 106 of the T.P. Act. The contention of learned senior counsel, Mr. Bhattacharji that the defendant was evictable only by a seven days'' notice as per the agreement cannot be accepted in the particular facts and circumstances of the case and I am in full agreement with the finding of the appellate Court on the issue. Learned counsel, Mr. Bhattacharji also argued that the defendant was not a defaulter in payment of rent and so, the defendant cannot be held evictable from the suit premises on the ground of non-payment of rent.

Learned counsel, Mr. Biswas countered the contention of learned senior counsel Mr. Bhattacharji contending that after the payment of rent of the month of March and April, the defendant stopped payment of rent and thereafter the plaintiff issued notice under Section 106 of the T.P. Act in the month of November, 2000 and only thereafter the defendant sent a money order of Rs. 2,925/- which the appellate Court correctly construed that it was sent after January, 2001 which the plaintiff refused to receive. This factual aspect has been properly appreciated by the appellate Court considering the evidence on record. The trial Court, as it appears, superficially considered the evidence in respect of payment of rent and arrived at a wrong finding. It is clear that the defendant paid the rent of the month of March and April by money order and thereafter he did not make payment of the rent. After notice under Section 106 of the T.P. Act was issued in the month of November, 2000, the defendant sent a money order which the plaintiff rightly refused. It is, therefore, amply proved that the defendant defaulted in making payment of the rent of the suit premises and the appellate Court rightly held that the plaintiff proved his case in respect of non-payment of rent.

The defendant defaulted in making payment of Rs. 50,000/- in terms of the unregistered agreement dated 28.02.1999 and, therefore, the plaintiff did not induct the defendant in a newly constructed room. So, the claim of the plaintiff for compensation was rightly turned down by the appellate Court. The cross objection of the plaintiff, therefore, has no merit at all.

It appears that the appellate Court did not pass any order in respect of the amount of Rs. 50,000/- paid by the defendant as per agreement dated 28.02.1999. The plaintiff is directed to return the said amount to the defendant with 6% interest thereon from 14.11.2000, i.e., the date on which notice under Section 106 of the T.P. Act was served on the defendant. The payment should be made within two months from today, failing which the amount shall carry interest @ 9% per annum.

Both the second appeal and cross objection accordingly stand dismissed. Parties to bear their own costs.

Send back the lower court record along with a copy of this judgment.