Notice Granting 7 days’ Time To ‘Tenant Holding Over’ To Vacate Suit House Can’t Fulfil Requirement U/S.106 TP Act; 15 days’ Notice Period Required: Orissa HC

The High Court was considering a Defendant’s appeal against a reversing judgment. The judgment passed by the Additional District Judge followed by decree in Regular First Appeal was under challenge whereby the decree passed by the Civil Judge (Jr. Division) was reversed.

The Single-Judge Bench of Justice Sashikanta Mishra said, “Since this Court has found that the defendant was a tenant holding over, there being admittedly no valid notice served upon him before filing of the suit, the same was not maintainable and therefore, rightly dismissed by the trial Court.”

Senior Advocate S.K.Mishra represented the Appellants while Advocate R.K.Nayak represented the Respondents.

The suit in question was filed by the Plaintiff-respondents for eviction of the defendant from the suit house. The suit house belonged to the late Sisir Ch. Sen, the predecessor of the plaintiffs. He inducted the defendant as a monthly tenant for one year @ Rs.300/-. The defendant paid the house rent to said Sisir till his death whereafter, the plaintiffs having succeeded to the property accepted rent from him. The defendant was asked by the plaintiffs to pay enhanced rent @ Rs.800/- per month but he did not pay the same nor cleared the arrear dues. As such, the plaintiffs served Advocate’s Notice on the defendant but the same was not responded to. On December 15, 1996, the suit house was found in a dilapidated condition needing urgent repair for which the plaintiffs asked the defendant to vacate the same but he did not vacate the house and continued to default in paying the enhanced rent from the month of October, 1995.

The defendant contested the suit by filing a written statement challenging its maintainability. It was his case that no valid notice as per the provision under Section 106 of the Transfer of Property Act had ever been served upon him. The Trial Court held that initially the Plaintiff No.6 had served a legal notice, but the same being only on behalf of one of the co-owners couldn’t be treated as a valid notice. When the plaintiffs carried the matter in appeal, the same was allowed and the defendant was directed to give vacant possession of the suit house to the plaintiffs along with the arrear house rent. The defendant thus preferred the instant Second Appeal.

The only issue before the Bench was whether any notice under Section 106 of the T.P.Act was required to be served upon the defendant for his eviction from the suit house.

On a perusal of the recitals of the agreement, the Bench noticed that the lease was for one year and it stood automatically determined on December 28, 1988 in view of the provision under Section 111(a).“There is no evidence whatsoever to show that prior to issuance of the legal notice dtd.20.11.1995 (Ext.4), there was any move by plaintiffs to have the defendant vacate the suit house”, it said while also adding, “All the above facts taken conjointly would make it manifestly clear that defendant had continued in the suit house with consent of the plaintiffs.”

The Bench also placed reliance upon Raj Kishore Biswal and others vs. Bimbadhar Biswal R.S.A. No. 340 of 2017 (1992) O.J.D. 499 (Civil) and held, “...it is clear that when the possession of the lessee after expiry of the lease is with the assent of the lessor, he would be a ‘tenant holding over’ but if his continuance is not by the assent of the lessor, he is merely a ‘tenant at sufferance’, the expression being a fiction to distinguish him from a rank trespasser.”

Reliance was placed upon section 116 which says that if a lessee or under-lessee of property remains in possession thereof after the determination of the lease granted to the lessee, and the lessor or his legal representative accepts rent from the lessee or under-lessee, or otherwise assents to his continuing in possession, the lease is, in the absence of an agreement to the contrary, renewed from year to year, or from month to month, according to the purpose for which the property is leased, as specified in Section 106.

“Such being the legal position, the provision under Section 106 of the Act requiring 15 days’ notice, cannot be done away with. As has been held and rightly so by the trial Court, the first notice under Ext.4 being issued by only one of the landlords is not a valid notice”, it added.Moreover, the second notice though issued on behalf of all the co-owners granted only 7 days’ time to the defendant to vacate the suit house and such a notice couldn’t have fulfilled the requirement of Section 106 of the T.P. Act.

“Thus, from a conspectus of the analysis of facts and law and the contentions raised by the parties, this Court is of the considered view that the First Appellate Court committed an illegality in holding that no notice under Section 106 is necessary for which the impugned judgment cannot be sustained in the eye of law. Since this Court has found that the defendant was a tenant holding over, there being admittedly no valid notice served upon him before filing of the suit, the same was not maintainable and therefore, rightly dismissed by the trial Court”, the Bench concluded.

Thus, allowing the Appeal, the Bench confirmed the judgment passed by the trial Court in dismissing the suit.

Cause Title: Sanatan Bardhan (since dead) Represented through her L.Rs Mana Mohini Bardhan and others v. Ranu Sen and others [Case No.- RSA No.340 of 2017]

Appearance:

Appellants: Senior Advocate S.K.Mishra, Advocate J. Pradhan

Respondents: Advocate R.K.Nayak

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