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Judgment
Plaintiffs are the appellants against an affirming judgment in a suit for permanent injunction.
The case of the plaintiffs is that the defendant is the Mahanta of Gangamata Math, Puri. The Mahanta has got number of shop rooms. They are
tenants in respect of a shop room since last 18 to 19 years with a monthly rent of Rs.12/-. They dealt with stationary articles and used to pay rent
to the defendant. The business could not run well due to family disturbances. They came to know that the defendant took steps to put a lock in the
shop room. With this factual scenario, they instituted the suit seeking the relief mentioned supra.
Defendant entered contest and filed a written statement. The case of the defendant is that the plaintiffs were inducted as tenants. They did not
pay rent regularly, for which the Mahanta directed them to vacate the premises. The shop room was in a bad condition and not fit for any
habitation. The same required immediate reconstruction. On a Sunia day of 1986, the plaintiffs voluntarily vacated the suit premises in the presence
of local gentlemen.
On the inter se pleadings of the parties, the learned trial court struck five issues. Both the parties led evidence. Learned trial court came to hold
that the plaintiffs are not in possession of the suit premises. Held so, it dismissed the suit. The unsuccessful plaintiffs filed an appeal in the court of
the learned District Judge, Puri, which was subsequently transferred to the court of the learned Additional Civil Judge (Senior Division), Puri and
renumbered as T.A. No. 52/31 of 1994/93. The appeal was eventually dismissed.
The Second Appeal was admitted on the following substantial questions of law enumerated in the ground nos.B, C and D of the appeal memo:-
(B) For that the learned courts below have erred in holding that the appellants have surrendered the vacant possession of the shop room, since
they have not paid any house rent or Municipal tax after 1985-86 ?
(C) For that the learned court below should have held that non-payment of house rent on the part of the appellants amounts to defaulter but not
vacating the house ??
(D) For that when the learned appellate court on perusal of records has opined that no rent for the said shop room has been paid after 1984 and
on the other hand the respondent has said that the shop room has been voluntarily vacated on the Sunia day of 1986, the learned court below
should have disbelieve the fact of voluntary vacation in the absence of any document to such vacation and in absence of any evidence about the
recovery of arrear rent from 1984 to 1986 ?
Heard Mr. B.K. Sahoo, learned counsel for the appellants and Mr. B.S. Tripathy along with Mr. J. Pati, learned counsel for the respondent.
Mr. Sahoo, learned counsel for the appellants submits that both the courts came to an erroneous conclusion that the plaintiffs have handed over
the key of the shop room to the defendant. Elaborating the submission, he submits that D.W.3-defendant in his deposition, has stated that the
plaintiffs have handed over the key of the shop room to him in presence of one, Purna. There is no such pleading to that effect. There is variance
between the pleadings and proof. In view of the same, the findings of the courts below are perverse. The plaintiffs are still in possession of the shop
room. They can only be evicted from the premises within the jurisdiction of law.
Per contra, learned counsel for the respondent submits that the defendant was a monthly tenant. The plaintiffs closed their business. The shop
room was in a bad condition. The plaintiffs handed over the key of the shop room to the defendant in the presence of D.W.2.
Admittedly, the plaintiffs were tenants under the defendant. The plaintiffs admit that they could not run their business due to family disturbances.
Handing over the key of the shop room to the defendant is essentially a question of fact. On a threadbare analysis of evidence on record as well as
pleadings, both the courts came to hold that the key of the shop room has been handed over to the defendant. There is no perversity or illegality in
the findings of the courts below. The substantial questions of law are answered accordingly.
In the wake of aforesaid, the appeal, sans merit, deserves dismissal. Accordingly, the same is dismissed. No costs.