KRISHNA SUDAM ROY Vs. DEBASISH BHOWMIK

JUDGEMENT

(1.) By means of this appeal under Section 100 of the CPC, the defendant has challenged the judgment dated 16.04.2018 delivered in Title Appeal No.01 of 2017 by the Addl. District Judge, Unakoti Judicial District, Kamalpur as it then was. By the said judgment the Addl. District Judge has dismissed the first appeal being Title Appeal No.01 of 2017 by returning the finding that the defendant is not entitled to get the benefit of Section 114 of the Transfer of Property Act, 1882. Analogy has been drawn from R.S. Lala Praduman Kumar v. Virendra Goyal and Others reported in 1969 (1) SCC 714 where the apex court has stated that in a suit of eviction against the tenant, the appellate court in appropriate case may relieve the tenant of default. It is open to the appellate court at the hearing of the appeal to give relief to the tenant in default against forfeiture, but the aforesaid power of the court is no doubt is to exercise discretion for equity. The appellate court should verify the conduct of the tenant before granting such equitable relief.

(2.) In the case in hand, on appreciation of the records, it appears that the defendant has made a conditional offer for getting such relief against forfeiture. In that backdrop, the appellate court has denied to exercise discretion in favour of the defendant for giving the relief against forfeiture as provided under Section 114 of the Transfer of Property Act, 1882. The said finding has been challenged by the defendant, the appellant herein. Briefly stated the relevant facts are that the plaintiff entered into a rent agreement with the defendant for letting out his rooms situated in his premises, appertaining to Khatian No.904, plot No.1188 of mouja Kamalpur under Kamalpur Sub- Division, opposite to the Kamalpur Super Market. The plaintiff had put up the defendant in the rooms No.6 and 7 as a temporary monthly tenant. At one point of time, a serious dispute broke out between the plaintiff and the defendant and with other tenants. The defendant and other tenants filed a writ petition before this court being W.P.(C) No.83 of 2009. The said writ petition was disposed of on compromise by recording the conditions in the Miscellaneous Application being CM Appl. No.289 of 2014 which had arisen from the said writ petition. On the basis of the said settlement/compromise, by the order dated 25.06.2014, the said writ petition was disposed of, with further direction as under:

(3.) There is no dispute that in the settlement, it was agreed between the plaintiff and the defendant that the respondents No.3 and 4, the land lord, would take up the necessary renovation work and such renovation work would be completed within a defined period from the date of commencing the work. To facilitate the said repairing work and renovation work, the petitioners [the tenants, including the appellant] shall hand over the vacant possession of their respective rented rooms which were under their occupation/possession within a period of 7(seven) days from the date of order disposing the writ petition. It was further agreed upon that after completion of the repairing/renovation work, the tenants shall be given possession in their respective rooms which they had vacated for enabling (the landlord) carry out the renovation. It had been agreed that before re-handing over the possession the petitioners [in the previous writ petition] shall execute separate rent agreements with the respondents No.3 and 4 delineating the period of tenancy etc. It was agreed that the tenancy shall be for a period of five years from the date of execution of the tenancy agreement with a further clause for renewal for another period of six years after completion of the initial five years period on 10% enhancement of the rent after every two years thereafter.