GOPAL CHANDRA SAHU Vs. KUNJA SINGH AND ORS.

JUDGEMENT

(1.) 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 under Section 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

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