Calcutta High Court (Appellete Side)
Sankar Mondal vs Subir Nandan on 29 March, 2016
1
31.
29.03.2016
mb
In the High Court At Calcutta
Civil Appellate Jurisdiction
Appellate Side
S.A. 277 of 2009
With
C.A.N. 1008 of 2016
Sankar Mondal
Vs.
Subir Nandan
Mr. Asis Chandra Bagchi,
Mr. Prabir Kumar Misra,
Mr. Sibendra Nath Chattopadhyay
.....for the petitioner
Mr. Sanat Kumar Biswas
......for the respondent
In Re.: C.A.N. 1008 of 2016 This is an application at the instance of the appellant in the second appeal arising out of the judgment and decree passed by the learned first appellate Court affirming the decree for eviction passed by the learned trial Judge.
On August 12, 2009, the Division Bench of this Court, after admitting the second appeal, passed an order staying all further proceedings of the Ejectment Execution Case No. 93 of 2007 pending before the Court of the learned Judge, 6th Bench, Small Causes Court at Calcutta till the disposal of the second Appeal, 2 being S.A. 277 of 2009, subject to compliance of the following Conditions.
1) The appellant/petitioner herein is directed to deposit the decretal costs including the arrears of rent, if any, up to the month of August, 2009, at the rate of Rs.70/- per month in the learned Executing Court within 15th of September, 2009.
2) The appellant/petitioner herein is also directed to deposit the current occupational charges of the suit premises at the present market rental rate, i.e., @ Rs.650/- per month for the subsequent months commencing from September, 2009 onwards to the credit of the respondent/opposite party in the execution proceeding before the learned Executing Court, regularly till the disposal of this appeal. Such payment should be made within 15th day of each following month for which the same will become due and payable by the appellant/petitioner.
3) It is made clear that in the event such deposits are made by the appellant/petitioner herein in the execution proceeding, the respondent/opposite party herein will be at liberty to withdraw the said amount with the clear understanding that in case this appeal is allowed, the deposit which will be made in excess of the contractual rent by the appellant pursuant to this order, either will have to be refunded to the appellant or will be adjusted towards the future rent of the suit premises.
4) Payment and/or acceptance of such rent by the parties will be without prejudice to the rights and contentions in this appeal.
3
5) In default of compliance of any of the conditions as above, the interim order will stand vacated and in that event, the learned Executing Court will be absolutely free to proceed with the execution case notwithstanding pendency of this second appeal before this Court. The execution of the impugned decree will remain stayed unconditionally 15th September, 2009.
The appellant-petitioner failed to comply with some of the above conditions including the condition regarding deposit of current occupation charges from the month of September 2009 and he filed an application, being C.A.N. 3083 of 2010, for modification of the said order dated August 12, 2009. By an order dated March 31, 2011 this Court allowed the prayer of the appellant to modify the said order dated August 12, 2009 by allowing him to deposit the amount of Rs.13050/- (Rupees Thirteen Thousand and Fifty only) towards arrear rent as well as monthly occupation charges upto the month of March, 2011 in the learned Executing Court subject to payment of costs assessed at Rs.2000/- (Rupees Two Thousand only) to the respondent.
In this application, the petitioner has once again approached this Court on the ground that he defaulted to pay the monthly occupation charges for the months of September, October and November, 2015. According to the petitioner, since the learned Court below was closed on account of Puja Vacation upto November 4 15, 2015, it was only on November 16, 2015 when he made over the monthly occupation charges for the months of October, November and December, 2015 amounting to Rs.1950/- to the clerk of the advocate representing him before the learned Court below, but the said clerk could not deposit the said amount in the learned Court below, which he came to know on January 21, 2016 after returning from his native village.
According to Mr. Bagchi learned Advocate appearing for the appellant, since the learned Executing Court re-opened after Puja Vacation on October 16, 2015, there was no default on the part of the appellant-petitioner to tender the occupation charges for the month of September, 2015 before the learned Executing Court. He urged that the learned Executing Court refused to accept the occupation charges from the appellant-petitioner for the month of September, 2015 onwards. According to Mr. Bagchi, since there is no lack of bona fide on the part of the appellant-petitioner, he should be allowed to deposit the occupation charges from the month of September, 2015 and the and the interim order passed in the appeal should be re-imposed.
Mr. Biswas, appearing for the respondent-landlord, however, submitted that the conduct of the petitioner is not at all bona fide and he has no intention to comply with the conditions imposed by this Court to pay the monthly occupation charges of Rs.650/- 5 within the 15th day of each following month, for which the same become due. He urged that in spite of the fact that on March 31, 2011 the petitioner obtained modification of the original order dated August 12, 2009 by extending the time to deposit the arrear occupation charges of Rs. 13050/-, but in the instant application, the petitioner has not been able to make out any bona fide ground to obtain any further relief for extension of time to deposit the monthly occupation charges for the months commencing from September, 2015. Mr. Biswas strenuously urged that in view of the petitioner's default in depositing the occupation charges for the months of September, October and November, 2015 in violation of the said order dated August 12, 2009, a right has already accrued in favour of the respondent-landlord to proceed with the execution case and this Court should not pass any order in this application in favour of the petitioner. He further contended that the occupation charges, which was payable by the petitioner, was fixed by this Court way back in the year 2009 and during this six years the market rate of rent in respect of the suit property has increased and even if this Court allow the prayer of the petitioner, he should be directed to pay current rate of monthly occupation charges. Having considered the facts and circumstances of the case, it appears that the appellant-petitioner has not been able to sufficiently explain the facts by producing documentary evidence to 6 give credence to the allegations made in the application. However, in the interest of justice, the petitioner is granted leave to deposit the monthly occupation charges of Rs.650/- (Rupees Six Hundred and Fifty only) in respect of the suit property for the period commencing from September, 2015 till March, 2016 within April 12, 2016, subject to payment of costs assessed at Rs.7,500/- (Rupees Seven Thousand and Five Hundred only) to be paid by the petitioner to the respondent-landlord positively by April 07, 2016 through his advocate.
Subject to payment of aforementioned costs to the respondent and deposit of the occupation charges from the month of September, 2015 till March, 2016, the interim order passed in the appeal on August 12, 2009 shall stand re-imposed.
The order dated August 12, 2009 stands modified to the above extent only.
Let this application appear in the list under the same heading on April 15, 2016.
It appears that although on November 03, 2009 the lower courts' records were called for through special messenger, but it is not clear from the records whether the lower courts' records have reached this Court or not. In these circumstances, the learned Registrar (Administration) of this Court is requested to look into the matter and if the lower courts' records have not been sent to this 7 Court, he shall forthwith communicate to the learned District Judge of the Court below to ensure that the lower courts' records are sent to this Court.
Urgent certified website copy of this order, if applied for, be made available to the parties upon compliance of all requisite formalities.
(Ashis Kumar Chakraborty, J.)