Calcutta High Court (Appellete Side)
Rajendra Sirohia vs Sri Amitava Gupta And Another on 18 May, 2012
Author: Tarun Kumar Gupta
Bench: Tarun Kumar Gupta
1
18.05.2012
S. A. No. 29 of 2012
Rajendra Sirohia
Vs.
Sri Amitava Gupta and Another
Mr. Saptangsu Basu
Mr. Ganesh Prasad Shaw
.....for the appellant/petitioner
Mr. S. P. Roychowdhury
Mr. Hiranmoy Bhattacharya
......for the respondent / O. P.
C.A.N. No.11302 of 2011 It is the case of the appellant petitioner that respondent O. P.s. as plaintiffs filed a Title Suit being No.19 of 2002 in the Court of learned Civil Judge (Junior Division), 2nd Court, Alipore against the appellant praying for eviction alleging revocation of licence. According to the petitioner said suit was dismissed on contest vide judgment dated 31st of March, 2009. But, the appeal preferred by the respondent O. P.s. being Title Appeal No.150 of 2009 was allowed by passing a judgement of eviction dated 23rd of August, 2011. It is further case that as the appellant petitioner has filed this second appeal which has already been admitted there should be an order of injunction restraining the respondent / O. P.s. from executing 2 the judgment and decree appealed against till the hearing of the appeal. Thus, this is an application, in substance, for stay of the impugned judgment and decree dated 23rd of August, 2011 under Order 41 Rule 5 of the Code of Civil Procedure.
The respondent/O. P.s. has filed an affidavit-in opposition alleging that the suit premises was a compact flat situated in a posh area within Kolkata Municipal Corporation and that the minimum market rate of letting out the same is Rs.12,000/- per month and that the order of stay, if any, can only be granted on condition of paying said market rent at the rate of Rs. 12,000/- per month from the date of decree of eviction.
The appellant petitioner has filed an affidavit-in-reply denying the same and asserting at the same time that the condition of the flat was very bad.
Mr. Saptangsu Basu, learned counsel for the appellant petitioner submits that the off quoted case of Atma Ram as reported in 2005 (1) SCC 705 wherein a tenant facing an eviction decree was asked to pay market rent and not contractual rent from the date of decree has no application in this case as it is a second appeal 3 and said judgment was passed in connection with a first appeal. Mr. Basu further submits that a litigant can file a first appeal under Section 96 of the Code of Civil Procedure as a matter of right but he cannot file a second appeal as a matter of right as it is required to be admitted under Order 41 Rule 11 of the Code of Civil Procedure only if substantial question of law is involved. He further submits that as it is a judgment of reversal and there is an arguable case the order of injunction / stay should be granted by permitting the appellant petitioner to deposit the contractual rent of Rs.2,500/- per month.
Mr. S. P. Roychowdhury, learned senior counsel for the respondent/ O. P.s., on the other hand, submits that in terms of Rule 1 of Order 42 the rules of Order 41 dealing with first appeal are applicable mutatis mutandis to the second appeals also. He further submits that in the case of Atma Ram properties Pvt. Ltd., as reported in 2005 (1) SCC 705 it was specifically held by the Hon'ble Apex Court that party succeeding from Courts below not to be deprived of fruits from decree and that a tenant was liable to pay damages for use and occupation of the suit premises even after passing of decree of eviction only at the rate which the landlord could have 4 obtained by letting out the premises on being vacated by the tenant. According to him, it was further held in said case that under Order 41 Rule 5 the Appellate Court has power to put the appellant on terms and that the right of appeal is statutory but prayer for grant of stay is dealt with in exercise of equitable discretionary jurisdiction. It was further held that at the time of passing of order of stay the Appeal Court has a jurisdiction to direct the tenant to compensate landlord by payment of reasonable amount and not necessarily same as contractual rate for loss occasioned by delay in execution of decree for grant of stay. According to Mr. Roychowdhury in tune with said judgment of Atma Ram (supra) several judgments were passed by Hon'ble Apex Court as well as this Court wherein order of stay was granted to the appellant, be in the first appeal or in the second appeal, with a direction to pay market rent of the property from the date of passing of decree of ejectment. In this connection he has referred the cases of State of Maharashtra vs. Super Max International reported in 2009 (9) SCC 772, Anderson Wright & Co. vs. Amarnath Roy and Ors. reproted in 2005(6) SCC 489 = AIR 2005 SC 2457 Pratul Saha vs. Purnabrata Dutta reported in 2009 (3) CAL LT 395 (HC), United 5 Engineering vs. Kaustab Ghosh reported in 2012 (1) CHN (Cal) page 247 and Sharma Kapoor reported in 2007 (2) WBLR (Cal) page 327. It came out from those judgments that the contractual rents were increased many folds namely 40 times in Atma Ram Case, 93 times in Super Max International case, 105 times in Anderson Wright case, 164 times regarding first property and 333 times regarding second property in Pratul Saha's case and 18.75 times in United Engineering case and 363 times in Sharma Kapoor's case. Mr. Roychowdhury further submits that in this case the appellant petitioner was a licensee and not even a tenant in the suit premises on payment of licence fee of Rs.4,000/- per month and that a report has been obtained as to the market rent of the suit property from one Monojit Dey, an approved valuer of this High Court wherein he assessed the market rent of the suit premises as Rs.12,000/- per month after taking note of oldness of the building and giving 45 per cent discount on that score. According to Mr. Roychowdhury, the order of stay, if any, can only be granted by issuing a direction upon the petitioner to pay arrear occupational charges as well as current occupational charges at the rate of 6 Rs.12,000/- per month as estimated by the valuer.
I have considered the submissions made by learned counsels of the parties and also noted the case laws referred by Mr. Roychowdhury. Order 41 Rule 5 of the Code of Civil Procedure is squarely applicable when an order of stay / injunction is granted in a second appeal. Now, it has been well settled by the Hon'ble Apex Court that in order to get an order of stay of a decree of eviction the appellant has to pay market rent as occupational charges at least from the date of passing of the decree of eviction. On going through the report of Mr. Monojit Dey, an approved valuer of this High Court, I find that the current market rent as assessed may be accepted. However, as it was alleged that the condition of the suit house was not very good I am of opinion that the occupational charges should be reduced to Rs.10,000/- per month to be payable from the date of passing of the decree of eviction dated 23rd of August, 2011, for ends of justice.
Accordingly, I pass the following order. The respondent/ O. P.s. are hereby restrained by an order of injunction from proceeding 7 with any execution case for effecting the impugned judgment and decree of eviction till disposal of the appeal provided the appellant petitioner deposits arrear occupational charges at the rate of Rs.10,000/- per month for the period from 23rd August, 2011 to 30th April, 2012 within three months from this date and deposits monthly occupational charges starting from May, 2012 at the rate of Rs.10,000/- per month, month by month, by 15th of each succeeding month and the first payment should be made by 15th of June, 2012. In the event of failure to deposit either the arrear occupational charges or current occupational charges within the stipulated time as stated above this order of injunction will stand automatically vacated without any further reference. Those deposits are required to be made with learned Registrar General of this Court. The O. P. / landlords will be at liberty to withdraw at the rate of Rs.4,000/- per month from said arrear amount as well as from the monthly deposit amount. Learned Registrar General is hereby requested to deposit the arrear occupational charges after deducting the amount admissible to the respondent / O. P.s. as stated above therefrom in 8 any short term fixed deposit scheme of any nationalized bank of his choice and to renew the same from time to time until further order. Similarly, learned Registrar General should deposit the monthly amount of Rs.10,000/- after deducting Rs.4,000/- therefrom to be withdrawn by the respondent / O. P.s., month by month, in any short term fixed deposit scheme of any nationalized bank of his choice and to renew the same from time to time until further order. This order is passed without prejudice to the rights and contentions of the parties.
The application stands disposed of accordingly.
Urgent photostat certified copy of this order be supplied to learned counsels of the parties, if applied for.
(Tarun Kumar Gupta, J.)