Calcutta High Court (Appellete Side)
Arsala Khan vs Land & Bricks & Entertainment Ltd on 16 December, 2019
Author: Biswajit Basu
Bench: Biswajit Basu
1
08,SL,Ct.18.
16.12.2019
AJ.
C.O. 3960 of 2019 Arsala Khan
-Vs-
Land & Bricks & Entertainment Ltd.
Mrs. Usha Maity, Mr. Sanjay Saha.
... for the petitioner.
Ms. Noelle Banerjee, Mr. Dipak Dey.
....for the opposite party.
Affidavit-of-service filed in Court today be kept with the records. The petitioner has suffered a decree of ejectment and has preferred an appeal against the said decree. The petitioner in the said appeal being Title Appeal No. 88 of 2017 prayed that pending disposal of the said appeal the operation of the judgment and decree under challenge in the said appeal may be stayed.
The appeal Court below by the Order No. 06 dated April 07, 2018 allowed the said prayer of the petitioner subject to payment of occupation charges at the rate of Rs. 18,000/- per month and the arrear occupation charges at the said rate commencing from July 28, 2017 was directed to be liquidated by May 31, 2018.
The petitioner assailed the said order in revision before this Court being C.O. 1297 of 2018. A Co-ordinate Bench of this Court by the order dated August 06, 2018 disposed of the said revisional application by affirming the order of the appeal Court below but permitted the petitioner to deposit the arrear occupation charges till July 20, 2018 by the end of October, 2018.
2The petitioner could not deposit the said occupation charges within October, 2018 and on November 12, 2018 filed an application in the Ejectment Execution Case No. 30 of 2018, levied to execute the said ejectment decree seeking permission of the executing Court to deposit the arrear occupational charges by offering an explanation of his inability to deposit the said charges within the time fixed by the said order dated August 06, 2018 passed in C.O. 1297 of 2018.
The explanation offered in the said application is that due to the intervention of the Puja Vacation of the Court the arrear occupation charges could not be deposited by October, 2018.
The executing Court by the first order impugned being Order No. 16 dated August 29, 2019 has dismissed the said application holding that the petitioner got sufficient time before commencement of the Puja Vacation of the Court to deposit the said amount but failed to deposit the same and have failed to explain what prevented the petitioner to deposit the said charges from the date of the said order dated August 06, 2018 till the Puja Vacation of the Court.
The learned advocate appearing on behalf of the decree holder/opposite party strenuously argued that by the order dated August 06, 2018 passed in the said C.O. 1297 of 2018 the time to deposit the arrear occupation charges was extended till the end of October, 2018, therefore, the petitioner had enough opportunity to deposit the said charges prior to the commence of the Puja Vacation.
She submits that the petitioner having failed to offer satisfactory explanation justifying the delay in depositing the said charges is not entitled to extension of time 3 thereof and if he is allowed to do so it would be amounting to variation of the said order dated August 06, 2018.
I am not at all impressed by the said submission of the learned advocate for the opposite party inasmuch as the petitioner was granted time up to the end of the month of October, 2018 to deposit the arrear occupation charges, therefore, he is not required to explain why he could not deposit the said charges within the month of October, 2018.
The cause of action of the petitioner to apply for extension of the said time arose on the expiry of the month of October, 2018, the petitioner has filed the application for such extension on November 12, 2018 i.e. twelve days after the expiry of the time limit fixed by the said order dated August 06, 2018.
No doubt the delay in making the said prayer is required to be explained but length of the delay dilutes the requirement of satisfaction in condoning the said delay.
The Puja Vacation of the Court usually intervenes during the month of October every year, therefore, the explanation offered by the petitioner that he could not deposit the said arrear occupation charges within the month of October, 2018 due to the intervention of the Puja Vacation of the Court cannot be disbelieved altogether.
Moreover the petitioner when undisputedly depositing the current occupation charges with the executing Court in compliance of the condition to enjoy the order of stay passed by the appeal Court below, the judgment under appeal cannot be allowed to attain finality without it's sustainability is being tested at least for once. 4
The power of the Court to enlarge the time even after the expiry of the time fixed or granted has expired is well recognized under Section 148 of the Code of Civil Procedure.
The argument of the learned advocate for the opposite party that permitting the petitioner to deposit the arrear occupation charges within an extended time would be amounting to variation of the said order dated August 06, 2018 is therefore wholly misconceived.
For the reasons discussed above the order impugned being Order No. 16 dated August 29, 2019 is set aside.
The executing Court in view of dismissal of the application of the petitioner for permission to deposit the arrear occupation charges vide aforementioned Order No. 16 dated August 29, 2019 by the next order impugned being Order No. 17 dated September 26, 2019 has issued the writ of delivery of possession of the suit property.
The Order No. 16 dated August 29, 2019 since has already been set aside and Order No. 17 dated September 26, 2019 cannot stand and is also set aside.
The petitioner is permitted to deposit the said arrear occupation charges within a week from date in the executing Court.
However, if the said amount was deposited within the time fixed by the said order dated August 06, 2018 it could have bring some interest on the said amount, considering the same the petitioner is required to deposit a further sum of Rs. 10,000/- along with said occupation charges.
With the above C.O. 3960 of 2019 is allowed.
There shall be no order for costs.
5Urgent photostat certified copy of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.
(Biswajit Basu, J.)