Calcutta High Court (Appellete Side)
S. K. Abdul Karim vs Aminul Islam & Ors on 16 May, 2014
Author: Harish Tandon
Bench: Harish Tandon
1
25 16.05.14 C.O. 1382 of 2014
akd
S. K. Abdul Karim
Vs.
Aminul Islam & Ors.
--------
Mr. Nurul Arefin, Mr. Keshab Chandra Das, Ms. Mamata Dutt.
... for the petitioner.
Mr. Akbar Ali.
... for the opposite party nos. 1 and 2.
The eviction decree is challenged in filing Ejectment Appeal No. 10 of 2013 before the learned Additional District Judge, Sealdah, 24-Parganas (South). In the said appeal an application for stay of the execution proceedings was taken out, which came to be disposed of by order no. 4 dated 16th April, 2013 directing the petitioner to pay an occupational charges @ Rs. 7,000/- per month to the landlord/opposite party. By subsequent order no. 12 dated 11th April, 2014 the Court records the non-compliance of the conditions put at the time of granting stay and has vacated the same. Both the orders are assailed before this Court.
The appeal is filed under Section 96 of the Code of Civil Procedure and the Appellate Court is obliged to decide the said appeal both on merit as well as on law. The Court should not have passed the blanket order of stay when one of the parties has emerged successfully. The Apex Court in case of Atma Ram 2 Properties (P) Ltd. vs. Federal Motors Pvt. Ltd. reported in (2005) 1 SCC 705 held that the Court should put a condition to strike a balance by directing the payment of the present market rent to be deposited with the Court.
The Court of Appeal below appears to have directed the payment of the occupational charges to the plaintiff/opposite party, which is absolutely in contravention to the directions of the Supreme Court passed in the aforementioned report. The proceedings for ascertainment of the mesne profit is yet to commence and to be finally determined. Allowing the landlord to have the occupational charges at the present market rate and to appropriate the same should not be encouraged.
This Court, therefore, feels that the order no. 4 dated 16th April, 2013 should be modified to the extent that instead of paying the occupational charges @ Rs. 7,000/- per month to the landlord, the petitioner shall deposit the same in the Trial Court. It is brought to the notice of this Court that the petitioner has already deposited a sum of Rs.42,000/- in the Trial Court.
Since this Court has modified the parent order, the petitioner is permitted to deposit the arrears within a month from date in the Trial Court; simultaneously therewith shall go on deposing the current occupational charges from the month of May, 2014 before the Trial Court within 15th day of June, 2014 and all subsequent monthly occupational 3 charges shall be deposited in the manner as indicated above within 15th of each succeeding month. In default of deposit of the arrears or any of the monthly occupational charges, the interim order shall stand automatically vacated.
The Court of Appeal below is requested to make utmost efforts to dispose of the appeal as expeditiously as possible and preferably within four months from the date of the communication of this order.
With these observations, the revisional application is disposed of.
There will be no order as to costs.
(HARISH TANDON, J.)