Calcutta High Court (Appellete Side)
Bhupali Mondal vs Satyendra Kumar Pramanick on 24 March, 2025
D/L.9.
March 24, 2025.
MNS.
FAT No. 99 of 2025
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CAN 1 of 2025
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CAN 2 of 2025
Bhupali Mondal
Vs.
Satyendra Kumar Pramanick
Mr. Soujanya Bandopadhyay
... for the appellant.
Mr. Sounak Bhattacharya,
Mr. Anirban Saha Ray,
Mr. Sounak Mondal,
Mr. Abhirup Halder
...for the respondent.
Re : CAN 1 of 2025 (condonation of delay)
1. This is an application for condonation of delay in preferring the appeal.
2. Learned counsel for the respondent points out several discrepancies in the application.
3. First, from paragraph nos. 14 and 15 of the application, it is evident that the appellant was well aware of the necessity to prefer an appeal before this court against the impugned judgment and decree and, as such, cannot be said to be so naïve so as not to know the legal procedure.
4. Secondly, in paragraph no. 16 of the application, it has been stated that the certified copies of the 2 judgment and decree impugned herein were handed over to the appellant on November 20, 2024. The explanation for the delay thereafter is entirely based on the accident faced by her daughter and the subsequent surgery which the daughter had to suffer.
5. The appellant has stated in the application that the said daughter was looking after the case on her behalf throughout. However, upon placing reliance on the pleadings of the appellant in the trial court, which are annexed to the connected stay application, learned counsel for the respondent vociferously contends that the entire impression given to the court is erroneous, since it is the appellant herself who had signed all the documents in the court below and the picture sought to be portrayed before this Court that her daughter was looking after the case is false.
6. We carefully go through the averments in the application.
7. A mere glance at the signature of the appellant on the application, which is a mere scrawl, shows that although she might be barely able to sign her name, the appellant cannot be construed to have proper grasp over even the Bengali language, which is her mother tongue, let alone English.
8. We also find from the records that the pleadings on behalf of the appellant in the court below were 3 primarily in the English language and the appellant barely signed the said pleadings in Bengali, her mother-tongue.
9. Thus, it may not be totally incredible that although the appellant had signed the pleadings, the matter was substantially looked after by her daughter.
10. Moreover, since the proceeding arises out of an eviction decree, we do not find any mala fides which can be attributed to the appellant since delay in that regard would only enure against the appellant.
11. Taking a comprehensive view of the above circumstances, we are of the opinion that sufficient lenience ought to be extended to the appellant, particularly keeping in view the social context that she is coming from a marginalized section of the society, is barely literate and is a widow who is already having to survive in life primarily on her own with the help of her daughter.
12. Thus, there is every probability that the appellant was actually prevented from preferring the appeal due to the unavailability of her daughter, who had suffered a serious accident for which she had to undergo surgery at the relevant juncture.
13. Taking into consideration all the above circumstances and proceeding on the premise of preponderance of probabilities, we are of the 4 opinion that the delay in preferring the appeal ought to be condoned.
14. Accordingly, CAN 1 of 2025 is allowed on contest, thereby condoning the delay in preferring FAT No. 99 of 2025.
Re: CAN 2 of 2025 (stay application)
15. This is an application for stay of the impugned judgment and decree and the connected execution case.
16. Learned counsel for the appellant submits that the learned Trial Judge did not take into consideration the deposits made by the appellant from March, 2021 to April, 2024 and held the appellant to be a defaulter in payment of rent for the said period, which was the primary ground for passing the impugned decree of eviction against the appellant.
17. Learned counsel appearing for the respondent vehemently opposes such contention and submits that the deposits in question were, even if made, sporadic and not in consonance with Section 7(2)(c) of the West Bengal Premises Tenancy Act, 1997 (in short "the 1997 Act") and as such, the benefit and cloak of protection granted by Section 7 (4) of the said Act is not available to the appellant.
18. That apart, it is submitted that the documents annexed during the period from March, 2021 to 5 April, 2024, being purported challans, were not before the learned Trial Judge.
19. That apart, it is contended that due to non- compliance of the order passed under Section 7(2) of the 1997 Act, the defence of the appellant was justly struck out and the present impugned decree was also justified.
20. Insofar as the last of the above arguments is concerned, we do not find prima facie from the impugned judgment that non-compliance of the provisions of law by non-deposit after the passing of the order under Section 7(2) of the 1997 Act is a ground reflected in the impugned judgment.
21. Insofar as the sporadicity of the deposits made, we are to look into the facts and assess the evidence on record as well as to look into the question as to whether the learned Trial Judge was justified in facts and law in coming to the impugned conclusions before taking a final call on the issue. It would be premature at this stage to conduct a mini- trial of the main appeal as such.
22. Since it is an admitted position that some of the challans, copies of which have been annexed to the stay application, were not before the learned trial judge, although such deposits were apparently made by the defendant/appellant, we grant leave to the appellant to file an appropriate application 6 under Order XLI Rule 27 of the Code of Civil Procedure for bringing such documents on record.
23. However, it is made clear that we are not expressing any opinion on the fate of such application, if filed, and it will be open for being decided at the final hearing of the application/appeal as to whether such additional documents can at all be permitted to be brought on record as evidence.
24. Be that as it may, since an arguable case has been made out for hearing of the appeal on merits, we grant stay of Ejectment Execution Case No. 7 of 2024, pending in the City Civil Court at Calcutta in connection with the impugned judgment and decree, till disposal of the present application for stay.
25. It is made clear that the question of imposition of occupation charges as a condition for grant of stay has not been entered into at this stage due to lack of materials on such count and it is kept open to be urged by the parties at the time of final disposal of the present application.
26. The respondent is directed to file affidavit-in- opposition within a fortnight from date, inter alia disclosing the materials available with the respondent for ascertaining the suitable occupation charges. Affidavit-in-reply thereto, if any, shall be filed within a week thereafter.
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27. The application for stay, being CAN 2 of 2025, shall next be listed for hearing on April 21, 2025. (Uday Kumar, J.) (Sabyasachi Bhattacharyya, J.)