Calcutta High Court (Appellete Side)
Nripendra Narayan Ghosh vs Dr. Chandra Shekher Murmu on 11 July, 2017
Author: Mir Dara Sheko
Bench: Mir Dara Sheko
1 C.O 1574 of 2016 Ct-30 11.7.2017 Nripendra Narayan Ghosh Vs. Dr. Chandra Shekher Murmu 56 Mr. S.N. Ghosh ... For the Petitioner Mr. Golam Mustafa Mr. Subir Sabui ar ... For the Opposite Party Heard Mr. S.N. Ghosh, learned counsel, representing the petitioner/plaintiff/landlord and also Mr. Golam Mustafa, learned counsel representing the opposite party, being assisted by Mr. Subir Sabui.
Upon hearing both sides and perusing the materials on record it reveals that the petitioner filed a Title Suit in the year 2014 praying for eviction and khas possession of the suit premises lying in the occupation of the opposite party in the capacity of licencee. In the said suit also apart from injunction other reliefs were sought for to which the petitioner would be entitled under the law. The Court has been apprised of the fact that the cross-examination to the witness of the petitioner has been going on before learned Trial Court. Amidst the proceeding the petitioner filed an application under Section 151 of the Code of Civil Procedure seeking direction upon the opposite 2 party/defendant/occupant of the suit premises to pay directly to the petitioner an amount of Rs. 15,000/- per month commencing from March 2014 for illegal and wrongful occupation of the suit premises. Learned Trial Court rejected such application by the impugned order dated 2nd February, 2016 while the stage was for hearing of the temporary injunction, which has been over by this time in view of the present stage of the suit, as indicated above.
Learned counsel for the petitioner relying on a decision of a coordinate bench of this Court delivered in the case of Kanak Projects Limited Vs. Oil and Natural Gas Corporation Ltd., reported in 2014(1) CLJ (Cal) 337, criticized the impugned order and submitted that since there is no specific defence in the written statement save and except denial, to protect and ensure of the interest of the landlord the opposite party should be directed to deposit the amount as sought for as occupational charges.
Learned counsel for the opposite party per contra relying on an earlier decision of co- ordinate bench delivered in the case of Debibrata Chattopadhyay Vs. Jharna Ghosh & Anr., reported in 2013(3) CLJ (Cal) 300, submitted that since the suit is yet to be disposed of by determining the right of the parties finally question of direction regarding 3 occupational charges would not arise. Therefore, Mr. Mustafa submitted to uphold the order impugned and to reject the application.
Learned counsel for the petitioner in his usual fairness however handed over the case of M/s Atma Ram Properties (P) Ltd. Vs. M/s. Federal Motors Pvt. Ltd. in Appeal (Civil) 7988 of 2004 and also reported in 2005(1) SCC 705 which was referred to by Learned Trial Court in the impugned order. The relevant paragraph 28 from the case of Kanak Projects Limited Vs. Oil and Natural Gas Corporation Ltd. (supra) is set out herein :-
"28. Although Atma Ram dealt with the power of the Appeal Court to grant provisional mesne profit, the principles are the same, if applied to an eviction suit pending before the trial Court. When a suit for eviction is pending before the Appeal Court the appeal is merely a continuation of the trial Court proceedings. It is true that when the case is before the Appeal Court, there is already a decree of eviction. The Appeal Court has to consider the grant of mesne profit considering the decree for eviction. At the trial Court there is no such decree. But the same principles, in my opinion, can be applied. If the trial Court finds that there is absolutely no defence that the defendant has to the claim for eviction made by the plaintiff and that eviction would be a matter of 4 course, it can apply the principles in Atma Ram's case for award of interim mesne profits pending passing of the final decree. This is more the need when the case is pending for a long time. This is one such case where considering its duration, I would apply the said principle laid down in the case of Atma Ram. The Hon'ble Supreme Court has gone to the extent of saying in this case that the Court has the power of awarding any reasonable compensation for continued use of the property by the defendant."
In the case of Debibrata Chattopadhyay Vs. Jharna Ghosh & Anr.(supra) the Court observed "learned Court below has rightly held that the plaintiff is attending to execute the decree in an interlocutory stage on the prayer of occupation charges could not be allowed prior to adjudication of the suit". Since this Court gets opportunity also to go through M/s Atma Ram Properties (P) Ltd. Vs. M/s. Federal Motors Pvt. Ltd. (supra). The fact of that case was that there was an eviction proceeding where order of eviction was passed by rent controller, against which appeal was preferred before the Rent Control Tribunal. It is needless to mention that the Tribunal has been also enjoying all the powers vested in a Court under the Code of Civil Procedure while hearing the appeal. It was further observed by the Supreme Court in the said case that the tenant once having suffered by 5 an order of eviction he must comply with to vacate the premises. His right in that occasion would be simply statutory. But had there been any grant of stay then the appellate Court would have to exercise an equitable discretionary jurisdiction. Meaning thereby, if the appellate Court exercises its equitable discretionary jurisdiction in the matter of granting stay then such inconvenience to the successful landlord is to be compensated in otherwise manner i.e. directing the occupant of the premises to pay occupational charges.
It is obvious that the fate of present suit shall be final and binding subject to its judgment, which of course is appealable. But before final disposal of such suit the result is unknown to either of the parties. Meaning thereby the landlord can expect his success but cannot be sure till the disposal of the eviction suit. Till before final disposal there may be several unknown eventualities. Suit may end into compromise. It may be dismissed for default. It may be decreed ex parte. Suit may abate in the available situation till before its completion. Therefore, had there been order compelling the occupant to pay occupational charges to the petitioner during pendency of the suit it is not desirable because it would create complication had there been failure in the event of getting 6 success in the suit by the landlord. That apart, the decree of mesne profits or damages are subject to determination. The petitioner can pray the amount but grant upto what extent, or not all, is subject to adjudication. In view of the case of Kanak Projects Limited Vs. Oil and Natural Gas Corporation Ltd.(supra) this Court is not expressing any doubt about not having the authority or power of the Court to award reasonable compensation but the term "reasonable compensation" would arise only when the suit comes to an end with the result bearing direction of eviction of the occupant from the suit premises. On the other hand, had there been no success in the suit then any such direction upon the occupant would be unreasonable.
That apart over the aspect of damage as sought for by the landlord several other the attending circumstances are taken into account viz. where the suit premises situate, what is the area of such premises, according to area what are the standard amount of rent paying in the locality etc. moreover the age of the instant suit no. 114 of 2016 being not so old the case of Kanak Projects Limited (supra) is distinguished. Therefore, in absence of these materials the prayer of occupational charges as claimed straight way @ Rs. 15,000/- in the midst of the proceeding of the suit rightly was declined by 7 learned Trial Court.
This Court having not found any illegality or error committed by learned Trial Court in such decision making process and relying on earlier decision of this Court held in the case of Debibrata Chakrabarty (supra) of which the co- ordinate Bench in the case of Kanak Projects Limited (supra) did not take not of upholding the Order No. 15 dated 2nd February, 2016 passed by learned Civil Judge(Junior Division), 3rd Court, Alipur in Title Suit No. 116 of 2014 (Nripendra Narayan Ghosh Vs. Dr. Chandra Shekher Murmu) the application being CO 1574 of 2016 stands dismissed.
However, before departure and taking defence of the opposite party as available on record learned Trial Court is directed to expedite the proceeding of the suit for its expeditious disposal as early as possible without granting unnecessary adjournment to either of the parties with a period of only one year from the date of communication. Stay order, if any stands vacated.
No order as to cost.
Department is directed to communicate xerox copy of xerox certified copy of the order at once to Learned Court below.
8Urgent photostat certified copy of this order, if applied for, be given to the parties on usual undertaking.
(Mir Dara Sheko, J.)