Calcutta High Court (Appellete Side)
Sri Debabrata Biswas vs Dr. Sudhangsu Sekhar Mitra on 24 May, 2019
Author: Bibek Chaudhuri
Bench: Bibek Chaudhuri
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
The Hon'ble JUSTICE BIBEK CHAUDHURI
S.A.T 379 of 2015
With
CAN No. 8054 of 2018
With
SAT 378 of 2015
Sri Debabrata Biswas
-Versus-
Dr. Sudhangsu Sekhar Mitra
For the Appellant: Mr. Rajarshi Dutta,
Mr. Sayantan Bose.
For the Respondent/O.P Mr. Jiban Ratan Chatterjee,
Mr. Anant Kumar Shaw, Mr. Partha Pratim Roy, Mr. Tanmoy Mukherjee.
Heard on: March 07, 2019.
Judgment on: May 24, 2019.
BIBEK CHAUDHURI, J. : -
1. The appellant after having suffered an eviction decree from the trial court which was affirmed by the 1st Appellate Court preferred SAT 379 of 2015 before this Court assailing the judgment and decree passed against him by the learned trial court and affirmed by the 1st Court of Appeal.2
2. The instant application has been filed by the appellant (hereafter described as the petitioner) praying for stay of operation of the judgment and decree dated 28th may, 2015 till disposal of the 2nd Appeal.
3. The respondent/opposite party has been contesting the aforesaid application by filing an affidavit-in-opposition. It is alleged by the respondent that the suit premises consists of three bedrooms, one kitchen, one living cum dining space, two bath and privy, one covered verandah on the ground floor flat at rear portion and partly front portion of premises No.CJ-146 Sector- II, Salt Lake City, Bidhannagar having carpet area approximately of 1350 sq.ft. The petitioner was inducted as a licensee with monthly fee of Rs.4000/- on condition that he would vacate and deliver up peaceful possession of the suit premises as and when called for by the opposite party.
4. However, the petitioner refused to vacate the suit premises when he was called upon by the opposite party. On the contrary, he filed a suit for declaration that he was a tenant in respect of the suit premises governed under the West Bengal Premises Tenancy Act. The opposite party contested the suit by filing written statement and counterclaim for a decree for eviction. The trial court dismissed the suit filed the petitioner and decreed the counterclaim filed by the opposite party. The petitioner preferred two separate appeals before the learned 1st Appellate Court assailing the judgment and decree passed by the trial court, but failed to succeed.
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5. In order to frustrate the opposite party from enjoying the fruit of the decree, the petitioner has filed two second Appeals challenging the judgment and decree passed by the learned trial court and affirmed by the learned court in 1st Appeal. It is alleged by the opposite party that petitioner has been enjoying the suit premises without paying any licence fee since April, 2014. It is further submitted by the opposite party that the petitioner should be directed to pay occupation charges from the date of passing of the decree by the learned trial court as a condition precedent for granting an order of stay of operation of the judgment and decree passed in favour of the opposite party and against the petitioner.
6. It is further stated by the opposite party that he applied before the government authority for present valuation of the suit property and pursuant to such application, the Directorate of Registration and Stamp Revenue, Government of West Bengal informed the market value of the suit property at Rs.3,05,39,497/-. The lease rent of the suit property is fixed at Rs.6,60,000/- for 11 months and the petitioner is under obligation to pay occupation charges at the rate of Rs.60,000/- per month. Thus, the opposite party submits that the petitioner may be directed to pay occupation charge at the rate of Rs.60,000/- per month from April, 2014 till date and also to go on depositing such occupation charges till he is evicted from the suit premises by execution of decree or otherwise.
7. The petitioner has filed an affidavit-in-reply against the affidavit- in-opposition submitted by the opposite party. In his reply, apart from 4 denying the material allegations made out by the opposite party, he specifically stated that the opposite party denied the basic amenities of human living to the petitioner in the suit premises. To illustrate, it is stated by the petitioner that the opposite party disconnected water connection in the suit premises and the petitioner was compelled to live without water for a period of six years before it was restored on the strength of an order passed by this Court in C.O 3264 of 2010. It is also stated by the petitioner that he was inducted in the suit premises in November, 1996 and till April, 2007 he regularly paid monthly rent/licence fee at the rate of Rs.4000/- and maintenance charge at the rate of Rs.3000/- . It is further pleaded by the petitioner that in CO 3264 of 2010, this Court passed an order directing the petitioner to pay a sum of Rs.4000/- per month towards occupation charges till the disposal of the 1st Appeal. It is contended by the petitioner that since this Court had fixed the occupation charges to be paid by the petitioner per month to the opposite party, the opposite party cannot demand enhancement of such occupation charges on the basis of a report of Directorate of Registration and Stamp Revenue. The petitioner has disputed the correctness of the said report.
8. I have heard Mr. Rajarshi Dutta, learned Advocate for the petitioner and Mr. Jiban Ratan Chatterjee, learned Senior Advocate for the opposite party. I have also perused the materials on record.
9. The Hon'ble Supreme Court in Atma Ram Properties (P) Ltd. vs. Federal Motors (P) Ltd. reported in 2005 (1) SCC 705 clearly held- 5
"(i) While passing an order of stay under Rule 5 of Order 41 of the Code of Civil Procedure, 1908, the appellate court does have jurisdiction to put the applicant on such reasonable terms as would in its opinion reasonably compensate the decree-holder for loss occasioned by delay in execution of decree by the grant of stay order, in the event of the appeal being dismissed and insofar as those proceedings are concerned. Such terms, needless to say, shall be reasonable."
10. The ratio of Atma Ram Properties (P) Ltd (supra) was subsequently followed by the Hon'ble Supreme Court in Anderson Wright & Co. vs. Amarnath Roy & Ors. reported in 2005(6) SCC 489. (2) Niyas Ahmed Khan vs. Mahmood Rahmat Ullah Khan & Anr. reported in 2008 (7) SCC 539, (3) State of Maharashtra & Anr. vs. Supermax International Private Ltd. reported in 2009(9) SCC 772 and (4) Mohammad Ahmad & Anr. vs. Atma Ram Chauhan & Ors. reported in 2011(7) SCC 755.
11. In Anderson Wright & Co, the ratio laid down in the case of Atma Ram Properties (P) Ltd (supra) was applied with approval and it was observed that while determining the quantum of the amount so receivable by the landlord, the landlord is not bound by the contractual rate of rent which was prevalent prior to the date of decree. It was ultimately held that the rate of rent prevalent in the locality should be directed to be paid as condition for grant of stay of the proceeding without being swayed by the fact that contractual rent is too meager.
12. Learned Advocate for the petitioner has pointed out that in C.O 3264 of 2010, a Coordinate Bench directed the petitioner to pay Rs.4000/- as occupation charges till the disposal of the 1st Appeal. If at this stage the rate of occupation charges is enhanced, there will be 6 conflicting decision on the question of payment of occupation charges passed by two Coordinate Benches. The argument advanced by the learned Counsel for the petitioner as noted above is not acceptable to this Court because the issue is well settled that the Appellate Court while granting stay of operation of impugned judgment and decree passed against a tenant shall not be guided by the factor that at the time of induction of licensee or tenant, the monthly licence fee or rent was fixed by the parties. The occupational charges are dependent upon the various factors, like, the locality or area where suit premises situate, availability of modern amenities in the locality, prevalent rate of rent and similar other factors.
13. In the instant case, the suit premise is situated at Salt Lake which is considered as one of the most posh area in the city of Calcutta. The suit premise is situated in an area where almost all amenities of comfort are available. Number of Schools, Colleges, Private Nursing Homes, Hospitals, IT Hubs and Central Bus Terminus etc are situated at stone throw distance from the suit premises. While fixing occupation charge of the above mentioned factors are required to be taken into consideration by the Court. In Supermax International Private Ltd. (supra), the Supreme Court took the yardstick of the Stamp Duty Ready Reckoner to fix the quantum of prevalent market rent and accepted the same as reasonable. The opposite party in his affidavit-in-opposition has annexed e- assessment slip issued by the Directorate of Registration and Stamp 7 Revenue, Government of West Bengal wherein lease rent per annum in respect of the suit premises is the reckoned at Rs.6,60,000/-.
14. The opposite party was inducted in the suit premises in 1996. Admittedly, he used to pay Rs.4000/- as licence fee and Rs.3000/- as maintenance charge per month, total being Rs.7000/-. A Coordinate Bench of this Court, while disposing of C.O 3264 of 2010 directed the opposite party to pay admitted licence fee or rent, as the case maybe, at the rate of Rs.4000/-. The said order was passed on 1st February, 2012 in a revisional application filed by the opposite party praying for supply of water in the suit premises. The factual situation has considerably changed in the mean time the 1st Appeal has been disposed of affirming the judgment and decree passed by the trial court in favour of opposite party. Secondly, more than 7 years have elapsed in the mean time. The opposite party is fighting legal battle with the petitioner for his eviction. Thirdly, the Appellate Court has every power to direct the petitioner to pay occupation charges under prevalent rate of rent in the locality as on this date.
15. In order to assess the prevalent rate of rent, Stamp Duty Reckoner is accepted to be a guide.
16. At this stage I am no inclined to decide the question as to whether e-assessment slip issued by the Directorate of Registration and Stamp Revenue, Government of West Bengal is correct or not. If the e- assessment slip is held to be valid, the rate of monthly occupation charge of suit premises would be Rs.55,000/-.
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17. I have already stated that at the time of induction the petitioner used to pay Rs.7000/- per month to the opposite party. Such amount was settled as monthly licence fee by and between the parties in 1996, i.e., about 23 years ago. After a lapse of 23 years, monthly rate of occupation charges must be enhanced at least by three times.
18. Considering multiplayer of the three, I am of the view that as a condition precedent for enjoying an order of stay of operation of judgment and decree passed by the learned trial court and the learned 1st Appellate Court, the petitioner is under obligation to pay Rs.21000/- per month as occupation charges.
19. In view of the above discussion, the impugned judgment and decree dated 28th May, 2015 Title Appeal No.29 of 2013 be stayed subject to the condition that the petitioner shall pay a sum of Rs.21000/- per month to the opposite party as occupation charges from the month of April 2019 within 15 of each succeeding month till the disposal of the instant 2nd Appeal.
20. C.A.N 8054 of 2015 is thus disposed of on contest without cost.
Urgent photostat certified copy of this order, if applied for, be given to the parties as expeditiously as possible.
(Bibek Chaudhuri, J.)