Calcutta High Court (Appellete Side)
Chatturam Horilram Private Ltd vs Paritosh Kumar Mallik on 29 August, 2016
Author: Jyotirmay Bhattacharya
Bench: Jyotirmay Bhattacharya
29.8.2016
Item No. 69
Court No. 14
ac
S.A.T. 132 of 2016
(CAN 3865 of 2016)
Chatturam Horilram Private Ltd.
-versus-
Paritosh Kumar Mallik
Mr. Sabyasachi Bhattacharjee,
Mr. Rajarshi Dutta,
Mr. Sayantan Bose.
... For the Appellant.
Mr. Durga Prasad Dutta,
Mr. Souvik Sen.
... For the Respondent.
This appeal will be heard on the following substantial questions of law :
i) Whether both the learned courts below committed a substantial error of law in holding that there has been parting with possession and change of user inspite of no evidence having been adduced to show that there was severance of exclusive possession by the caretaker of the appellant company?
ii) Whether residence of the family members of the caretaker with him amounts to parting with possession to attract the mischief of Section 6(a) of the West Bengal Premises Tenancy Act, 1997?
Issue usual notice. Call for the records.
Re : CAN 3865 of 2016.
After hearing the learned counsel of the parties and after considering the materials on record, we dispose of this application by staying all further proceedings of Ejectment Execution Case No. 35 of 2013 pending before the learned 2nd Bench, Presidency Small Causes Court at Calcutta till the disposal of the appeal, subject to compliance of the following conditions:
i) The defendant/appellant will have to deposit all arrear occupational charges at the last paid occupational charges, fixed by the court below, upto the month of July, 2016 in the executing court within a month.
ii) The defendant/appellant will have to deposit the occupational charges from the month of August, 2016 onwards till the disposal of the appeal at the rate of Rs.25,000/- (Rupees Twenty Five Thousand only) per month in the executing court.
The first of such deposit for the month of August, 2016 will be deposited within 7th of September, 2016 and for the subsequent months within 7th of each following month.
In default of compliance of any of the conditions as mentioned above, the interim stay as granted above will stand vacated and in that event the learned executing court will be free to proceed with the execution case in accordance with law.
In case all arrear occupational charges are deposited by the defendant/appellant with the executing court, the plaintiff/respondent will be permitted to withdraw the same without furnishing any security therefor.
In case the current occupational charges for the month of August, 2016 onwards is deposited in the executing court, the plaintiff/respondent will be permitted to withdraw the same by furnishing an undertaking before the learned executing court stating that in case the plaintiff/respondent fails to succeed in this appeal, he will have to return the amount which he will withdraw from the executing court in excess of the contractual rental charges.
The defendant/appellant is restrained from using the suit premises for any purpose other than the purpose for which the premises was let out to the defendant and they are also restrained from allowing any person apart from the caretaker and the directors of the company to stay in the suit premises till the disposal of the appeal.
Let the lower court's record be called for by special messenger at the cost of the appellant. Such cost should be deposited within a week from date.
The concerned department will take steps for bringing the lower court's record immediately on deposit of such special messenger's cost. The concerned department is further directed to examine the lower court's record immediately on receipt of the same from the Court below.
The concerned department is directed to serve a notice of arrival of lower court's record upon the learned advocate-on-record of the appellant immediately after the record is examined and found complete.
The appellant is also directed to prepare and file the requisite number of paper books within eight weeks from date in the concerned department. All formalities regarding preparation of paper books are dispensed with.
Since the plaintiff/respondent has already entered appearance in this appeal through his learned advocate, further service of notice of appeal upon the plaintiff/respondent is dispensed with. The appeal, thus, be treated ready as regards service.
The appellant is further directed to serve a copy of the said paper book upon the respondent/opposite party and/or his learned advocate-on-record of the respondent immediately thereafter.
Liberty is given to the learned advocate for the parties to mention the matter for early hearing of this appeal after the appeal is made ready for hearing.
Urgent photostat certified copy of this order, if applied for, be given to the parties as expeditiously as possible.
(Jyotirmay Bhattacharya, J.) (Ishan Chandra Das, J.) 1 4