Calcutta High Court (Appellete Side)
Smt. Shanta Mukhopadhyay @ Mukherjee vs Sri Ramesh Chandra Basak & Anr on 21 September, 2011
Author: Prasenjit Mandal
Bench: Prasenjit Mandal
1 Form No.J(2) IN THE HIGH COURT AT CALCUTTA CIVIL REVISIONAL JURISDICTION APPELLATE SIDE C.O. No. 3004 of 2011 Present :
The Hon'ble Mr. Justice Prasenjit Mandal Smt. Shanta Mukhopadhyay @ Mukherjee.
Versus Sri Ramesh Chandra Basak & anr.
For the petitioner: Mr. Biswajit Basu.
For the opposite parties: Mr. A.B. Raut, Mr. Ashit Kr. Chowdhury, Mr. T.S. Raut.
Heard On: 08.09.2011 & 19.09.2011.
Judgement On: September 21, 2011.
Prasenjit Mandal, J.: This application is at the instance of the judgment debtor and is directed against the Order No.50 dated June 30, 2011 passed by the learned Judge, Presidency Small Causes Court, 3rd Bench, Calcutta in Misc. Case No.106 of 2009 arising out of Ejectment Execution Case No.98 of 2007 in connection with Ejectment Suit No.164 of 2001.
The short fact is that the husband of the judgment debtor / petitioner herein was the original tenant under the decree-holder 2 / opposite party herein in respect of the premises in suit at a rental of Rs.165/- per month. the decree-holder / opposite party herein filed a suit for eviction against the husband of the petitioner being Ejectment Suit No.164 of 2001 before the learned Small Causes Court, Calcutta and he got a decree for recovery of possession in the said premises in suit.
Thereafter, the defendant / judgment debtor preferred an appeal and while admitting the appeal, the judgment debtor was directed to pay occupational charges / compensation at the rate of Rs.500/- per month for occupying the premises in suit from the date of passing the impugned judgment and decree of eviction. Ultimately, the judgment debtor lost the appeal.
Then the decree-holder filed the application for execution of the decree being the Ejectment Execution Case No.98 of 2007. In that ejectment case, the judgment debtor / petitioner herein filed an application under Section 47 of the C.P.C. and that application was registered as Misc. Case No.106 of 2009. Upon hearing both the sides over that misc. case, the same was rejected on contest without cost. Being aggrieved, the judgment debtor has preferred this revisional application.
Now, the question is whether the impugned order should be sustained.
Upon hearing the learned counsel for the parties and on going through the materials on record, I find that the above facts are 3 not in dispute. After disposal of the appeal, the judgment debtor continued in possession of the property under the execution case and he was paying the occupational charges at the rate of Rs.500/- per month and the landlord accepted the same. At one occasion, that is, for payment of rent for the month of September 2008, the tenant sent rent / compensation at the rate of Rs.165/-.
On realising the fact that the rent was sent at the rate of Rs.165/- for the month of September 2008, the decree-holder returned back the said money with a protest letter and at that time, the judgment debtor sent Rs.500/- as rent which was accepted. Then, the judgment debtor filed an application under Section 47 of the C.P.C. contending, inter alia, that a new tenancy had been created and so, the execution application should be dismissed.
Mr. Biswajit Basu appearing on behalf of the petitioner has argued in details contending that since rent was accepted at the rate of Rs.500/- per month. After dismissal of the appeal, a new tenancy has been credited and so, the learned Trial Judge ought to have allowed the application under Section 47 of the C.P.C.
On the other hand, Mr. A.B. Raut appearing on behalf of the opposite party has contended that the rent was at the rate of Rs.165/- per month. But after passing of the judgment by the learned Trial Judge, the appellate court, while admitting the appeal, enhanced the occupational charges at the rate of Rs.500/- 4 per month and judgment debtor was paying that amount as occupational charges. He has also contended that while sending the money by money order, he wrote the money order coupon rent / compensation for dispatch of the money in respect of the premises under execution and ultimately, he deleted the word 'compensation' for the subsequent month. The contention of the petitioner that when the landlord / decree-holder accepted that amount of Rs.500/- , a new tenancy has been created, cannot be accepted. Thus, he prays for dismissal of the application.
Upon going through the materials on record, I find that the contention of the petitioner is not convincing at all. Parties knew each other that the judgment debtor is paying the occupational charges and the landlord / decree-holder is accepting the occupational charges while the decree for recovery of possession was under challenge. Initially, the tenant wrote the word 'rent/compensation' in the money order coupon and subsequently, he omitted the word 'compensation' in one money order coupon when the landlord had accepted the said money order, it could not amount to creation of a new tenancy. Save and except, the writing in the money order coupon, the petitioner is not in a position to show any paper or at least oral agreement that a new tenancy had been created in respect of the premises in suit between the parties. So, whatever the description could be made, it was done according to the order of the Appellate Court 5 and both the parties knew it. Accordingly, the judgment debtor dispatched the occupation charges by money order coupon but cleverly put the word 'rent' and deleted the word 'compensation' in one money order coupon. It does not mean that a new tenancy had been created. The decree-holder is proceeding with the said execution case to recover possession and he never expressed that by acceptance of the money order, he had accepted the judgment debtor as his tenant by creating a new tenancy. So, I am of the view that the learned Executing Court has rightly held that the petitioner has failed to substantiate the creation of a new tenancy subsequent to the dismissal of the first appeal.
In that view of the matter, I hold that the learned Executing Court has rightly disposed of the application under Section 47 of the C.P.C. dismissing the same. There is no merit in the revisional application.
Accordingly, the revisional application is dismissed. Considering the circumstances, there will be no order as to costs.
Urgent xerox certified copy of this order, if applied for, be supplied to the learned Advocates for the parties on their usual undertaking.
(Prasenjit Mandal, J.)