Calcutta High Court (Appellete Side)
Mukesh Purswani vs Karnani Properties Ltd. & Anr on 11 July, 2016
IN THE HIGH COURT AT CALCUTTA
(CIVIL REVISIONAL JURISDICTION)
C.O. No. 1230 of 2016
Mukesh Purswani
-Vs.-
Karnani Properties Ltd. & Anr.
Present : The Hon'ble Mr. Justice Siddhartha Chattopadhyay
For the Petitioners : Mr. Kishore Dutta, Sr. Adv.,
Ms. Sudeshna Basu Thakur.
For the Opposite Party : Mr. Aniruddha Chatterjee,
Mr. Neelesh Chowdhury,
Mr. A. Poddar,
Mr. Rahul Karmakar.
Heard On : 03.05.2016, 05.05.2016, 10.05.2016.
C.A.V. On : 10.05.2016
Judgment Delivered On : 11.07.2016
Siddhartha Chattopadhyay, J.:
Feeling aggrieved and dissatisfied with the order passed by the learned Judge 5th Bench in-charge Presidency Small Causes Court passed vide Order No. 60 dated 10.02.2016 in connection with Misc. Case No. 46 of 2016 (which arose from Ejectment Execution Case No. 89 of 2010) the present petitioner has filed this application for setting aside the impugned order and prayed for giving him a chance to contest in miscellaneous case under Order 21 Rule 97/101 read with Section 151 of C.P.C. which is filed for a declaration that he is the tenant in respect of the suit premises and also for permanent injunction.
2. According to the petitioner, the learned Court below did not consider his application mainly on the ground that in connection with a direction of a Co-ordinate Bench of this High Court in C.O. 4453 of 2015 he has fixed the date of delivery of possession on 11.03.2016. Learned Court below further held that there was sufficient scope to recover the possession after delivery of possession and on the basis of his above finding he has rejected his application, wherein he wanted to get a declaration that he is the tenant in respect of the suit premises and for permanent injunction.
3. The main grievance of the petitioner is such that initially one Balinder Paul Sethi was the tenant of the premises vide Unit No. 417. That Balinder Paul Sethi died and thereafter the father of this petitioner had been in possession till he breathed his last. After the said demise of his father, he has been occupying the suit premises and has been paying the rent to the Residents' Association and the said Residents' Association was formed in terms of the order of this High Court and he has been paying rent to the Special Officer appointed by another Co- ordinate Bench of this Hon'ble Court. The Special Officer concerned has been issuing receipts to him and the said Residents' Association is also paying municipal taxes etc. Therefore, his possession is not disputed.
4. In course of hearing, learned Counsel appearing on behalf of the petitioner contended that a suit was filed by Calcutta Municipal Corporation against Karnani Mansion Residents' Association, Karnani Properties Ltd., (present Opposite Party No.1) and an affidavit was filed by Chandra Kumar Karnani on behalf of Karnani Properties Ltd., wherein the present opposite party has categorically mentioned that in respect of Unit No. 417 one Balinder Paul Sethi was the tenant and the occupier was Arjun Das Purswani. This Arjun Das Purswani is the father of the present petitioner. After the death of his father, he is possessing the suit property and has been paying rent to the Karani Mansion Residents' Association. So now he cannot say that the present petitioner is not in occupation.
5. While filing an application under Order XXI Rule 97 he claimed for a declaration that he is a tenant in respect of the suit property under the decree-holder opposite party at a rental of Rs.318.80 paise but his such prayer was rejected not on merit. He pointed out that learned Court below had acted upon the order in connection with C.O. 4453 of 2015 passed by a Co- ordinate Bench. Learned Court below observed that the Co- ordinate Bench has directed him to proceed with the execution case. In the said order of the Co-ordinate Bench of this Hon'ble Court, I find that the present opposite party admitted that the original defendant-judgment debtor has died on 1st September, 2011 and since none appears on behalf of the defendant- judgment debtor before the Court below with a Vokalatnama, so he did not have the opportunity to make them as party. The present petitioner further contended that he was not served with any notice of that proceeding and so there was no scope on his part to appear. He could not say who has appeared on his behalf without filing a Vokalatnama. Therefore, he is entitled to contest the execution proceeding and for that reason he has filed an application under Order XXI Rule 97/101 of C.P.C.
6. Learned Counsel appearing on behalf of the opposite party has contended that since the present petitioner did not supply the names of the heirs of the deceased so he could not make them as party in the execution proceeding. Therefore, it is crystal clear that the execution proceeding was going on against a dead man.
7. Learned Counsel appearing on behalf of the petitioner further submitted that Karnani Mansion Residents' Association had drawn the attention of the Special Officer, (who is appointed by the High Court) mentioning that the present petitioner is the occupier of Unit No.417 and he has been paying rent to the tune of Rs.316/- and maintenance charges is Rs.856/-. Therefore, his possession, whatever be the capacity, cannot be questioned. He further submitted that without due process of law, he cannot be evicted from the suit premises and for which his application filed before the executing Court ought to have been disposed of on merit.
8. Learned Counsel appearing on behalf of the opposite party submitted that since he is not in lawful possession, so he cannot be a party to the proceeding and quite rightly learned Court below has passed the impugned order.
9. He has also contended that this revisional Court has no jurisdiction to entertain such an application since revisional Court has a limited jurisdiction.
10. After hearing the rival submission of both parties, I am of the view that finding of fact recorded by court/authority below, if perverse or has been arrived at without consideration of the material evidence or such finding is based on no evidence or misreading of the evidence or is grossly erroneous that, if allowed to stand, it would result in gross miscarriage of justice, is open to correction because it is not treated as a finding according to law. In that event, the High Court in exercise of its revisional jurisdiction shall be entitled to set aside the impugned order as being not legal or proper. The High Court is entitled to satisfy itself as to the correctness or legality or propriety of any decision or order impugned before it as indicated above. However, to satisfy itself to the irregularity, correctness, legality or propriety of the impugned decision or the order, the High Court shall not exercise its power as an appellate power to reappreciate or reassess the evidence for coming to a different finding on facts. Revisional power is not and cannot be equated with the power of reconsideration of all questions of fact as a court of first appeal. Where the High Court is required to be satisfied that the decision is according to law, it may examine whether the order impugned before it suffers from procedural illegality or irregularity.
11. This apart, it is a settled law in this country that where a person is in possession of property, he cannot be dispossessed by the owner of the property except by law.
12. In the decision reported in AIR 1924 Privy Council page 144 in connection with Midnapore Jamindari Company Limited -Vs.- Naresh Narayan Roy, Privy Council contended that no one can be dispossessed without due process of law.
13. Since the dawn of civilisation, the concept of possession was there. Through the passage of time, customary rules of society, time to time concept of possession has been changed but acquisition of possession is the main thing which is still static.
14. The modes of acquisition are two in numbers, namely 'Taking' and 'Delivery'. Taking is the acquisition of possession without the consent of the previous possessor. The thing taken may or may not have been already in the possession of someone else, and in either case the taking of it may be either rightful or wrongful. Delivery, on the other hand, is the acquisition of possession with the consent and cooperation of the previous possessor. Actual delivery is the transfer of possession. Here it appears that the present petitioner has got the possession of the suit premises from his father. Without adhering to established legal principle, if anybody wants to take the possession of the property suppressing the material fact, he should not be favoured with an order by a Court. Therefore, the impugned order of the learned Court below is not sustainable and the present petitioner ought to have been given an opportunity to contest.
15. Learned Counsel appearing on behalf of the opposite party submitted that the properties situate at the heart of the city and practically this is a posh area. Only elite class people reside in that locality and the present so called occupier has been paying rent to the tune of Rs.318/- only whereas his maintenance charges is to the tune of Rs.850/-. Therefore, if the stay order in respect of execution, be passed in that case opposite party is entitled to get occupational charges as per market value. As against this learned Counsel appearing on behalf of the petitioner contended that a revisional Court does not have any power to grant occupational charges and only the Appellate Court does have such power under Order 41 Rule 5. In support of his such submission he has referred to a decision reported in 2005 (1) SCC Page 705. In that reported judgment Hon'ble Apex Court held that where the Appellate Court exercises its jurisdiction under Order 41 Rule 5 it has the power to put the appellant/tenant on terms while granting stay of the decree for eviction. In that particular case, Appellate Court imposed terms on tenant of depositing Rs.15,000/- as rent per month for grant of stay of decree for eviction where the original rent was Rs.371.90 paise. That decision does not say that in the befitting circumstances, revisional Court cannot enjoy that power. Factual aspect of that case is quite different from the present one. Here the present petitioner has come challenging the order in connection with Order XXI Rule 97 and at the time of rejecting his prayer, the Trial Court has given a reason since another Co- ordinate Bench has rejected that another Court's order, so he has fixed up that date of delivery of possession, and the miscellaneous case was at the stage of S.R. and A.D. The Court below further opined that there will be scope for recovery of possession, if he files claim for recovery of possession. Spirit of Order XXI Rule 97 is to minimize the litigation and learned Court below lost sight of that aspect and rather advised the petitioner to file another suit which would create complicity. It is true that he was totally influenced by the order of the Co-ordinate Bench but the factual aspect which was produced before the Co-ordinate Bench is not the same with which now we come across. So if the stay is to be granted in that case this revisional Court has the power to direct the judgment debtor to deposit occupational charges because it is almost akin to the power of Appellate Court. From the decision reported in Olga Tellies -Vs.- Bombay Municipal Corporation (1985) 3 SCC 545 at page 574 para 35, where the then Chief Justice Chandra Chud speaking for Constitution Bench held "commonsense which is a cluster of life's experiences, is often more dependable than the rival facts presented by warring litigants." Robust commonsense, common knowledge of human affairs and events gained by judicial experience and judicially noticeable facts, over and above the material available on record all these provide useful inputs as relevant facts for exercise of discretion while passing an order and formulating the terms to put the parties on.
16. Since the suit premises is located in a very sophisticated area, I am of the view that the occupational charges to the tune of Rs.20,000/- is to be paid from the date of decree till the disposal of the application under Order XXI Rule 97 of C.P.C. The arrear accrued from the date of decree to 05.03.2016, is to be paid within three equal monthly instalments and first instalment shall fall due on 20th July, 2016. He is also to deposit the current occupational charges at the rate of Rs.20,000/- per month on 20th July, 2016, and to go on paying the same amount till the disposal of his application under Order XXI Rule 97 C.P.C.
17. Accordingly, the impugned order is hereby set aside, subject to payment of occupational charges including the terms of the arrear amount as mentioned above. The petitioner is permitted to proceed with the execution proceeding in connection with his application under Order XXI Rule 97. With this direction, this revisional application stands allowed.
18. Let a copy of this judgment be sent to the learned Court below for his information and taking necessary action in accordance with law.
19. Urgent certified photocopy of this Judgment and order, if applied for, be supplied to the parties upon compliance with all requisite formalities.
(SIDDHARTHA CHATTOPADHYAY, J.) A.F.R/N.A.F.R.