Calcutta High Court (Appellete Side)
Debibrata Chattopadhyay vs Jharna Ghosh & Anr on 9 September, 2013
Author: Murari Prasad Shrivastava
Bench: Murari Prasad Shrivastava
IN THE HIGH COURT AT CALCUTTA
CIVIL REVISIONAL JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Murari Prasad Shrivastava
C.O. No. 2942 OF 2013
Debibrata Chattopadhyay
Versus
Jharna Ghosh & Anr.
For the plaintiff/Petitioner : Mr. Anirban Ray
Mr. Shuvasish Sengupta
Mr. Sreya Basu
For the O.Ps/Defendants: Mr. Surojit Nath Mitra
Mr. Samrat Sen
Heard On: 03.09.2013
Judgment On: 09.09.2013
MURARI PRASAD SHRIVASTAVA , J.
The present application has been filed under Article 227 of the Constitution of India assailing the order dated 15th July, 2013 passed by learned Civil Judge (Senior Division) 2nd Court, Alipore, South 24 Parganas in Title Suit No. 23051 of 2012 whereby and whereunder learned Civil Judge (Senior Division) rejected the petition under Section 151 of the Code of Civil Procedure of the present petitioner/plaintiff on contest but without costs.
Going through the records and upon hearing learned Advocates for the parties, I find that the said petition under Section 151 of the Code of Civil Procedure was filed by the plaintiff in the said suit praying for a direction upon the opposite parties/defendants to pay occupation charges for enjoying the suit property, which the latter were possessing even after termination of their tenancy by way of a notice to quit duly received by them.
Mr. Anirban Ray, the learned Advocate for petitioner submits that his parents were the joint owners of the suit property which they licensed out to the predecessors-in-interest/parents of the present opposite parties/defendants at a monthly rental of Rs. 14,000/- for a period of 11 (Eleven) months from December, 2003 to 9th November, 2004. The predecessors-in-interest of the opposite parties/defendants having died on 21st October, 2004 the latter were accepted as tenants by the parents of the petitioner and in spite of service of notice to quit dated 26th February, 2007 they did not vacate, whereupon a suit for eviction and recovery of khas possession along with arrears of rent and mesne profits was filed by the parents of the petitioner. However, mother of the petitioner having died, the suit stood abated. Subsequently, the father of the petitioner gifted his share in the suit premises to the petitioner who became absolute owner thereof. The petitioner issued the letter of attornment to the opposite parties/defendants who lastly paid rents in the month of April, 2006. Subsequently, notice to quit was served upon the opposite parties/defendants whereinafter the petitioner filed the present suit for eviction, khas possession, recovery of arrear rent and mesne profits.
The learned Advocate for the petitioner/plaintiff submits that admittedly the opposite parties/defendants have not paid rent since May, 2006, it being clearly admitted that the rate of rent was Rs. 14,000/- per month and, accordingly, the opposite parties/ defendants should be directed to pay the occupation charges in respect of the wrongful and illegal occupation of an area of 1120 Sq. ft. at Sarat Bose Road, Calcutta.
Mr. Surojit Nath Mitra, the learned Advocate for the opposite parties/defendants on the other hand submits that the predecessor-in- interest of the petitioner, who had inducted the opposite party No. 1 along with her husband Tarun Ghosh (since deceased) in the said premises, had agreed to sell the said premises for a consideration of Rs. 22 lakhs and it was further agreed that they would continue to remain in possession of the premises till completion of the sale. The husband of the opposite party No.1 died on 21st October, 2004 and the father of the petitioner informed the opposite party No.1/defendant that he desired to complete the transaction of the same by 2nd week of July, 2005.
The learned Advocate for the opposite parties further submits that it was agreed that the father of the present petitioner would keep the security deposit which would be adjusted proportionately for the months of May to October 2006 and the balance rent for the aforesaid months as well as subsequent months would be calculated and paid by the opposite party at the time of execution of the deed of conveyance and in default the opposite party would not be liable to pay rent any further. However, on false pretext, a suit for eviction was filed by the predecessor-in- interest of the present petitioner for eviction, being title suit No. 30 of 2007 and the same has been dismissed. Thereafter, suddenly, the present notice of eviction dated 31st May, 2012 has been issued by the present petitioner/plaintiff who has filed the suit for eviction and other consequential reliefs.
The learned Advocate for the petitioner refers to a decision Murlimal Santaram & Co. Vs. Bata India Limited reported in AIR 2013 Cal 102 and submits that the petitioner/plaintiff is entitled to get occupation charges month by month for the use and occupation of the premises, being an amount equal to the monthly rent payable by the tenant. However, I am afraid this decision does not apply in the facts and circumstances of the present case since it is the case of the opposite parties/defendants that there was an agreement that deed of sale would have to be executed by December, 2006 and in default the opposite parties would not be liable to pay any rent and further that the security deposit would be adjusted proportionately and if any amount was found due at the time of execution of the deed of conveyance the same would be paid by the defendant. Whether such an agreement was in existence or not has to be decided in the suit and in the present case, there is clear denial to pay rent which the petitioner claims as occupation charges during pendency of the suit.
In my opinion learned Court below has rightly held that the plaintiff is attempting to execute the decree at an interlocutory stage and the prayer for occupation charges could not be allowed prior to the adjudication of the suit.
Under such circumstances, I do not find any illegality or infirmity in the order passed by learned Civil Judge (Senior Division) 2nd Court, Alipore, South 24 Parganas for which the revisional application is dismissed.
There will be no order as to costs.
The application is disposed of accordingly.
Urgent Xerox certified copy of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.
(MURARI PRASAD SHRIVASTAVA, J.)