Calcutta High Court (Appellete Side)
Mrs. Rajkumari Devi vs Rajesh Kumar Jaiswal & Anr on 9 April, 2019
1
IN THE HIGH COURT AT CALCUTTA
09-04-2019Civil Revisional Jurisdiction Subrata C.O.No.1845 of 2017 Mrs. Rajkumari Devi
-vs-
Rajesh Kumar Jaiswal & Anr.
Mr. Atanu Biswas ...for the petitioner
Mr. Pinaki Ranjan Mitra
Mr. Ashim Kumar Roy ...for the opposite parties Although the instant revision is appearing under the heading 'motion', since the opposite parties have entered appearance through their learned counsel, the revision is taken up for final hearing.
For proper adjudication of the dispute between the parties, it is necessary to mention the following facts.
The predecessor-in-interest of the present petitioner was inducted by virtue of a lease for a period of twenty-one years executed and registered on May 11, 1964 by the opposite parties. During subsistence of the said lease, the opposite parties illegally created tenancy in respect of the suit premises in favour of one Ram Singer Chaubey. Due to such induction of said Ram Singer Chaubey in respect of the tenancy in question, the tenancy right of the petitioner was in cloud which prompted her to file Title Suit No.2036 of 1988 against said Ram Singer Chaubey and the present opposite parties.
Subsequently, the petitioner came to know that opposite parties no.1 and 2 as plaintiffs filed a collusive suit for eviction against said Ram Singer Chaubey which was registered as Ejectment Suit No.706 of 2002. The petitioner filed an application for addition of party under the provision of Order I Rule 10(2) of the Code of Civil Procedure, 1908 in the aforesaid Ejectment Suit No.706 of 2002 which was ultimately rejected. The petitioner also filed Title Suit No.1839 of 2005 before the learned 5th Judge, City Civil Court, Calcutta praying for declaration of his tenancy right and permanent injunction. The 2 opposite parties filed an application in the said suit under Order VII Rule 11 of the Code which was rejected by the learned trial Judge. The said order was assailed before this court at the instance of the petitioner in FMAT No.4352 of 2006.
FMAT No.4352 of 2006 was disposed of by a Division Bench of this court vide an order dated April 2, 2007 with the following order:-
"The owners, namely the defendant nos.3 and 4 in this suit are restrained by an order of injunction from interfering with the possession of the plaintiff in the suit premises during the pendency of this suit subject, however, depositing of Rs.2,50,000/- by the plaintiff of this suit by six weeks.
If Rs.2,50,000/- is not deposited, within the time stipulated hereinabove, this interim order of injunction shall stand automatically vacated and the defendant nos.3 and 4 shall be at liberty to take possession of the suit premises in accordance with law, but subject to the result of the suit.
With the aforesaid directions the appeal is disposed of."
It is further stated by the petitioner that in the meantime the opposite parties got an ex parte decree in Ejectment Suit No.706 of 2002 against Ram Singer Chaubey and put the said decree in execution. Apprehending the dispossession from the tenanted premises on the strength of a collusive decree, the petitioner entered appearance in the said execution proceeding and filed an application under Order XXI Rule 101 of the Code. The said application was registered in the trial court as Misc. Case No.159 of 2010. The said misc. case is at the stage of peremptory hearing, and on March 18, 2017 the date was fixed for examination of the witness on behalf of the opposite parties. On that date the petitioner prayed for an adjournment on personal grounds of her learned senior advocate. The executing court granted adjournment subject to the condition that the petitioner would have to pay occupational charges of Rs.6,000 per month from the date of this order till the disposal of the said misc. case.
Specific part of the order dated March 18, 2017 passed by the learned executing court imposing condition of payment of occupational charge at the rate of Rs.6,000/- p.m. till the disposal of the misc. case is impugned in the instant revision.
3Mr Biswas, learned counsel appearing for the petitioner, submits that in terms of the order dated April 2, 2007 passed by a Division Bench of this court in FMAT No.4352 of 2006, the petitioner already deposited a sum of Rs.2,50,000/-, and that the sum is lying with a nationalised bank. It is further submitted that the impugned order imposing occupational charge upon the petitioner was passed by the executing court in excess of his jurisdiction vested under the law.
Mr Mitra, learned advocate appearing for the opposite parties, on the other hand, submits that the petitioner instituted series of suits and cases under different provisions of statute against the opposite parties to protect her illegal occupation of the suit premises. In all such suits and cases, the petitioner was defeated. The petitioner has been illegally occupying the suit premises without payment of any rent or occupational charge. Therefore, the learned executing court passed the impugned order well within his jurisdiction directing the petitioner to pay occupational charge in respect of the premises under her occupation.
It is further submitted on behalf of the opposite parties that the suit property is situated at Park Street in the city of Kolkata. Occupational charge of Rs.6,000/- p.m. in respect of the suit premises comprising of two rooms, one kitchen bath and other amenities is far less an amount than the prevailing market rate. Therefore, according to him, there is no reason to interfere with the impugned order.
Having heard the submissions made on behalf of both the parties and on perusal of the impugned order and the documents annexed with the application under Article 227 of the Constitution of India, it is found that in FMAT No.4352 of 2006 the Division Bench, while disposing of the appeal, passed a conditional order directing the petitioner to deposit a sum of Rs.2,50,000/- in the court below without prejudice to the rights and contentions of the parties in the suit and subject to the 4 result of the suit in order to obtain an injunction in her favour. The said order was passed on the basis of the submissions made by learned counsel for the opposite parties that the petitioner has been enjoying the suit premises without making any payment towards rent or occupational charge. The Division Bench passed the said order on April 2, 2007 obviously considering the claim of the opposite parties for occupational charge up to the date of passing of the order. The petitioner, however, did not file any document to show that they are depositing admitted rent or occupational charge anywhere in the name of the opposite parties. Considering such circumstances, the executing court passed the impugned order directing the petitioner to deposit the occupational charge at the rate of Rs.6,000/- p.m. The Supreme Court in Atmarama Properties Pvt. Ltd. reported in (2005) 1 SCC 705 clearly held that a tenant suffering an eviction decree can be permitted to occupy the suit premises only on payment of the occupational charges at the rate of current market rent. The impugned order was passed by the learned executing court well within its jurisdiction and there is no illegality in the said order.
From the facts and circumstances of the case as well as for the reasons recorded above, I do not find any merit in the instant revision. The impugned order does not suffer from any illegality or material irregularities.
Accordingly, the instant revision is dismissed on contest without however, any costs.
Certified website copy of this order, if applied for, shall be given to the parties.
[Bibek Chaudhuri, J] 5