Calcutta High Court (Appellete Side)
Sankar Mondal vs Subir Nandan on 9 August, 2016
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08.
09.08.2016
mb
In the High Court At Calcutta
Civil Appellate Jurisdiction
Appellate Side
S.A. 277 of 2009
With
C.A.N. 5310 of 2016
Sankar Mondal
Vs.
Subir Nandan
Mr. Asis Chandra Bagchi,
Mr. Prabir Kumar Misra,
Mr. Sibendra Nath Chattopadhyay
......for the appellant
In Re.: C.A.N. 5310 of 2016
In spite of service of notice, none appears on behalf of the
respondent to oppose this application.
In this application, the petitioner has prayed for modification of the order dated April 26, 2016 passed by this Court.
The petitioner is the tenant-appellant in the second appeal. On August 12, 2009, a learned Single Judge of this Court passed an order directing stay of all further proceedings of the Ejectment Execution Case No. 93 of 2007 till the disposal of the second appeal subject to compliance of the following conditions: 2
1) The appellant/petitioner herein is directed to deposit the decretal costs including the arrears of rent, if any, up to the month of August, 2009, at the rate of Rs.70/- per month in the learned Executing Court within 15th of September, 2009.
2) The appellant/petitioner herein is also directed to deposit the current occupational charges of the suit premises at the present market rental rate, i.e., @ Rs.650/- per month for the subsequent months commencing from September, 2009 onwards to the credit of the respondent/opposite party in the execution proceeding before the learned Executing Court, regularly till the disposal of this appeal. Such payment should be made within 15th day of each following month for which the same will become due and payable by the appellant/petitioner.
3) It is made clear that in the event such deposits are made by the appellant/petitioner herein in the execution proceeding, the respondent/opposite party herein will be at liberty to withdraw the said amount with the clear understanding that in case this appeal is allowed, the deposit which will be made in excess of the contractual rent by the appellant pursuant to this order, either will have to be refunded to the appellant or will be adjusted towards the future rent of the suit premises.
4) Payment and/or acceptance of such rent by the parties will be without prejudice to the rights and contentions in this appeal.
5) In default of compliance of any of the conditions as above, the interim order will stand vacated and in that event, the learned Executing Court will be absolutely free to proceed with the execution case notwithstanding pendency of this second appeal before this Court. The execution of the 3 impugned decree will remain stayed unconditionally 15th September, 2009.
The appellant-petitioner failed to comply with the above conditions imposed by this Court regarding deposit of current occupational charges from the month of September, 2009 and he filed an application, C.A.N. 3083 of 2010, for modification of the said order dated August 12, 2009. By an order dated March 31, 2011 this Court allowed the prayer of the appellant-petitioner and modified the said order dated August 12, 2009 by allowing him to deposit the amount of Rs.13050/- towards the arrear rent as well as the monthly occupation charges upto the month of March, 2011 in the learned Executing Court subject to payment of cost assessed at Rs.2000/-. The appellant-petitioner once again failed to comply with the order passed by this Court on March 31, 2011. He filed an application, C.A.N. 1008 of 2016, praying for leave to deposit the current occupation charges from the month of September, 2015 onwards. By the order dated March 29, 2016 this Court allowed the said application, C.A.N. 1008 of 2016, subject to payment of costs assessed at Rs.7,500/- to be paid by the appellant-petitioner to the respondent-landlord. By this said order, this Court allowed the appellant-petitioner to deposit the occupation charges from the month of September, 2015 till March, 2016 and reimposed the order dated August 12, 2009 subject to fulfilment of the conditions 4 imposed therein. Although the appellant paid the costs awarded by this Court, but failed to deposit the occupation charges from October 2015 to May 2016. Thus, by the order dated April 26, 2016 this Court recorded that the interim order dated March 29, 2016 stood vacated. Now the petitioner has filed the present application for leave to deposit the arrear occupation charges from the month of October, 2015 till date.
From the averments made in the application it appears that the appellant-petitioner had no intention, whatsoever, to comply with the orders passed by this Court from time to time. In this application he alleged that since his advocate-on-record was busy with his election work, he defaulted in payment of the occupation charges, as directed by this Court from time to time. I am unable to find any merit in such allegation made by the appellant-petitioner against this lawyer.
Having considered the facts of the instant case, I am convinced that the appellant-petitioner has committing repeated defaults in complying with the conditions imposed by this Court without any valid ground and the right which has accrued in favour of the respondent cannot be taken away.
For all these reasons, I find no merit in this application. With the above directions, the application, C.A.N. 5310 of 2016, stands dismissed.
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There shall, however, be no order as to costs.
The learned Registrar (Administration) of this Court is requested to forthwith communicate this order to the learned Judge, 6th Bench, Small Causes Court at Calcutta before whom the Ejectment Execution Case No. 93 of 2007 is pending disposal. Urgent certified website copy of this order, if applied for, be made available to the appellant-petitioner upon compliance of all requisite formalities.
(Ashis Kumar Chakraborty, J.)