Calcutta High Court (Appellete Side)
Ajoy Sharma vs Dwijendra Nath Dhar & Ors on 7 March, 2016
Author: Jyotirmay Bhattacharya
Bench: Jyotirmay Bhattacharya
7.3.2016
Item No. 22
Court No. 14
ac
S.A. 522 of 2009
Ajoy Sharma
-versus-
Dwijendra Nath Dhar & Ors.
Mr. Ashis Kumar Bagchi,
Mr. S. Chandra.
... For the Appellant.
Mr. Malay Kumar Ghosh,
Mr. Debdutta Basu.
... For the Respondent No. 1.
This appeal will be heard on the following substantial questions of law :
i) Whether the learned First Appellate Court was justified in passing a decree for eviction on the ground of violation of the provision contained in Clause
(m), (o), (p) of Section 108 of the Transfer of Property Act by the defendants in a case where admittedly no construction was made by the defendants/tenants within the tenancy?
ii) Whether the decree for eviction passed by the learned First Appellate Court on the ground of reasonable requirement is required to be reconsidered by this Court in the light of the subsequent events regarding acquisition of another three storied building in the near vicinity by the plaintiff during the pendency of the appeal as disclosed by the defendants in their application for taking note of the subsequent events being CAN 10316 of 2015?
The lower court record has already been brought to this Court pursuant to a direction passed by this Court earlier.
The concerned department is directed to examine the lower court records and serve notice of arrival of lower court records upon the learned advocate-on- record of the respondent immediately after the records are examined and found complete.
The respondent is directed to prepare and file the requisite number of paper books within four weeks from date in the concerned department. All formalities regarding preparation of paper books are dispensed with.
Since the plaintiff/respondent has already entered appearance in this appeal through his learned advocate, service of notice of appeal upon the plaintiff/respondent is dispensed with. The appeal, thus, be treated ready as regards service.
The respondent is further directed to serve a copy of the said paper book upon the respondent/opposite party and/or his learned advocate-on-record of the respondent immediately thereafter.
The appellant is directed to supply a copy of the memorandum of appeal together with a copy of the application which the appellant has filed in this appeal touching the merit of this appeal upon the learned advocate-on-record of the respondent by tomorrow.
Leave is given to the respondent to file objection against the plaintiff's/appellant's application for taking note of subsequent events within two weeks from date, reply, if any, be filed by the appellant within a week thereafter.
Re : CAN 10315 of 2015.
All further proceedings of Title Execution Case No. 261 of 2007 pending before the learned 5th Judge, Small Causes Court at Calcutta, will remain stayed till the disposal of the appeal, subject to compliance of the following conditions by the defendant/appellant.
i) The defendant/appellant will have to deposit all arrear occupational charges upto the month of February, 2016 at the contractual rate, if any, with the learned Executing Court positively by the end of March, 2016.
ii) The defendant/appellant is also directed to deposit the occupational charges of the said premises from the month of March, 2016 onwards @ Rs. 10,000/- (Rupees ten thousand) only per month with the Executing Court. First of such deposit for the month of March, 2016 should be deposited within 7th of April, 2016 and for the subsequent months till the disposal of the appeal to be deposited with the Executing Court within 7th of each following month.
In default of compliance of any of the conditions as mentioned above, the interim stay will stand vacated and in that event the learned Executing Court will be free to proceed with the execution case in accordance with law.
It is made clear that in the event such deposits are made, the plaintiff will be at liberty to withdraw the amount equivalent to the last paid occupational charge without furnishing any security.
The rest of the deposit will ultimately abide by the result of this appeal.
Urgent photostat certified copy of this order, if applied for, be given to the parties as expeditiously as possible.
(Jyotirmay Bhattacharya, J.) (Sankar Acharyya, J.) 1 3