Calcutta High Court (Appellete Side)
Dr. Bratindra Nath Mukherjee vs M/S. Adore Welding Ltd on 13 February, 2017
Author: Ashis Kumar Chakraborty
Bench: Ashis Kumar Chakraborty
IN THE HIGH COURT AT CALCUTTA
Civil Revisional Jurisdiction
Appellate Side
Present :
The Hon'ble Mr. Justice Ashis Kumar Chakraborty
C.O. No. 3126 of 2016
Dr. Bratindra Nath Mukherjee
Vs.
M/s. Adore Welding Ltd.
For the petitioners : Mr. Haradhan Banerjee
Mr. Amitava Pain
For the opposite party : Mr. Soumendra Rakshit
Judgement on : 13.02.2017
Ashis Kumar Chakraborty, J.
This revisional application is directed against the order dated August 5, 2016 passed by the learned Civil Judge, Senior Division, Sealdah in Ejectment Execution Case No. 9 of 2015, arising out of Ejectment Suit No. 12 of 2013. By the impugned order, the learned Court below, as the executing Court, allowed the application filed by the opposite party, the defendant judgment debtor in the ejectment suit, by directing that all further proceedings of the execution case shall remain stayed till the disposal of an application under Order IX Rule 13 of the Code of Civil Procedure, 1908 (in short "the Code") filed by the opposite party, being Misc. Case No. 08 of 2015 praying for recalling of the ex parte eviction decree.
Shorn of detail, the facts which are relevant for deciding the present revisional application are that on October 3, 2013 the petitioner, as the sole surviving trustee of the Trust estate of Rathindra Nath Mukherjee, since deceased filed an ejectment suit before the learned Court below claiming a decree for recovery of possession of the suit property by evicting the opposite party therefrom and a decree for mesne profits. The suit property comprises 5910 square feet (approximately) of the ground floor and first floor of Premises No. P-6, C.I.T. Road, Scheme-LV, P.S. Entally, Kolkata. The petitioner claimed that since the monthly rent in respect of the suit property was more than Rs. 20,700/- the tenancy of the opposite party was governed by the Transfer of Property Act, 1982 and not by the West Bengal Premises Tenancy Act, 1997. On June 10, 2014 the opposite party entered appearance in the suit and prayed for time to file written statement. It also prayed for time to file an application for rejection of the plaint under Order VII Rule 11 of the Code. On July 10, 2014 the opposite party once again prayed for time to file written statement and the learned Court below adjourned the suit till August 18, 2014 for filing written statement. However, on August 18, 2014 the opposite party did not appear before the learned Court below, the written statement was not filed and, as such, the suit was fixed for ex parte hearing on December 10, 2014. Even on December 10, 2014 the opposite party did not appear before the learned Court below, the petitioner's witness adduced evidence and the suit was adjourned till January 7, 2015 for ex parte argument. On January 7, 2015 the argument on behalf of the petitioner was concluded before the learned Court below and the suit was adjourned for order. On February 16, 2015 the eviction suit was decreed ex parte, directing the opposite party defendant to vacate the suit property within 90 days, failing which the petitioner would be entitled to execute the eviction decree. The learned Court below further held that the petitioner is entitled to get mesne profits to be assessed in a separate proceeding under Order XX Rule 12 of the Code subject to filing of additional Court fees. On July 01, 2015 the opposite party filed an application under Order IX Rule 13 of the Code before the learned Court below for setting aside of the ex parte decree. Since the said application was filed beyond the prescribed period of limitation, the opposite party also filed an application for condonation of delay under Section 5 of the Limitation Act. The delay in filing the application under Order IX Rule 13 of the Code is yet to be condoned. On September 23, 2015 the petitioner, as the decree holder filed the execution application, being Execution Case No. 9 of 2015 before the learned Court below. In the execution application, the petitioner also filed an application for issuance of the writ of delivery of possession. It is at this stage, the opposite party filed the application, under Section 151 of the Code praying for stay of the execution application. The petitioner contested the said application of the opposite party and filed his written objection. In his written objection the petitioner disclosed the report of a Valuer showing that the present market rate of the suit property comprising 5910 square feet, at the rate of Rs.55/-, per square foot is Rs.3,25,050/-. The opposite party filed its rejoinder, but it did not dispute the correctness report of the Valuer, as disclosed by the petitioner nor did it disclose any document to claim that the present market rent in respect of the suit property would be less than Rs. 55/-, per square foot. By order dated August 5, 2016 the learned Court below, as the executing Court, disposed of the application filed by the opposite party under Section 151 of the Code by directing that the said execution application shall remain stayed till the disposal of the application filed by the opposite party under Order IX Rule 13 of the Code. The learned Court below held that as the petitioner in his plaint claimed decree for mesne profits at the rate of Rs. 29,700/- per month, the opposite party appellant cannot be directed to occupation charges, at any higher rate As mentioned earlier, it is the said order dated August 5, 2016 mentioned earlier which is the subject- matter of challenge in this revisional application.
Assailing the impugned order, Mr. Haradhan Banerjee, learned advocate appearing for the petitioner contended that when the delay in preferring the application by the opposite party under Order IX Rule 13 of the Code is not yet condoned and the application filed by the opposite party for recalling of the said ex parte eviction decree dated February 16, 2015 is not admitted as yet, the learned Court below committed an error of law in staying the said execution application. In support of such contention he relied on a decision of the Supreme Court in the case of Gagandeep Pratishthan Pvt. Ltd & Ors. Vs. Mechano & Anr., reported in (2002) 1 SCC 475. The second ground urged by Mr. Banerjee was that in any event, the learned Court below committed an error of law in passing the impugned order directing stay of the execution proceeding, without requiring the opposite party to pay occupation charges for the suit property at the present market rate, as per the valuer's report disclosed by the petitioner in his affidavit-in-opposition, that is, at the rate of Rs.3,25,050/- per month. He urged that it is now well settled that if a tenant having suffered an eviction decree prays for stay of operation the eviction decree, he has to pay the occupation charges at the market rate. In support of such contention, reliance was placed on behalf of the petitioner on the decisions of the Supreme Court in the cases of Atma Ram Properties (P) Ltd. vs. Federal Motors (P) Ltd., reported in (2005) 1 SCC 705 and State of Maharashtra & Anr. Vs. Super Max International Pvt. Ltd. & Ors., reported in (2009) 9 SCC 772. Mr. Banerjee also cited a decision of a learned Single Judge of this Court in the case of Austin Distributors (P) Limited vs. Iswar Ganesh Chandra Jiu, reported in 2012(4) CHN (Cal) 78.
On the other hand, Mr. Rupak Ghosh, learned advocate appearing for the opposite party submitted that in the present case when the application of the opposite party under Order IX Rule 13 of the Code is yet to be admitted, the learned Court was not in error of law to exercise its inherent power under Section 151 of the Code to pass the impugned order. He contended that in the instant case, the petitioner in his plaint has claimed a decree for mesne profits at the rate of Rs.20,700/-, per month with effect from October 01, 2013 till the date of recovery of possession of the suit property and in the absence of any relief claimed in the suit for an enquiry to ascertain the mesne profits, the learned Court below rightly held that unless the plaint is amended, no condition can be imposed upon the opposite party for payment of occupation charges at the rate of Rs.3,25,050/- per month as claimed by the petitioner. In support of such contention, Mr. Ghosh relied on a decision of a learned Single Judge of this Court in the case of Baboojan Jha vs. Byjnath Dutt Jha & Ors., reported in (1881) ILR 6 Cal 472. He further submitted that since as per the original tenancy agreement, the rent in respect of the suit property would have enhanced to Rs.32,000/- the opposite party, after deducting the tax, is paying Rs.29,343/- per month to the petitioner and the petitioner is receiving the said amount, without prejudice to its rights and contentions. He also cited the Division Bench decision of this Court in the case of Durgapur Projects Ltd. vs. ABL International Ltd. reported in (2011) 2 CHN 522 and submitted that since the valuer appointed by the petitioner did not prove the contents of his report before the learned Court below by adducing evidence the said report cannot be taken into consideration for ascertaining the present market rent of the suit property.
It was the last contention of Mr. Ghosh that even if this Court thinks to direct the opposite party to pay occupation charges as a condition for directing stay of operation of eviction decree, even then the rate of occupation charges should be reduced from Rs. 55 per square foot, per month which according to him is very wish. In this regard, he relied on the decision of Harish Tandon, J. in the case of Deb Narayan Banerjee vs. Gita Mukherjee and Ors. reported in 2015(4) ICC 17.
In his reply, Mr. Banerjee, however, did not press his first ground of challenge to impugned order. Therefore, the point that falls for consideration in this revisional application is whether the learned Court below committed any error of law to pass the impugned order unconditionally staying the operation of the eviction decree.
I have considered the materials on record, as well as the submissions advanced by the learned advocates appearing for the respective parties.
As held by the Hon'ble Supreme Court in the case of Atma Ram Properties (P) Ltd. (supra) and Super Max International (P) Ltd. (supra) it is now settled law that in case of a tenancy governed by the Transfer of Property Act, once the tenancy of the tenant is determined the position of the tenant is akin to that of a trespasser and he cannot claim that the measure of damages awardable to the landlord should be kept tagged to the contractual rent. In the above decisions the Supreme Court held that in an appeal or revision preferred by a tenant against an order of decree of eviction, whether under the local Rent Act or under the Transfer of Property Act, 1882, it is open to the appellate or the revisional Court to stay execution of the order or decree on terms, including a direction to pay monthly occupation charges at the same rate, at which the landlord would have been able to let out the premises on being vacated by the tenant. It may be noted that in the cases of Atma Ram Properties (supra) and Supermax International (supra), it appears that even when no decree for mesne profits was passed by the Additional Rent Controller, Delhi and the Court of Small Causes, respectively against the defendant tenant, the Supreme Court upheld the decisions of the Rent Control Tribunal, the appellate authority and the Bombay High Court to stay the operation of the respective eviction decrees on condition that the tenants shall pay occupation charges at the market rate of the suit properties. Even in the cases of Crompton Greaves Ltd. vs. State of Maharashtra reported in (2005)11 SCC 547, the Supreme Court while considering the prayer of the appellant tenant to obtain stay of the operation of the eviction decree passed against it, fixed the interim rate of mesne profits as a condition for operation of stay of the eviction decree on the basis of the materials made available by the parties and allowed the respondent landlord to pursue its application under Order XX Rule 12 of the Code. In a suit for eviction and mesne profits, once a Court finds that the plaintiff is entitled to decree for mesne profits, it can think just to refer the adjudication of the actual amount of mesne profits after an enquiry. In view of the provisions of Order VII Rule 7 of the Code, even in the absence of an alternative relief by the plaintiff in his plaint, the power of the Court to direct as separate an enquiry for ascertaining actual amount of mesne profits receivable by the plaintiff cannot be doubted. It is also trite that the executing Court cannot travel beyond the decree passed by the learned trial Judge unless the decree is a nullity. In the present case, by the said decree dated February 16, 2015 the learned Court below as the trial Judge directed the opposite party to vacate the suit property and also held the petitioner to be entitled to get the mesne profits under Order XX Rule 12 of the Code to be assessed in a separate proceeding. Even in the case of Austin Distributors (supra), when the proceeding for ascertaining mesne profits as directed by the learned trial Judge was pending, in a second appeal, a learned Single Judge of this Court, following the above decisions of the Supreme Court directed that as a condition for obtaining stay of the eviction decree passed against it, as affirmed by the first appellate Court, the appellate tenant has to pay occupation charges of the suit property at its market rate.
In view of the ratio of the decisions of the Supreme Court in the case of Atma Ram Properties (supra), Crompton Greaves (supra) and Super Max International Ltd. (supra) in the background of the provisions contained in Order XL1 Rule 5 of the Code there cannot be any doubt that while ascertaining the approximate market rent of the suit property, as condition for granting stay of operation of the eviction decree the appellate or the revisional Court has to consider the documents produced by the respective parties through their respective affidavits, only without requiring the parties to adduce oral evidence. The parties are required to adduce evidence, both oral and documentary, only at the stage of final determination of mesne profits at the stage of passing the decree for mesne profits by the trial Court.
In the case of Durgapur Projects Ltd. (supra) cited by the opposite party, the Division Bench of this Court was hearing an appeal against the decree for eviction as well as the decree for mesne profits passed by the learned trial Judge in favour of the plaintiff landlord. While dealing with the decree for mesne profits the Division Bench found that the report of the valuer based on which the learned trial Judge fixed the decreetal amount for mesne profits was not proved, as per the law. Accordingly, the Division Bench set aside the decree for mesne profits and remitted the matter back to the learned trial Judge by appointing a Special Referee to ascertain the amount of mesne profits. In the present case, the claim of the petitioner for mesne profits is yet to be decided by the learned trial Court and what is to be decided at present is the rate of occupation charges payable by the opposite party as a condition for obtaining stay of operation of the eviction decree based on the documents placed before the learned Court below by the parties through their respective affidavits. Therefore, the said decision of the Division Bench of this Court in the case of Durgapur Projects Ltd. (supra) has no bearing in the present case for fixation of the occupation charges to be paid by the opposite party for obtaining stay of operation of the eviction decree, pending adjudication of the actual mesne profits to be ascertained in the proceeding under Order XX Rule 12 of the Code, unless the ex-parte decree is set aside.
In view of law laid down by the Supreme Court in the cases of Atma Ram properties (supra), Crompton Greaves Ltd. (supra), Supermax International Pvt. Ltd. (supra) that what the appellate Court or the revisional Court takes into consideration for granting stay of operation of the eviction decree passed against the tenant is the tentative present market value of the suit property to be quantified on the basis of the documents disclosed by the respective parties before the Court, when the mesne profits claimed by the plaintiff landlord should be decided in the appropriate proceeding under Order XX Rule 12 of the Code by regular trial, when the parties were to adduce evidence to their respective claim and defence. It is settled law that the power under Section 151 of the Code can be used by the Court with circumspection and care in order to meet the ends of justice. An Executing Court cannot exercise power under Section 151 of the Code to stay of operation of the eviction decree by negating the right of the plaintiff decree-holder to claim occupation charges from the defendant tenant after the passing of the eviction decree in his favour. In the facts of the present case for the purpose of ascertaining the present market value of the suit property, in order to allow the opposite party to obtain stay of operation of the eviction decree, the decision of the learned Single Judge of this Court in Babujan Jha (supra) cited by the opposite party has no application. When the opposite party has not disputed the correctness of the report of the valuer engaged by the petitioner, nor has it raised any contention before this Court pointing out any defect in the report of the said valuer, I find that the decision of the learned Single Judge of this Court in the case of Deb Narayan Banerjee (supra) has no application in this case.
In this case when the opposite party itself is paying the monthly occupation charges for the suit property in excess of Rs. 20,700/- though without prejudice, rights and contentions both the parties and the learned trial Judge has directed the mesne profits liable to be paid by the opposite party to the petitioner is to be ascertained in the proceeding under Order XX Rule 12 of the Code, I find the learned Court below committed an error of law in passing the impugned order directing stay of operation of the eviction decree passed by the learned trial Judge without requiring the opposite party to pay occupation charges at the present market rate.
For all the foregoing reasons, the impugned order dated August 5, 2016 passed by the learned Civil Judge, (Senior Division), Sealdah in Ejectment Execution Case No. 9 of 2015 is set aside.
Even in the present revisional application, no argument was advanced on behalf of the opposite party to point out any reason the present rent for the suit fixed by the said valuer appointed by the petitioner at Rs. 55/- per square foot, per month should not be accepted. There is no complain that the suit property is not properly maintained or it lacks any facilities. Undisputedly, the suit property used by the opposite party for commercial purpose is situated in the heart of the city of Kolkata, in the close proximity of Sealdah Station. Even if, very conservative amount is taken into consideration on account of the rate of rent which the suit property can fetch, it cannot be less than Rs. 40/- per square foot, per month. Therefore, the opposite party is directed to pay occupation charges of the suit property, comprising 5910 square feet approximately, at the rate of Rs. 2,36,400/- (Rupees Two Lakh Thirty Six Thousand Four Hundred only), per month with effect from February 17, 2015 till the disposal of the application under Order IX Rule 13 of the Code.
The revisional application, being C.O. 3126 of 2016 is disposed of with the following directions:
(i) The learned Court below shall decide the application filed by the opposite party under Section 5 of the Limitation Act, 1963 in preferring the application under Order IX Rule 13 of the Code on merit after considering the objections of the petitioners.
(ii) The opposite party shall deposit with the learned appellate Court below, monthly occupation charges at the rate of Rs. 2,36,400/- (Rupees Two Lakhs Thirty Six Thousand Four Hundred only), per month with effect from February 17, 2015 till the date of disposal of the application under Order IX Rule 13 of the Code with the learned appellate Court below.
(iii) So far as the arrear occupation charges for the period from February 17, 2015 till January, 2017, the opposite party shall deposit the said amount with the learned appellate Court below, after adjusting the amount already paid to the petitioner, by way of four monthly intalments of equal amount. The first of such instalment shall be deposited within February 28, 2017, the second instalment within March 31, 2017 and the instalment within April 30, 2017 and the last instalment with May 31, 2017.
(iv) In addition to the payment of the arrear occupation charges as directed above, the opposite party shall also continue to deposit the current monthly occupation charges from the month of February, 2017, at the above rate, with the learned appellate Court below within the seventh day of each following month.
(v) There shall be an unconditional stay of operation of the eviction decree passed in Ejectment Suit No. 12 of 2013 till March 01, 2017. Subject to payment of the arrear occupation charges, as also the current occupation charges by the opposite party with the learned appellate Court below within the time mentioned above, the interim order directing stay of operation of the decree shall continue till the disposal of the Order 9 Rule 13 application filed by the opposite party.
(vi) the opposite party shall keep the petitioner informed of all the deposits of the arrear, as well as current occupation charges within three days from the date of each deposit.
(vii) In the event on the part of opposite party to deposit any instalments of the arrear occupation charges or the current occupation charges for any month within the time mentioned above, the interim order of stay of operation of the eviction decree passed in Ejectment Suit No. 12 of 2013 shall stand automatically vacated without any reference to this Court and the petitioner shall be entitled to execute the eviction decree.
Let urgent certified copies of this judgment, if applied for, be made available to the parties upon compliance with all requisite formalities.
(Ashis Kumar Chakraborty, J.)