Calcutta High Court (Appellete Side)
For The vs Kishorilal Poddar Reported In Air 1973 ... on 19 July, 2013
Author: Indira Banerjee
Bench: Indira Banerjee
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2013 S.A. No. 182 of 2013
5)
) Mr. Sabyasachi Bhattacharyya,
Mr. Ayan Banerjee,
Mr. Anirban Das,
Miss Debasree Dhamali
.. for the appellant
Mr. Mahendra Prasad Gupta,
Mr. Avishek Banerjee,
Mr. Sanjib Das
.. for the respondent
This appeal will be heard on the following questions of law, which are, in our view, substantial questions of law :
I) Whether the learned courts below committed a substantial error of law in holding that the tenant/appellant had committed a second default, in view of the well-settled principle of law as enunciated by a Special Bench of three judges of this Court in Jamuna Prasad Chowrasia Vs. Kishorilal Poddar reported in AIR 1973 Cal. 204 that second default as contemplated in the proviso to Section 17(4) of the West Bengal Premises Tenancy Act, 1956 does not refer to a default in the same suit but to a default in second or subsequent suit ? II) Whether the learned Courts below substantially erred in law in decreeing the eviction suit on the ground of default in payment of rent for the period from December 1998 to November 2001 and June 2011, without adjusting the excess rent already paid by the appellant to the respondent ?
Call for the records.
2Since the respondent has appeared formal notice of appeal need not be issued.
Re : C.A.N. 6105 of 2013 Affidavit-in-opposition to the application being C.A.N. 6105 of 2013 be filed within two weeks from date. Affidavit-in-reply thereto, if any, be filed within one week thereafter.
Let application be placed before the appropriate Single Bench four weeks hence.
It prima facie appears to this Court that the defendant/appellant has an arguable case. As held by the Hon'ble Supreme Court in Modern Hotel, Gudur, represented by M. N. Narayanan Vs. K. Radhakrishnaiah and others reported in A.I.R. 1089 S.C. 1510, a decree of eviction on the ground of arrears of rent would not be justifiable without adjustment of excess payment, in a case where any excess amount had been paid in advance.
The balance of convenience is, in our view, in favour of the appellant/tenant as the entire appeal will become infructuous if writ of possession is executed and the appellant/tenant is forcibly evicted. It is made clear that the observations in this order are prima facie observations which will not affect final decision in the stay application or the appeal, in any manner whatsover.
The appellant shall, without prejudice to the rights and contentions of the appellant and the respondent/landlord, pay occupation charges at the rate of 3 Rs.1,000/- (Rupees one thousand only) per month to the landlord through the Advocate-on-record of the landlord.
It is submitted that execution proceedings had been initiated and the next date is fixed on 25th July, 2013 for execution of the writ of possession.
There will be a stay of further proceedings in the Execution Case for a period of six weeks from date or until further orders whichever is earlier.
Lower Court Records be called for by Special Messenger at the cost of the appellant to be put in within one week from date. Lower Court Records shall be brought to this Court within two weeks from the date of deposit of special messenger costs.
If the Lower Court Records are found complete, the Office is directed to issue notice of arrival of the Lower Court Records on the learned Advocate for the appellant.
The appellant is directed to prepare the required number of informal paper books incorporating the judgements of the lower appellate court and the trial court within four weeks from the date of service of notice of arrival of Lower Court Records on the learned Advocate for the appellant.
Photostat plain copy of this order, duly countersigned by the Assistant Registrar (Court), be supplied to the learned Advocates for the parties on usual undertakings.
( Indira Banerjee, J. ) ( Anindita Roy Saraswati, J. ) 4 5