Calcutta High Court (Appellete Side)
The Card Board Materials & Printing Co. ... vs Everlasting Procon Private Limited & ... on 22 November, 2017
IN THE HIGH COURT AT CALCUTTA
22-11-2017 Civil Appellate Jurisdiction
Appellate Side
Subrata
.
CAN No.4608 of 2017 in S.M.A.T.No.7 of 2017 The Card Board Materials & Printing Co. Pvt. Ltd.
-vs-
Everlasting Procon Private Limited & Ors.
Mr. S.P. Roy Chowdhury Mr. Dilip Kumar Chatterjee Mr. Hiranmoy Bhattacharya Mr. Tarak Nath Halder ...for the applicant Mr. Ashoke Banerjee Mr. Arindam Banerjee Mr. Asish Kumar Mukherjee Mr. Arpita Saha ...for the opposite party no.16 CAN No.4608 of 2017 has been filed by the appellant in the appeal for stay of all further proceedings in Ejectment Execution Case No.6 of 2016 pending in the learned Court of Civil Judge (Sr. Division), Sealdah.
Let the list of dates as submitted by Mr Roy Chowdhury, learned senior advocate representing the applicant by supplying the copy of the same to the opposite party, be taken on record.
In the tune of the case as has been briefly stated in the list of dates Mr Roy Chowdhury apprised the court that one P.H. Crete being the initial owner entered into the lease agreement with Martin and Company, the respondent no.16, under which the client of Mr Roy Chowdhury became a subtenant. Said P.H. Crete sometimes in the year 1938 transferred the property to Holy See as the residuary legatee. The said original lessee Martin & Company sometimes in the year 1965 filed a suit for eviction and recovery of possession as against the client of Mr Roy Chowdhury which was dismissed and said decree of dismissal, though was tested in Title Appeal No.345 of 1976, was also dismissed. Subsequent purchaser of the subject property, i.e. the present respondents, filed suit for eviction and recovery of possession against Martin Burn, being Ejectment Suit No.6 of 2014 which was decreed again which Martin Burn Company did not prefer appeal.
Said decree has been put into execution by filing Ejectment Execution Case No.6 of 2016. Mr Roy Chowdhury submitted that his client was all along in possession in the subject property since 1936 and was not a party in that eviction suit and therefore his client having a valid right filed the misc. case being Misc. Case No.6 of 2016 within the relevant provisions under Order 21 of the Code of Civil Procedure, 1908. In that misc. case the opposite party filed an application under Order 7 Rule 11 of the Code proposing rejection of plaint/petition of the misc. case on the grounds as mentioned therein and upon hearing learned Civil Judge (Sr. Division), Sealdah on July 22, 2016 allowed the application under Order 7 Rule 11 CPC read with section 151 CPC filed by the opposite parties rejecting the plaint/petition i.e. the misc. case filed under Order 21 Rules 97, 98, 101, 103 and 104 read with section 151 of the Code. The petitioner being aggrieved preferred Misc. Appeal No.66 of 2016 before learned lower appellate court at Sealdah since it was a deemed decree and the learned appellate court also dismissed the appeal upholding the order of learned trial court.
The petitioner being the appellant thereby preferred the second appeal before this court which was admitted by the Division Bench recording order dated July 10, 1017 framing two points of law.
Mr Roy Chowdhury submitted that when the second appeal has been admitted by framing the points of law for adjudication of the appeal and since Misc. Case No.6 of 2016 filed by his client in the ejectment execution case was not decided on merit and since decree passed in Ejectment Case No.6 of 2014 was not binding upon his client as because his client was not made party therein although since long his client was in possession and still has been continuing possession, if the operation of the decree be not stayed, his client would suffer irreparable loss and injury. Further pointed out that the right as has been alleged by filing the misc. case in the execution proceeding is to be determined and without its determination the execution proceeding should not be allowed to be proceeded with although there is the provision of restoration of possession within the ambit of section 144 CPC.
On the other fold, Mr Roy Chowdhury apprised the court that in the event of grant of stay his client would be duty-bound to make security deposit or would continue payment of occupational charges as would be fixed by the court. In this respect, however, Mr Roy Chowdhury submitted that direction should be reasonable taking note of the valuation of the property, monthly the then rate of rent as used to be paid by his client to Martin Burn Company, locality where it is situated, area of the property so on and so forth. In this context, this court has been apprised of where the rate of occupational charges as was granted by learned lower appellate court to the tune of Rs.3,000 was enhanced by this court to the tune of Rs.1 lakh.
Before conclusion of the argument Mr Roy Chowdhury submitted that since the petitioner may have accrued some lawful right under the Transfer of Property Act by virtue of long possession in the subject property and the decree of the suit was obtained behind his back without determination of his right, the execution proceeding should not be allowed to be proceeded and in that case this court granting stay may be at liberty to fix up reasonable occupational charges till disposal of the second appeal and to substantiate the above-mentioned submission relied upon the following decisions - a) Mool Chand Yadav & Anr. v. Raza Buland Sugar Company Limited, Rampur & Ors. reported in (1982) 3 SCC 484; b) Anwarbi v. Pramod D.A. Joshi & Ors. reported in (2000) 10 SCC 405; c) Niyas Ahmad Khan v. Mahmood Rahmat Ullah Khan & Anr. reported in (2008) 7 SCC 539; d) Sakti Ranjan Chatterjee v. Hindusthan Steel Ltd. reported in 73 CWN 228.
Mr Banerjee, learned senior advocate appearing for the opposite parties, per contra, submitted that the petitioner-appellant having no prima facie right over the subject property and even their plaint i.e. the misc. case, being struck out by the provision under Order 7 Rule 11 of the Code, question of staying operation of the decree which has been achieved by his clients after long battle cannot be stopped. Mr Banerjee reiterated that if in the second appeal ultimately the petitioners be able to get success to establish their right on any kind over the subject property, in that event there are the provisions to get the restoration of their right over the same. Mr Banerjee criticising the conduct of the petitioners invited attention of the court to the text of paragraph 8 of the affidavit-in-opposition and submitted that although by an order of this court the petitioners were already directed to pay the occupational charges to the tune of Rs.1 lakh per month it was not complied with. About the cases cited by Mr Roy Chowdhury, Mr Banerjee academically though has no indifference, however, in citing the case of Atma Ram Properties (P) Ltd. v. Federal Motors (P) Ltd. reported in (2005) 1 SCC 705 submitted that mere preferring an appeal does not deserve an order of stay in respect of the decree appealed against, since grant or its rejection is discretionary depending upon own facts and circumstances of the case and in the event of grant of stay the court may be at liberty to impose condition.
Admittedly, the second appeal has been preferred by the petitioners after having sufferance by the order dated July 22, 2016 passed by the learned Civil Judge (Sr. Division), Sealdah in Misc. Case No.6 of 2016 by which the plaint/petition of the misc. case as was filed to prevent the execution of the decree was rejected under Order 7 Rule 11 CPC, which was affirmed by learned lower appellate court.
From the circumstances of the case this court finds that the initial status of the petitioner in respect of the subject property was alleged as subtenant under Martin and Company who was the allotted tenant under the original owner P.H. Crete. Subsequently, after transfer of the subject property the respondents got eviction decree as against the said original tenant-lessee Martin & Company. In one hand, had there been any status of the petitioner in the subject property as alleged subtenant under Martin & Company, prima facie, it would be deemed to have been abolished with the decree of eviction of the original tenant. Because the alleged status of sub-tenancy was created by Martin Burn Company and not either by original owner or by subsequent purchaser of the subject property. Therefore, the petitioner prima facie cannot claim better status than Martin Burn Company had in the subject property. Consequently when the tenancy right of Martin Burn Company was put to an end by the decree of eviction the so-called sub-tenancy right prima facie would remain in the air.
Now looking into Misc. Case No.6 of 2016 itself, this court finds that the petitioner claimed adverse possession asserting hostile title. So, on the face of such prayer by way of prima facie examination, it appears that the petitioner had taken plea of double standard which prima facie do not speak about bona fide conduct of the petitioner. That apart, in the affidavit-in-opposition the opposite party disclosed that the earlier direction of this court as regards making payment of occupational charges to the tune of Rs.1 lakh per month was never complied by the petitioner. The petitioner submitted affidavit-in-reply which is taken on record and said paragraph 8 of the opposition was dealt with in para.8 of the reply.
The relevant portion from paragraph 8 of the reply is set out:-
"With reference to the statements contained in paragraph no.8 of the Opposition, I state that the first part of such statements are matters of record and anything not borne out strictly by the records is hereby denied. With reference to the second part of the said paragraph, this deponent denies and disputes the same and the opposite parties are put to strict proof thereof. This deponent states that the order obtained in the said application under Article 227 of the Constitution of India being C.O. NO. 3453 of 2016 was passed ex parte, without hearing the present petitioner..."
From the above text it appears that the allegation towards non-compliance by the petitioner as regards making payment of occupational charges was not specifically denied and even while Mr Banerjee was arguing on this point, not a scrap of paper or receipt, could have been shown by the petitioner to satisfy the court that ever at any point of time said order of this court was complied with by the petitioner. This conduct of non-payment of any occupational charges, although possession over the subject property is claimed, speaks a volume as against the prima facie mala fide act and conduct of the petitioner, who did not come to court, as reveals, prima facie, with clean hands.
It is obvious that when a second appeal is admitted, generally equity demands grant of stay to avoid any prejudicial cause during pendency of the second appeal. But in view of the above, prima facie balancing the facts and circumstances and when there was valid decree of eviction of tenant and the petitioner having attempted to resist such decree of eviction with double standard pleas, one being inconsistent with the other the balance of convenience, inconvenience or irreparable loss and injury is also decided against the petitioner, because any prima facie legal right of the petitioner as alleged sub-tenant is not visible, and the subsequent plea of fetching legal right by way of alleged adverse possession is apparently inconsistent to the former. In view of above admission of second appeal ipso facto does not deserve stay of operation of decree of eviction under reference, specially when prima facie legal right of definite nature of the petitioner is yet to be located, and if in the process of second appeal the petitioner ultimately succeeds to establish their lawful right, section 144 of the Code shall come to their aid.
In all the cases relied by Mr Roy Chowdhury the applicant searching for stay or injunction either in execution proceeding or in appeal had some prima facie legal status requiring adjudication. But in the case on hand, over the claimed legal status, that too with inconsistent plea, the petitioner of the misc. case of the petitioner having been rejected by invoking order VII Rule 11 of the Code meaning thereby, upto the lower appellate court the petitioner having not been able to survive its misc. case from the embargo of Order VII Rule 11 of the Code, the principle of justice, equity and good conscience demands refusal of stay order as proposed although second appeal has been admitted.
Therefore, academically though the court has no indifference in accepting the principle enunciated in the cited cases, but those are distinguishable in the present facts and circumstances as discussed in the case on hand.
However, when the second appeal has been admitted, all legal consequences shall be followed at its finality even though the respondents put themselves into physical possession in the decretal property by way of execution in accordance with law. Therefore, I refrain from passing any order of stay as sought for. Hence the stay application being CAN No.4608 of 2017 stands rejected.
Certified photostat copy of this order, if applied for, shall be given to the parties.
[Mir Dara Sheko, J]