Calcutta High Court (Appellete Side)
111/2012 on 6 May, 2013
Author: Tapan Kumar Dutt
Bench: Tapan Kumar Dutt
18 06.05.13
S.A. 111 of 2012.
Mr. S.P. Roy Chowdhury
Mr. A. K. Bhattacharya
Mr. Biswarup Biswas ... For the Petitioner.
Mr. Aniruddha Chatterjee
Mr. Rahul Karmakar
Mr. Ardhendu Nag .... For the O.P.
Re: CAN 1456 of 2012.
The application for stay has come up for final
hearing today.
An Hon'ble Division Bench by an interim order
dated 20.06.2012 was pleased to grant stay of all
further proceedings in Ejectment Execution Case
No. 181 of 2011 pending before the learned Judge,
5th Bench, Presidency Small Causes Court, Calcutta
during the pendency of the application.
The learned senior Advocate appearing on
behalf of the appellant/petitioner submitted that the
said interim order of stay should be extended till the
disposal of the appeal but the learned Advocate
appearing on behalf of the respondent/opposite
party submitted that if such extension is to be granted then in that event appropriate occupation S.D. charges should be paid by the appellant/petitioner for occupying the suit premises and such occupation charges should be effective from the date of the eviction decree.
The learned senior Advocate appearing on behalf of the appellant/petitioner submitted that after the judgement in Atmaram Properties' Case was delivered by the Hon'ble Supreme Court, as reported in 2005(1)SCC 705, there has been a shift in the view of the Hon'ble Apex Court inasmuch as the Hon'ble Apex Court in a later judgement has not been very strict about fixing the occupation charges on the basis of the prevalent market value.
There is no dispute that the contractual rate of rent payable by the appellant/petitioner was Rs.500/-p.m. It also appears that there is no dispute that the suit premises comprises of two rooms on the ground floor of Premises No. 79/29 Acharya Jagadish Chandra Bose Road, Calcutta. The respondent has stated in his affidavit-in- opposition that the suit property comprises of 400 sq.ft area, an allegation which has not been disputed by the appellant/petitioner in their affidavit-in-reply.
The learned Senior Advocate appearing on behalf of the appellant/petitioner submitted that he has not disputed the proposition that this Court while granting interim order does have the jurisdiction to put the appellant on terms while extending the interim order of stay but such terms will have to be reasonable. The learned Senior Advocate for the appellant has referred to the judgements reported at 2005(1)SCC 705, 2005(5)SCC 531, 2005(6) SCC 489, 2009(9)SCC 722, 2009(3) CLT(H.C) 395, 2008(7) SCC 539.
Of course, the judgement reported at 2009(3) CLT 395 (H.C) is a judgement which was delivered by this Court.
The said learned Senior Advocate also cited an unreported judgement delivered by an Hon'ble Division Bench of this Court in SAT 918 of 2006. Of course this unreported judgement was cited by the said learned Senior Advocate in support of his contention that since the plaintiff/respondent himself had prayed for mesne profits at the rate of Rs. 50/- per diem which comes to roughly Rs.1,500/- p.m. now the plaintiff/respondent cannot claim more. The said learned Senior Advocate cited another unreported judgement delivered by this Court in SAT 415 of 2008. The said learned Senior Advocate cited yet another judgement reported at 2011(11) SCC 699. It appears that in this judgement the Hon'ble Apex Court has been pleased to observe that the High Court should not increase the rent without any basis, without any valuation report and without any such claim being made in the suit.
The learned Advocate appearing on behalf of the respondent/opposite party submitted that there has been no shift in the view of the Hon'ble Apex Court at all from the judgement delivered by the Hon'ble Apex Court in Atmaram's Properties' Case. The said learned Advocate further submitted that in the said Armaram's Properties' Case the Hon'ble Apex Court had also mentioned that the terms should be reasonable. He submitted that there cannot be any dispute that the terms which could be set by the Court for extension of the interim order of stay should be reasonable. He, however, submitted that considering the fact that the suit property is in the heart of the city of Calcutta where property prices are extremely high and the appellant/petitioner has suffered the decree in both the Courts below, if any order of extension of the interim order of stay has to be granted then in that event the appellant/petitioner should be put on proper terms. He has referred to the affidavit-in- opposition where-from it appears that the opposite party has annexed a valuation report given by one N.K. Realtors(P) Ltd. and from such report it appears that in respect of a property on the same road the rent per sq. ft. that could be fetched from such property is about Rs.110/- p.m. Thus the present market rent can be said to be Rs. 110/- per sq. ft. p.m. Of course, the learned Advocate appearing on behalf of the appellant/petitioner has submitted that the property under consideration in the said valuation report is a new one and is about 3 k.ms away from the suit property and the valuation report is not a sacrosanct one.
Having heard the learned Advocates for the respective parties this Court is of the view that the view of the Hon'ble Supreme Court as held in Atmaram's Properties' Case (Supra) still holds the field. There can be no dispute with regard to the proposition of law as held by the Hon'ble Supreme Court in Achal Mishra's Case(Supra), Anderson Wright's Case and also in the case of State of Maharashtra(Supra). The learned Advocate for the respondent/opposite party rightly submits that the occupation charges which has to be fixed by this Court should be reasonable one and he has relied upon the observations of the Hon'ble Supreme Court in the Atma Ram Properties' Case (Supra) where the Hon'ble Court has held that robust common sense, common knowledge of human affairs and events gained by judicial experience and judicially noticeable facts over and above the material available on record---all these provide useful inputs as relevant facts for exercise of discretion while passing an order and formulating the terms to put the parties on. It will appear that in Paragraph 19 of the said reports, the Hon'ble Court was pleased to sum up its conclusions which includes that the terms should be reasonable and that with effect from the date of decree of eviction the tenant is liable to pay mesne profits or compensation for use and occupation of the premises at the same rate at which the landlord would have been able to let out the premises and earn rent if the tenant would have vacated the premises. It appears that such principle of law still holds the field.
This Court is of the view that this Court is bound by the observations made by the Hon'ble Supreme Court while setting out the principles of law involved the matter. The Valuer concerned, as stated in the affidavit-in-opposition, has indicated that Rs.110/-per sq.ft. p.m is the present market rent which the landlord can fetch in respect of a property which is situated on the same road. Even if this Court takes a conservative view in this regard then in that event it can reasonably be said that Rs.40/- per sq.ft p.m is the prevailing market rate of rent in respect of the suit property. Thus the monthly occupation charges come to Rs.16,000/- p.m. and such monthly occupation charges should be effective from the date of the decree passed by the learned First Appellate Court. The impugned decree is dated 29.08.2011. The arrear occupation charges should be for the period September, 2011 up to April 2013. In the aforesaid back ground the application is disposed of in the following manner.
The interim order of stay of the said Execution Case concerned is extended till the disposal of the appeal or until further orders, whichever is earlier, on the following conditions:
1. the appellant/petitioner shall put in the decreetal costs, if any, within 30th June, 2013 before the learned Executing Court concerned;
2. the appellant/petitioner shall deposit the arrear occupation charges of Rs. 3,20,000/- by ten equal monthly installments before the learned Executing Court concerned and the first of such installments shall be deposited by the appellant/petitioner within 31st May, 2013 and thereafter the appellant/petitioner shall go on depositing the monthly installments month by month by the end of each month, till the entire arrears are liquidated;
3. the appellant/petitioner shall go on depositing current monthly occupation charges at the rate of Rs.16,000/- p.m. with effect from the month of May, 2013 by the end of May, 2013. Such deposits are to be made before the aforesaid learned Executing Court. The appellant/petitioner shall thereafter go on depositing current occupation charges month by month by the end of each month for which becomes due;
4. The appellant/petitioner shall prepare the requisite number of paper books out of Court and file the same in the Department concerned within four weeks from the date of receipt of notice of arrival of the lower court records.
In default of compliance of any of the conditions mentioned above on the part of the appellant/petitioner, the interim order shall stand vacated automatically and the plaintiff/respondent shall be entitled to proceed with the title execution case concerned.
As prayed for by the learned Advocate for the appellant/petitioner, let the lower court records be brought to this court by special messenger and the special messenger cost shall be put in by the appellant/petitioner for such purpose within ten days.
Since the sole respondent in the appeal is being represented by his learned Advocate, further service of notice of appeal upon the sole respondent is dispensed with. The appeal is treated as ready as regard service.
The application is thus disposed of. Urgent certified xerox copy of this order, if applied for, shall be given to the parties as expeditiously as possible on compliance of all necessary formalities.
(Tapan Kumar Dutt, J.)