Calcutta High Court (Appellete Side)
2573/2011 on 18 July, 2013
Author: Tarun Kumar Gupta
Bench: Tarun Kumar Gupta
1
013. C.O. 2573 of 2011 C.O. 521 of 2012 Mr. Swapan Mallick, Mr. Sakya Sen, Ms. Nilanjana Adhya.
....For the petitioner.
Mr. Asis Kr. Bagchi..
....For the O.P. These two applications are taken up together for analogous hearing, though two arose out of two different orders.
The petitioner of these two applications filed suit for eviction against O.P. tenant being Ejectment Suit No.82/2004-E on various grounds. A judgment and decree dated 21st May, 2008 was passed by the ld. trial court allowing eviction on the ground of building and rebuilding with certain conditions stipulated therein. The defendant tenant preferred an appeal. As per the then law the appeal was taken up for hearing by the tribunal. There was an order of limited remand to the ld. trial court to take evidence on certain points and to return the evidence and findings relating to two applications to the appeal court for final disposal of the appeal. Later on law changed and District Judge became the appellate forum. The O.P. filed an application for stay of ejectment execution case no.115/2008 arising out of said judgment and decree passed in ejectment suit no.82/2004-E. The petitioner landlord also filed an application praying for directing tenant to pay occupational charges as a condition of stay. By order no.5 dated 19th January, 2007 passed in title appeal no.69/2001 ld. 2 Chief Judge City Civil Court though allowed stay of execution of said decree but declined to pass any direction upon the tenant for depositing occupational charges at the market rent on the ground that the matter was pending before trial court for adjudication on some points and that at that stage there was no scope of execution of the decree and as such there was no question of passing any order of payment of occupational charges at the market rent. Being aggrieved with said order, the plaintiff landlord has filed this application being C.O. 2573/2011 praying for setting aside said order so far as it relates to rejection of payment of occupational charges at the market rent.
After the findings of ld. trial court were received by the ld. lower appellate court and after the appeal became ready for hearing the petitioner again filed an application praying for issuing direction upon the tenant to pay occupational charges @ market rent till disposal of the appeal in terms of the ratio of the case of Atmaram reported in (2005) 1 SCC 705. However, ld. Chief Judge City Civil Court being the court of appeal rejected said application by order no.13 dated 16th January, 2012 on the ground that as said court earlier rejected said prayer there was no scope of reopening that issue in that forum at that stage. Against said order the second revisional application being C.O. 521/2012 has been filed by the petitioner landlord.
Mr. Mallick appearing for the petitioner submits that the O.P. occupies a residential flat of 700 + sq.ft. in a poss area and that occupational 3 charges should not be less than Rs.10,500/- pm. He next submits that in the first order dated 19th July, 2011 ld. appeal court declined to exercise is discretionary power on the plea that the matter was pending before ld. trial court for adjudication on some points. According to him when ld. appeal court passed an order of stay it should have granted the necessary relief to the decree holder landlord by way of directing the judgment debtor tenant to pay occupational charges at the market rent. He next submits that there was no averments from the side of O.P. that the claim of Rs.10,500/- p.m. as occupational charges was higher in side or unjust. He further submits that in the subsequent order dated 16.1.2012 ld. appeal court did not go into the merit of the matter and simply rejected the application filed by the petitioner on the ground that it was earlier rejected by the said court and there was no scope of reopening the same. He next submits that a decree was passed on the ground of building and rebuilding and though the O.P. is entitled to get back an area equivalent to suit premises as a tenant after completion of building and rebuilding but in that case he will be required to pay fair rent as per Act of 1997. Accordingly, he prays for passing necessary order in this regard.
Mr. Bagchi appearing for the O.P. tenant on the other hand submits that when the appeal is found to be otherwise ready for hearing there should not be any direction as prayed for, at this stage. He further submits that in the plaint the mesne profit was claimed @ Rs.2/- per day. He submits that at this stage the petitioner cannot claim any amount more 4 than the amount claimed in the plaint as mesne profit i.e. Rs.2/- per day. He submits that ld. appeal court passed the order exercising his discretion and that unless said discretion is found to be palpably wrong causing injustice to any of the parties this court should not interfere with the same. In this connection he has submitted that in terms of Atmaram case even if there was an order of payment of occupational charges by the O.P. in the market rent the petitioner landlord could not have withdrawn any amount higher than the amount equivalent to monthly rent. He submits that the O.P. is an aged and ailing lady and this court should not pass any order fixing any amount which will compel her to vacate the suit premises even without the decree being put into execution.
I have considered the submission of the ld. counsels of the parties. I have perused the materials lying in the record. There is no denial that in terms of the ratio of the case of Atmaram and of some judgment of Hon'ble Apex Court and this Court the appeal court has the discretionary power to impose reasonable conditions for stay of an ejectment decree. It also appears from said case laws that as a condition of stay of an eviction decree the tenant may be asked to pay a sum as occupational charges equivalent to current market rent. However, there is no denial that in spite of said eviction decree there is an order of stay on the strength of which the O.P. tenant is enjoying the suit flat. However, it came out that the appeal is otherwise ready for hearing.
5Considering these aspects, I am of the opinion that at this stage there is no need of issuing any direction to the court below for reconsideration of the condition of stay by way of assessing market rent and imposing the same as a condition of stay. However, ld. appeal court is hereby directed to take all necessary steps to dispose of the pending appeal within two months from the date of communication of this order without granting any unnecessary adjournment to either of the parties. Both the applications stand disposed of accordingly.
No order as to costs.
Urgent photostat certified copy of this order, if applied for, shall be given to the parties as expeditiously as possible.
(Tarun Kumar Gupta, J.)