Calcutta High Court (Appellete Side)
217/2011 on 3 August, 2011
Author: Subhro Kamal Mukherjee
Bench: Subhro Kamal Mukherjee
1
Cl. August 3, S.A.T. 217 of 2011
195. 2011
Mr. S. P. Roy Chowdhury,
Mr. Sibasish Ghosh,
Mr. C. L. Singh,
...for the appellant.
Mr. Anil Kumar Mallick,
Mr. Debdas Khanna,
...for the respondents.
This matter is taken up for consideration out of turn on the mentioning by Mr. Shyama Prasanna Roy Chowdhury, learned senior advocate appearing for the appellant, and in presence of Mr. Anil Kumar Mallick, learned advocate appearing for the respondents/caveator.
This is a defendants' second appeal against a judgment of affirmance arising out of a suit for eviction and for recovery of khas possession.
The suit was filed under the West Bengal Premises Tenancy Act, 1997. Section 6(1)(j) of the West Bengal Premises Tenancy Act, 1997 runs as under :-
"Where the tenant has acquired or constructed, or has been allotted, a house or flat, provided a moratorium for one year is allowed for vacating the premises."
The suit was instituted on the allegation that the tenant had acquired a flat at premises no. 201, Sarat Bose Road, Kolkata.
The acquisition of flat is admitted. However, it was contended that the acquisition was made by the Hindu Undivided Family and not by the tenant. The tenant was one Ashoke Kumar Redh. The flat was acquired by Ashoke Kumar Redh (H.U.F.). The Hindu Undivided Family consists of the tenant, his wife and son.
Mr. Roy Chowdhury strenuously argues that the provision of law in respect of protection of tenant against eviction is to be strictly interpreted. He submits that the acquisition was made not by the tenant, but by a Hindu Undivided Family.
As we have narrated hereinabove, Ashoke Kumar Redh, as a member of a Hindu undivided family, acquired the property; he was the karta of such undivided family. There was no allegation whatsoever that the accommodation available in the flat acquired by the Hindu undivided family is 2 insufficient or that it is not vacant.
We are unable to accept the contention of Mr. Roy Chowdhury that, in the facts and circumstances of this case, the courts below erroneously interpreted the provision of law that the tenant was liable to be evicted.
We do not think that this appeal involves any substantial question of law requiring interference of this court in second appeal.
This second appeal is, therefore, summarily dismissed under Order XLI, rule 11 of the Code of Civil Procedure.
Consequently, the application for stay filed under CAN 6556 of 2011 becomes infructuous and the same is, also, dismissed.
There will be no order as to costs.
After dismissal of the appeal, Mr. Roy Chowdhury, learned senior advocate appearing for the defendant/appellant, prays for some time for his client to vacate the suit premises.
Mr. Mallick, learned advocate appearing for the plaintiffs/decree holders, in his usual fairness, does not oppose such prayer.
The tenant shall be entitled to occupy the suit premises till August 31, 2012 subject, however, to filing of an undertaking before this court to the effect that he shall quit, vacate and deliver vacant and peaceful possession of the suit premises in favour of the plaintiffs/respondents on or before August 31, 2012 and during his stay in the suit premises, he shall neither cause any damage to the suit premises nor shall create any third party interest in respect of the suit premises.
Let such undertaking be filed by August 12, 2011, when the matter shall appear under the heading 'for orders' for filing the undertaking.
There shall be an unconditional order of stay in the connected execution case till August 12, 2011.
If the undertaking is filed within the time stipulated, as above, all further proceedings in Ejectment Execution Case No. 91 of 2010 pending before the learned Civil Judge (Junior Division), Second Court at Alipore, South 24- Paraganas, shall remain stayed till August 31, 2012.
The tenant/appellant is directed to go on paying the occupational charges at the rate of rent last paid month by month to the plaintiffs/respondents. The first of such payment towards occupational charges for the month of August 2011 is to be made by September 15, 2011 and subsequent payments are to be made by fifteenth of each succeeding month for which the same is due and payable.
3All payments, as aforesaid, are to be be made by account payee banker's cheques drawn in the name of the plaintiff/respondent no. 1, namely, Uttam Chand Surana, and handed over to Mr. Anil Kumar Mallick, learned advocate appearing for the respondents in this court, who shall arrange for proper receipts from the plaintiffs/respondents. The plaintiff/respondent no. 1 shall accept such payment without prejudice to the rights and contentions of the plaintiffs/respondents.
In default of filing undertaking and payment of occupational charges, as aforesaid, within the time stipulated, as above, the connected execution case shall be proceeded in accordance with law.
( Subhro Kamal Mukherjee, J. ) ( Mrinal Kanti Sinha, J. ) dns