Calcutta High Court (Appellete Side)
Smt. Manu Kar & Ors vs Sri Hironmoy Das on 7 August, 2017
Author: Jyotirmay Bhattacharya
Bench: Jyotirmay Bhattacharya
1
07.08.17
74 Ct. No.14
Sws.M
S.A.T. 159 of 2017
+
CAN 5197 of 2017
Smt. Manu Kar & Ors.
Vs
Sri Hironmoy Das
Mr. Aniruddha Chatterjee
Mr. Surya Prasad Chattopadhyay
Ms. Soumita Ghosh
....for the Appellants
Mr. Abhijit Ray
.....for the respondent
A note of defect in the appeal was given by the stamp reporter in his report dated 12th May, 2017. It is mentioned therein that the defendant No. 1 neither finds place in the decree on appeal nor in the cause-title of the instant appeal.
Mr. Chatterjee, learned advocate appearing for the appellants submits that the defendant No. 1, namely, Maya Rani Kar died during the pendency of the suit and all her heir and heiress were on record before the learned Trial Court. Since, Maya Rani Kar died during the pendency of 2 the suit, her name was not mentioned in the decree drawn up by the learned First Appellate Court.
We, thus hold that for non-inclusion of said Maya Rani Kar as party respondent in this appeal, the appeal cannot be held to be defective.
The appeal is in order. Accordingly, the note of defect which is given by the stamp reporter may be ignored.
This appeal will be heard on the following substantial question of law:-
Whether the learned First Appellate Court was justified in passing a decree for eviction against the defendant/appellant by referring to the provision contained in Section 2(g) of the West Bengal Premises Tenancy Act, 1997, even though the suit for eviction was not founded on the ground of extinguishment of the tenancy of the defendant in conformity with the provision of Section 2(g) of the said Act or not.3
Let the lower court records be called for by Special messenger at the cost of the respondent. Such cost will be deposited by the respondent within a week from date.
Since the defendant/respondent has already entered appearance in this matter through his learned advocate, service of notice of appeal upon the respondent is dispensed with. The appeal is thus treated ready as regards service of notice of appeal upon the respondent.
The concerned department will take steps for bringing the lower court records immediately on deposit of such special messenger's cost. The concerned department is further directed to examine the lower court records immediately upon receipt of the same.
The concerned department is also directed to serve notice of arrival of the lower court records upon the learned advocate-on-record of the respondent immediately after the records are found complete on such examination.
The respondent is directed to file requisite number of paper books in the concerned department within eight 4 weeks from the date of service of notice of arrival of the lower court records upon the learned advocate-on-record of the respondent.
The appellants are directed to serve Memorandum of Appeal upon the learned advocate for the respondent within a week.
In Re: CAN 5197 of 2017 Leave is granted to the respondent to file affidavit-in- opposition to this application for stay within four weeks from date; reply may be filed within two weeks thereafter.
Let the matter be placed before the appropriate bench two weeks after reopening of the Court after Puja Vacation.
All further proceedings of the Ejectment Execution Case No. 76 of 2017 pending before the learned Sixth Bench, Small Causes Court at Calcutta will remain stayed till the disposal of this application subject to compliance with the following conditions:-
1. All arrears, occupational charges up to the month of July, 2000, if any, will be deposited by the defendant/appellant at the rate at which it was 5 last paid in the executing Court, within two weeks from date.
2. The defendant/appellant will have to deposit the occupational charges for the current year commencing from the month of August, 2017 @ Rs. 15,000/- per month. First of such deposit for the month of August will be made in the executing Court within 7th September, 2017 and for the subsequent months within the 7th of each of the month till the disposal of this application.
3. In case of committing any default in compliance of any of the conditions as mentioned above, the interim stay as granted above will stand automatically vacated and in that event, the executing Court will be free to proceed with the execution case in accordance with law.
It is made clear that in the event such deposit are made by the defendant/appellant, the plaintiff/respondent will be permitted to withdraw the entire amount of such deposit on condition that in case he ultimately loses in this appeal, the amount in excess of the contractual rent, which will be received by him, will ultimately have to be refunded 6 to the defendant/appellant or such excess amount may be adjusted against the future rent of payable by the defendant in respect of the suit premises.
(Jyotirmay Bhattacharya, J.) (Amitabha Chatterjee , J.)