Calcutta High Court (Appellete Side)
Sri Subir Kumar Barua & Ors vs Hari Gobinda Jhunjhuniwall & Ors on 10 July, 2017
Author: Jyotirmay Bhattacharya
Bench: Jyotirmay Bhattacharya
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10.07.2017.
d.p.
S.A.T. 304 of 2014
(CAN 7381 of 2014)
Sri Subir Kumar Barua & Ors.
-versus
Hari Gobinda Jhunjhuniwall & Ors.
Mr. Haradhan Banerjee,
Mr. Tapan Kumar Mitra.
...For the Appellants.
This appeal will be heard on the following substantial
questions of law.
Whether the courts below were justified in passing a
decree for eviction against the defendants/appellants on
the ground of violation of Clauses (m)(o)(p) of Section
108 of the Transfer of Property Act even though the
notice under Section 13(6) of the West Bengal Premises
Tenancy Act, 1956, service of which is the pre-condition
for filing the suit is not inconformity with the contract
entered into between the parties which provides for
service of six months eviction notice upon the tenant
before filing the suit for eviction or not?
Issue usual notices.
The original defendant died during the pendency of the first
appeal. His heirs were substituted in the place of the original
defendant/appellant. The substituted heirs of the original
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defendant are the appellants before us. However, the decree was
not drawn up by the learned first appellate court appropriately by
taking note of the order passed by the appeal court allowing the
prayer for substitution of the defendants/appellants.
Accordingly, let the certified copy of the decree of the first
appellate court be sent down to the Court below for effecting
necessary correction therein.
Let the certified copy of the judgement and decree of the
learned trial court which is filed in Court today, be kept with the
record.
Leave is granted to the learned advocate-on-record of the
appellants to correct the prayer portion of the stay application.
All further proceedings of Ejectment Execution Case No. 49
of 2016 pending before the learned 5th Bench, Small Causes Court
at Calcutta will remain stayed till the disposal of the appeal subject
to fulfillment of the following conditions:-
The defendants/appellants will have to deposit entire arrear
occupational charges upto month of June, 2017, if therebe any, at
the rate at which it was last paid and/or deposited by the
appellants, in the executing court within two weeks from date.
The defendants/appellants will have to deposit the current
occupational charges commencing from the month of July, 2017
onwards till the disposal of the appeal at the rate of Rs.8,000/- per
month in the executing court. First of such deposit for the month
of July, 2017 will be deposited to the plaintiffs/respondents within
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7th August, 2017 and for the subsequent months within 7th of each following month.
In default of compliance of any of the conditions as mentioned above, interim stay as granted above, will stand vacated and in that event the learned executing court will be free to proceed with the execution case in accordance with law.
It is made clear that in case such deposit is made, the plaintiffs/respondents will be permitted to withdraw ½ of the deposited amount without any security.
The learned executing Court will invest the balance of such deposited amount in a short-term interest bearing fixed deposit scheme with any Nationalised Bank and will keep the said deposit renewed from time to time till the disposal of the appeal.
(Jyotirmay Bhattacharya, J.) (Shivakant Prasad, J.)