Calcutta High Court (Appellete Side)
Sunil Kumar Bera vs Subhasis Nag & Ors on 18 May, 2016
Author: Jyotirmay Bhattacharya
Bench: Jyotirmay Bhattacharya
18.5.2016
Item No. 7
Court No. 14
ac
S.A.T. 463 of 2015
(CAN 1941 of 2016)
Sunil Kumar Bera
-versus-
Subhasis Nag & Ors.
Mr. Pradyot Kumar Nandi.
... For the Appellant.
Mr. Asit Baran Rout,
Mr. Asit Kumar Chowdhury.
... For the Respondents.
Mr. Ujjal Kumar Sinha.
... Ld. Special Officer.
This Second Appeal is directed against the judgment and decree dated 29th July, 2015 passed by the learned Judge, 4th Bench, City Civil Court at Calcutta in Title Appeal No. 85 of 2013 affirming the judgment and decree dated 27th September, 2013 passed by the learned Judge, 3rd Bench, Presidency Small Causes Court at Calcutta in Ejectment Suit No. 2 of 2005.
Both the courts below concurrently held that the plaintiff reasonably requires the suit premises. Thus, the decree for eviction which was passed by the learned Trial Judge was maintained in the appeal.
The instant Second Appeal is directed against such judgment and decree passed by the learned First Appellate Court in the appeal.
In course of hearing of this appeal for the purpose of admission under Order 41 Rule 11 of the Code of Civil Procedure, it is brought to our notice by both the learned counsel appearing for the parties that the suit premises is situated abutting Kanai Dhar Lane, in North Calcutta. It is also brought to our notice that in addition to the tenancy which is the subject matter of appeal, the appellant/tenant also holds another tenancy under the same landlord. The other tenancy held by the appellant/tenant under the same landlord does not have any independent access. The only access, which the said tenancy has, is through one of the common doors of the tenancy which is the subject matter of this appeal. Thus, if the decree for eviction which is passed in respect of the present appeal is maintained, and is allowed to be executed, then the appellant/tenant will have no access to his tenancy on the back side room in respect of which another litigation is pending between the parties at the Second Appeal stage before this Court. Since there is no independent access to the back side tenancy, this Court feels that this appeal should also be admitted and should be disposed of analogously alongwith the other appeal being S.A. 51 of 2013.
Under such circumstances, we admit this appeal on the following substantial question of law :
Whether a meaningful and executable decree can be passed for eviction of the tenant from the suit premises without the tenant being evicted from the backside tenancy having no independent access under the same landlord?
Let the lower court's record be called for by special messenger at the cost of the appellant. Such cost should be deposited within a week from date.
The concerned department will take steps for bringing the lower court's record immediately on deposit of such special messenger's cost. The concerned department is further directed to examine the lower court's record immediately on receipt of the same from the Court below.
The concerned department is directed to serve a notice of arrival of lower court's record upon the learned advocate-on-record of the appellant immediately after the record is examined and found complete.
The appellant is also directed to prepare and file the requisite number of paper books within eight weeks from date in the concerned department. All formalities regarding preparation of paper books are dispensed with.
Since the respondents have already entered appearance in this appeal through their learned advocate, service of notice of appeal upon the respondents are dispensed with. The appeal thus be treated ready as regards service.
The appellant is further directed to serve a copy of the said paper book upon the respondent/opposite party and/or his learned advocate-on-record of the respondent immediately thereafter.
Re : CAN 1941 of 2016.
After hearing the learned advocate of the parties and after considering the application for stay, we dispose of this application by staying all further proceedings of the Ejectment Case No. 86 of 2014 pending before the learned Judge, 3rd Bench, Small Causes Court at Calcutta, till the disposal of the appeal subject to fulfillment of the following conditions :-
i) The appellant/tenant will have to pay arrear occupational charges, if any, at the rate of last paid occupational charges upto the month of May, 2016 to the plaintiff/respondent within 7th June, 2016.
ii) The appellant/tenant will have to deposit the occupational charges for the current month, commencing from June, 2016 at the rate of Rs.5,000/- (Rupees Five Thousand) only per month with the learned Executing Court. The first of such deposit for the month of June, 2016 will have to be deposited with the learned Executing Court within 7th of July, 2016 and for the subsequent months till the disposal of the appeal, the appellant will have to deposit the occupational charges at the same rate of Rs.5,000/- (Rupees Five Thousand) only per month with the Executing Court within seventh of each following month.
In default of deposit of such occupational charges for any single month, the interim stay, as granted above, will stand automatically vacated and in that event, the plaintiff/respondent will be free to recover the possession of the suit premises by evicting the appellant/tenant therefrom through the process of execution.
It is made clear that in the event such deposits are made, the plaintiff/respondent will be entitled to receive an amount equivalent to the contractual rent from the learned Executing Court without furnishing any security therefor.
The application for stay is disposed of.
Liberty is given to the learned advocate for the parties to mention the matter for early hearing of this appeal after the appeal is made ready for hearing.
Urgent photostat certified copy of this order, if applied for, be given to the parties as expeditiously as possible.
(Jyotirmay Bhattacharya, J.) (Ishan Chandra Das, J.) 1 4