Calcutta High Court (Appellete Side)
375/2008 on 8 April, 2013
Author: Tapan Kumar Dutt
Bench: Tapan Kumar Dutt
10. 03.04.13
S.A. 186 of 2012.
Mr. Hiranmoy Bhattacharjee
Mr. Sounak Bhattacharjee ... For the Appellant.
Mr. Jahar Chakraborty
Ms. Sabita Mukherjee ... For the Respondent.
Re: CAN 9198 of 2012.
The application for stay being CAN 9198 of 2012 has come up for final hearing.
The Hon'ble Division Bench of this Court after admitting the appeal was pleased to grant stay of all further proceedings in Ejectment Execution Case No. 65 of 2012 pending in the court of the learned Judge, 4th Bench, Presidency Small Causes Court, Calcutta during the pendency of the present application.
The learned Advocate appearing on behalf of the appellant/petitioner submits that the said interim order should continue till the disposal of the appeal.
The learned Advocate for the respondent/opposite party submits that if this S.D. Court is inclined to extend the said interim order then proper terms should be set for the appellant to comply with in order to enjoy such extension of the interim order. The said learned Advocate refers to the affidavit-in-opposition and submits that the suit property is more or less 200 sq.ft in area and it can fetch rent in the present market conditions at least at the rate of Rs.80 per sq.ft. There is no dispute that the contractual rent was Rs. 100 p.m. There is also no dispute that the appellant is using the suit property for commercial purposes. The learned Advocate appearing on behalf of the appellant cites annexure P/2 to the affidavit-in-opposition and submits that in respect of a fairly new construction rent can be fetched at the rate of Rs.125 per sq.ft in Girish Park area which is not far from the Amherst Street area.
Be that as it may, it appears to this Court that if a very conservative view is taken then the suit property in the present market conditions can fetch at least 50% of what has been claimed by the respondent/opposite party which comes to about Rs.40 per sq.ft. Thus the occupation charges that the appellant/petitioner would be liable to pay in order to enjoy the suit property during the pendency of the appeal would come to about Rs.8,000/- p.m. The learned Trial Court passed its decree on 15.07.2011 and the learned First Appellate Court passed its decree on 26th April, 2012. The learned Advocate for the petitioner submits that the appellant has already paid the occupation charges fixed by the learned First Appellate Court during the pendency of the Title Appeal concerned.
In such circumstances, the
appellant/petitioner would be liable to pay
occupation charges with effect from May, 2012 up to the month of March, 2013 as arrear occupation charges and thereafter go on paying current occupation charges with effect from April, 2013.
The application for stay is thus disposed of by extending the interim order passed on 01.10.2012 till the disposal of the appeal or until further orders, whichever is earlier, subject to the following conditions:-
1. The appellant/petitioner shall deposit the arrear occupation charges of Rs.88,000/- for the period May, 2012 up to March, 2013 in eleven equal monthly installments before the Executing Court concerned, as aforesaid, by the end of each month and the first of such installments shall be deposited by the appellant/petitioner by the end of April, 2013.
Thereafter, the appellant/petitioner shall go on depositing the arrear occupation charges, in the manner indicated above, till the entire occupation charges is liquidated;
2. The appellant/petitioner shall go on depositing the current occupation charges at the rate of Rs.8,000/- p.m by the end of the month for which it becomes due. Such deposits are to be made before the learned Executing Court concerned as aforesaid. The first of such deposits should be made by the end of April, 2013 for the month of April, 2013. Thereafter the appellant/petitioner shall go on depositing the current occupation charges month by month till the disposal of the appeal or until further orders, whichever is earlier;
3. The appellant/petitioner shall deposit the decretal dues, if any, before the Executing Court concerned within four weeks from this date;
4. The appellant/petitioner shall prepare the requisite number of paper books out of court and file the same in the Department concerned within four weeks from the date of receipt of notice of arrival of the lower court records.
In default of compliance of any of the aforesaid conditions on the part of the appellant/petitioner, the interim order shall stand vacated and the respondent/opposite party shall be entitled to proceed with the aforesaid execution case. As prayed for by the learned Advocate for the respondent/opposite party, let the lower Court records be brought to this Court by special messenger and the special messenger cost for such purpose shall be put in by the respondent/opposite party within one week from this date. The application is thus disposed of.
Re: CAN 11556 of 2012.
The learned Advocate appearing on behalf of the respondent submits that the respondent has been compelled to file this application as the appellant is causing severe damage to the property in dispute.
The said learned Advocate refers to the copy of the agreement between the parties that the parties entered into at the time of creation of the tenancy, particularly, clause (9) of such agreement where- from it appears that it was agreed by and between the parties that the appellant shall not install any machine of any description which has to be run by electric power. The appellant also agreed not to install any electric motor which has to be run by electric power in the suit premises even though the said premises was to be used for commercial purposes i.e book binding business. The appellant had also agreed not to cause any nuisance, annoyance or inconvenience to the adjoining premises or neighbourhood. The learned Advocate for the respondent submits that in spite of such agreement the appellant has caused severe damage to the suit property and for such purpose an Engineer Commissioner was appointed by the learned Trial Court.
The Engineer Commissioner submitted his report before the learned Trial Court wherefrom it appears that the Engineering Commissioner came to the finding that five machines have been installed in the premises and out of such five machines one is a cutting machine which is electrically operated and another is an electric motor which is also electrically operated.
The Engineer Commissioner has further reported that the cutting machine and the motor are firmly bolted to the floor and cracks have developed in the entire premises.
The Engineer Commissioner has further reported that a lot of noise and vibration are created when such machines are operating even though there are no airports/metro/tram/railways/highways/main roads/ piling/printing works nearby which may cause vibration and noise.
The Engineer Commissioner has further found that the quantum of damage done to the premises can be assessed at Rs.16 lacs.
The learned Advocate for the respondent submits that the appellant did not file any objection against such report.
The learned Advocate for the appellant does not dispute such fact that the appellant did not file any objection to the Engineer's Report. It cannot be said at this stage as to when the appeal will become ready for hearing and this Court is of the view that the appellant should not be permitted to continue damaging the suit property during the pendency of the appeal to the detriment of the respondent.
The learned Advocate appearing on behalf of the appellant submits that the question of the alleged damage caused to the suit property cannot be gone into at this stage of the appeal and since the property was let out for commercial use no injunction should be granted against the appellant. Having heard the learned Advocates for the respective parties this Court is of the view that an appropriate order of injunction is required to be passed in the facts and circumstances of the present case. The appellant may continue to use the suit property for the purpose for which the suit property was let out but the appellant shall not cause any damage to the suit property any further. Since it has been clearly mentioned in the agreement between the parties that the appellant shall not install any machine of any description which has to be run by electric power and also shall not install any electric motor for running any machine, the appellant shall remove any machine and/or motor which might have been installed in the suit premises and which has to be run by electric power.
Such removal of machine by the appellant shall be completed within four weeks from this date. It is, however, made clear that the appellant will be entitled to use the suit premises for the purpose of which it was let out to the appellant without causing any further damage to the suit property. With regard to the point taken by the respondent in the supplementary affidavit that the appellant should be directed to secure the sum of Rs.16,00,000/- assessed by the Engineer Commissioner such point cannot be decided at this stage of the appeal. Such point is, however, kept open to be considered at the time of final hearing of the appeal, if such point is raised by any of the parties.
The application is thus disposed of. Urgent certified xerox copy of this order, if applied for, shall be given to the parties as expeditiously as possible on compliance of all necessary formalities.
(Tapan Kumar Dutt, J.)