Calcutta High Court (Appellete Side)
Sri Hemanta Kumar Prasad vs Sri Sri Lakshmi Narayan Jew on 9 March, 2021
Author: Shivakant Prasad
Bench: Shivakant Prasad
10.
9.03.2021
S.D.
S.A. 110 of 2018
With
CAN 1 of 2018 (Old CAN 2947 of 2018)
Sri Hemanta Kumar Prasad
Vs.
Sri Sri Lakshmi Narayan Jew
Represented by its Sebait namely
Sri Swapan Kumar Das & Anr.
Mr. Asish Chandra Bagchi
Ms. M. Maity
..For the Appellant.
Mr. Tarak Nath Halder
Mr. Sagnik Chatterjee
..For the Respondents.
In re: CAN 1 of 2018 (Old CAN 2947 of 2018) The second appeal was admitted on formulation of substantial questions of law in respect of the First Appellate Judgment and Decree dated January 31, 2018 on reversal of the Trial Court's judgment and decree dated August 30, 2014 by Division Bench of this Hon'ble Court is stayed of the Ejectment Execution Case being Case No. 6 of 2019 pending before the Additional Civil Judge Junior Division, Sealdah, South 24-Parganas was stayed with the direction that the application for stay shall be returnable before the appropriate Bench in the month of August 2018 subject to convenience of the learned Court. Pursuant to the said order, the application 2 for Stay of the execution of the decree passed by the First Appellate Court is taken up for consideration. The plaintiff decree holder/respondents have filed an affidavit-in- opposition against the application for stay of the proceeding in execution of the decree since the appellant has preferred this Second Appeal having a right of hearing if the stay is not allowed to continue, the appellant would undoubtedly suffer execution and eviction from the premises without the judgment and decree impugned being tested by this Hon'ble Court but the appellant cannot claim a blanket right to continue with this appeal without being heard with the of stay of the proceeding in the execution case.
On behalf of the respondents, it is submitted that the respondents have obtained the decree of eviction against the appellant and are entitled to enjoy the fruits of such decree though subject to the result of the instant appeal pending before the Hon'ble Court. The allegation made in the stay application that the respondents are creating disturbance in the peaceful possession in the suit premises is a myth and a concocted story because the respondents/decree holders have right to put the decree into execution. Be that as it may, with regard to the claim made for occupational charges in the disposal of the appeal, it is pointed out on behalf of the 3 respondents that the area of the suit premises is about 606 sq.ft. comprising three rooms, one kitchen, one dining space cum varandah and a bath cum privy in the groud floor of the two storied building situated at Premises No. 82 K.G. Basu Sarani, Police Station - Beliaghata, Kolkata - 700085 for the purpose of residential use by the appellant who is residing therein without paying any occupational charges on stay of the decree of eviction was passed against the appellant.
It is also submitted that the respondents are entitled to arrear occupational charges from the date of decree passed in Tittle Appeal No. 2 of 2015. It is now submitted that Mr. Samar Banerjee, Advocate who is a registered valuer of this Hon'ble Court has assessed the valuation of the suit building and by submitting his report dated August 4, 2019 and according to his valuation report, the rate of rent in respect of the decreetal premises should be Rs.12.500/- per month which has been assessed on the basis of the rate of rent prevailing of the neighbourhood of the suit premises as such the suit premises if let out at present would fetch a minimum rent of Rs.12,500/- per month. The report so submitted is annexed to the affidavit-in-opposition as annexure 'A' which has been annexed on the basis of agreement for rent by and between the landlord and a tenant in respect of one tally shed room @ 4 Rs.3500/- per month. By inviting my attention to the agreement for leave and licence for 11 months in the neighbourhood of the suit premises, it is submitted that the occupational charges of Rs.12,500/- should be ordered to be paid by the appellant. My attention is also invited to the situation of the suit premises which abuts on an average 25 ft. wide K.G. Basu Srani Road on the West and is about 0.5 k.m. off towards north from the intersection of Beliaghata Main Road and the said K.G. Basu Sarani Road and is equidistance towards South from the intersection of Narkeldanga Main Road and the said K.G. Basu Sarani Road. Thus, the locality is well developed and enjoying every amenities of life in support of the case made out for a claim of occupational charges @ Rs.12.500/-.
Learned Advocate for the respondents has relied upon a decision in the case of Pratul Saha & Ors. Vs. Purnabrata Dutta reported in 2010 (4) CHN (CAL) 108 in support of the observations made in paragraph 20 in particular.
In reply, learned Advocate for the appellant has submitted that the Valuer's report is one sided and cannot be relied upon and a report of Mr. Kalyan Bhattacharjee has been placed in service which shows that in respect of the suit premises evaluation of the fair rent as per the agreement 5 between the Sebaits of the above premises and the tenant Shri Hemant Prasad as on March 2021 has been assessed and the assessed rents would fairly come to a sum of Rs.987.25 for the period of March 2019 to February 2022.
I am unable to accept the report which has been filed on behalf of the appellant for the fair rent assessed by Mr. Kalyan Bhattacharjee, Chartered Engineer. Now, having regard to the situation of the suit premises in well developed area and the amenities as provided in the suit premises, this Court is of the view that occupational charges @Rs.9,000/- be made available in favour of the respondents landlord. Accordingly, this Court directs that the stay of the operation of the judgement and decree impugned shall continue till the disposal of the appeal subject to payment of sum of Rs.9,000/- per month to the respondents towards occupational charges. The occupational charges would be payable by 15th of March 2021 and shall be payable month by month and arrear occupational charges shall be payable from the date of the decree impugned. The appellant is given liberty to pay the arrear occupational charges by ten monthly instalments; first of such instalment including the occupational charges of Rs.9,000/- will be paid by March 15, 2021 and the rest arrear including the occupational charges be paid by 15th of each 6 succeeding month for another nine months. After the arrear amounts are being paid, only occupational charges, i.e. Rs.9,000/- be paid on 15th of each succeeding month.
As per the submissions made on behalf of the respondents, the appellant is directed to pay the monthly occupational charges as well as the arrear instalment to the bank account of the respondents in the Narkeldanga Branch, State Bank of India, Kolkata bearing Account No. 11166027591 within March 15, 2021 and within 15th of each succeeding month. In default of the conditions stated hereinabove, Execution case shall proceed.
Thus, the application being CAN 1 of 2018 (Old CAN 2947 of 2018) is disposed of.
(Shivakant Prasad, J.)