Calcutta High Court (Appellete Side)
Md. Salim vs Badruddin Ahmed on 21 November, 2017
1 21.11.2017
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Item No. 16C.O. 3703 of 2017 Md. Salim Vs. Badruddin Ahmed.
Mr. Subrata Ghosh.
... for the petitioner.
Mr. Tarak Nath Halder.
... for the opposite party.
This revisional application is directed against order no. 9 dated 26th October 2017 passed by the learned Additional District Judge, Fast Track Court-1, Sealdah in Ejectment Appeal No. 1 of 2017, by which an application for stay of the execution proceeding till the disposal of the said appeal is disposed of directing the petitioner to pay occupational charges at the rate of Rs. 6,000/- per month from the date of the decree as condition for such stay.
Learned advocate appearing on behalf of the petitioner firstly submits that the quantum of occupational charges is too exorbitant and not in commensurate with the prevalent market rent at the locality. It is further submitted that the suit premises comprises of more or less 200 sq.ft. area and is situated in slum and not expected to fetch the rent at such astronomical rate.
The petitioner has annexed the copy of an agreement entered into between the parties to the proceeding, wherefrom it appears that the suit room was enjoyed by the petitioner for business and embroidery purpose. The petitioner also deposited a sum of Rs. 25,000/- as advance.
2The suit for eviction stood decreed against the petitioner. The challenge is made to such decree before the appellate court and by the impugned order the appellate court stayed the execution proceeding subject to the condition as indicated herein above.
It is no longer res integra that the appellate court should not pass an order of stay in favour of the unsuccessful tenant unconditionally. The court must strike a balance between the rights of the parties and in order to bring equilibrium should impose the condition for securing the stay of the execution proceeding.
In M/s. Atma Ram Properties (P) Ltd. vs. M/s. Federal Motors Pvt. Ltd., reported in (2005) 1 Supreme Court Cases 705, the Supreme Court held that a tenant should not be blessed with an order of stay as statute provides a remedy against the eviction decree and it is obligatory on the court to impose condition directing the unsuccessful tenant to deposit the prevalent market rent at the locality. It was further held that a successful litigant should not be forced to wait as the unsuccessful litigant has exhausted the statutory remedy. The Court further held that in order to ascertain prevalent market rent, the court can apply robust common sense, experience gained during the judicial dispensation of justice and the like factors.
In the present case, the court of appeal below has held that a sum of Rs. 6,000/- per month appears to be reasonable market rent prevalent at the locality and further directed the petitioner to deposit the said amount as occupational charges from the date of the decree in three installments and first of such installment shall be paid in the month of October 2017.
This Court, therefore, does not find that there is any infirmity in the impugned order warranting interference by this Court in exercise of powers conferred under Article 227 of the 3 Constitution of India. However, this Court finds that the time to deposit the arrears rent has expired and, therefore, this Court feels that the same is required to be extended.
The order impugned is modified to the extent that the petitioner shall deposit the entire arrears of occupational charges within three months on and from the month of December 2017 at the rate of Rs. 12,000/-. Apart from the same, the petitioner shall also deposit the current occupational charges within 7th of each succeeding month in the manner as indicated in the impugned order.
With these observations, the revisional application is disposed of.
There shall, however, be no order as to costs.
ab (Harish Tandon, J.)