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2002 DIGILAW 264 (CAL)

KABITA MUKHERJEE v. PADAM CHAND BANTHIA

2002-04-23

AMITAVA LALA

body2002
AMITAVA LALA, J. ( 1 ) ON 2nd August, 2001 an ejectment decree alongwith various other reliefs were granted by this Court. One of such reliefs was in the nature of preliminary decree as regards fixation of mesne profits. An advocate-Commissioner was appointed. However, such advocate-Commissioner was replaced by other. ( 2 ) THE original judgment and decree was challenged before a Division Bench of this Court. However, the appeal was dismissed. The judgment and decree of this Court was confirmed. A special leave petition was also moved before the Supreme Court of India which was also dismissed. ( 3 ) AS a result whereof, excepting passing a final decree on the basis of the report to be furnished by the advocate-Commissioner in respect of the claim of mesne profits no other purpose is left for hearing. ( 4 ) PRESENTLY, there is an application on the part of the defendant taking exception to the report filed by the advocate-Commissioner. If the petitioner/defendant herein becomes successful, the same will be omitted on account of mesne profits. Similarly if the petitioner/defendant looses, the result will be limited on account of such mesne profits. It has got nothing to do in connection with the original ejectment decree with further reliefs granted by this Court which has become effective for all practical purposes. ( 5 ) FROM the petitioner it transpires that the basic objection of the petitioner/defendant is not proper ascertainment of comparable local rental market value by the advocate-Commissioner. He proceeded on imagination, conjection and surmises. ( 6 ) THEREFORE, I have called upon Mr. Chourasia, learned counsel appearing for the petitioner to give an exact idea in respect of his objection. According to him, following reasons are there :- (a) No notice was served by the advocate-Commissioner to him for spot verification : ( 7 ) I find from the report that not only the notice was given but a meeting was held by the Commissioner before proceeding to the locale. However, since members of the family of the defendant allowed to inspect the premises in question, the question of non-service of notice becomes redundant. That apart the advocate-Commissioner in his report stated that he has proceeded pursuant to the order of the Division Bench when upon enquiry he came to know that there is no stay obtained from the Supreme Court of India. That apart the advocate-Commissioner in his report stated that he has proceeded pursuant to the order of the Division Bench when upon enquiry he came to know that there is no stay obtained from the Supreme Court of India. (b) Not considered the location and nature of the building : ( 8 ) ACCORDING to me, primarily this objection is not sustainable because it appears that he visited the locale. It appears the entire report is based on consideration of location and nature of the building. Probe is the mental process of the advocate-Commissioner to whom the Court has kept full faith and trust. Therefore such type of fake objection can not be sustainable. Factually, I find that the advocate-Commissioner reported that on inspection of the locale he found the suit premises situates in a posh area of the city of Calcutta on a road not far away from the main road. The area is not at all conjested one and having all facilities. Thereafter, came to the conclusion by saying etc. ( 9 ) ON further enquiry I have come to know from the learned advocate appearing for the petitioner that the building is 70 years old, therefore, it has to be compared with similar placed old building. Moreover, there is no water supply in the premises. The learned counsel further contended that they are occupying the premises from 1986 at a rental of Rs. 500/- which was subsequently increased to Rs. 750/- and ultimately Rs. 1000/- along with Corporation rates and taxes totalling to Rs. 1140/- (approx ). ( 10 ) ADMITTEDLY, it appears that the area of occupation of the petitioner/defendant is 1250 sq. ft. approx. Therefore, the rent, which they are paying is less than Rs. 1/- per sq. ft. Hence, a question may arise that if the condition of the house is not good and no water connection is there how the defendant with the family members can reside in the premises and why they will do so? The market valuation either for sale or for rent of the southern part of the City of Calcutta is much higher than the other parts of the city. Court cannot refrain from taking judicial notice of the same. The market valuation either for sale or for rent of the southern part of the City of Calcutta is much higher than the other parts of the city. Court cannot refrain from taking judicial notice of the same. Even a hut or out-house or a small room with corrogated sheet on the roof even with common toilet cannot be given for tenancy at such price in these days. It is far to say about the area of occupation of 1280 sq. ft. whatever might be the condition of the building. Thus, I hold and say that the allegation of non-consideration of location and nature of the building by the advocate-Commissioner is baseless. (c) Comparison is made with the building made for the commercial purpose and on the basis of the statements of real estate agency : ( 11 ) CONCEPTUALLY domestic rental premises will be compared with the other domestic rental premises of the locale. Occupation for the commercial purpose cannot be same or similar with the premises occupied for the residential purpose. Similarly, market value of such commercial premises cannot be fit for the purpose of ascertaining conclusion as regards market value of tenanted premises made for the residential purpose. But such allegation is to be considered on the basis of a factual strength. ( 12 ) IN the instant case, I find that the advocate-Commissioner is taken various modes of inspection. He has taken into account certificate of rent of premises No. 91a, Bondel Road being a nearby premises. On enquiry this Court has come to know that this house is almost adjacent to the suit premises. Only the names and members of the streets are different. However, another premises of the same street was also taken note. It appears that for about 360 sq. ft. area of the aforesaid first premises a monthly rental of Rs. 5000/- is shown wherein for about 610 sq. ft. area of the aforesaid second premises a monthly rental Rs. 17,250/- is shown. However, it appears to this Court that the advocate-Commissioner was conscious in holding that the aforesaid second premises was being used for commercial purpose. Then he enquired about a residential flat of a company in the locality having covered area of 1250 sq. ft. approx being carpet area of 1000 sq. ft. with open terrace. The monthly rental is Rs. However, it appears to this Court that the advocate-Commissioner was conscious in holding that the aforesaid second premises was being used for commercial purpose. Then he enquired about a residential flat of a company in the locality having covered area of 1250 sq. ft. approx being carpet area of 1000 sq. ft. with open terrace. The monthly rental is Rs. 18,000/- even having been used for the residential purpose that too with security deposit of few lacks of rupees and occupiers share of Municipal taxes etc. It was also found that the premises is neighbouring one. An article of the newspaper is enclosed with the report of the advocate-Commissioner which has been ignored by the Court. However, the advocate-Commissioner also enquired the position from the real estate agent. ( 13 ) IT is significant to note here that the real estate agency is not only dealing with the properties for sale but also any type of transfer including grant of tenancy. Under normal circumstances an outsider always enquiring from the real estate agent about the available accommodation as per their requirement. The owner or owners of the properties are normally keeping their particulars of the properties with such agents for the purpose of negotiations. Therefore, such type enquiry by the advocate-Commissioner from the local real estate agent is technically sound for the purpose of drawing an appropriate inference. ( 14 ) AFTER taking into account all the aspects as above, the advocate-Commissioner finally determined the rent per sq. ft. of the locality is variable between Rs. 15 to Rs. 20 per sq. ft. and if on that basis any calculation is made the rental of the appropriate area would be in between Rs. 19,000 to Rs. 25,000 per month. But taking a modest stand finally said that rent at present would be Rs. 10,000/- per month. ( 15 ) MR. Dastoor, the counsel appearing for the respondent/plaintiff contended that the figure as determined by the advocate-Commissioner is conservative in nature. However, he has accepted the same to avoid future complication. He further stated that without any notice for handing over the possession, the petitioner/defendant left the premises upon damaging substantial part of the premisses. Incidentally a question of undertaking of the petitioner/defendant before the Supreme Court arose in respect of handing over of vacant possession of the premises. However, he has accepted the same to avoid future complication. He further stated that without any notice for handing over the possession, the petitioner/defendant left the premises upon damaging substantial part of the premisses. Incidentally a question of undertaking of the petitioner/defendant before the Supreme Court arose in respect of handing over of vacant possession of the premises. ( 16 ) HOWEVER, I have not been called to enter into such controversy about the technicality of handing over the possession or leaving the premises without notice etc. Hence, going back to the original position I want to say that in a case of balance the probabilities consequential evidence play a major role. Therefore, to test the same an independent mechanism has to be adopted by the Court. The appointment of advocate-Commissioner is the net outcome of the same. Such advocate-Commissioner has adopted various balancing factors and came to a conclusion. Mere allegations by way of affidavit cannot be the appropriate defence to the report of such advocate-Commissioner. One has to come with a positive case of proof or try to give appropriate evidence to dispel the cloud, if any, from the mind of the Court. It has not been done. On the other hand, the allegations are seem to be fake. Moreover when in one hand petitioner/defendant is raising a dispute and in other hand leaving the premises without any notice, it clinches the mind of the Court about the genuinity of litigant and his stand taking exception to the report. Therefore, taking into totality of the matter I have no other alternative but to accept such report. ( 17 ) HENCE in accepting the report I hereby pass a final decree in favour of the plaintiff determining the mesne profits for a sum of Rs. 10,000/- per month from the date of termination of tenancy till the date of vacating the premises without notice by treating such date is cut off date. However, no further order is passed as to costs. Prayer for stay is made, considered and refused. Xeroxed certified copies of this judgment will be supplied to the parties within seven days from the date of putting requisites for drawing up and completion of the order and certified copy of this judgment. However, no further order is passed as to costs. Prayer for stay is made, considered and refused. Xeroxed certified copies of this judgment will be supplied to the parties within seven days from the date of putting requisites for drawing up and completion of the order and certified copy of this judgment. All parties are to act on a signed copy minute of the operative part of this judgment on the usual undertaking and subject to satisfaction of the officer of the Court in respect as above. Ejectment decree passed.