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2010 DIGILAW 1261 (CAL)

Raghubir Chowdhury v. Prameshwar Prasad

2010-10-05

SYAMAL KANTI CHAKRABARTI

body2010
Judgment :- Syamal Kanti Chakrabarti, J.: 1. The present application has been filed for vacating conditional stay order dated 11.08.2009 passed in S. A. T. No. 194 of 2009 with C.A.N. 4442 of 2009 passed by a Division Bench of this Hon’ble Court and for fixation of occupational charges under order 21 rule 26 read with Section 151 CPC. 2. The petitioner has contended that he filed Title Suit No. 299 of 1996 before the 4th Court of the Learned erstwhile Munsif at Alipore, South 24 Parganas against the defendant for eviction from the suit premises and recovery of Khas possession on grounds of bona fide reasonable requirements and default with prayer for mesne profits for wrongful use and occupation of the suit property. Upon hearing both the parties the Learned Trial Court decreed the suit on contest on 25.04.2007 and the defendant was directed to deliver possession of the suit property within fifteen days from the date of the order failing which the plaintiffs will be at liberty to execute the same in due process of law. The suit was decreed mainly on grounds of default in payment of rent of Rs. 9,987.83 and the defendant was directed to deposit the said amount in five instalments. Thereafter the defendant preferred First Appeal against the aforesaid judgement and decree. The plaintiffs also filed petition as well as an application under order 21 rule 26 read with Section 151 CPC in the said Title Appeal no. 159 of 2007. While considering such First Appeal the Learned First Appellate Court stayed the proceedings but rejected the application under order 21 rule 26 CPC filed by the plaintiff opposite party, that means, the petitioner herein. The Learned First Appellate Court was pleased to dismiss the appeal on contest with cost on 17.12.2008 and affirmed the decree for eviction of the tenants passed by the Learned Trial Court. 3. The defendant thereafter filed the Second Appeal challenging the legality and propriety of the judgement and decree dated 17th December, 2008 passed by the Learned First Appellate Court in Title Appeal No. 159 of 2007 which is now under challenge being No. S. A. T. 194 of 2009. 4. While admitting such appeal by order dated 11.08.2009 the Division Bench of this Hon’ble Court was pleased to decide as follows: “…….. 4. While admitting such appeal by order dated 11.08.2009 the Division Bench of this Hon’ble Court was pleased to decide as follows: “…….. However, from both the judgements we have not found anything whether it is first default or recurring default in paying rent. Normally in case of first default, a chance is given to rectify. We do not find such findings of the learned trial Judge and appellate court as well. Therefore, we admit the appeal on ground nos. 1 and 2.” 5. In disposing of the application for determination of the occupational charges being C.A.N. 4442 of 2009 the Hon’ble Division Bench has directed that the appellant shall pay henceforward a sum of Rs. 1,000/- as occupation charges of the premises which, according to Their Lordships, is the reasonably letting out value of that area in occupation of the tenant. Such payment shall be made on or before 7th of September, 2009 till the disposal of the appeal at the aforesaid rate. In case of failure to make the first payment or any subsequent two payments, the stay order will stand vacated. Accordingly there will be an unconditional stay till 8th September, 2009 and in the event payment, as directed above, is made, the stay will continue unless the default occurs. In case of failure the interim order will stand vacated automatically. 6. Now the plaintiff/ opposite parties/ petitioners have claimed for review of the aforesaid order which was passed by the Hon’ble Division Bench of this Hon’ble Court on the assumption that the appellant has already deposited all the arrears of rent with the Learned Court below which is a miss-statement of fact. The proceedings of the hearing recorded by the Hon’ble Division Bench in connection with the said C.A.N. 4442 of 2009 is quoted below: “Mr. Prasad, learned lawyer appearing on behalf of the respondents does not want to file affidavit. He only wants expeditious hearing of the appeal.” It is contended that this is a distortion of fact. Under the circumstances they have prayed for vacating or modifying the order dated 11.08.2009 passed by the Hon’ble Division Bench and to determine the monthly occupational charge at the rate of Rs. 2,500/- from the date of judgement dated 25.04.2007 of the Learned First Appellate Court till disposal of this appeal. 7. Under the circumstances they have prayed for vacating or modifying the order dated 11.08.2009 passed by the Hon’ble Division Bench and to determine the monthly occupational charge at the rate of Rs. 2,500/- from the date of judgement dated 25.04.2007 of the Learned First Appellate Court till disposal of this appeal. 7. Learned lawyer for the defendant appellants on the contrary has opposed the move and contended that the single bench has no power to review the order so passed by the Hon’ble Division Bench and the disputed question cannot be decided without final disposal of the appeal least it would prejudge the merit of the appeal. 8. Learned lawyer for the petitioner has submitted in writing a gist of his argument and has drawn my attention to the principles laid down in Modula India –Vs.- Mamakhya Singh Deo (1980 (2) CLJ 121; Indian Cable Company Limited, Appellant –Vs.- Smt. Sumitra Chakraborty, Respondent ( AIR 1985 (Cal) 248 ); Kondiba Dagadu Kadam, Appellant –Vs.- Savitribai Sopan Gujar and others, Respondents ( AIR 1999 (SC) 2213 ) and Anderson Wright and Co., Appellant –Vs.-Amar Nath Roy and others, Respondents ( AIR 2005 (SC) 2457 ) to substantiate his claim that pending Second Appeal against concurrent findings of facts made by the Learned Trial Court and affirmed by the Learned First Appellate Court such type of application for review of the judgement of the Hon’ble Division Bench by a Single Judge of this Hon’ble Court and to grant relief as prayed for are both tenable in law. He has drawn my attention to the relevant provisions of the High Court Appellate Side Rules in support of his contention. 9. I have carefully considered the rival submissions of both the parties and perused the relevant provisions of the High Court Appellate Side Rules Chapter II relating to constitution of the benches and powers of the benches and of the Registrar. In the first place I hold that the recording of the manner of holding a proceeding inside the Court room of the Hon’ble Court cannot be called in question by the parties present and participating in the proceedings. The Court has recorded what actually happened in presence of the learned advocates for both the parties and participating in such proceedings. In the first place I hold that the recording of the manner of holding a proceeding inside the Court room of the Hon’ble Court cannot be called in question by the parties present and participating in the proceedings. The Court has recorded what actually happened in presence of the learned advocates for both the parties and participating in such proceedings. If it is challenged the faith upon such institution will be shaken unnecessarily which should be discouraged since no prejudice is caused by the recording of such fact for expeditious disposal of the appeal which should always be the intention of every Court irrespective of the fact whether such a plea is taken by the parties or not. 10. So far as the jurisdiction is concerned I find that in Rule 1(ii) of the High Court Appellate Side Rules Chapter II, it is stipulated that provided that it shall be competent for one Judge to hear appeals and applications in all matters specified in the subjoined schedule except where such appeals, applications or matters involve a substantial question of law as to the interpretation of the Constitution of India. He may, however, send back any particular case he things fit to a Division Bench taking such case for disposal. In the subjoined schedule 7 types of applications and appeals have been mentioned over which a Single Bench can exercise his jurisdiction except in cases of interpretation of the Constitution of India. But none of the 7 applications referred to therein provides any provision for review of the judgement of the Division Bench by a Single Bench on application of the party during pendency of the appeal after admission of the same by the Division Bench. 11. Therefore, I hold that this Court has no jurisdiction to entertain such application for the purpose of readjudication of the occupational charges which is fixed at Rs. 1,000/-by the Hon’ble Division Bench to Rs. 2,500/- and it is also improper to prejudge the issue under order 21 rule 26 read with Section 151 CPC which has been rejected by the Learned First Appellate Court without final disposal of the appeal preferred against such order. 1,000/-by the Hon’ble Division Bench to Rs. 2,500/- and it is also improper to prejudge the issue under order 21 rule 26 read with Section 151 CPC which has been rejected by the Learned First Appellate Court without final disposal of the appeal preferred against such order. In fact in course of final disposal of the appeal this Court will have to decide the merit of the allegation made by the present petitioner to the effect that the tenant has failed to deposit the arrear rents by instalments as directed by the Learned Court below as well as by this Hon’ble Court in connection with civil revision and there is no scope for granting any such revised interim relief since the Hon’ble Division Bench of this Court while admitting the appeal has directed the tenant to deposit occupational charges at the rate of Rs. 1,000/- per mensem till disposal of the Second Appeal and that the proceeding will be stayed only upon fulfilment of such condition. Therefore, I do not find any merit in this application which in my opinion is not maintainable in law and as such the same is dismissed. 12. The appeal will be heard on ground no. 1 and 2 of the memorandum of appeal as directed by the Hon’ble Division Bench as usual and the matter will appear for hearing before the Court having determination in the monthly list of November, 2010. 13. Let urgent photostat certified copy of this order, if applied for, be supplied to the respective parties, upon compliance of all necessary formalities.