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2016 DIGILAW 730 (CAL)

Anwar Alam Khan v. Zaibun Nisa

2016-09-16

SUBRATA TALUKDAR

body2016
JUDGMENT : Subrata Talukdar, J. 1. In the revisional application being CO. 1993 of 2014 the order passed by the learned 4th Judge, City Civil Court at Calcutta in Title Appeal No. 58 of 2013, being Order No. 14 dated 5th May, 2014 is under challenge. By the said order, the learned Appellate Judge was pleased to consider the application filed by the present petitioners/plaintiffs for a direction upon the present Opposite Parties(O.Ps.)/defendants/tenants to pay to the plaintiffs a sum of Rs. 66,675/- per month towards occupation charges/mesne profit as a condition precedent for the O.Ps./defendants/tenants to continue to enjoy the premises in issue following the decree passed in favour of the plaintiffs. 2. After referring to several judgements of the Hon'ble Apex Court and this Court on the point of occupational charges which a landlord is expected to fetch from a tenant continuing in possession post the decree, the learned Appellate Judge recorded the submission of the present petitioners/plaintiffs that the occupational charges relate to a reasonable amount which is not necessarily equivalent to the contractual rate of rent. 3. However, the learned Appellate Judge had the occasion to peruse the order of this Court dated 3rd of March, 2014 in CO. 131 of 2014 by which this Court had stayed the execution proceeding in Ejectment Suit No. 1739 of 2001 provided the defendants/tenants pay the arrear occupational charges and current rent regularly, in default, the stay will stand vacated. 4. The order of this Court dated 3rd March, 2014 was as follows:-- "On perusal of the said impugned order No. 2 dated 16th September, 2013 passed in Title Appeal No. 58 of 2013 this Court is satisfied that the said order is cryptic and without reasons. Sri Basu relies upon a Judgement of the Hon'ble Apex Court in the case of Rayat Shikshan Sanstha vs. Suneel Shiva Gaikwad reported in (2010) 15 SCC 539 in which the settled position of law has been reiterated that a Court must record reasons by taking into consideration all relevant factors having regard to the dispute involved. This Court, therefore, finds the observation of the learned First Appellate Court rejecting the said application in connection with the Title Appeal No. 58 of 2013, being the First Appeal against an Ejectment Suit, Mr. This Court, therefore, finds the observation of the learned First Appellate Court rejecting the said application in connection with the Title Appeal No. 58 of 2013, being the First Appeal against an Ejectment Suit, Mr. Basu's clients are entitled to ventilate their grievances with regard to facts and law before the First Appellate Court without suffering execution of the decree and provided they pay all arrear occupation charges and the current rent regularly. In such circumstances, let the execution proceedings of the decree in Ejectment Suit No. 1739 of 2001 be stayed till the disposal of the Title Appeal No. 58 of 2013. The order impugned No. 2 dated 16th September, 2013 passed by the learned Chief Judge of the City Civil Court, Calcutta, is set aside. Mr. Basu's clients shall pay all arrear occupation charges and current rent regularly and, in default, the stay will stand vacated. Having regard to the fact that the ejectment suit is of the year 2001, the learned First Appellate Court is requested to dispose of Title Appeal No. 58 of 2013 preferably within a period of six months from date subject to its calendar. CO. 131 of 2014 is accordingly allowed." 5. The learned Appellate Court vide order impugned dated 5th May, 2014 was pleased to, inter alia, held that the order of this Court dated 3rd March, 2014 did not specify whether the occupational charges were to be distinct from the current rent. Learned Appellate Court held that there is no direction upon the learned Appellate Court to assess the amount of occupational charges separately from the amount of current rent. In the further opinion of the learned Appellate Court, this Court directed the present O.Ps./tenants/defendants/appellants in Title Appeal No. 58 of 2013 to continue paying current rent month by month which implies that the occupational charges shall be at same rate in relation to current rent. Therefore, the learned Appellate Court directed the present O.Ps/tenants/defendants to deposit the arrear rents @ of Rs. 80/- per month which was also the current rent to be deposited month by month. 6. Sri Suchit Banerjee, learned Senior Counsel appearing for the present petitioners submits that the learned Appellate Court erred in exercising jurisdiction by issuing the order dated 5th May, 2014 with the direction to deposit the arrear occupational charges and the current rent at the same rate. 6. Sri Suchit Banerjee, learned Senior Counsel appearing for the present petitioners submits that the learned Appellate Court erred in exercising jurisdiction by issuing the order dated 5th May, 2014 with the direction to deposit the arrear occupational charges and the current rent at the same rate. Sri Banerjee, relying upon several judicial authorities, as also noticed by the learned Appellate Court submits that the learned Appellate Court improperly exercised jurisdiction by failing to assess the error occupational charges and the current rent at the existing prevalent rate. Such error goes to the root of the continuing occupation by the tenants/defendants/appellants in the suit premises. 7. Therefore, Sri Banerjee argues that the order dated 5th May, 2014 requires to be set aside. Placing reliance to several provisions of the Code of Civil Procedure, Sri Banerjee argues that it is a statutory mandate that the present O.Ps/tenants/defendants can continue in possession of the suit premises after the decree only in the event, the arrear occupational charges and the current rent is paid in accordance with law meaning thereby, the law as now settled by several judicial pronouncements. 8. Arguing for the present O.Ps/tenants/defendants, Sri Saptangshu Basu, learned Senior Counsel submits that by the order dated 3rd March, 2014, this Court was pleased to specify the arrear occupational charges and the current rent to be deposited by the present O.Ps/tenants/defendants. According to Sri Basu, the learned Appellate Court therefore calculated the arrear occupational charges and current rent at par as directed by the order dated 3rd March, 2014 in CO. 131 of 2014. 9. However, the second limb of Sri Basu's submission is that the, payment of the occupational charges and the current rent post the order dated 3rd of March, 2014 may be examined by the learned Appellate Court based on the evidence the parties. Therefore, Sri Basu points out that there is no infirmity or illegality in the order of the learned Appellate Court by directing the present O.Ps/tenants/defendants to pay the occupational charges at the contractual rate of rent. 10. Having heard the parties and considering the orders passed, this Court finds that the direction to pay the arrear occupational charges and current rent vide order dated 3rd March, 2014 in CO. 10. Having heard the parties and considering the orders passed, this Court finds that the direction to pay the arrear occupational charges and current rent vide order dated 3rd March, 2014 in CO. 131 of 2014 must be read in accordance with law as laid down by the Hon'ble Apex Court in Atma Ram Properties (P) Ltd. v. Federal Motors (P) Ltd. reported in : (2005) 1 SCC 705 . 11. This Court cannot accede to the reasoning applied by the learned Appellate Court that by the order dated 3rd March, 2014 this Court issued a direction for payment of arrear occupational charges and current rent de hors the legal position laid down In Re : Atma Ram (supra). Accordingly, this Court is also of the view that the learned Appellate Court failed to assess the arrear occupational charges and the current rent in the light of the law laid down In Re: Atma Ram (supra), which are also noticed in other judicial pronouncements. 12. In the light of the above discussion, the order impugned No. 14 dated 5th May, 2014 is set aside. The learned Appellate Court is directed to revisit the arrear occupational charges and the current rent strictly in the light of the law laid down In Re: Atma Ram (supra) and this Court makes it clear that such was the expression of intent in its order dated 3rd March, 2015. 13. CO. 1993 of 2014 stands accordingly allowed. 14. In view of the above order the review application being RVW No. 171 of 2014 also filed by the present petitioner in connection with the order dated 3rd March, 2014 in CO. 131 of 2014 stands disposed of. 15. The learned Appellate Court is requested to dispose of the appeal as expeditiously as possible subject to its board. 16. Urgent photostat certified copy of this order, if applied for, be given to the parties upon compliance of all necessary formalities.