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2020 DIGILAW 75 (CAL)

Soumen Ghosh v. Kakali Ghosh

2020-01-17

SHAMPA SARKAR

body2020
JUDGMENT 1. The decree-holders/respondents in Title Appeal No.6 of 2017 pending before the learned Additional District Judge, Fast Track Court-I at Sealdah, District-24-Parganas (South) has preferred this revisional application being aggrieved by an order dated April 17, 2019. The learned lower appellate court while considering imposition of a condition for payment of occupational charges by the opposite party, having suffered a decree of eviction by judgement and decree dated August 11, 2017 passed by the learned Civil Judge (Junior Division), Additional Court at Sealdah in Title Suit No.30 of 2010, held that such charge was not payable by the opposite party. 2. The father of the petitioners filed a title suit against the opposite party for eviction of licensee. The suit was decreed and the counterclaim of the opposite party was dismissed. The petitioners filed Title Execution Case No.6 of 2017. Aggrieved the opposite party filed Title Appeal No.6 of 2017. 3. While considering the application for stay, the learned lower appellate court by an order dated May 7, 2018 directed there shall be a stay of the execution case subject to payment of Rs.6,000/- per month on the basis of the prayer made by the petitioners. 4. Aggrieved by the order dated May 7, 2018 the opposite party preferred C.O. No.1858 of 2018. The C.O. No.1858 of 2018 was disposed of by an order dated January 4, 2019. The order is set out hereunder: 'The present challenge is directed against an order, whereby the appellate court stayed the execution of an eviction decree on imposition of occupation charges at the rate of Rs.6,000/- per month. Learned counsel for the petitioner argues that such assessment of occupation charges was arbitrary and nothing was produced by the opposite parties to substantiate such occupation charges. Learned counsel for the opposite parties disputes such argument and submits that the opposite parties specifically prayed for imposition of occupation charges in terms of location and market value of the property. Although a reasonable amount of guesswork may be permissible in such cases, in the present case none of the parties produced any iota of evidence, nor was there any averment as to the exact occupation charges prevalent in that area. As such, the impugned order suffers from perversity insofar as the appellate court resorted to personal knowledge in assessing the occupation charges without there being any document or material on record to substantiate the same. As such, the impugned order suffers from perversity insofar as the appellate court resorted to personal knowledge in assessing the occupation charges without there being any document or material on record to substantiate the same. Hence, C.O. No. 1858 of 2018 is disposed of on contest, thereby setting aside the impugned order and directing the appellate court to reassess the occupation charges as condition for grant of stay within a working fortnight from the date of communication of this order to the appellate court below. The parties will be given liberty by the appellate court to produce necessary documents for an objective assessment of the said occupation charges. The connected execution case will remain stayed for a period of three weeks from this date, with liberty to the parties to approach the appellate court for extension/modification of such order by the said court itself.' 5. It appears from the order dated January 4, 2019 that another Co- ordinate Bench of this Court, directed the lower appellate court to assess the quantum of occupation charges on the basis of necessary documents to be produced by the parties and set aside the amount of Rs.6,000/-, as fixed by the lower appellate court, on the ground that the same was on the basis of guess work and not on the basis of any document to show that the said amount was the prevailing rate in the locality. Subsequently, the petitioners filed an application, undertaking to produce the documents with regard to the rental valuation in the area. A rental valuation report was accordingly filed. Thereafter, the learned lower appellate court below fixed the appeal for hearing without making the reassessment of the occupational charges as directed by this Court. Aggrieved, the petitioners again preferred C.O. No.1228 of 2019. By the order dated April 3, 2019, the Co-ordinate Bench of this Court held that the appellate court below acted without jurisdiction in fixing the date of hearing of the appeal itself without reassessing the occupational charges as a condition for grant of stay. Accordingly, the learned Court of appeal below was directed to reassess the occupational charges and fix the same and to dispose of the application in compliance of the earlier direction given by this Court in C.O. No.1858 of 2018 within a period of three weeks. Pursuant to such direction the order impugned was passed. 6. Accordingly, the learned Court of appeal below was directed to reassess the occupational charges and fix the same and to dispose of the application in compliance of the earlier direction given by this Court in C.O. No.1858 of 2018 within a period of three weeks. Pursuant to such direction the order impugned was passed. 6. While passing the order impugned, the learned Court of appeal below came to the conclusion that as the opposite party was residing in the premises by virtue of the order passed under Section 18 of the Protection of Women from Domestic Violence Act, 2005, and as the opposite party was given financial support by District Legal Services Authority, the question of payment of occupational charges did not arise as the same would cause hardship to her. 7. The lower appellate court had imposed a conditional stay upon payment of occupational charges. The fact that the opposite party was living in the premises by virtue of an order passed by the appropriate criminal court and that she was being supported by the District Legal Services Authority did not impress the lower appellate court and the lower appellate court passed the order for payment of Rs.6,000/- per month as occupational charges having taken the two factors into consideration as recorded in the order dated May 7, 2018. The said order was challenged before this Court and from the order dated January 4, 2019, it appears that the ground of challenge by the opposite party was that the occupation charges of Rs.6,000/- per month was arbitrary as the petitioner did not produce any document to substantiate such quantum. The learned Co-ordinate Bench upon consideration of the facts came to the conclusion that the order suffered from perversity, in so far as the appellate court below resorted to his personal knowledge in assessing occupational charges without there being any document or material on record to substantiate the same. 8. This Court by the order dated January 4, 2019 directed that the lower appellate court should reassess the quantum of occupational charges by making an objective assessment on the basis of the material to be produced by the parties. Thereafter the lower appellate court without making such assessment fixed the appeal for hearing by an order dated March 25, 2019. 9. Thereafter the lower appellate court without making such assessment fixed the appeal for hearing by an order dated March 25, 2019. 9. This order was challenged by filing C.O. No.1228 of 2019 and the same was disposed of by an order dated April 3, 2019 by another learned judge of this Court and the following order was passed :- 'It is rightly pointed out by the learned advocate appearing on behalf of the petitioners that the appellate court below acted without jurisdiction in fixing the hearing of the appeal itself without re-assessing the occupational charges as condition for grant of stay, as directed vide order dated January 4, 2019 in C.O. 1858 of 2018. However, in view of the nature of the order proposed to be passed, no prior service of this revisional application on the opposite party is deemed necessary. Accordingly, the revisional application bearing C.O. 1228 of 2019 is disposed of by directing the Additional District Judge, Fast Track Court No. I at Sealdah, District- South 24-Paraganas, to complete the re-assessment of occupational charges and fix the same and to dispose of the said application thereafter, in compliance of the direction given in C.O. 1858 of 2019, within three weeks from the date of communication of this order to the court below, upon giving opportunities of hearing to both sides. The appellate court will proceed with the hearing of the appeal only thereafter. There will be no order as to costs. Photostat certified copy of this order, if applied for, will be made available to the applicant within a week from the date of putting in the requisites.' 10. From the order dated April 3, 2019, it appears that the High Court specifically directed the learned lower appellate Court to assess the occupational charges as a condition for grant of stay. The matter was remanded back to the lower appellate Court for assessment of the occupational charges on the basis of the materials to be produced by the parties because the learned single Judge of this Court came to a conclusion that fixation of Rs.6,000/- as the occupational charges was perverse as the said amount was fixed on the basis of personal knowledge of the learned lower appellate Court. 11. These two orders of this Court as referred to hereinabove are binding between the parties. 11. These two orders of this Court as referred to hereinabove are binding between the parties. Once the parties have accepted the orders dated January 4, 2019 and April 3, 2019 at this stage, it cannot be urged by the opposite party that the case of the Atma Ram (P) Ltd. Vs. Federal Motors (P) Ltd. in (2005) 1 SCC 705 would not apply in the facts of this case. 12. The learned Court of appeal below could not have considered whether occupational charges would be payable to the opposite party because she was residing in the premises in terms of the order of the Criminal Court and she received financial support from the DLSA. The matter was remanded to the court of appeal below for a limited purpose, i.e, assessment of quantum. 13. Having considered the facts and circumstances of this case and the orders passed by this Court, I have no hesitation to hold that the question as to whether principles of Atma Ram (Supra) would be applicable could not be decided by the learned lower appellate Court, inasmuch as, this Court had directed only quantification of the occupational charges and/or reassessment of the same on the basis of evidence so that the Court may arrive at the quantum. 14. The direction of this Court is binding between the parties. The learned Court of appeal could not travel beyond the scope of the orders dated January 1, 2019 and April 3, 2019, inasmuch as, this Court had limited the consideration of the lower appellate Court to the reassessment of quantum of occupational charges. The order of this court is now res judicata between the parties. Moreover, Domestic Violence Act provides that even if an order is passed under the said statute eviction by due process of law was permissible. 15. Under such circumstances, the order dated April 17, 2019 is set aside. 16. The learned lower appellate Court is directed to comply with the order of this Court, insofar as, it relates to assessment of quantum of occupational charges as directed by this Court earlier on the basis of the materials on record. Such reassessment should be made within two weeks from the date of communication of this order. The learned Court below is directed to expedite the hearing of the appeal thereafter. 17. This revisional application is disposed of. Such reassessment should be made within two weeks from the date of communication of this order. The learned Court below is directed to expedite the hearing of the appeal thereafter. 17. This revisional application is disposed of. There will be, however, no order as to costs. Urgent photostat certified copy of this order, if applied for, be given to the parties on priority basis.