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2023 DIGILAW 838 (CAL)

Shib Sankar Ghosh v. Joyanta Kumar Basu

2023-05-18

BIBHAS RANJAN DE

body2023
JUDGMENT : (Bibhas Ranjan De, J.) Re: CAN 1 of 2018 1. I am dealing with an application for stay of Execution Case being No.28 of 2016 pending before the learned Civil Judge, (Junior Division) 3rd Court, Sealdah, District North 24 Parganans. Background in Brief:- 2. Petitioner/appellant was a tenant under the respondent/plaintiff at a monthly rent in respect of a shop room in the buildings owned by the respondent/decree holder at BH-13, Sector 2, Salt Lake City, Kolkata 700064. 3. In the year 2006 respondent/plaintiff initiated a proceeding before Rent Controller Bidhannager for fixation of fare rent which was assessed at Rs.1980/- by the order of the Rent Controller on 26.03.2007. That order of Rent Controller was challenged in appeal before the learned Land Reforms and Tenancy Tribunal in OA(P) No.688 of 2008 wherein the order of the Rent Controller was set aside with a direction to pass reasoned order after hearing. 4. In the meantime respondent/decree holder filed a suit being Ejectment Case No.63 of 2009, for eviction against the appellant/judgement debtor before the Leaned Civil Judge (Junior Division), 3rd Court, Sealdah, North 24 Parganas. 5. Learned Civil Judge passed a decree in favour of respondent/plaintiff on the ground of default in payment of fare rent when there was no order of fare rent after reversal of the order of the Rent Controller in appeal before Land Reforms and Tenancy Tribunal. 6. Feeling aggrieved petitioner/appellant preferred an appeal being No.TA 75 of 2016 before the Learned Additional District Judge, 4th Fast Track Court at Barrackpore and that was dismissed on contest affirming the judgment and decree passed by the Learned Trial Judge. 7. Again, feeling aggrieved petitioner/appellant preferred the instant second appeal pending before this Court. 8. In the meantime, respondent/plaintiff put the decree into execution being Ejectiment Execution No.28 of 2016 which is, right now, pending before the Trial Judge. 9. That is why, the instant stay application is taken out for stay of the execution proceeding pending before the Trial Judge. 10. 8. In the meantime, respondent/plaintiff put the decree into execution being Ejectiment Execution No.28 of 2016 which is, right now, pending before the Trial Judge. 9. That is why, the instant stay application is taken out for stay of the execution proceeding pending before the Trial Judge. 10. Learned Advocate, Mr.Chandradya Roy, appearing on behalf of the petitioner/appellant, knowing the imposition of condition prior to passing any stay order, has contended that petitioner/appellant is a tenant in respect of a shop room which is the only source of income and in support of his contention he has referred to the rent receipts showing amount of rent in the locality of Salt Lake area, presumably, for fixation of occupational charge during stay of execution. 11. In opposition to that, Ld. Advocate, Mr.Arnab Roy, appearing on behalf of the respondent/plaintiff has strenuously contended that petitioner/appellant is running a Mio Amore shop in the tenanted premises for which eviction decree was passed and affirmed by the Learned First Appellate Court. In support of his contention he filed three (3) lease agreement along with several rent receipts showing status of prevailing rent in the locality of Bidhannagar/Salt Lake City. 12. With regard to imposition of conditions, Mr.Roy relied on a case of Atma Ram Properties (P) Ltd. Vs Federal Motors (P) Ltd. reported in 2005(1) Supreme Court cases 705. 13. Atma Ram Properties (p) ltd. (supra) laid down the principle as under:- "8. It is well settled that mere preferring of an appeal does not operate as stay on the decree or order appealed against nor on the proceedings in the court below. A prayer for the grant of stay of proceedings or on the execution of decree or order appealed against has to be specifically made to the appellate court and the appellate court has discretion to grant an order of stay or to refuse the same. The only guiding factor, indicated in Rule 5 aforesaid, is the existence of sufficient cause in favour of the appellant on the availability of which the appellate court would be inclined to pass an order of stay. Experience shows that the principal consideration which prevails with the appellate court is that in spite of the appeal having been entertained for hearing by the appellate court, the appellant may not be deprived of the fruits of his success in the event of the appeal being allowed. Experience shows that the principal consideration which prevails with the appellate court is that in spite of the appeal having been entertained for hearing by the appellate court, the appellant may not be deprived of the fruits of his success in the event of the appeal being allowed. This consideration is pitted and weighed against the other paramount consideration: why should a party having succeeded from the court below be deprived of the fruits of the decree or order in his hands merely because the defeated party has chosen to invoke the jurisdiction of a superior forum. Still the question which the court dealing with a prayer for the grant of stay asks itself is: why the status quo prevailing on the date of the decree and/or the date of making of the application for stay be not allowed to continue by granting stay, and not the question why the stay should be granted. 16. We are, therefore, of the opinion that the tenant having suffered a decree or order for eviction may continue his fight before the superior forum but, on the termination of the proceedings and the decree or order of eviction first passed having been maintained, the tenancy would stand terminated with effect from the date of the decree passed by the lower forum. In the case of premises governed by rent control legislation, the decree of eviction on being affirmed, would be determinative of the date of termination of tenancy and the decree of affirmation passed by the superior forum at any subsequent stage or date, would not, by reference to the doctrine of merger have the effect of postponing the date of termination of tenancy. 19. To sum up, our conclusions are: (1) While passing an order of stay under Rule 5 of Order 41 of the Code of Civil Procedure, 1908, the appellate court does have jurisdiction to put the applicant on such reasonable terms as would in its opinion reasonably compensate the decree-holder for loss occasioned by delay in execution of decree by the grant of stay order, in the event of the appeal being dismissed and insofar as those proceedings are concerned. Such terms, needless to say, shall be reasonable. Such terms, needless to say, shall be reasonable. (2) In case of premises governed by the provisions of the Delhi Rent Control Act, 1958, in view of the definition of tenant contained in clause (l) of Section 2 of the Act, the tenancy does not stand terminated merely by its termination under the general law; it terminates with the passing of the decree for eviction. With effect from that date, the tenant is liable to pay mesne profits or compensation for use and occupation of the premises at the same rate at which the landlord would have been able to let out the premises and earn rent if the tenant would have vacated the premises. The landlord is not bound by the contractual rate of rent effective for the period preceding the date of the decree. (3) The doctrine of merger does not have the effect of postponing the date of termination of tenancy merely because the decree of eviction stands merged in the decree passed by the superior forum at a latter date." 14. Considering all facts and circumstances and also keeping the principle laid down by the Hon'ble Apex Court in my mind, I find hardly any scope to pass any blanket stay order without any terms & conditions. 15. After going through the documents regarding prevailing rent in the locality of Bidhannagar submitted by the warring parties to this appeal, I am of the humble view that stay order can be promulgated subject to payment of occupational charges of Rs.10,000/- per month. 16. In the aforesaid view of the matter the Title Execution Case being No.28 of 2016 be stayed till the disposal of the instant appeal subject to payment of occupational charge of Rs.10,000/- per month by the petitioner/appellant. 17. I make it clear that in the event of failure of making payment of occupational charge by the petitioner/appellant shall cause the order of stay shall stands vacated. 18. With the aforesaid direction, the instant stay application being No.CAN 1 of 2018 stand disposed off. 19. All parties shall act on the server copy of this order downloaded from the official website of this Court. 20. Urgent Photostat certified copy of this order, if applied for, be supplied to the parties upon compliance with all requisite formalities.