Smt. Rekha Singha & Ors vs Sri Kausik Daw
2021 Latest Caselaw 3006 Cal

06,DL,Ct.18.
28.04.2021

AJ.

C.O. 811 of 2021

(Via Video Conference)

Smt. Rekha Singha & Ors.

-Vs-

Sri Kausik Daw

Mr. Shib Shankar Banerjee, Mr. Santanu Chatterjee.

... for the petitioners.

Mr. Abhijit Roy, Mr. Shobhan Gupta.

....for the opposite party.

A supplementary affidavit filed on behalf of

the petitioners which is taken on record.

The petitioners being the defendants of

Ejectment Suit No. 536 of 2012 had suffered a

decree of eviction and aggrieved by the said decree

have preferred the connected Title Appeal No. 20 of

2020 which is pending before the learned Chief

Judge, City Civil Court at Calcutta.

The Appeal Court below by the order

impugned has assessed the occupational charges

@ Rs. 27,000/- per month as the condition for

grant of stay of the execution case levied to execute

the decree under appeal.

Mr. Shib Shankar Banerjee learned

advocate for the petitioners submits that the

plaintiff has prayed for mesne profit @ Rs.500/-

per month, as such fixation of the occupational

charges at a higher rate than the rate of mesne

profit prayed for is not legally sustainable,

particularly when the inquiry as required under

Order XX Rule 12 of the Code of Civil Procedure is

yet to be conducted. He further submits that the

suit premises is a hundred years old building,

therefore, the rental value of the suit property is

much less than Rs. 27,000/- per month.

Mr. Abhijit Roy, learned advocate for the

decree holder/opposite party submits that the

petitioners are occupying the entire second floor of

the suit premises measuring about 1800 sq. ft.

He draws my attention to the cross-

examination of the original defendant, Sukumar

Singha, the predecessor-in-interest of the present

petitioners recorded on February 06, 2019 wherein

the said witness has admitted that the rental value

of the suit property would be Rs. 50/- per sq. ft.

Having heard the learned advocates for the

parties and on perusal of the materials-on-record,

it appears that the petitioners are occupying the

entire second floor of the suit premises which is

measuring about 1800 sq. ft. and the suit property

is situated in Central Kolkata at Amherst Street.

The admission of the original defendant in his

cross-examination regarding rental value of the

suit property is also a relevant consideration in

assessing the rate of occupational charges.

The appeal Court below on assessment of

the aforementioned materials-on-record has fixed

the occupational charges @ Rs. 27,000/- per

month.

This Court in exercise of the jurisdiction

under Article 227 of the Constitution of India is

not inclined to re-appreciate the said materials-on-

record to interfere with the order impugned.

The rate at which mesne profit is prayed

for and/or inquiry regarding assessment of mesne

profit at a stage when the decree is yet to attain

finality has no relevance in assessment of the rate

of occupational charges to be paid by the

judgment-debtor to get an order of stay pending

challenge to the decree.

The order impugned for the aforesaid

reasons does not call for any interference.

C.O. 811 of 2021 is dismissed without any

order for costs.

The learned Court below is directed to

expedite the disposal of the appeal itself.

Urgent photostat certified copy of this

order, if applied for, be supplied to the parties

subject to compliance with all requisite formalities.

(Biswajit Basu, J.)