Calcutta High Court (Appellete Side)
Jagadish Bose And Another vs Subhra Bhattacharjee on 22 July, 2021
3
22.07.2021
TN
CO No.810 of 2021
Jagadish Bose and another
Vs.
Subhra Bhattacharjee
(Via video conference)
Mr. Jayanta Samanta,
Ms. Karunamoyee Samanta
.... for the petitioners
Mr. Bratindra Narayan Roy,
Ms. Setparna Roy
.... for the opposite party
Learned counsel appearing for the
petitioners/decree holders contends that, despite
having obtained an eviction decree, the petitioners
could not gain the fruits thereof in view of an appeal
being filed by the judgment debtor/opposite party. In
connection with such appeal, vide impugned Order
No.09 dated March 18, 2021, stay was granted to the
appellant/opposite party on condition of payment of
occupations charges of Rs.6,000/-.
Learned counsel for the petitioners contends
that such sum is even below the amount of the rent of
the suit property, at which rate it was being last paid.
Moreover, the petitioners rely on a report purportedly
prepared by a Chartered Engineer, annexed at page
180 of the revisional application, to contend that the
monthly occupation charges should be Rs.39,450/-
for the property.
Learned counsel appearing for the opposite
party contends that, since the revisionist petitioner
has always been claiming rent of Rs.6,050/-, it is
beyond the scope of the litigation for the appellate
court to allow the occupation charges higher than
that.
That apart, it is submitted by learned counsel
for the opposite party that a small chicken meat shop
is being run from the decretal premises. Due to the
ongoing pandemic, such business has suffered
immensely. As such, it is argued by the opposite party
that the occupation charges were correctly fixed and
need not be enhanced.
Upon going through the impugned order and
considering the submissions of the parties, it is seen
that the appellate court imposed occupation charges
of Rs.6,000/- per month as a condition of grant of
stay, only going by the rent last paid by the opposite
party. However, it is well-settled that occupation
charges, granted as a condition for stay under Order
XLI Rule 5 of the Code of Civil Procedure, have to be
commensurate with the current market value, which
the property-in-question can fetch at the juncture
when the stay order is passed.
In view of the absence of such consideration in
the impugned order, Order No.09 dated March 18,
2021, is set aside, directing the appellate court below
to re-hear the application for stay filed in connection
with Title Appeal No.17, 2020, upon giving both the
parties opportunity of producing evidence in support
of their respective contentions as regards occupation
charges, if necessary, by appointing an Engineer
Commissioner to so ascertain.
The stay order granted in the impugned order,
however, shall continue during pendency of the stay
application on condition that the opposite party goes
on paying Rs.6,000/- per month as occupation
charges on an ad hoc basis.
It is made clear that the merits of the matter
have not been gone into by this court, nor the actual
occupation charges, which can be fetched for the suit
property, has been considered by this court.
The trial court shall re-adjudicate and dispose
of the stay application afresh on its own merits as
directed above, without being influenced by any of the
observations made herein, as expeditiously as
possible, positively within two months from the date of
communication of this order to the appellate court.
There will be no order as to costs.
Urgent photostat certified copies of this order, if
applied for, be made available to the parties upon
compliance with the requisite formalities.
(Sabyasachi Bhattacharyya, J.)
