Smt. Arati Ash vs Sri Anadi Kumar Das And Others
2021 Latest Caselaw 3914 Cal

AD. 9.

July 23, 2021.

MNS.

C. O. No. 1186 of 2021 (Via video conference)

Smt. Arati Ash Vs.

Sri Anadi Kumar Das and others

Mr. Arijit Bardhan, Mr. Debanik Banjeree

... for the petitioner.

Mr. Utpal Majumdar, Mr. Dwaipayan Ghosh

...for the defendant-opposite party no. 1.

Affidavit-of-service filed in Court today be

taken on record.

Heard learned counsel for the parties.

The grievance of the petitioner is that the

appellate court granted stay of operation of an

eviction decree by imposing meagre occupation

charges at the rate of Rs.10,000/- (Rupees ten

thousand) only per month, that too, from the date

of the order instead of from the date of the

eviction decree, without adverting to the materials

produced by the petitioner in support of the

amount which the property can fetch in the

market currently.

Learned counsel for the judgement

debtor/opposite party contends that the opposite

parties disputed squarely the area of the

premises as disclosed by the revisionist petitioner

in their appeal and the written objection to the

said application filed by the opposite parties.

It is contended that, on the basis of such

pleadings made for the first time before the

appellate court, the appellant ought not to have

granted occupation charges at all. It is further

submitted that the amount as directed by the

appellate court to be paid as a condition of stay

was more than sufficient.

It appears from the materials on record

that the revisionist petitioner specifically referred

to a valuer's report, filed along with the written

objection, which was not considered by the

appellate court. In fact, no materials, apart from

valuer's report, were produced in support of the

respective contentions of the parties adequate to

establish the market value which the property can

fetch at the present juncture.

It is also noticed that, as per the general

norms as settled by the Supreme Court,

occupation charges are granted from the date of

the impugned eviction decree and not from the

date of the order of stay. Such aspect was also

not taken into consideration by the appellate court

while passing the impugned order.

Accordingly, C. O. No. 1186 of 2021 is

allowed, thereby setting aside the impugned

order and directing the appellate court below to

dispose of the stay application filed in connection

with Title Appeal No. 23 of 2020 pending in the

said court, afresh upon adverting to the pleadings

on record as well as granting fresh opportunity to

both the parties to produce adequate materials to

substantiate their respective cases as regards the

appropriate occupation charges of the suit

property, keeping in view the necessary

yardsticks as set forth by the Supreme Court in

various judgments.

As such, the fresh hearing of the stay

application shall be concluded by the appellate

court at the earliest, latest within one month from

the date of communication of this order to the

said court.

During pendency of the stay application for

hearing, the defendant-opposite party no. 1 shall

go on paying Rs.10,000/- (Rupees ten thousand)

only per month, within 15th of the current month

for which the amount is due, starting from the

month of August, 2021, as a precondition for the

continuance of stay.

In the event such deposits are made

without default, the order of stay granted in the

impugned order shall continue to remain in force

subject to the result of the re-hearing of the stay

application. In case of default, however, this order

shall stand automatically vacated without further

reference to court.

It is made clear that the merits of the

contentions of the parties regarding appropriate

occupation charges have not been gone into at all

and the appellate court will be free to proceed

independently to adjudicate the stay application

along with the objection on their own merits,

without being influenced by any of the

observations made herein.

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.)