Calcutta High Court (Appellete Side)
Amitava Mitter & Ors vs M/S. Neelam & Ors on 16 November, 2021
16.11.2021
Item No.01
Court No.18
AJ.
C.O. 1461 of 2021
( Via Video Conference )
Amitava Mitter & Ors.
-Vs-
M/s. Neelam & Ors.
Mr. Surajit Nath Mitra, Sr. Adv.,
Mr. Arindam Banerjee,
Mr. Soumabho Ghose,
Ms. Tiana Bhattacharya,
Mr. Soumalya Ganguli.
.........for the petitioners.
Mr. Ashok Kumar Banerjee, Sr. Adv.,
Mr. Sovan Mukherjee.
.........for the opposite party no.1.
Mr. Probal Kumar Mukherjee, Sr. Adv.,
Mr. Sabyasachi Sen,
Mr. Anirban Kar,
Mr. Pramit Kumar Shee.
.........for the opposite party no.2.
The predecessors-in-interest of the
petitioners filed an eviction suit way back in the
year 1979. The said suit was ultimately decreed
on June 10, 2009. The said decree was put into
execution giving rise to Execution Case No. 59 of
2009 before the learned Judge, 5th Bench, Small
Causes Court, Calcutta.
The opposite party no.1/judgment-debtor
aggrieved by the said decree preferred an appeal
being Title Appeal No. 41 of 2009.
In the said appeal, the occupational charge
for grant of stay of further proceedings of the
aforesaid execution case was fixed @ Rs.2 lakhs
per month. The judgment-debtor is not paying the
said occupational charge, however, the said
appeal is pending.
In the meantime, the opposite party nos. 2
to 6 have filed an application in the said
execution case under Order XXI Rules 98 &101
read with Section 151 of the Code of Civil
Procedure praying determination of their
independent right of tenancy over the suit
property. The reliefs sought for in the said
application are quoted below:-
"(a) Declaration that petitioners
have independent right of tenancy over
the schedule property;
(b) Declaration that decree
passed by the Learned 5th Judge in
Ejectment Suit No. 784 of 2000 (Sri
Amitava Mitter and Others vs M/s.
Neelam) on June 10, 2009 is not binding
and enforceable as against the
petitioners;
(c) Injunction restraining the
opposite party No.1, 2, 3 from executing
the decree passed in Ejectment Suit No.
784 of 2000 on June 10, 2009 and from
further proceeding with the Ejectment
Execution;
(d) Pass an order of stay, staying
all proceedings and/or further
proceeding connected with and/or
arising out of Ejectment Suit No.
784/2000 and execution case No. 59 of
2009 till disposal of this application;
(e) Such other order or orders as
the Learned Court may deem fit and
proper."
The said application has been registered in
the said execution case as Misc. Case No. 198 of
2017.
The petitioners have filed the present
application under Article 227 of the Constitution
of India complaining inordinate delay in disposal
of the said Misc. Case.
Mr. Surajit Nath Mitra, learned senior
counsel appearing on behalf of the petitioners
submits that the pendency of the said misc. case
is arresting the further progress of the execution
case. He draws my attention to the order dated
November 16, 2018 passed by the Co-ordinate
Bench of this Court in C.O. 3436 of 2018.
The executing Court by the aforesaid order
was directed to dispose of the said misc. case
within four weeks from the date of
communication of the said order. The operative
part of the said order is quoted below:-
"Accordingly, C.O. 3436 of 2018 is
disposed of by directing the Judge, Fifth
Bench, Small Causes Court at Calcutta
to dispose of Miscellaneous Case No.
198 of 2017, pending in the said court,
as expeditiously as possible, without
granting any unnecessary adjournment
to either side, positively within four
weeks from the date of communication
of this order to the executing court."
It is disturbing to note that in spite of
communication of the said direction, the said
misc. case has not yet been disposed of.
It appears from the said application under
Order XXI Rules 98 & 101 read with Section 151
of the Code that the said opposite parties are
tracing their alleged independent right of tenancy
over the suit property through one Kishan Lal
Pugalia. The relevant averment in support of such
claim at paragraph 7 of the said application is
quoted below:-
"7. Your petitioners state that the
said Kishan Lal Pugalia died intestate
on 20.04.2007 leaving behind him,
surviving as his natural and legal heirs,
his widow namely Saroj Devi Pugalia,
being the petitioner No.1 herein and the
two sons namely Kamal Pugalia the
petitioner No.2 herein, Lalit Pugalia the
petitioner no.3 herein and two
daughters namely Bina Mundhra, the
petitioner no.4 herein and Neelam Bagri,
the petitioner no.5 herein. A copy of the
death Certificate of Kishan Lal Pugalia
is annexed hereto and marked with the
Letter - "D"."
Aforesaid being the basis of the said
independent claim of the said opposite parties in
the said misc. case, a question cropped up as to
whether the said opposite parties are entitled to a
declaration of their right of tenancy over the suit
property in view of the restrictive definition of
'tenant' under Section 2(g) of the West Bengal
Premises Tenancy Act, 1997.
It is necessary to note that Saroj Devi
Pugalia, the widow of the predecessor-in-interest
of the applicant, the alleged original tenant
Kishan Lal Pugalia has already died.
The pendency of the said misc. case is
obstructing the execution of the decree, as such,
the executing Court is obliged to decide the
maintainability of the said misc. case
immediately.
The Executing Court in deciding the said
issue shall only consider the statements made in
paragraphs 7, 8 and 33 of the said application
under Order XXI Rules 98 & 101 read with
Section 151 of the Code.
This Court is informed by the learned
counsel for the parties that December 01, 2021 is
the next date fixed for hearing of the said misc.
case.
The Executing Court shall take up the said
issue for consideration on the said date and shall
decide it within seven days from the said date on
the basis of the observations made hereinabove.
The Executing Court, depending upon the
outcome of the said application and keeping in
view the earlier direction passed by the Co-
ordinate Bench of this Court, shall make all
endeavour to dispose of the execution case in
accordance with law within four available effective
working months of the said Court from the date of
disposal of the said misc. case and in doing so
shall not grant any unnecessary adjournment to
either of the parties.
C.O 1461 of 2021 is disposed of with the
above terms without any order as to costs.
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.)
