Tapas Ranjan Kundu Chowdhury @ ... vs Archana Mukherjee & Anr
2022 Latest Caselaw 1911 Cal

                                       1




                     IN THE HIGH COURT AT CALCUTTA

                     (Criminal Revisional Jurisdiction)

                               Appellate Side


Present:

The Hon'ble Justice Bibhas Ranjan De


                             C.O. 305 of 2019
               Tapas Ranjan Kundu Chowdhury @ Tapas Ranjan
                                      Vs
                        Archana Mukherjee & Anr.


For the Petitioner              : Ms. Sabita Mukherjee Roy Chowdhury
                                 Ms. Rajasree Paul
                                 Mr. Sanket Das


Heard on                        : March 25, 2022
Judgment on                      : April 08, 2022



Bibhas Ranjan De, J.

1. This revision application under Article 227 of the Constitution of India

is directed against the Order No. 9 dated 28th September, 2018,

passed by the Ld. Chief Judge, City Civil Court at Calcutta in

connection with Title Appeal no. 15 of 2018.

Facts in brief

2. Petitioner/respondent filed one eviction suit being no. 333 of 1986 (re-

numbered as 1898 of 2001). The said suit was decreed on 30th

November 2017 by the Ld. Judge, 2nd Court, Presidency Small Causes

Court at Calcutta.

3. Being aggrieved by and dissatisfied with the said judgement and

decree preferred an appeal being Title Appeal no. 15 of 2018. In the

appeal, opposite parties/ appellants presented one application for stay

of execution and the Ld. Judge passed an order on 31st July, 2018

directing stay of the judgement and decree passed in Title suit No.

1898 of 2001 subject to payment of occupational charge @ Rs.

10,000/- per month with effect from, the date of decree i.e 30th

November 2017.

4. Being aggrieved, opposite parties/ appellants filed one application

under Section 151 Civil Procedure Code with a prayer for

reconsideration of occupational charge of Rs. 10,000/- per month to

any reduced amount. Accordingly, Ld. Judge by his order dated

28.09.2018 reduced the rate of occupational charge from Rs. 10,000/-

to 7000/-.

Order assailed:

5. At the outset, I find it necessary to reproduce the impugned order as

follows:

" Ld. Advocates for both sides are present by

filing their respective haziras.

Date is fixed for hearing of the petition u/s.

151 C.P.C filed by the appellants on

11.09.2018 praying for reconsideration of

occupational charges of Rs. 10.000/- to any

reduced amount and also for extension of time

to deposit the said amount and arrear

occupational charges.

Heard both sides. Perused the petition.

Considered.

It is submitted by the appellants that

Ejectment Suit being No. 1898 of 2001 was

decreed on contest by the Judgement and

Decree dated 30.11.2017 passed by the Ld.

Judge, 2nd Bench, presidency Small Causes

Court, Calcutta in favour of the

plaintiff/respondent. Thereafter, these

appellants being aggrieved by and

dissatisfied with the said Judgement and

Decree, preferred the instant Title Appeal No.

15 of 2018 with a prayer for stay wherein this

court was pleased to direct the appellants to

pay occupational charges @ Rs. 10,000/- per

months within 15th day of each succeeding

English Calendar month from the date of

decree and the arrears to be paid by

29.09.2018. It is further submitted that the

said order was passed on the basis of a

sketch map, as well as a report of Engineer

Valuer engaged by the respondent at the time

of filing written objection against the stay

petition and measurement has been

considered as 475 sq. feet, which is not at all

correct. It is also stated that the appellants

actually holding 100 sq. feet more or less

including macha, which has been described

by the Engineer and this court was mislead

by the submission of the respondent and huge

amount of occupational charges was ordered.

On the other hand, the respondent by filing

written objection denied the entire application

for reconsideration of occupational charges

and it is highlighted that this respondent has

got the decree after prolong 32 years of

fighting tooth and nail with the appellants

and the appellants have been running

business of fast food and beverages on the

ground floor and a beauty parlour in the

mezzanine floor of the said premises. So,

occupational charges adjudicated by this

court was just and proper for the purpose of

granting stay of the said judgement and

decree. Finally, The respondent has prayed

for rejection of the prayer u/s. 151 C.P.C

regarding reconsideration and reassessment

of the quantum of occupational charges.

The appellant have also filed an Affidavit

as to measurement of the decreetal room and

submitted that he occupies 230.20 sq. feet

and not 475 sq. feet and in this contest,

sketch map has also been filed in support of

the area in occupation of the appellants.

The appellants/defendants have also

highlighted his financial hardship arising out

of his chronic ailment and documents to that

effect has also been filed.

Having heard the submissions of Ld.

Advocates for both sides and on perusal of

the record, this court finds that in the suit

premises, i.e. in the schedule of the plaint

there is no description about the quantum in

sq. feet being possessed by the

appellants/defendant. However, it appears

that one shop room is being occupied on the

ground floor of premises No. 162, Bipin Behari

Ganguli Street, P.S. - Muchipara, Kolkata -

700012 and this court having considered the

area of the suit premises as well as location of

the suit premises, assessed occupational

charges @ Rs. 10,000/- per month. There was

no dispute in the Ld. Trial Court as regards

the area being possessed by the

appellants/defendants. However, it appears

that tenancy in respect of small height rooms

is at a rental of Rs. 115/- per month. It is also

transpires from the judgement that the area

under tenancy of the appellants is being used

for the purpose of business. It also transpires

that it is a very posh area of Bipin Behari

Ganguli Street, which is a business place

also. So, from all corners, this court finds that

occupational charges subject to the area of

business place is not at all very high as

ordered by this court. However, considering

another issue that respondent is

suffering from serious ailment and under

prolong treatment, of which document

has been filed to that effect, this court

views that to some extent a modification

may be done to support the appellants

financially in her crisis. So, occupational

charges of Rs. 10,000/- per month is

modified to the extent of Rs. 7,000/- per

month and the arrears of occupational

charge from 30.11.2017 to 28.09.2018

should be allowed to be deposited in easy

instalment.

Other orders as it stands remain as usual.

The petition u/s. 151 C.P.C. is thus

disposed of in favour of the appellants on

contest with the observation that the earlier

order dated 31.07.2018 be modified to the

extent that the amount of occupational

charges shall be Rs. 7,000/- per month

instead of 10,000/- per month, with effect

from the date of decree of the Ld. Trial Court,

i.e 30.11.2017 and the arrear amount of

occupational charges on and from 30.11.2017

to 28.09.2018 to be deposited by five (5) equal

monthly instalments before the Ld. Trial

Court.

On fulfilment of this condition and

direction, the stay order shall remain

operative, failing which the stay order shall

stand vacated automatically without any

further reference.

L.C.R has already been received. Let

the case record be transferred to the file of Ld.

Judge, Bench-XII, City Civil Court, Calcutta,

for hearing the Appeal.

To 5.10.18 for appear before the Ld.

Transferee Court on the date fixed."

6. Ld. Advocate appearing on behalf of the petitioner/respondent

contended much about area of the premises in question and location

thereof. It is submitted that Ld. Judge could not apply his judicious

mind as to area of the premises in question as well as location thereof.

It is further submitted that Ld. Judge considered immaterial plea of

serious ailment of one of the opposite parties/ appellants and came to

his erroneous finding. Ld. Advocate on behalf of the petitioner/

respondent strenuously argued on the enhancement of occupational

charge in view of area of the premises in question and location thereof.

Decision

7. Albeit Ld. Judge granted stay of execution of judgement and decree

passed in Title Suit no.1898 of 2001 by his Order No. 5 dated

31.07.2018 subject to payment of occupational charge of Rs. 10.000/-

per month but, on 28.09.2018 Ld. Judge modified his earlier order by

reducing the quantum of occupational charge from Rs. 10,000/- to

Rs. 7,000/-. By the impugned order Ld. Judge reduced the

occupational charge only on the ground of serious ailment of the

respondent.

8. The underlying principle based on which the Code of Civil Procedure,

1908 functions is Ubi Jus Ibi Remedium that signifies where there is

a right, there is a remedy. The concept of mesne profits or

occupational charge has been developed from this principle because it

is the law of nature to provide the right to compensation where there

has been an infringement or breach of a legal right. The assessment of

the quantum of occupational charge or mesne profit is rightly left at

the discretionary power of the Court depending on the facts and

circumstances of each case. The Courts are required to consider

various factor while determining the quantum of occupational charge

and thereby use their power judiciously. The discretion of the Court to

determine the quantum of occupational charge is based on the

following:

8.1 Nature and condition of the property;

8.2 Location of the property;

8.3 Value of the property;

9. On careful perusal of the Order No. 5 dated 31.07.2018 passed by the

Ld. Chief Judge I find that Ld. Judge stay the judgement and decree

dated 30.11.2017 passed by the Ld. Judge 2nd Bench, Presidency

Small Causes Court, Calcutta, in connection with Ejectment Suit No.

1898 of 2001, subject to payment of occupational charge @ Rs.

10,000/- per month. Ld. Judged considered the location of the

premises and purpose of use thereof and also considered the

measurement of the premises in question and prevailing market of fair

rent thereof based on report of Engineer Valuer, filed on behalf of the

Petitioner/respondent.

10. On behalf of opposite parties/appellants filed one application under

Section 151 of Code of Civil Procedure contending inter alia that

measurement of suit premises was 100 sq. ft. more or less not 475 sq.

ft. according to sketch map prepared at the behest of

petitioner/respondent and made a prayer for reconsideration of

occupational charge assessed by the order dated 31.07.2018. the Ld.

Judge took up that application on 28.09.2018 and passed an order

justifying the rate of occupational charge passed in order dated

31.07.2018 but considering the serious ailment of respondent the Ld.

Judged reduced the occupational charge from 10,000/- to Rs. 7,000/-

per month.

11. By the application under Section 151 of the Code of Civil Procedure,

opposite parties/appellants challenged the order passed on 31.07.2018

on the ground that the same was passed on the basis of a sketch map

as well as a report of Engineer Valuer engaged by the respondent at the

time of filing written objection against stay application. According to

opposite parties/appellants the measurement of the premises in

question was wrongly made as 475 sq. ft. It was pleaded in the petition

that measurement of the premises in question was hardly 100 sq. ft.

more or less including 'macha', which was described by the engineer as

mezzanine floor. For that reason, opposite parties/appellants prayed for

reduction of the said occupational charge. So far as serious ailment is

concerned there is no averment in the application under Section 151 of

Code of Civil Procedure. But, the Ld. Judge reduced the amount of

occupational charge from Rs. 10,000/- to Rs. 7,000/- solely on the

ground of serious ailments and prolonged treatment of one of the

opposite parties/appellants, which cannot be the subject matter of

assessment of occupational charge.

12. On careful perusal of the order dated 31.07.2018 and also the order

dated 28.09.2018 I find that Ld. Judge only relied on the Engineer

Valuer report filed on behalf of the petitioners/respondents and came

to his finding without any independent assessment of reasonable

occupation charges taking into consideration of the actual

measurement of the premises in question disputed in application under

Section 151 of the Code of Civil Procedure.

13. In such view of the matter, I am inclined to exercise the supervisory

jurisdiction of this Court under Article 227 and set aside the Order No.

9 dated 28.09.2018 passed by the Ld. Chief Judge, City Civil Court,

Calcutta, in Title Appeal No. 15 of 2018 and remand the matter back to

the Court of Ld. Chief Judge for deciding the matter after making an

independent inquiry as to the measurement of premises in question by

an expert. It is expected that the said decision would be taken

expeditiously, preferably within a period of one month from the date of

communication of this order, after hearing parties.

14. With the aforesaid direction, the instant application under Article 227

of the constitution of India, stands disposed of. There shall be no order

as to costs.

15. The copy of this order be communicated to the Ld. Judge, Bench-XII,

City Civil Court, Calcutta for compliance, at once, by the department.

16. All parties to this revisional application shall act on the server copy

of this order downloaded from the official website of this Court.

17. Urgent Photostat certified copy of this order, if applied for, be

supplied to the parties upon compliance with all requisite formalities.

[BIBHAS RANJAN DE, J.]