7 vs Shukat Ali & Anr
2022 Latest Caselaw 5715 Cal

ML 17.08.

169   2022
AGM
  /                                 C.O. 1775 of 2022
RKB
Ct                                   Ranjan Gupta
07                                        Vs
                                    Shukat Ali & Anr



               Mr. Ratan Lal Saha,
               Mr. Ranjit Kumar Ray                ... For the petitioner.

               Mr. indranuj Dutta,
               Mr. Rahul Ghosal,
               Mr. Bikram Basak             ... for the opposite parties.

Petitioner assails order dated 10 th May, 2022

passed by learned Civil Judge (Senior Division),

Sealdah in Misc. Case No.4 of 2022, granting

occupational charges at the rate of Rs.5000/- to

petitioner.

Admittedly, the petitioner suffered eviction

decree, which was granted ex parte. Subsequently,

petitioner filed an application under Order 9 Rule 13

of the Code of Civil Procedure, which was registered

as Misc. Case No. 4 of 2022. In the referred Misc.

case, an interim protection was given, granting stay

of execution proceeding, pending in the court below.

It is submitted by the learned advocate for the

petitioner that the order granting occupational

charges, behind the back of the petitioner, is not

sustainable, as there is noting reflected in the order

impugned, that the copy of the vacating application

has already been served upon the

petitioner/judgment-debtor.

Per contra, learned advocate appearing for the

opposite parties/decree holder submits that on the

scheduled date, the petitioner filed Hazira, which was

sufficient to record presence of the petitioner.

However, nothing could be produced today in court

regarding service of the copy of the application, as

regards the vacating of stay order, already granted by

the court below.

Upon perusal of the impugned order, it appears

that Rs.5000/- have been granted as occupational

charges. In this case, the quantum of occupational

charges is not under challenge, alleging the same to

have been exorbitantly assessed.

What is disputed in this case, is non-service of

notice of application, while proposing for vacating

stay order at the instance of the opposite

parties/decree-holder.

Though, Hazira of the petitioner appears to have

been filed on the scheduled date, but there is nothing

to reveal about taking participation of petitioner in

the hearing process.

Admittedly the stay order already granted by

the court below has not been vacated. The stay order

thus still remains uninterfered with.

When non-service of copy of the application is

the only subject of challenge in this case, the court is

of the view that the petition filed by the opposite

parties praying for vacating the stay order needs

hearing afresh, giving a liberty of hearing to the

petitioner.

The revisional application is thus disposed of

upon setting the impugned order dated 10 th May,

2022, passed by the learned Civil Judge (Senior

Division), Sealdah in Misc. Case No. 4 of 2022, with a

direction upon the court below to hear afresh, the

vacating application filed by the opposite

parties/decree-holder within four weeks from the

date of communication of this order, providing

sufficient opportunity of hearing to either of the

parties to this case, but without granting

unnecessary adjournments, unless it is extremely

unavoidable.

In the meantime, the copy of the application

filed by the decree-holder/opposite parties may be

made over to the opposite parties, or their learned

advocate appearing in the court below, in order to

facilitate effective hearing for the purpose.

Petitioner is directed to make communication of

this order to the learned court.

With this observation and direction, the

revisional application stands disposed of.

Urgent photostat certified copy of the order, if

applied for, be given to the parties on usual

undertakings.

(Subhasis Dasgupta, J)