Dara Singh & Ors vs Ram Krishna Dhar
2023 Latest Caselaw 2651 Cal

18.04.2023
Item No.04
Court No.32
Avijit Mitra
                               FAT 216 of 2018
                                     with
                             IA No. CAN 3 of 2022
                                     with
                             IA No. CAN 4 of 2023
                                     with
                             IA No. CAN 5 of 2023

                              Dara Singh & ors.
                               - Versus -
                              Ram Krishna Dhar

                     Mr. Krishna Raj Thakkar,
                     Mr. Abir Lal Chakraborty
                                       ...for the appellants
                     Mrs. Sabita Mukherjee Roy Choudhury,
                     Ms. Rajasree Paul
                                       ...for the respondent

The present appeal has been preferred challenging

the judgment and decree dated 3 rd February, 2018 passed

by the learned Judge, 2nd Bench, City Civil Court at

Calcutta in Title Suit No.403 of 2015. In connection with

the said appeal an application for appropriate order being

CAN 3 of 2022, an application for modification of the order

dated 3rd July, 2018 being CAN 4 of 2023 and an

application under order 41 Rule 27 of the Code of Civil

Procedure being CAN 5 of 2023 have been filed. The

parties have exchanged their affidavits in the applications

being CAN 3 of 2022 and CAN 4 of 2023.

Records reveal that by an order dated 3 rd July, 2018

the stay application was disposed of directing inter alia that

'the appellants shall pay the said amount of Rs.20,000/-

per month from the month of July, 2018. The first of such

instalment shall be made within 15th of July, 2018 and

thereafter shall keep on depositing the monthly occupational

charge at the said rate within 15 th of each succeeding month

for which it falls due with the Registrar General'.

The application being IA No. CAN 3 of 2022 has been

preferred by the plaintiff/respondent praying for leave to

withdraw the occupational charges deposited by the

appellants in terms of the order dated 3rd July, 2018.

Mrs. Mukherjee Roy Choudhury, learned advocate

appearing for the respondent/plaintiff submits that the

sole respondent is an aged person and he is not getting the

fruits of the decree. His business has totally collapsed and

during the pandemic period, his son has also lost his

service. He is thus suffering from extreme financial

stringency and as such he may be permitted to withdraw

the occupational charges, as deposited by the appellants.

Mr. Thakkar, learned advocate appearing for the

appellants denies and disputes the contention of Mrs.

Mukherjee Roy Choudhury and submits that in the event

the appellants succeed in the appeal, it would be an

impossibility to recover the amount, if allowed to be

withdrawn by the respondent.

It appears that the respondent has filed the present

application being CAN 3 of 2022 about four years after

disposal of the stay application on 3rd July, 2018.

Having heard the learned advocates and considering

the materials on record, we are not inclined to exercise any

discretion in favour of the respondent and to allow him to

withdraw the occupational charges deposited by the

appellants.

Accordingly the application being IA No. CAN 3 of

2022 is dismissed.

On 25th January, 2023, the appellants filed an

application for modification of the order dated 3 rd July,

2018 being IA No. CAN 4 of 2023.

Mr. Thakkar, learned advocate appearing for the

appellants submits that in compliance with the order dated

3rd July, 2018, the appellants have continued to deposit the

amount as directed till date.

He submits that the appellants are hawkers and

their earnings drastically reduced during the pandemic

period. Presently, they are facing extreme financial

stringency and it has become impossible for them to

continue to deposit Rs.20,000/- per month for occupation

of an area of about 314 sq.ft.

Mrs. Mukherjee Roy Choudhury, learned advocate

appearing for the sole respondent denies and disputes the

contention of Mr. Thakkar and submits that the premises

are at the heart of the city and the appellants should

continue depositing the amount as directed by the earlier

order dated 3rd July, 2018 since there had been no change

in the circumstances as existing on the date the order was

passed in the stay application.

A perusal of the order dated 3rd July, 2018 would

reveal that the Court in consideration of the fact that the

property is situated almost in the heart of the city having

all facilities of a modern city, quantified and directed

payment of Rs.20,000/- per month towards occupational

charge. There is no explanation as to why the appellants

waited for about five years to file the present application.

We also do not find any change in the circumstances as

existing on the date the order in the stay application was

passed.

In the said conspectus, we are not inclined to modify

the order dated 3rd July, 2018 and the application being IA

No. CAN 4 of 2023 is, accordingly, dismissed.

The appellants have also filed an application under

Order XLI Rule 27 of the Code being IA No. CAN 5 of 2023.

A copy of the same has already been served upon Mrs.

Mukherjee Roy Choudhury, learned advocate appearing for

the respondent.

The said application being IA No.CAN 5 of 2023 shall

be heard along with the appeal. The parties would be at

liberty to exchange their affidavits in the said application.

Records reveal that in terms of the order dated 3 rd

July, 2018, special messenger cost was deposited by the

appellants and the office called for the Lower Court Records

vide memo dated 24th July, 2018. However, it appears that

the Lower Court Records have not yet been sent.

To expedite the final hearing of the appeal, we direct

the appellants to put in the special messenger cost afresh

within a week from date. Immediately thereafter the

department shall call for the Lower Court Records.

Immediately, after arrival of the Lower Court

Records, the department shall examine the same and, if

found complete, shall issue notice of arrival of Lower Court

Records to the learned advocate appearing for the

appellants.

The appellants shall prepare requisite number of

informal paper books-printed, typewritten or cyclostyled, as

the case may be, out of Court, within two weeks from the

date of service of notice of arrival of Lower Court Records

and to file the same after serving copies thereof upon the

learned advocates appearing for the respondent.

The parties would be at liberty to mention for final

hearing of the appeal after filing of such paper books.

(Rai Chattopadhyay, J.) (Tapabrata Chakraborty, J.)