T vs Jayanta Kumar Basu
2023 Latest Caselaw 4986 Cal

                                 In the High Court at Calcutta
                                  (Civil Appellate Jurisdiction)
                                           Appellate side
               C
   65
                                   S.A. 159 of 2018
11.08.2023
  Ct-237 o                               With
    (RD)                             CAN 3 of 2023
           u
          r                      Shib Shankar Ghosh.
          t                              Vs.
                                 Jayanta Kumar Basu.
          N
          .

Mr. Chandraday Roy, Adv.

Mr. S.A. Joynal, Adv.

S Mr. Md. Ibrahim, Adv.

l .... For the Appellant

Mr. Arnab Roy, Adv.

Mrs. Sayani Ahmed, Adv

/ ... For the Respondent/Applicant. C L

This application has been filed for modification of the

judgement and order dated 18.5.2023 passed by this

Court. Directing the opposite party/ appellant to pay a

sum of Rs. 10,000 per month as occupational charges.

Ld. Advocate, Mr. Chandraday Roy,

appearing on behalf o the petitioner by referring to the

ratio of the case of Atma Ram Properties (p) LTD. Vs.

Federal Motors (P) LTD. reported in (2005) 1 SCC 705,

submitted that though direction was given upon the

opposite party/ appellant to pay the occupation charge

of Rs. 10,000/- per month but no order was made giving

date of effect of the liability to pay occupational charge.

In support of his submission he relied on

paragraph 19 i.e. conclusion of the Hon'ble Apex Court

in Atma Ram (supra) which is quoted below:-

"19. To sum up, our conclusions are: (1) While passing an order of stay under Rule 5 of Order 41 of the Code of Civil Procedure, 1908, the appellate court does have jurisdiction to put the applicant on such reasonable terms as would in its opinion reasonably compensate the decree-holder for loss occasioned by delay in execution of decree by the grant of stay order, in the event of the appeal being dismissed and insofar as those proceedings are concerned. Such terms, needless to say, shall be reasonable.

(2) In case of premises governed by the provisions of the Delhi Rent Control Act, 1958, in view of the definition of tenant contained in clause (l) of Section 2 of the Act, the tenancy does not stand terminated merely by its termination under the general law; it terminates with the passing of the decree for eviction. With effect from that date, the tenant is liable to pay mesne profits or compensation for use and occupation of the premises at the same rate at which the landlord would have been able to let out the premises and earn rent if the tenant would have vacated the premises. The landlord is not bound by the contractual rate of rent effective for the period preceding the date of the decree.

(3) The doctrine of merger does not have the effect of postponing the date of termination of tenancy merely because the decree of eviction stands merged in the decree passed by the superior forum at a latter date."

Ld. Advocate, Mr. Arnab Roy, on

behalf of the opposite party/ appellant has submitted by

distinguishing mesne profit and occupational charge,

that mesne profit does not include occupational charge

and therefore, petitioner is not entitle to any

occupational form the date of the decree passed by the

Trial Court .

I am not agreeable with Mr. Roy,

Hon'ble Apex Court in Atma Ram case (supra)

expounded with clarity that there is no difference

between mesne profit and occupational charge which is

liable to be paid with effect from the date of passing

decree of eviction by observing in penaltinum paragraph

as follows:-

" ..........It terminates with the passing of the decree for

eviction. With effect from that date, tenant is liable to pay

mesne profits or compensation for use and occupation of

the premises........."

Therefore, by no stretch of imagination,

it can be said that opposite party/ appellant is not liable

to pay occupational charge with effect from the date of

decree passed by the Trial Court.

Mr. Roy has, alternatively, submitted by

referring to the documents annexed with the affidavit in

opposition, that petitioner already received occupational

charge for three months after judgment and order dated

18.05.2023 passed by this Court and thereby petitioner

waived his right to claim the occupational charge from

the date of decree.

Again I am sorry to subscribe to the view

on the issue of 'waiver'. Receiving of current

occupational charges cannot be said to be an' waiver' of

arrears claim.

Mr. Roy did not raise any objection

regarding prayer for withdrawal of a sum of Rs.

1,00,000/- deposited by the opposite party/ appellant in

the concerned department of this Court.

In the aforesaid view of the matter prayer

for modification stands allowed. Opposite party/

appellant is directed to pay the arrear occupational

charges from the date of decree of eviction passed by the

Ld. Trial Court within 12 weeks from date.

Petitioner is at liberty to withdraw the

amount of Rs. 1,00,000/- as prayed for.

With the aforesaid observations, CRAN 3

of 2023 stands disposed of.

All parties to this application shall act on

the server copy of this order downloaded from the official

website of this Court.

Urgent Photostat certified copy of this

order, if applied for, be supplied to the parties upon

compliance with all requisite formalities.

(Bibhas Ranjan De)