Calcutta High Court (Appellete Side)
Aniruddha Ghose vs Swapan Kumar Bhadra on 14 September, 2023
14.09.2023
Item no.05
CP/GB
C.O. No. 2638 of 2023
Aniruddha Ghose
Vs.
Swapan Kumar Bhadra
Mr. Sourav Sen
Mr. Debnath Mahata
......for the petitioner.
Mr. Sanjay Mukherjee
Mr. Debangshu Ghatak
Mr. Bodhisattwa Chattterjee
Mr. A. Das
....for the opposite party.
This revisional application arises out of an
order dated July 18, 2023, passed by the learned
Additional District Judge, 5th Court at Alipore in
Ejectment Appeal No. 17 of 2023. The Ejectment
Appeal arose out of a judgment and decree dated
January 25, 2023, passed by the learned Civil Judge
(Junior Division), 4th Court at Alipore in Ejectment
Suit No. 207 of 2010.
The petitioner instituted the suit for eviction
against the opposite party. The opposite party
suffered eviction decree and preferred the Ejectment
Appeal No. 17 of 2023. The judgment debtor prayed
for stay of operation of the judgment and decree. The
petitioner filed an objection to the same.
It was specifically contended that the judgment
debtor only to grab the property, had filed the appeal
as a pressure device to force the landlord/plaintiff to
sell the property to him.
The learned lower appellate court upon hearing
the parties passed a conditional stay directing
payment of occupational charges of Rs.5000 per
month payable within 10th day of each month.
Mr. Sen, learned advocate appearing on behalf
of the petitioner, has submitted that the order
impugned suffers from the following irregularities:
a) The learned court below fixed Rs.5000 per
month as the cancellation charges without
any basis. The present rate of rent of the
property would be Rs.21 per square feet.
b) Going by the above calculation, the
reasonable amount of occupational charges
should be Rs.15,000/- at least. He relies on
a valuation statement of a professional
valuer.
c) The learned lower appellate court failed to
consider that the occupational charges
should be paid from the date of the
judgment and decree and, as such, a
direction for payment of occupational
charges with the arrears ought to have been
passed accordingly.
Mr. Mukherjee, learned advocate appearing on
behalf of the tenant opposes such prayer of Mr. Sen
and submits as follows:-
a) Occupational charges are awarded by
courts in situations where a tenant who had
suffered a decree of eviction, continues to
enjoy the property in denial of the right
already accrued in favour of the landlord.
Hence, the property should be in a usable
condition.
b) The water connection had been cut off since
long and such fact would be evident from
the series of orders which have been passed
during the trial.
c) The tenant continues to use the property as
his chamber, but the property could not be
put to further use as the same is in a
dilapidated condition and completely
unusable.
d) Under such circumstances, Rs.5,000/- was
a reasonable amount.
Mr. Mukherjee further submits that a valuer's
report had been prepared by the tenant which would
indicate the damaged and dilapidated condition of
the property.
Having heard the learned advocate for the
respective parties, this Court finds that there are
certain factual disputes which are required to be
addressed by the learned lower appellate court. First
and foremost, the question as to whether the
property was in a usable condition, would have to be
decided in order to fix the rate of rent. The condition
of the premises, the condition of the building are
relevant factors. The learned court ought to have also
considered the rent which similar flats in the locality
would fetch. Moreover occupation charges should be
paid from the date of the decree. These aspects are
required to be gone into and a fresh order has to be
passed, upon hearing the application for stay. This
Court finds that the amount was fixed without
discussing the reasonableness of it. The basic factors
which led the Court to award the amount is
unavailable.
Under such circumstances, the revisional
application is disposed of with the following
directions:-
i) The order impugned is set aside.
ii) The matter is remanded to the learned
lower appellate court for a fresh decision
on the application for stay.
iii) Parties are at liberty to file their
respective affidavits with the valuation
report and other reports which they have
obtained from their respective valuers.
iv) Parties are also at liberty to file
additional documents in order to bring
on record the market rent which
similarly situated flats in the locality
fetch.
v) Upon adjudication of all the above
issues, a fresh order shall be passed.
It is made clear that the learned lower
appellate court, upon adjudication of the dispute and
upon fixation of the quantum, shall direct payment of
the same from the date of the judgment and decree.
In the meantime, the tenant shall continue to
deposit Rs.5,000/- as occupational charges, month
by month within 10th of every month till the disposal
of the stay application by the learned lower appellate
court. The arrears from the date of the decree
calculated at Rs.5,000/- shall be deposited in the
learned executing court within a month. All
payments and acceptance will be without prejudice
to the rights and contentions of the parties. The
payment so made, shall be adjusted with the final
decision.
Accordingly, the revisional application is
disposed of.
Parties are to act on the server copy of this
order.
(Shampa Sarkar, J.)
