Calcutta High Court
Amit Newar And Anr vs Mohammed Islam on 3 November, 2025
Author: Aniruddha Roy
Bench: Aniruddha Roy
OC - 12 IN THE HIGH COURT AT CALCUTTA
Commercial Division
ORIGINAL SIDE
IA NO. GA/5/2022
[OLD NO CS/115/2021]
In CS-COM/276/2024
AMIT NEWAR AND ANR
Vs
MOHAMMED ISLAM
BEFORE :
THE HON'BLE JUSTICE ANIRUDDHA ROY
Date : 03rd November, 2025.
Appearance :
Mr. K. R. Thaker, Sr. Adv.
Mr. Kanishk Kejriwal, Adv.
Mr.Ramendu Agarwal, Adv.
... for the plaintiff.
Mr. Arik Banerjee, Adv.
Mr. A. Roy, Adv.
... for the defendant.
The Court :- This is an application filed by the plaintiffs landlord praying
for a summary judgment for eviction of the defendant tenant.
The matter has a little chequered history. The defendant tenant herein
had filed a previous suit which is pending before the learned City Civil Court
touching the self-same premises claiming protection of his alleged tenancy right.
The said suit is pending before the learned City Civil Court. Subsequent thereto,
the plaintiffs herein filed the instant suit claiming decree for eviction against the
defendant touching the self-same premises.
In this situation, the defendant tenant has filed an application under
Section 10 of the Code of Civil Procedure praying for stay of the instant suit
which is a subsequent suit. The said application was registered as GA/4/2022.
2
The hearing of the said application was concluded and the judgment was
reserved by a Coordinate Bench on January 24, 2023.
Considering the above facts and situation, this Court is of the considered
view that so long the application for stay of the instant suit is pending, as the
judgment stands reserved, this Court shall not proceed with the instant
application filed by the plaintiff praying for summary judgment for eviction.
Later, this Court has been informed that the application being
GA/1/2021 has been filed by the plaintiff against the defendant claiming the
occupation charges. The said application was allowed directing the defendant to
pay the occupation charges in the mode and manner as directed in the order
dated January 24, 2025 passed in GA/1/2021 by a Coordinate Bench. The
defendant preferred an appeal and the Hon'ble Division Bench by its judgment
and order dated May 20, 2025 has dismissed the appeal and the order of the
Coordinate Bench dated January 24, 2025 was not interfered with.
Plaintiffs thereafter has filed an execution proceeding being
EC(COM)/156/2025. In the said application, the defendant has filed its
affidavit of assets and the same is fixed for examination of the judgment
debtor on November 24, 2025.
The observation of the Hon'ble Division Bench from the order dated May
20, 2025 is quoted below:-
"We cannot countenance a situation where a person
shall enjoy the property belonging to another completely free of
cost. While the respondents/plaintiffs say that the appellant
herein paid rent/occupation charge last in the month of August,
2019, the appellant/defendant says that he paid rent till
November, 2019. To avoid any controversy, the learned Judge
directed the appellant to deposit occupational charge from
December 2019. The learned Judge relied on an admission of the
appellant in his affidavit-in-opposition filed in connection with GA
No. 1 of 2021 which has been extracted above as part of the
impugned order. There indeed is a clear admission that the
agreed rent was enhanced to Rs.1,09,250/-. There is also an
admission that the appellant paid rent to the respondents only till
November, 2019. It is, however, the appellant's contention that
after that, the respondents refused to accept online payment of
rent from the appellant. This is disputed by the
respondents/plaintiffs.
Be that as it may, it seems to be fairly clear and
undisputed that since December, 2019, the appellant has not paid
a farthing to the respondents but continues to occupy the suit
premises. This cannot be permitted. There is an agreed rent
between the parties. The Division Bench judgment in the case of
Poonam Kejriwal, supra, relied upon by the appellant is
distinguishable. In that case there was no agreement between the
defendant who was asked to put in occupational charge, and the
landlord. It was held that a trespasser could not be directed to put
in occupational charge during the pendency of the suit before
assessment of damages.
In view of the aforesaid, we do not find any infirmity in
the order of the learned Single Judge which is sought to be
assailed before us. It is a perfectly fair and reasonable order."
In view of the forgoing reasons and discussions, the instant application
being IA No. GA/5/2022, the application for summary judgment stands
adjourned sine die with liberty to mention to the parties upon notice to each
other, at the appropriate stage.
As this Court has already been informed, EC(COM)/156/2025 shall
appear in the list on November 24, 2025, as already directed by the Coordinate
Bench, under the heading 'Examination of Judgment Debtor'.
(ANIRUDDHA ROY, J.)
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