Gopi Kishan Jhunjhunwala & Anr vs Kusum Agency

The present revisional application under Article 227 of the Constitution of India is directed against order no. 7 dated November 08, 2017 and order no. 8 dated December 19, 2017 passed by the learned Chief Judge, City Civil Court at Calcutta in Title Appeal No. 27 of 2017.

The petitioners filed a suit being ejectment suit No. 519 of 2012 for recovery of khas possession of the suit property being one office- cum- shop room measuring about 675 sq. ft. lying and situate at the second floor of the premises No. 2 Mohan Lane, Police Station, Burrabzar Kolkata 700007 on the grounds of default in payment of rent and the petitioners require the suit property for their own use and occupation. The learned Trial Judge decreed the said suit on September 8, 2016.

The opposite party being aggrieved by and dissatisfied with the said decree preferred Title Appeal No. 27 of 2017. The opposite party in the said appeal filed an application for stay of operation of the judgment and decree under challenge during the pendency of the said appeal.

The learned Judge of the appeal Court below by the first order impugned i.e. order no. 7 dated November 8, 2017 has fixed the occupational charges @ Rs.25,000/- per month with effect from the date of decree i.e. September 08, 2016 as the condition for grant the stay as prayed for by the opposite party.

The petitioners have challenged the quantum of the said occupational charges inasmuch as according to the petitioners the occupational charges of the suit property is much higher than that of the amount which has been fixed by the learned Judge of the appeal Court below. Mr. Chatterjee, appearing on behalf of the petitioners submits that the petitioners by an application filed a deed of lease dated September 2, 2014 by which the petitioners let out an area of 2300 sq. ft. of the suit premises at a monthly rent of Rs. 1,75,000/-. The said document if is taken into consideration the occupational charge of the suit property would be not less than Rs. 80,000/- per month.

Mrs. Manot, learned advocate on behalf of the opposite party submits that the order under challenge was passed in the year 2017 and her client is paying the occupational charges in terms of the said order without any default. The appeal is at the verge of disposal at this stage the order impugned may not be disturbed.

Heard learned advocate for the parties perused the materials on record.

On perusal of the order impugned it appears that the learned Judge of the appeal Court below only on consideration of the location of the suit property assessed the occupational charges @ Rs. 25,000/- per month. There is no reflection in the order No. 7 dated November 8, 2017 that the lease deed dated September 2, 2014 was produced before the learned Trial Judge for his consideration. The said document being a lease deed whereby a lessee has been inducted in the year 2014 in respect of another portion of the self-same premises where the suit property is situated, is certainly a relevant piece of document for the purpose of determination of the occupational charges of the suit property.

The learned Judge of the appeal Court below, therefore, is requested to decide the application for stay filed by the opposite party afresh taking into consideration of the said deed of lease for the purpose of assessment of the occupational charges of the suit property.

The operation of the judgment and decree under challenge in the Title Appeal No. 27 of 2017 shall remain stayed till the application for stay is disposed of by the learned Judge of the appeal Court below afresh, subject to regular payment of occupational charges @ Rs. 25,000/- per month by the opposite party as fixed by the order No. 7 dated November 8, 2017.

By the second order impugned, i.e. order no. 8 dated December 19, 2017, the learned Trial Judge has fixed a date for hearing of the application filed by the opposite party prying sixteen monthly installments to liquidate the arrear occupational charges. Mrs. Manot, learned advocate appearing on behalf of the opposite party has already liquidated the arrear occupational charges, therefore, the said application of her client has now become infructuous. In view of such submission of Mrs. Manot, the order No. 8 dated December 19, 2017 does not call for any interference.

It is made clear that the learned Judge of the appeal Court below is free to fix the quantum of the occupational charges of the suit property in accordance with law but while assessing such occupational charges shall take into his consideration of the said deed of lease dated September 2, 2014.

The learned Judge of the appeal Court below is requested to make all endeavour to dispose of the application for stay within the month of February, 2019.

With the above observation, the revisional application being C.O. 48 of 2018 is disposed of.

Urgent photostat certified copy of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.