Mir Jamaluddin vs Najera Hossain

Ishan Chandra Das, J—Heard the learned Advocate for both the parties.

In the instant revisional application, the petitioner being the appellant of the Ejectment Appeal No. 25/2013 has questioned the propriety of the Order No. 7 dated 29th November, 2013 passed by the learned Additional District Judge, 1st Court at Sealdah, while staying the operation of the Ejectment Execution Case No. 20 of 2013 pending before the learned Civil Judge (Junior Division), Additional Court, Sealdah.

The learned Counsel for the petitioner submitted that his client was a tenant in respect of a part of the premises, being the subject matter of Ejectment Suit No. 234 of 2005, consisting of one room and adjacent varendah with common bath and privy and common courtyard in the ground floor, formerly southern portion of the building at Premises No. 153/3B of Karaya Road, P.S. Beniapukur measuring about less than 200 sq.ft. at a rental of Rs. 20/- per month. Drawing my attention to the Commissioner''s report at page 58 of the application, he pointed out that his client was ready to pay the occupational charges for occupying the premises in question but criticising the findings of the learned First Appellate court, he drew my attention to the order impugned and submitted that the learned court below while staying the execution process directed his client to pay a sum of Rs. 5,000/-per month as occupational charges in respect of one room and adjacent varendah with common bath and privy and common courtyard measuring less that 200 sq.ft. though he was a tenant in respect of the said premises at a rental of Rs. 20/- per month. He with all fairness admitted that the area where the demised premises is located is at the heart of the city of Calcutta but at the same time, financial condition of his client and the rate of rent paid by him immediately before the decree of eviction of his client takes place should be considered before arriving at a conclusion regarding direction of payment of the occupational charges in respect of an area which is less than 200 sq.ft. being the subject matter of Ejectment Appeal No. 25/2013.

His learned counterpart, on the other hand, submitted that the petitioner was inducted in respect of 592 sq.ft. and urged that the learned court below while passing the order impugned considered the pros and cons of the matter in question and came to the conclusion that the petitioner should be directed to pay a sum of Rs. 5,000/- per month towards the occupational charges. Drawing my attention to the averments as contained in the body of the plaint of Ejectment Suit No. 234 of 2005, he submitted that his client tried to file the suit for eviction of the tenant on the ground of defaulter in payment of rent as well as reasonable requirement in respect of the tenanted premises located in such an area where the rate of rent is very high and the opposite party should not be asked to take a lenient view particularly when his client has been denied to enjoy the fruit of the decree for the time being. Clarifying the provision of Order XLI Rule 5 of the Code of Civil Procedure, he urged that mere preferring an appeal does not operate as a stay on the decree or order appealed against but he admitted with all fairness that the appellate court has discretion to grant an order of stay subject to the conditions as enumerated in Rule 5(3) of Order XLI of the Code.

In this context, learned Counsel for the petitioner relied on a decision of the Hon''ble Apex Court in the case of Atma Ram Properties (P) Ltd. Vs. Federal Motors Pvt. Ltd., (2005) 1 CTC 53 : (2004) 10 JT 410 : (2005) 141 PLR 643 : (2004) 10 SCALE 345 : (2005) 1 SCC 705 and urged that the Hon''ble Apex Court laid down the principles in deciding the matter in question which is quoted below:

"19. To sum up, 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 (1) 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."

In this context, the finding of the learned court below which is called in question in the present revisional application cannot be overlooked and the same is quoted below for coming to the right decision of the case:

"Having heard the submission of the both the sides and keeping in mind the necessity for granting stay, I am inclined to say of operation of the impugned eviction order.

It appears that as a condition for say of the execution of the impugned eviction order the Appellant/Plaintiff should be called upon to pay reasonable charges for use and occupation of the tenanted premises in view of the decision rendered by Hon''ble Supreme Court in Atma Ram Properties (P) Ltd. Vs. Federal Motors Pvt. Ltd., (2005) 1 CTC 53 : (2004) 10 JT 410 : (2005) 141 PLR 643 : (2004) 10 SCALE 345 : (2005) 1 SCC 705 . The present market rate of rent in respect of premises in question which is in a prime area of Kolkata city and the appellant is in occupation of the tenanted premises measuring about 592 sq.ft. would be around Rs. 15,000/- p.m. as per submission of the respondent.

Without going into a detailed enquiry as to what would be the present market rent of the premises in question and only considering the fact that the premises in question is located in a prime area i.e. at Karaya Road, the appellant is directed as a condition of say of the execution of the impugned eviction order to pay a sum of Rs. 5,000/- p.m. as occupational charge to the Respondent/Defendant from the date of impugned judgement of eviction till the disposal of the appeal. The area shall be cleared within two months and the current amount will be paid by the 10th day of each succeeding calendar month to the bank A/C. of the Respondent. The Respondent would furnish the bank A/C. Particulars to the appellant within 15 days.

In case of default, the appellant shall become liable to be evicted forthwith. The amount paid by the appellant shall be subject to the final outcome of the appeal without perjudicial to the rival contentions of the merits of the Appeal."

Frankly speaking, the petitioner was a tenant in respect of a premises measuring 592 sq.ft. as it is evident from the agreement produced in course of hearing by the learned Counsel for the opposite party and his learned counterpart did not dispute the same but contended that the opposite party/landlord bifurcated the same in a tricky manner. Drawing my attention to the averments of the written statement at pages 39 to 40, he pointed out that the entire tenancy of the petitioner has been partitioned by the opposite party and filed two suits for eviction in respect of the area which was tenanted to him by the agreement dated 18th December, 1984 and he also urged that the learned court below held that the area of the tenanted portion in this suit as well as the Ejectment Suit No. 233 of 2005 were 592 sq.ft. each but in reality it is 592 sq.ft. in total which was divided into two portions. In the order impugned, learned court below held that the tenanted area in Ejectment Appeal No. 25/2013 cannot be 592 sq.ft. but it is less that 200 sq.ft.

Hence, if I accept the valuation as submitted by the learned Advocate for the opposite party herein then the occupational charges in respect of one room and adjacent varendah with common bath and privy and common courtyard should be less than the amount fixed by the learned court below. In other words, the amount so fixed by the learned court below should be reduced to some extent.

Having regard to the facts of the case and in the light of the decision of the Hon''ble Apex Court in Atma Ram Properties (P) Ltd. (Supra), the occupational charge is reduced to Rs. 3,000/- per month.

Accordingly, the order impugned stands modified to the extent as indicated hereinabove.

With the aforesaid modification of the order impugned, this revisional application stands disposed of.

I make no order as to costs.

Let urgent xerox certified copy of this order, if applied for, be given to the learned Advocate of the parties on usual undertaking.