Utpal Ghosh vs Manas Kumar Mukherjee

Subhasis Dasgupta, J

The impugned Order No.14 dated 13.03.2018, passed by Learned Judge, VIII Bench, City Civil Court, Calcutta in Title Suit No.1360 of 2015 granting

occupational charges at the rate of Rs.3,000/- per month is subject of challenge in this revisional application.

Learned advocate for the petitioner precisely challenged the order granting occupational charges on the ground that the claim to obtain occupational

charge in respect of the premises under the possession of petitioner was not maintainable in a case where the petitioner lawfully inherited the tenancy

from his father upon his death, and for the refusal to receive the rent by the landlord/opposite party on being lawfully tendered, the rent had already

been deposited with the Rent Controller.

It was, thus, contended by the learned advocate for the petitioner that the order granting occupational charges was a consequence of exercise of

authority most improperly by the learned trial Judge forgetting the nature of the suit, where there was no prayer for eviction of tenant.

Per contra, learned advocate for the plaintiff/landlord adverting to a copy of plaint submitted that the pending suit was for declaration and permanent

injunction with a further prayer for recovery of possession and damages, which had been precisely shown against the caption ‘Concise

Statements’ at the title page of the suit, and reference of which was further enforced by incorporating a specific averment contained in para 15 of

the plaint, which was sufficient enough to reveal that petitioner had been sought to be evicted from his illegal occupation in respect of the scheduled

property by necessary implication.

It was, thus, contended by the opposite party/landlord that though prayer portion of the plaint inadvertently failed to incorporate a specific prayer for

recovery of possession, as against the petitioner in respect of the schedule premises, but the same could not be taken to be a strong ground to refuse

the prayer for occupational charges, as the prayer for recovery of possession might be enforced at any time by bringing about an amendment of plaint

to the prayer portion of the plaint in terms of the averment already contained in para 15 of the plaint.

Learned advocate for the opposite party/plaintiff further contended that the father of the petitioner having died in the year 2008, the petitioner could

not be permitted to remain in possession in respect of the scheduled premises claiming right of tenancy by way of inheritance, as the tenancy held by

his father was not permitted to be continued for a period above 5 years in terms of the provisions contained in Section 2(g) of W.B.P.T. Act, 1997.

The suit, thus, having instituted in the year 2015, the possession of the petitioner could safely taken to be an illegal occupier in respect of the scheduled

premises, and for obtaining the desired relief, the opposite party/plaintiff had already instituted a suit containing several prayers in the pending suit. In a

nutshell, according to opposite party, there left nothing to be interfered with the order impugned.

The only point to be addressed by this Court is whether the impugned order granting occupational charges was rightly granted in context with the rival

claims of the parties or not. It would be profitable here to mention the prayers incorporated in the prayer portion of Title Suit No.1360 of 2015 filed by

the petitioner, which may be mentioned as hereunder:

a) That the plaintiff prays before the Ld. Court for declaration that the plaintiffs is the owner of Premises No.42/A, B. K. Paul Avenue formerly

known as 32A, Ahiritola Street, Police Station â€" Jorabagan, Kolkata-700 005 which is the suit property and the premises inherited from his

predecessor;

b) Further declaration that the plaintiff was the Landlord of Kali Das Ghosh, since deceased according to the West Bengal Premises Tenancy Act,

1997 as amended up to date and the said tenancy has been ceased according to the said Law after demise of Kali Das Ghosh;

c) Further declaration that the defendant is a illegal occupier of the suit premises more fully described in the schedules mentioned hereunder written

having no right title over the suit premises;

d) Further declaration that the plaintiff is entitled to get damages of Rs.5,000/- per month since 2008 i.e. the demise of Kali Das Ghosh from the

defendant;

e) Further declaration that the plaintiff is entitled to realization of damages on and from the date of death of Kali Das Ghosh by way of attachment of

the property of the defendant;

f) Permanent injunction may be passed against the defendant and his men and agents and/or in the name of any other person not to hand over the

possession of the suit premises morefully described in the schedules hereunder written;

g) Declaration that the plaintiff is entitled to get monthly damage charges @ Rs.5,000/- per month in respect of the Schedules mentioned property

during the pendency of the suit;

h) Ad-interim injunction order and/or ad interim order/orders against the defendant in terms of prayer (f) & (g) made above and/or any other

appropriate order may be passed till the disposal of the suit;

i) Further injunction if required during pendency of the suit;

j) Appointment of Learned Advocate Commissioner for affecting the proper picture of the scenario of the suit premise as mentioned in the schedules

under reference for proper adjudication of the suit as needed from time to time;

k) Commission

l) Receiver

m) Cost of the suit/proceeding and Advocate’s fees.

n) Leave may be granted under Order 11 Rule 11 read with Order 2 of the Code of Civil Procedure read with section 151 of the said code.

o) Leave to file original documents relating to the proceeding.

p) Any other relief or relieves plaintiff is entitled for.

Admittedly, the father of the petitioner was inducted as tenant in respect of the schedule premises, mentioned in the scheduled to the plaint. The

tenancy of the father of the petitioner comprised of five rooms situated at B. K. Paul Avenue, a prime locality of Kolkata under Jorabagan Police

Station. Indisputably, the petitioner inherited the tenancy after his father left the world in 2008. The claim of tenancy in respect of the schedule

premises is, thus, on the basis of claim of inheritance, as regards the tenancy held by the father of the petitioner. There is appropriate provisions

contained in the West Bengal Premises Tenancy Act to decide the issue regarding the applicability of Section 2(g) of the Act at the right point of time

by the learned trial court.

The opposite party/plaintiff claimed for damages at the rate of Rs.5,000/- per month as against the petitioner/defendant, the reference of which is seen

in Serial No. ‘g’ of the prayer portion of plaint.

By the impugned order the learned court below granted occupational charges at the rate of Rs. 3,000/- per month, as against a claim of Rs.5,000/-,

with effect from the date of the order, to be operative for the next one year or till disposal of the suit, whichever is earlier.

While assailing the order impugned, the learned advocate for the petitioner banking upon para 10 of the w/s submitted that since the petitioner inherited

the tenancy after the demise of his father in 2008 and since opposite party/plaintiff refused to accept the rent on being lawfully tendered, the rent in

respect of the schedule premises had been deposited with Rent Controller Kolkata in the credit of petitioner/plaintiff and when there had been no

specific prayer incorporated in the prayer portion seeking eviction of tenant, the prayer for occupational charges could not be granted, as the same

would be a premature consideration, which was against the spirit of the law. It is true that in so many words there was no specific prayer as regards

eviction of the petitioner from the scheduled premises, though there were several prayers contained in the plaint of pending suit. But when nature of

the suit was mentioned by way of furnishing a Concise Statements, captioned in the title page of the suit, and when there was specific averment

contained in para 15 of the plaint revealing recovery of possession of the schedule premises, it would be a matter of inference as to what the opposite

party/plaintiff contemplated to do by way of filing this suit. Therefore, what could not be incorporated in the prayer though there was specific

averment in the plaint, the same could not be a ground to refuse the prayer for occupational charges, because such prayer for recovery of possession

at the choice of the opposite party/landlord may be enforced at any point of time with the aid of amendment, specifically when there has been no

commencement of trial in respect of the instant suit.

Learned advocate for the opposite party relying upon a decision reported in 2014(2) ICC 349 rendered by Learned Single Judge of a Coordinate

Bench of this Court in the case of Kanak Projects vs. Oil and Natural Gas Corporation Ltd. submitted that in a pending suit it was very much within

the authority of the learned trial court to grant occupational charges on a provisional estimation subject to the adjudication at the time of final hearing

of the suit.

While rendering such decision by a Coordinate Bench of this Court the Learned Judge had relied upon a decision rendered in the case ofA tma Ram

Properties (P) Ltd. v. Federal Motors (P) Ltd. reported in (2005) 1 SCC 70 5amongst others shown in the body of the judgement. The principle

enunciated in the case of Atma Ram Properties (P) Ltd. (Supra) was thus borrowed while putting the defendant on terms for occupation of the

property, the defendant held, on a provisional estimation. Since it is a settled proposition of law that even an illegal occupier/trespasser cannot be

thrown out of the property, before a decree is passed by a Court, the scope of granting occupational charges was conceptualised.

A specific period has been mentioned in Section 2(g) of the W.B.P.T. Act, 1997 permitting the legal heirs to occupy the tenanted premises in the

event of death of an original inducted tenant retaining possession of the tenanted premises, and beyond the period of which is supposed to be

governable by the mischief contained in such provision.

It was not in dispute with the quantum of the occupational charges granted by the learned trial court, but the dispute was with regard to the

maintainability of the claim of occupational charges, as advanced by the o.p./landlord. It is the spirit of the law that the petitioner should not be placed

in a more favoured position than that of a tenant. The principle of law laid down by the Hon’ble Apex Court in the case of Atma Ram Properties

(P) Ltd. (Supra) being considered in the judgement as referred by the opposite party, in the absence of anything others to the contrary being strongly

shown by the petitioner assailing the order impugned, this Court would sincerely accept the same subscribing similar view, as already reached by the

Learned Single Judge of this Court.

Since the schedule premises being situated within a prime locality of Kolkata, the quantification of provisional estimation of occupational charges,

though not challenged, fixed at the rate of Rs.3,000/-, cannot be doubted branding the same to be perverse. With the discussion made hereinabove, the

revisional application fails being without any merits.

The impugned order No.14 dated 13.03.2018 passed by Learned Judge, VIII Bench, City Civil Court, Calcutta in Title Suit No.1360 of 2015, would,

thus, go unaltered.

The instant revisional application accordingly stands disposed of.

Urgent certified photostat copy of this judgement, if applied for, be given to the parties as expeditiously as possible on compliance of all necessary

formalities.