HIRALAL SHAW Vs. BHARATI MANNA

JUDGEMENT

(1.) This is an application filed by the appellant tenant praying for stay of Ejectment Execution Case No. 19 of 2013 filed by the respondent plaintiffs in the Court of learned Judge 4th Bench, Small Causes Court at Calcutta in terms of Eviction decree dated 10th of October, 2012 passed by learned Judge, City Civil Court, 5th Bench at Calcutta in Title Appeal No. 48 of 2010 reversing the judgement and decree dated 7th of June, 2010 passed by learned Trial Court in Ejectment Suit No. 382 of 2003. In connection with said application of stay parties filed affidavit-in-opposition, affidavit-in reply as well as supplementary affidavits. The admitted fact is that the petitioner tenant was in possession of the suit godown under O.P. landlord at a rental of Rs. 363 per month. Though the suit for eviction filed by the O.P. landlord failed in the trial court but it succeeded in lower appellate court vide judgement and decree dated 7th of June, 2010. As the second appeal has been admitted the petitioner tenant is entitled to get an order of stay of execution of said eviction decree through any execution case till disposal of the second appeal. Now the question is what will be the terms of said order of stay.

(2.) Mr. S.P. Roychowdury, learned senior counsel appearing for the petitioner tenant, submits that though the O.P. landlord is at liberty to get occupational charges from the petitioner tenant for occupation of the suit premises even after passing of an order of eviction but said amount cannot be excessive or repressive. He next submits that at the time of fixation of said rent the court should keep in mind the relevant provisions of fixation of fair rent as per the concerned rent regulation. In support of his contention he refers case laws Niyas Ahmad Khan v. Mahmood Rahmat Ullah Khan and another, 2008 7 SCC 539 and State of Maharashtra and another v. Super Max International Private Limited and others, 2009 9 SCC 772. He further submits that in the affidavit-in-reply the petitioner tenant has enclosed one copy of rent receipt showing payment of rent including taxes at the rate of Rs.1000/- per month for one shop room measuring about 17' X 4'6" in that area. He has also referred the enclosed report of one chartered engineer and valuer to show that the market rent of said old godown measuring about 1400 square ft. was around Rs. 11,200/- per month taking the unit rate at the rate of Rs. 3 per square foot.

(3.) Mr. Jahar Chakraborty, learned counsel appearing for the O.P. landlord, on the other hand, submits that from the judgment of Atmaram Properties Pvt. Ltd., 2005 1 SCC 705, there were consistent views of the Hon'ble Apex Court as well as of this Court that a tenant suffering an ejectment decree can be permitted to occupy the suit premises only on payment of occupational charges at the rate of current market rent from the date of passing of the decree and not the contractual rent. According to him, there is no scope of considering the fair rent as per relevant Rent Act as it was not a case of fixation of rent of a premises in occupation of a lawful tenant rather it was a case of occupation of the suit premises by a person suffering an eviction decree and having present status as that of a trespasser. In this connection he refers a case law Anderson Wright and Co., v. Amar Nath Roy and others., 2005 AIR(SC) 2457 He also refers the report of the engineer valuer enclosed with the affidavit-in-opposition wherein said valuer opined that the current market rent of said old godown measuring about 1550 square feet was not less than Rs. 80 per square foot keeping in mind the market rent of godown in that area to be Rs.125 per square foot. In this connection he has also referred the market value/chargeability assessment slip of the suit godown to show that the present day market value of the suit godown is rupees one crore eighty one lakhs and odd as per current valuation of the property.