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High Court of Judicature at Calcutta
SYAMAL KANTI CHAKRABARTI
Sri Raghubir Chowdhury
Versus
Prameshwar Prasad & Another
S. A. T. No. 194 of 2009 with C. A. N. 10970 of 2009
Decided On : 05-10-2010
OCCUPATIONAL CHARGES - RENT DEFAULT - ORDER 21 RULE 26 READ WITH SECTION 151 CPC - HIGH COURT APPELLATE SIDE RULES CHAPTER II - SUMMARY: The High Court dismissed an application filed by the plaintiffs/opposite parties/petitioners seeking review of the order passed by the Division Bench of the High Court which fixed the occupational charges payable by the defendant/appellant at Rs. 1,000/- per month. The Court held that it had no jurisdiction to entertain such an application for the purpose of readjudicating the occupational charges and that it was improper to prejudge the issue under Order 21 Rule 26 read with Section 151 CPC which had been rejected by the Learned First Appellate Court without final disposal of the appeal preferred against such order.
Fact of the Case:
The plaintiffs filed a suit for eviction from the suit premises and recovery of khas possession on grounds of bona fide reasonable requirements and default with prayer for mesne profits for wrongful use and occupation of the suit property. The trial court decreed the suit and the defendant filed an appeal. The plaintiffs also filed a petition under Order 21 Rule 26 read with Section 151 CPC in the appeal. The first appellate court dismissed the appeal and affirmed the decree for eviction passed by the trial court. The defendant then filed a second appeal challenging the judgment and decree of the first appellate court.
Finding of the Court:
The High Court held that it had no jurisdiction to entertain the application for review of the order passed by the Division Bench fixing the occupational charges. The Court also held that it was improper to prejudge the issue under Order 21 Rule 26 read with Section 151 CPC which had been rejected by the Learned First Appellate Court without final disposal of the appeal preferred against such order.
Issues: 1. Whether the High Court has jurisdiction to entertain an application for review of the order passed by the Division Bench fixing the occupational charges? 2. Whether it is proper to prejudge the issue under Order 21 Rule 26 read with Section 151 CPC which has been rejected by the Learned First Appellate Court without final disposal of the appeal preferred against such order?
Ratio Decidendi: 1. The High Court's jurisdiction to entertain applications for review of orders passed by the Division Bench is limited to matters specified in the subjoined schedule to Rule 1(ii) of the High Court Appellate Side Rules Chapter II. None of the applications referred to therein provides any provision for review of the judgment of the Division Bench by a Single Bench on application of the party during pendency of the appeal after admission of the same by the Division Bench. 2. It is improper to prejudge the issue under Order 21 Rule 26 read with Section 151 CPC which has been rejected by the Learned First Appellate Court without final disposal of the appeal preferred against such order.
Final Decision: The High Court dismissed the application filed by the plaintiffs/opposite parties/petitioners seeking review of the order passed by the Division Bench of the High Court which fixed the occupational charges payable by the defendant/appellant at Rs. 1,000/- per month.
Syamal Kanti Chakrabarti, J.:
1. The present application has been filed for vacating conditional stay order dated 11.08.2009 passed in S. A. T. No. 194 of 2009 with C.A.N. 4442 of 2009 passed by a Division Bench of this Hon’ble Court and for fixation of occupational charges under order 21 rule 26 read with Section 151 CPC.
2. The petitioner has contended that he filed Title Suit No. 299 of 1996 before the 4th Court of the Learned erstwhile Munsif at Alipore, South 24 Parganas against the defendant for eviction from the suit premises and recovery of Khas possession on grounds of bona fide reasonable requirements and default with prayer for mesne profits for wrongful use and occupation of the suit property. Upon hearing both the parties the Learned Trial Court decreed the suit on contest on 25.04.2007 and the defendant was directed to deliver possession of the suit property within fifteen days from the date of the order failing which the plaintiffs will be at liberty to execute the same in due process of law. The suit was decreed mainly on grounds of default in payment of rent of Rs. 9,987.83 and the defendant was directed to deposit the said amount in five instalments. Thereafter the defendant preferred First Appeal against the aforesaid judgement and decree. The plaintiffs also filed petition as well as an application under order 21 rule 26 read with Section 151 CPC in the said Title Appeal no. 159 of 2007. While considering such First Appeal the Learned First Appellate Court stayed the proceedings but rejected the application under order 21 rule 26 CPC filed by the plaintiff opposite party, that means, the petitioner herein. The Learned First Appellate Court was pleased to dismiss the appeal on contest with cost on 17.12.2008 and affirmed the decree for eviction of the tenants passed by the Learned Trial Court.
3. The defendant thereafter filed the Second Appeal challenging the legality and propriety of the judgement and decree dated 17th December, 2008 passed by the Learned First Appellate Court in Title Appeal No. 159 of 2007 which is now under challenge being No. S. A. T. 194 of 2009.
4. While admitting such appeal by order dated 11.08.2009 the Division Bench of this Hon’ble Court was pleased to decide as follows:
“…….. However, from both the judgements we have not found anything whether it is first default or recurring default in paying rent. Normally in case of first default, a chance is given to rectify. We do not find such findings of the learned trial Judge and appellate court as well. Therefore, we admit the appeal on ground nos. 1 and 2.”
5. In disposing of the application for determination of the occupational charges being C.A.N. 4442 of 2009 the Hon’ble Division Bench has directed that the appellant shall pay henceforward a sum of Rs. 1,000/- as occupation charges of the premises which, according to Their Lordships, is the reasonably letting out value of that area in occupation of the tenant. Such payment shall be made on or before 7th of September, 2009 till the disposal of the appeal at the aforesaid rate. In case of failure to make the first payment or any subsequent two payments, the stay order will stand vacated. Accordingly there will be an unconditional stay till 8th September, 2009 and in the event payment, as directed above, is made, the stay will continue unless the default occurs. In case of failure the interim order will stand vacated automatically.
6. Now the plaintiff/ opposite parties/ petitioners have claimed for review of the aforesaid order which was passed by the Hon’ble Division Bench of this Hon’ble Court on the assumption that the appellant has already deposited all the arrears of rent with the Learned Court below which is a miss-statement of fact. The proceedings of the hearing recorded by the Hon’ble Division Bench in connection with the said C.A.N. 4442 of 2009 is quoted below:
“Mr. Prasad, learned lawyer appearing on behalf of the respondents does not want to file affidav
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