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IN THE HIGH COURT OF CALCUTTA
TAPAN KUMAR DUTT, J.
Austin Distributors (P) Limited – Appellant
Vs.
Iswar Ganesh Chandra Jiu – Respondent
S.A. No. 98 of 2011 with CAN No. 2548 of 2011
Decided On: 12.04.2012
STAY OF EXECUTION - EVICTION DECREE - OCCUPATION CHARGES - MARKET RATE - CONDITION FOR STAY - DOCTRINE OF MERGER - APPLICABILITY - SPECIAL LEAVE PETITION DISMISSAL WITHOUT REASONS - EFFECT.
Fact of the Case:
The appellant/petitioner filed an application before the High Court seeking a stay of all further proceedings in the ejectment execution case. The respondents had filed an eviction suit against the appellant and obtained a decree for ejectment. The appellant filed a title appeal against the judgment and decree passed by the trial court, which was dismissed by the lower appellate court. The appellant then preferred an appeal before the High Court. The High Court admitted the appeal and granted an interim order of stay of all further proceedings in the ejectment execution case. The respondents filed two Special Leave Petitions before the Supreme Court, one against the order of the High Court admitting the appeal and the other against the order granting an unconditional interim order of stay. The Supreme Court dismissed both the Special Leave Petitions.
Finding of the Court:
The High Court held that the doctrine of merger did not apply in the instant case, as the Supreme Court, while dismissing the Special Leave Petitions, did not make any statement of law or finding of fact. The High Court further held that it had the power to impose appropriate conditions for extension of the interim order of stay, and that the appellant should be directed to pay occupation charges at the present market rate as a condition for the extension of the stay.
Issues: 1. Whether the doctrine of merger applied in the instant case, where the Supreme Court dismissed the Special Leave Petitions filed against the High Court's order admitting the appeal and granting an unconditional interim order of stay. 2. Whether the High Court had the power to impose conditions for extension of the interim order of stay, including a direction to the appellant to pay occupation charges at the present market rate.
Ratio Decidendi: 1. The doctrine of merger applies when a higher court passes an order or judgment that replaces or supersedes the order or judgment of a lower court. In the instant case, the Supreme Court dismissed the Special Leave Petitions without giving any reasons. According to the doctrine of merger, when a special leave petition is dismissed without giving any reasons, there is no merger of the judgment of the High Court with the order of the Supreme Court. Therefore, the High Court's order admitting the appeal and granting an unconditional interim order of stay remained valid and subsisting. 2. The High Court has the power to impose conditions for extension of an interim order of stay, including a direction to the appellant to pay occupation charges at the present market rate. The High Court, in exercising its discretion, can impose such conditions as it deems fit and proper to protect the interests of both parties.
Final Decision: The High Court disposed of the application for stay by extending the interim order of stay of all further proceedings in the ejectment execution case till the disposal of the appeal or until further orders, whichever is earlier, subject to the following conditions: (1) The appellant shall deposit the arrear occupation charges for the period February 2011 till March 2012 before the aforesaid learned Executing Court @ Rs. 4,00,000/- per month by 12 equal monthly installments. Such deposits shall be made within the last date of each month till the entire arrear is liquidated and the first of such deposits shall be made by 31st May, 2012. (2) The appellant shall deposit the current occupation charges @ Rs. 4,00,000/- per month before the aforesaid learned Executing Court concerned by the seventh of each month succeeding the month for which it becomes due and the 1st of such deposits shall be made by the appellant, as aforesaid by 7th May, 2012 for the month of April, 2012 and thereafter the appellant shall go on making such deposits by the seventh of each month succeeding the month for which it becomes due, as aforesaid, till the disposal of the appeal or until further orders whichever is earlier. (3) The appellant shall deposit the decretal costs, if any, before the aforesaid learned Executing Court concerned within four weeks from this date. (4) The appellant shall prepare the requisite number of paper books out of Court and file the same in the Department concerned within four weeks from the date of receipt of notice of arrival of the lower Court records.
Tapan Kumar Dutt, J.
1. This Court has heard the learned Advocates for the respective parties in respect of the application being CAN 2548 of 2011. The respondents had filed the eviction suit concerned against the appellant and in such suit the respondents had also prayed for mesne profits. The learned Trial Court by its judgment and decree dated 10th June, 2009 decreed the said suit by granting a decree for ejectment of the appellant from the suit property and the appellant was directed to deliver vacant peaceful possession of the suit property in favour of the respondents within 30 days from the date of the said judgment and decree. The learned Trial Court also passed an order of mesne profits which may be determined in terms of the provisions of order 20 Rule 12 of the Civil Procedure Code. The appellant filed the title appeal concerned against the judgment and decree passed by the learned Trial Court and the learned lower Appellate Court by judgment and decree dated 31st January, 2011 dismissed the said title appeal oil contest. It further appears that a cross-appeal which was filed by the respondents was allowed and the findings of the learned Trial Court with regard to the point No. 3 was set aside and the judgment and decree passed by the learned Trial Court was affirmed with modification in light of the observations made by the learned lower Appellate Court.
2. Challenging the said judgment and decree passed by the learned lower Appellate Court the appellant has preferred the instant appeal.
3. The instant appeal has been admitted by an Hon'ble Division Bench of this Court by Order dated 29th April, 2011. It appears that the present application for stay of all further proceedings in the ejectment execution case concerned was moved and the said Hon'ble Division Bench by the said order dated 29th April, 2011 was pleased to give directions for filing of affidavit-in-opposition and affidavit-in-reply. As it appears that the learned Advocate for the respondents had appeared before the Court on the said day and the Office was directed to incorporate the caveat in the records of the case. The Hon'ble Division Bench by the said order dated 29.4.2011 was pleased to direct that the application for stay should come up for hearing before the appropriate Bench and the said Hon'ble Court was pleased to grant stay of further proceedings in the ejectment execution case No. 9 of 2009 pending before the learned Civil Judge (Junior Division), Additional Court at Sealdah, South 24-Paraganas, during the pendency of the application. Their Lordships were pleased to clarify that the pendency of the appeal shall not prevent the learned Trial Judge from proceeding with the mesne profits-proceedings, but the said learned Trial Judge shall not pass the final order without the leave of this Court.
4. It appears from the submissions made by the learned Advocates for the respective parties that two Special Leave Petitions were filed before the Hon'ble Supreme Court of India. One of such Special Leave Petitions arose out of the order by which the said Hon'ble Division Bench of this Court was pleased to admit the appeal for hearing (petition for Special Leave to Appeal (Civil) No. 25948 of 2011). The other Special Leave Petition arose out of the order by which the Hon'ble Division Bench of this Court was pleased to grant an unconditional interim order of stay of all further proceedings in the aforesaid ejectment execution case during the pendency of the present application for stay. The Hon'ble Supreme Court by order dated 17.10.2011 was pleased to pass the following order:
Having considered the pleadings in the case, the materials placed on record and the submissions of the learned Counsel, we do not find any merit in the Special Leave Petitions and hence the Special Leave Petitions are dismissed.
5. The said application for stay has, thereafter, come up for final hearing before this Court after the parties have filed their respective affidavits.
6.
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