The definition of a tenant under Section 2(h) of the West Bengal Premises Tenancy Act, 1997, which includes any person continuing in possession after the termination of tenancy until a decree for eviction is passed, protects the tenant's rights and prevents the Court from ordering the payment of occupational charges at a rate higher than the contractual rent during the pendency of an eviction suit.

1. Before proceeding to record my reasons on disagreement with the judgment delivered by the Co-ordinate Bench in case of Kanak Projects Limited Vs. Oil and Natural Gas Corporation Ltd. reported in (2014) 2 CHN (Cal) 405 it would be relevant to record the salient facts of the instant revisional application.

2. The petitioner filed a suit for recovery of Khas possession, arrear rent and mesne profit before the learned Civil Judge (Senior Division), 1st Court, Howrah being Title Suit No. 490 of 2015. The case made out in the plaint are adumbrated herein below :-

(i) The defendant is a tenant in respect of a godown along with an office and a staff quarter admeasuring 5000 sq. ft. at premise no. 14, Kartick Chandra Dutta Road, Ramkrishnapur, Howrah at a monthly rental of Rs. 1800/- payable according to English Calendar;

(ii) The said premise was intended to be used for commercial purposes but the tenant failed and neglected to pay the rent on and from the month of October, 2013;

(iii) The defendant has wrongfully and illegally handed over the possession of the godown to one Manish Seth for carrying on the business of manufacturing pens and refills without the written consent of the plaintiff;

(iv) In the year 2014, at the request of the plaintiff the said Manish Seth handed over possession of the godown to the plaintiff and endorsed the factum of surrender of possession in the letter dated 1st December, 2014;

(v) The defendant started making attempt to wrongfully dispossess the plaintiff from the said godown and ultimately succeeded in the last week of June, 2015 with the help of hooligans and anti socials;

(vi) The tenancy of the defendant is duly terminated by issuing a notice dated 29th July, 2015 under Section 106 of the Transfer of Property Act. The defendant thereafter neither handed over the possession nor paid the arrears rent and are therefore in illegal occupation.

3. In the backdrop of the aforesaid facts, the suit is filed for recovery of possession, decree for arrears rent and mesne profits assessed at Rs. 5,000 per diem with effect from 21st August, 2015 till the recovery of possession.

4. An application for temporary injunction was filed by the plaintiff / petitioner restraining the defendant / opposite party from transferring, alienating and / or parting with possession of the suit premise and also changing in nature of the character thereof till the disposal of the suit. The said application was moved on 16.09.2015 when the Court directed both the parties to maintain status quo as on that date in respect of nature, character, possession and alienation of the suit property till 9th December, 2015. The injunction application is still pending.

5. Amidst the pendency thereof, an application under Section 151 of the Code of Civil Procedure is filed by the petitioner for an order upon the defendant / opposite party to pay a sum of Rs. 2,00,000/- per month as occupational charges in respect of the suit premises on and from 21st August, 2015 till the eviction.

6. The defendant / opposite party filed objection to the said application stating that the decree for eviction has not been passed and the matter being sub-judice he cannot be directed to pay the occupational charges.

7. The Trial Court kept the said petition in abeyance and fixed the date for hearing of the receiver application which was subsequently filed.

8. Initially, this Court did not intend to interfere with the impugned order as the Trial Court has not decided the application under Section 151 of the Code but the moment the judgment rendered in case of Kanak Projects Ltd. (Supra) is cited by the learned Advocate of the petitioner, this Court feels that it would be just and proper that the ratio laid down therein should be decided by a Larger Bench.

9. In Kanak Project Ltd., the Co-ordinate Bench in paragraph 25 observed that if the Appellate Court can pass an order for stay of the execution proceeding directing the defeated defendant to deposit the occupational