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IN THE HIGH COURT AT CALCUTTA
Biswaroop Chowdhury, J.
Sri Badal Chandra Ghorai alias Badal Ghorai - Appellant
Vs.
Sri Prabir Kumar Maity - Respondent
C.O. 3892 of 2023
Decided On : 02-08-2024
Eviction - Ejectment Suit - Order IX Rule 13, Order 41 Rule 5 - The court emphasized the necessity of proper service of summons and the reasonable determination of occupational charges, highlighting the need for a fair assessment in eviction proceedings.
Fact of the Case:
The petitioner, a judgment debtor, challenged an order for eviction execution, claiming lack of proper summons service and alleging misrepresentation by the decree holder in obtaining an ex-parte judgment.
Finding of the Court:
The court found that the lower court failed to adequately consider the service of summons and the basis for the occupational charges, leading to an arbitrary decision that lacked justification.
Issues: Whether the lower court erred in imposing occupational charges without proper justification and whether the execution of the eviction decree should be stayed pending the resolution of the application to set aside the ex-parte decree.
Ratio Decidendi: The court held that the principles governing the stay of execution in eviction cases require a reasonable assessment of occupational charges, which must be justified based on relevant factors.
Result: The order dated 07-10-2023 is set aside, and the matter is remitted for reconsideration of occupational charges.
JUDGMENT :
Biswaroop Chowdhury, J.
1. The petitioner before this court is a judgment debtor in a suit for eviction and is aggrieved by the Order dated 07-10-2023 passed by Learned Civil Judge (Junior Division) 1st court Alipore 24 Parganas (South) in Ejectment Execution Case No. 25 of 2023 arising out of Ejectment Suit of 166 of 2017.
2. The petitioner/Judgment Debtor being aggrieved by the Order dated 07- 10-2023 passed by Learned Executing Court has come up with this application.
3. The case of the petitioner in application for stay of Execution Proceedings before the Learned Executing Court may be summed up thus;
2. The judgment debtor on getting knowledge about the instant execution case from reasonable source has entered appearance before the Ld. Court by filing Vakalatnama on 20.04.2023.
3. In connection with the aforesaid suit after adducing ex-parte evidence the Opposite party/Decree Holder/Plaintiff has obtained Ex-parte Judgment and Decree from the Learned Court vide the Judgment dated 03.06.2022 and Decree dated 13.03.2023 against the judgment debtor upon misrepresentation and fraud practice upon the court.
4. That in connection with the suit, summons from the Learned Court has never been served upon the judgment debtor neither through Court nor registered post from the Ld. Court and Petitioner/Defendant/Judgment Debtor has no knowledge about the Ejectment Suit.
5. The judgment debtor recently collected knowledge about the instant ejectment suit from the reasonable sources and thereafter made contact with his Ld. Advocate Mr. Debashish Chowdhury who applied for searching report on 22.03.2023 whether therein any ejectment suit has been filed by the plaintiff/opposite Party/decree Holder against the judgment debtor and on the same date also applied for searching report whether any ejectment execution case has been filed by the plaintiff/opposite party/decree holder against the judgment debtor. On the same date the judgment debtor obtained searching report wherefrom it is revealed that the said Ejectment Suit has been filed by the plaintiff/opposite party/decree holder against the Judgment debtor/petitioner.
6. The judgment debtor has no prior knowledge about the Ejectment Suit before obtaining the searching report and after getting knowledge about the Ejectment Suit the judgment debtor applied for certified copy of all orders along with judgment and also applied for the certified copy of the plaint on 22-03-2023. Ultimately on 1.04.2023 the judgment debtor obtained certified copy of the plaint and all orders including judgment.
7. It transpired from the order dated 1.11.2017 that the summon through Registered Post returned with remark ‘Refused’ on 07.09.2017 and next date fixed on 15.01.2018, for S/R through Court. On 15.01.2018 there was no S/R Return, and next date was fixed on 08.02.2018 for S/R through Court.
8. On 08.02.2018 on the basis of alleged service of summon through registered post, which was returned with remark as ‘Refused’ the Learned Court was pleased to fix ex-parte hearing of the suit against the judgment debtor.
9. That no summon has been served upon the judgment debtor in any manner, the plaintiff/opposite party/decree holder has managed the postal authority and returned the summon through registered post with remark as “refused”.
10. It also transpired from the Order Sheet as well as record that without considering the report of Bailiff in regard to the service of summons through Court, the Ex Parte Order has been passed against the Judgment Debtor.
11. The plaintiff filed the instant purported suit for eviction against the Judgment Debtor and deliberately mentioned wrong holding in the cause title and the schedule of the plaint with a mala fide intention to obtain ex parte decree from the Ld. Court by misguiding, misrepresentation and fraud practic
The court established that occupational charges must be reasonable and based on a fair assessment of the property, especially in cases involving ex-parte decrees.
Tenants must pay occupational charges at market rates post-eviction decree, regardless of previous rental agreements, ensuring landlords are compensated for loss of property use.
Appellate courts have discretion in awarding stay conditions but cannot modify final orders unless new substantial evidence justifies such action; past decisions are binding under the principle of re....
The main legal point established in the judgment is the discretionary power of the court to determine the quantum of occupational charge based on the nature, location, and value of the property, and ....
The main legal point established is that a party cannot evade its liability to pay occupation charges to protect its possession over the subject property, and the determination of such charges should....
Occupants in eviction suits are obligated to pay occupation charges during the pendency of the suit, and courts must provide reasoned orders on such applications.
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