IMPORTANT POINT
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.

JUDGMENT :

BISWAROOP CHOWDHURY, J.

1. The petitioner before this Court is the plaintiff in a suit for eviction and is aggrieved by the order dated 15.12.2021 passed by Learned Civil Judge (Senior Division) in. Title Suit No. 157 of 2016 adjourning the prayer of the petitioner/plaintiff for occupation charges made under Section 151 of the Code of Civil Procedure till final adjudication of the suit. The petitioner being aggrieved by the order passed by the Learned Trial Judge has come up before this Court under Article 227 of the Constitution of India.

2. The case of the petitioner/plaintiff before the Learned Trial Court may be summed up thus:

1. The Petitioner instituted suit against the opposite party/defendant before Learned 5th Court of Civil Judge (Senior Division) at Alipore being Title Suit No – 157 of 2016 praying for a decree of eviction against the defendant/opposite party from the suit property, as well as decree for mesne profits.

2. The petitioner pursuant to the institution of the suit filed an application under Section 151 of the Code of Civil Procedure praying for arrear occupational charges since March 2012 @ Rs. 700/-per month and thereafter month by month occupational charges to the tune of Rs. 20,000/-per month for the entire suit property till recovery of Khas Possession.

3. The defendant/opposite party did not file any objection to the petition, but only filed application under Order 7 Rule 11 of the Code of Civil Procedure which was rejected by Learned Court below.

4. On 15.12.2021 Learned Court below was pleased to pass an order on the application for occupation charges filed under Section 151 CPC by observing and directing as follows:

“Today is fixed for framing of issues and discoveries.

The plaintiff and Defendant are present by filing hazira. Heard the Learned Advocates for the Plaintiff and Defendant.

Let the issues be kept with the case record.

The petition in respect of occupation charges under Section 151 CPC will be considered at the time of final adjudication of the suit.

Fix 10.02.2022 for P. Hearing of the suit.”

3. The petitioner/plaintiff being aggrieved by the Order dated 15.12.2021 passed by the Learned Trial Court has come up with the instant application.

4. It is the contention of the petitioner/plaintiff that the Learned Court below failed to apply his judicious mind and passed the impugned order. It is further contended that the impugned order suffers from gross illegalities with material irregularities and is liable to be set aside. It is also contended that the Learned Court below did not go into the merits of the application and simply kept the same pending for trial.

5. Pursuant to the filing of this application notice was issued upon the opposite party. Opposite Party appeared and contested the case.

6. Heard Learned Advocate for the petitioner and Learned Advocate for the opposite party. Perused the petition filed and materials on record.

7. Learned Advocate for the petitioner submits that the Learned Court below erred in not deciding the application for occupation charges. Learned Advocate further submits that the defendant/opposite party is liable to pay occupation charges for occupying the suit property which is a mesne profit.

8. Learned Advocate relies upon the following judicial decisions:

Green Band Apartments Private Limited and Others

Vs.

Mint Matrix and Others

Reported in (2021) SCC Online Cal-428

Nripendra Narayan Ghosh

Vs.

Dr. Chandra Sekhar Murmu

Reported in (2017) 5 WBLR (Cal) 440

Learned Advocate for the opposite party disputes the submission of the Learned Advocate for the petitioner and relies upon the following decision:

K.K. Saha and Co. Pvt Ltd.

Vs.

Ashok Agarwal

Reported in 2018 (1) CHN (CAL) 497

9. As the matter in issue involves payment of arrear occupational charge since March 2012 @ Rs. 7000/-per month which was the last occupational charge paid by the defendant/opposite party, and payment of occupational charge to the tune of Rs. 20,000/-current month by month which amounts to awardin