The requirement to pay occupational charges as a condition for leave to defend is enforceable, and non-compliance results in forfeiture of the right to defend the eviction suit.

JUDGMENT :

Joymalya Bagchi, J.

1. Appellants/plaintiffs are the landlords of 9725 sq. ft. on the ground floor of premises no. 18, Rabindra Sarani, Kolkata – 700 001, (hereinafter referred to as the demised premises). The respondent/defendant is a monthly tenant at a monthly rent of Rs.12,278/-. Initially the respondent/defendant was a tenant under the first appellant and one ‘M/s. Poddar Udyog Limited’. Pursuant to a scheme of arrangement sanctioned by this Court vide order dated 7th April, 1998, an undivided share of tenancy comprising of 3055 sq. ft. was transferred in favour of the second appellant thereby the appellants became the joint landlords of tenancy. Though the tenancy was for a single premise, on the request of the respondent/defendant separate rent receipts were issued in favour of the respondent/defendant.

2. On 3rd October, 2012 the appellants served a notice upon the respondent/defendant terminating the monthly lease and called upon the respondent/defendant to quit, vacate and hand over peaceful possession of the demised premises under Section 106 of the Transfer of Property Act. The notice was duly received by the respondent/defendant but the latter did not vacate the said premises.

3. On 23rd April, 2013 a suit was filed before this Hon’ble Court inter alia praying for a decree of eviction of the respondent/defendant from the tenanted premises and for mesne profits. In the said suit, an application under Chapter XXXA of the Original Side Rules being GA 2883 of 2013 was filed for summary decree of eviction. After hearing the parties, the Hon’ble Single Judge, inter alia, held that:-

“The defence of the respondent/defendant was feeble, but there could be a small ray of hope flickering at the end of the tunnel.”

4. Holding as aforesaid, the Hon’ble Single Judge granted conditional leave to defend to the respondent/defendant under the following terms:-

“I, therefore, grant the defendant conditional leave to defend. The defendant upon payment of occupational charges @ ? 4 lakh per month on and from March 2017 till the disposal of the suit shall be entitled to defend the suit. The occupational charge for the month of March 2017 shall be paid by 10th March 2017 and the future monthly occupational charges shall be paid by 10th day of each succeeding month. Upon payment of the occupational charges for the month of March 2017, the defendant shall be entitled to file written statement within a period of four weeks from that date. In default of making payment of the monthly occupational charge for the month of March 2017 or any of the future monthly occupational charges, the decree for khas possession shall automatically follow and for which there would be no need to apply afresh.”

5. Respondent/defendant carried the matter in appeal and the Hon’ble Division Bench modified the order of Hon’ble Single Judge and granted unconditional leave in favour of the respondent/defendant to defend the suit.

6. The appellants challenged the order before the Hon’ble Apex Court. Hon’ble Supreme Court after hearing the parties, disposed of the Special Leave Petition as follows:-

“7. Having heard learned counsel for the parties and having persued the records, we are of the view that ends of justice would be met if the respondents are directed to pay Rs.2,00,000/- (Rupees two lakhs) per months as use and occupational charges/rent for the premises with effect from 01.03.2017. We order accordingly. Payments made would abide by the final outcome of the suit.

8. Learned Single Judge before whom the Civil Suit is still pending is requested to dispose of the Civil Suit expeditiously.”

7. Admittedly, the respondent/defendant has not paid occupational charges at the rate of Rs. 2 lakh per month in terms of the order of the Hon’ble Supreme Court. In this backdrop, appellants took out GA No. 6 of 2019, inter alia, praying for drawing up a decree for eviction.

8. By the impugned judgment and order Hon’ble Single Judge held that the direction passed by the Hon