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D/L.12.

December 24, 2025.

.

MNS

FA No. 148 of 2025

+

CAN 1 of 2025

Sulekha Saha & Ors.

Vs.

Gourav Saha

Mr. Shyamal Mukhopadhyay,

Ms. Ipshita Sarkar,

Ms. Priyanka Chatterjee

… for the appellants.

Mr. Sakabda Ray,

Mr. Tathagata Ganguly

…for the respondent.

Re : CAN 1 of 2025 (stay application)

1. The present application for stay, in connection with

an appeal against an eviction decree, has come up for

hearing before us today.

2. Affidavits in opposition and reply filed in court today

be kept on record.

3. From the affidavit-in-opposition, it transpires that the

plaintiff/respondent has annexed a leave and licence

agreement which indicates that on July 1, 2025, a licence

has been granted in respect of a portion of the suit building

other than the suit flat, more specifically on the first floor

thereof, which according to the respondent is less in area

than the suit property, the latter having been stated in the

opposition to be about 900 square feet in area.

4. It is submitted that as per the leave and licence

agreement, the licence fee for such first floor flat is

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Rs.32,000/- per month. As such, commensurate

occupation charges are sought by the respondent to be

imposed on the appellants as a condition for grant of stay.

5. Learned counsel for the appellants controverts such

submissions and argues that, contrary to the allegations

made by the respondent, the measurement of the suit

property is much less than 900 square feet. Moreover, the

leave and licence agreement produced before this Court is

manufactured, which is evident from the recent origin of

the same, suited for the purpose of the present application.

6. It is also pointed out that leave and licence has been

granted for commercially purpose whereas the appellants

are using the suit premises for residential purpose. Thus,

the rate of occupation charges for such commercial licence

cannot be comparable with a residential accommodation.

7. It is further argued that the licence has been granted

in respect of a first floor flat whereas the suit premises is

situated on the third floor, for which occupation charges

will be further less.

8. Lastly, learned counsel for the appellants submits

that the appellants are a widow lady and her two sons and

the income of the family is meager.

9. As such, it is submitted that exorbitant occupation

charges may not be imposed.

10. Having heard learned counsel for both parties, we

come to the following conclusions:

11. Insofar as the area of the suit property is concerned,

in the teeth of the specific allegation in paragraph 3 of the

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affidavit-in-opposition to the effect that the suit property is

comprised of about 900 square feet, we find in the

corresponding paragraph of the affidavit-in-reply dealing

with such averment of the opposition, that is, paragraph 4

of the reply, that such allegation has been denied in a bald

manner.

12. More importantly, the exact measurement of the

property has not been stated in the affidavit-in-reply.

13. The appellants have only stated that no Advocate

Commissioner or Engineer Commissioner was ever

appointed, which is evasive in nature.

14. Moreover, in the absence of any rebuttal evidence,

even on oath, we cannot come to a definite conclusion that

the agreement for leave and licence, a copy of which has

been annexed to the affidavit-in-opposition, is

manufactured, particularly in the absence of any

particulars of such allegation of fraud having been alleged.

15. However, learned counsel for the appellants has a

point in arguing that the suit premises is situated on the

third floor of the premises and can fetch less amount of

occupation charges than the first floor flat, which is the

subject matter of the leave and licence agreement.

16. Insofar as the residential versus commercial usage

is concerned, the argument of the appellants, of current

residential user by the appellants, cannot be accepted,

since it is not the present user of the suit property but the

maximum amount which can be contemporaneously

fetched from such property, if let out on the current dat