IN THE HIGH COURT AT CALCUTTA CIVIL REVISIONAL JURISDICTION APPELLATE SIDE Present:

The Hon’ble Justice Dinesh Kumar Sharma C.O. 3416 of 2022 Frostees India Private Limited Vs.

Ahuja & Company For the Petitioner: Mr. Aniruddha Chatterjee, Sr. Adv., Mr. Suchetan Ghosh, Adv.

For the opposite party: Mr. Jishnu Chowdhury, Sr. Adv., Mr. Sankarsan Sarkar, Adv., Mr. Kritin Saraf, Adv.

Reserved on: 25.06.2025 Judgment on: 30.07.2025 Dinesh Kumar Sharma, J.:

1. Present petition has been filed challenging the order dated September 19, 2022 passed by the Learned Civil Judge (Senior Division) First Court, Alipur, in Title suit no. 364 of 2020, whereby the Learned Trial Court while disposing of the application under Order 39, Rule 10 read with Section 151 CPC, filed by the plaintiff/opposite party, directed the petitioner/defendant to pay Rs.1,50,000/- per month within tenth of each succeeding english calendar month from this state to the plaintiff/opposite party as occupational charge of suit property. The petitioners/defendant was further directed to make payment of Rs.72,00,000/- on account of arrears of occupational charges in four equal installments every second month within tenth of each calendar month from the date of passing of the order. The petitioner has challenged the impugned order on the ground that the Learned Trial Court has fallen into a grave error of law by granting the occupational charges during the pendency of the suit. The petitioner has stated that occupational charges is to be calculated only from the date of the judgment and decree of the suit and not from the date of expiry of the lease. The peitioner has taken a plea that occupational charges cannot be granted at the interim stage.

2. Mr. Aniruddha Chatterjee, Learned Senior Counsel for the petitioner submitted that in the present set of facts and circumstances, Order 39 Rule 10 CPC has wrongly been applied. Learned senior counsel submitted that Order 39 Rule 10 CPC is attracted only when the liability is admitted by a party, or the money or a thing which is the subject matter of the suit is held by it as trustee for another or is due to another party. Learned senior counsel submitted that clear, unequivocal and unambiguous admission is required on the part of the party against whom such an order is proposed to be passed. Learned Senior Counsel further submitted that as in the present case there was no unequivocal and unambiguous admission on the part of the petitioner/defendant and, therefore, the order of the Learned Trial Court is not correct on the face of it. Learned senior counsel submits that in fact the Learned Trial Court by allowing the present application has granted the final relief at an interim stage. It has further been submitted that the Learned Trial Court has granted the prayer, which was not even prayed for by the plaintiff/opposite party. Learned senior counsel submits that occupational charges, as claimed by the opposite party/plaintiff was on the basis of an agreement entered into between the parties. Such agreement had already been terminated by the opposite party/plaintiff himself and, therefore, on the basis of such terminated agreement the occupational charges could not have been granted. Learned senior counsel submitted that at the best the mesne profit can be granted after completion of the trial.

3. Learned senior counsel submitted that such an order could have been passed only if the Trial Court reaches to the conclusion that there was absolutely no defence on the part of the tenant and the eviction would be a matter of course. Learned senior counsel submits that in the present case the petitioner/defendant/tenant had presented a very sound defence and he was likely to succeed in the same. Learned senior counsel submitted that the Learned Trial Court has exceeded its jurisdiction by granting mesne profit in the garb of occupational charge. Learned senior counsel further submitted that the impugned order is liable to be set aside. In supp