This is an application filed by the plaintiffs praying as follows:-
A . The defendant be directed to pay Rs. 3,47,63,348/- (being the arrears of rent/occupational charges from December 2019 till February 2025) to the plaintiffs within a period of 7 days or such other period as this Hon’ble Court may deem fit and thereafter continue to pay Rs. 5,92,076/- per month on or before 7th Day of each English calendar month;
B . In the alternative the defendant be directed to deposit and secure in this Hon’ble Court Rs. 3,47,63,348/- ( being the arrears of rent, occupational charges from December 2019, till February 2025) within a period of 7 days or such other period as this Hon’ble Court may deem fit and thereafter continue to deposit Rs. 5,92,076/- per month on or before 7th Day of each calendar month;
C . An order of injunction be passed restraining the defendant/lessee and /or any person/entity claiming through it from encumbering and/or dealing with and/or inducting any occupier in the suit premises;
D . Ad interim order in terms of prayer (C) above.
E . The respondent/lessee be directed to supply the completion certificate relating to the newly constructed building as well as an authentic copy of the sanction building plan within such time as to this Hon’ble Court may deem fit and proper.
F . The respondent/lessee be directed to remedy the breaches committed of the indenture of lease dated 4th February 1983 and supplemental deed of lease dated 5th August 2010 by inter alia:
i) Paying and disbursing outstanding service tax on rent amounting to Rs. 50, 77, 600/- towards reimbursement of the service tax.
ii) Paying and disbursing outstanding amount of Rs. 44,800/- towards wrong deduction of TDS of GST.
iii) Paying entire arrear municipal tax along with interest and penalty as may be due and payable thereon and producing Xerox Copy of receipt thereof to the plaintiff and also continuing to pay current municipal rates and taxes that may fall due.
iv) Disclosing the names and details of the sub – lessees/occupiers who are there in the building.
G . In the alternative and on failure of the defendant to remedy the breaches within the time stipulated :
i) Be it declared that the defence of the defendant stands struck off and the lease has been validly terminated.
ii) The suit be directed to appear as an undefendant suit.
H . Such further or other order or orders be made and /or direction be given including those relating to costs of and incidental to this application as this Hon’ble Court may deem fit and proper.
The contention of the plaintiffs/petitioners may be summed up thus:
1. The premises in question being 34 Jackson Lane since renamed as Indra Kumar Karnani Street, Kolkata 700001( hereinafter referred to as the said demised premises) contains by estimation 1 Bigha 2 Cottahs more or less with a structure thereon fully described in the schedule to the deed of lease dated 4th February, 1983 is owned by the estate of Shree Shree Jagat Janani Thakurani, a Hindu deity ( herein after referred to as the said deity) by virtue of a deed of dedication/arpannama dated 1st of November, 1871.
2. Upon considering various offers and after hearing the parties by and order dated 07/04/1978 this Hon’ble Court was inter alia pleased to give liberty to the then joint receivers to grant lease of the said premises no. 34 Indra Kumar Karnani Street (Jackson Lane) Kolkata in favour of the erstwhile lessee Chitpore Golabari Co. Ltd.
3. In terms of the order of this Hon’ble Court on 04/02/1983 lease was granted in favour of Rajgarh Tea Co. Ltd. for an initial period of 49 years commencing from 1st April, 1980 with option for renewal for another 19 years upon fulfillment of certain conditions as mentioned therein.
4 . Clause 4 of the said lease deed, stipulates that the lessee shall after demolition of the existing building, construct a new building on the demised premises at their own cost up to the optimum height permissible under the Kolkata Municipal Corporation Act and/or Urban Land (ceiling and regulation) Act within a period of 5 (five) years from commencement of the lease (i.e. 1st April, 1980). In terms of clause 5 of the said lease deed the lessee was obliged to pay monthly rent thereby reserved both share of municipal taxes in respect of the demised premises including all increments by reason of their new constructions or otherwise and to pay all other taxes and impositions.
5 . That for non-completion of the said construction within 1st April 1985 by the lessee and for failure to pay monthly rent, the lessors, through their Advocates determined the said lease dated 4th February 1983 , and filed the instant suit in this Hon’ble Court, inter alia, claiming a Decree for possession of the premises no 35, Jackson Lane (Indra Kumar Karnani Street, Kolkata 700001) by evicting the defendant therefrom and for other reliefs.
6. Thereafter the Rajgarh Tea Co ltd pursuant to an order dated 26th August 1987 of the Learned Company Law Board was amalgamated with Andrew Yule and Co Ltd, and consequently Andrew Yule and Co Ltd claimed to be the Lessee in respect of the said property at 34 Indra Kumar Karnani Street(Jackson lane) Kolkata- 700001, in place of the erstwhile Lessee Rajgarh Tea Co Ltd. Such fact was duly taken note of by the then plaintiffs/ joint receivers and the cause title, suit register and the body of the plaint were duly amended accordingly. Without prejudice it is stated that in its written statement the defendant/lessee, in effect admitted the defaults/breaches of the conditions of the deed of lease committed by it.
7. The Defendant lessee in the instant suit affected mutation of its name in the records of the Kolkata Municipal Corporation as a lessee in respect of the said demised premises.
8. Subsequently in the said suit No-574 of 1985 various applications were made from time to time by the lessee/defendant company interalia for extension of time for demolition of existing building and construction of a new building on the said demised premises and by consent of the parties orders were passed by granting leaves from time to time on such application.
9. By order dated 22/05/2003, a Learned Co-ordinate Bench of this Court by consent of parties was inter alia , pleased to extend such time however the lessee was directed to make payment of monthly occupational charges at the rate as depicted therein. The Lessee was also directed to make payment of rents and taxes referred in the said Lease Deed.
10. The Defendant/ Respondent committed breach of terms set out dated 22/05/2003 and they failed to demolish the existing building and discharge the other obligations as directed in the said order, for which Defendant/Respondent took out an application being GA No- 1778 of 2008 seeking inter-alia extension of time to comply with the order dated 22nd May 2003. The parties in the said application filed terms of settlement and the Learned co-ordinate bench of this court was pleased to dispose GA-1778 of 2008 in accordance with the terms of settlement for the benefit of the Debutter Estate.
11. Subsequently the parties on the basis of the terms of settlement approved vide order dated 21-05-2009, executed a supplemental lease deed, incorporating therein the terms of settlement arrived at between the parties. The same was made in furtherance of the aforesaid lease deed.
12. In terms of clause 1(a) of the said Supplemental Lease Deed, incorporating therein the terms of settlement arrived the lessee remained obliged to pay monthly occupational charges at such rates as depicted therein. The lessee/respondent willfully and deliberately failed and neglected to comply with each obligation and in fact stopped making payment of occupation charges since December 2019 till date. The said supplemental lease deed was executed between the parties in furtherance of the said terms of settlement, approved vide order dated 21/05/2009 passed by this Hon’ble Court, the lessee also remained obliged to pay municipal tax in respect of the demised premises including all increments by reason of the new construction or otherwise and to pay all other taxes and impositions and any other imposed that may be levied in respect of the said demised premises by the KMC or any other authority from time to time and to furnish to the lessors Xerox copies of the paid up rate bills within one month from the date of such payment. It has been ascertained from the Kolkata Municipal Corporation that a huge amount is due and payable.
13 . Further the lessee /respondent in spite of repeated reminders failed to pay the plaintiff Rs. 44,800/- which was wrongly deducted by the respondent on account of TDS on GST in February and March 2019 on the ground TDS is not applicable on GST.
14 . Clause 10 of the lessee’s convenant of the lease deed dated 4th February, 1983 confers right on the lessees to sub-let or sub-lease, the demised premises with intimation to the lessors.
15 . That in the demised portion there are 53 assesses. Majority are sub-lessees. The lessee without intimating the lessor has inducted sub-lessee and have thus violated the condition of lease.
Considering the persistent default on the part of the lessee/respondent and considering that the occupation of the lessee/respondent is governed by the provisions of the Transfer of Property Act, 1882 the lessors/applicant terminated the special tenancy with effect from 1st January, 2022 and called upon the lessees to hand over peaceful, Khas and vacant position.
16 . By letter dated 24th February, 2022 the lessee replied that due to some inadvertence and bona fide reasons of COVID-19 crisis, the payment has not been received by the lessor from October, 2019. By the said letter the lessee also stated that they would arrange to provide the remaining dues as soon as they receive the differential amount from one Akriti Developers Private Limited(in short Akriti) and sought time to clear the dues.
17 . That there is clear admission of the lessee in the said letter that they are in default on payment of occupation charges on and from October 2019. It further appears from the said letter that for payment of occupational charges the lessee is dependent upon the said Akriti which is contrary to the obligation of the lessee under the order of this Hon’ble Court.
18 . By a letter dated 07-03-2022 the lessee was called upon to intimate within a period of 7 days from receipt of the said letter as to the modalities of payment with exact time schedule for the same but the said letter was not replied.
19 . The petitioners plaintiffs being aggrieved by the acts of the defendant became compelled to file application being GA 6 of 2022 praying for deletion of the name of Samarendra Nath Shaw and to substitute the name of Sanjib Saha, and for direction upon the defendant to pay and disburse outstanding service tax amounting to Rs. 50,77,600/-, arrear municipal tax outstanding lease occupation charges from December 2019 to May 2022 amounting to Rs. 1,58,59,200/- ( Rupees one crore fifty eight lacs fifty nine thousand two hundred) along with interest @ 18% p. a or at such other rate this Hon’ble Court may deem fit and continue to pay current rent at the agreed rate month by month without default.
20 . By an order dated 05/07/2022 a Learned Co-ordinate Bench of this Court was pleased to allow prayer (a) to (e) of the Master’s summons.
21 . Thereafter the said application was taken up on 12/07/2022, 13/07/2022 and 18/07/2022. By order dated 18/07/2022 the defendant was granted opportunity to file affidavit in opposition and without prejudice to the rights was directed to pay Rs. 15 lakhs on account of outstanding rental arrears receivable by the plaintiffs.
22 . In or about June 2023 the said Akriti filed an application being GA 7 of 2023, with a prayer to be heard pro interesse suo. The said application upon hearing was dismissed by the Learned Single Judge.
23 . Thereafter, another application being GA 8 of 2023 was filed by the defendant for rejection of the plaint and the same was dismissed by order dated 24/01/2024.
24 . The defendant being aggrieved by order dated 24/01/2024 passed by the Learned Single Judge preferred an appeal before the Hon’ble Division Bench and the Hon’ble Division Bench was pleased to hold that the Hon’ble Trial Court might decide the preliminary issue within three months from date.
25 . By an order dated 24/04/2024 the Learned Single Judge was inter alia pleased to hold that preliminary issue involving the jurisdiction of the Court was to be decided first.
26 . Meanwhile the order dated 10/04/2024 passed by the Hon’ble Division Bench was challenged before the Hon’ble Supreme Court and the Hon’ble Supreme Court was pleased to dispose the special Leave petition by order dated 17/12/2024. The Hon’ble Supreme Court was pleased not to go into the merits of the application liberty was given to the parties to file appropriate applications before this Hon’ble Court.
27 . On 18/02/2025 the present suit again appeared before the Learned Single Judge as ‘to be mentioned’ when the matter was directed to appear on 03.03.2025. During pendency of the present suit from time to time plaintiffs through its Learned Advocate on diverse occasions requested the defendant/lessee to make payment towards the receivables of the plaintiffs. Despite the same no money has yet been paid. As on 28/02/2025 an aggregated sum of Rs. 3,47,63,348/- is receivable by the plaintiffs from the defendant/lessee on account of occupational charges and an amount of Rs. 50,77,600/- on account of reimbursement of service tax. Besides a huge sum is due and payable by the defendant to the KMC on account of Municipal taxes.
28 . The defendant in the grab of an agreement for development had received a sum of Rs. 2.07 crores from Akriti towards the right to sublet and sub-lease on its behalf.
The law is well settled that the plaintiffs being the owners of the demised premises as are entitled to receive occupational charges from the defendant and/or all other indivivuals and entitles who have been enjoying actual possession of the demised premises or any portion thereof. It is also well settled principle of Law that no individual or entity is entitled, to enjoy the actual physical possession/ occupation of the demised premise and /or any portion thereof without payment of the occupational charges. Even in equity the plaintiff is entitled to receive occupational charges from all the occupants of the said demised premises proportionate to their respective occupation at the present market rate. The plaintiffs cannot be deprived of its legitimate lawful and genuine right to be adequately Compensated. The plaintiff is suffering loss for not being paid its genuine entitlement. On the other hand Deity is suffering month by month and every month since December 2019, on the other hand the defendant has been enjoying the demised premises being the most vital asset of the Deity in its entirety without paying a single rupee.
30 . That this Debutter Estate of Shree Shree Jagat Janani Thakuranit is a fairly large Estate. The Deity has her own abode and there is substantial expenditure which is required to be incurred month by month and every month for maintenance of the establishment of the said Estate where number of employees are permanently working. At present there are around 250 sebaits. The Joint Receivers are disbursing necessary amount for performing Nitya Seba Puja. Besides Nitya Seba Puja various periodical ceremonial pujas are performed. The main puja of the said deity, being basanti Puja is annually performed with great pomp and grandeur. Besides all the outgoings including Income Tax Wealth Tax Municipal Tax, GST operation and maintenance charges of other building and assets of the Estate are paid by the Joint Receivers out of the rent issues and profits in respect of inter alia of the demised premises.
31. That such expenditure is principally met from the rent of different immoveable properties of the Estate the most important of which is the said demised premises.
32. This Hon’ble Court being the guardian of the Deity, the interest of the Deity is required to be protected in all possible manner. The present state of affairs if allowed to continue the Deity and the Deity only will continue to suffer.
Pursuant to filing of this application the Defendant/Respondent filed Affidavit in opposition by denying the allegations made in the petition.
The contention made in the affidavit in opposition may be summed up thus;
1. The defendant is contesting suit No. 574 of 1985 wherein the plaintiffs have sought for inter alia, eviction against the defendant together with consequential reliefs. The present suit is based out of a notice of forfeiture of lease dated 26-07- 1985 which were premised on two alleged defaults of the defendant, first being non-completion of construction of building on the leased out land and secondly for nonpayment of rent.
2. The defendant denied and disputed the contents made in the plaint and has contended that Rs. 8,50,000/- was paid as advance rent to the plaintiff. When the suit was instituted a sum of Rs. 3,22,000/- was lying as excess rent already deposited with the plaintiff.
3. The parties were in dispute with respect to construction of a building on the demised premises. Pursuant to orders passed by this Court parties entered into a terms of settlement dated 01.07.2009 and subsequently a supplemental deed of lease dated 08.08.2010 was executed between the parties. the parties agreed to timeline and rate of rent and defendant was permitted to engage a third party to complete the construction and to sub-let any portion of the constructed building.
4. The defendant/respondent had engaged ‘Akrity’ Sales Private Limited to demolish the existing structure and construct a building thereon and also to pay rent with respect to the demised premises. The plaintiffs have been receiving rent from the defendant which was paid by Akriti which is continuing from September 12, 2007, within the knowledge of the plaintiffs.
5. The plaintiffs have admitted in the said petition to the fact that the individuals/entities who are enjoying actual possession of the demises premises must pay occupational charges. The defendant is not in physical possession of the demised premises at least from 12-09-2007 and cannot be made liable to pay occupational charges.
6. That the plaintiffs always knew that the rent was actually paid by Akriti to the plaintiff wherein the defendant is only an intermediary. The plaintiffs further knew that the defendant was not using any part or portion of the demised premises to make monitory gains.
7. The existing structure on the demised premises was demolished and a new building was constructed thereon, which has been under the possession and use by Akriti and its sub-lessees. The defendant has complied with its obligation to cause construction of a building on the demised premises which is usable.
8. The plaintiffs filed G.A. 6 of 2022 which are identical to the prayers made in the said petition (excepting Prayers f(ii) and f (iv) which are now added.)
9. The defendant took out an application GA. 8 of 2023 with a prayer that the suit be dismissed alternatively the plaint filed in suit No. 574 of 1985 be rejected.
10. The application being G.A. 8 of 2023 was dismissed by a Learned Single Judge of this Court. Being aggrieved by the order of the Learned Single Judge passed in GA. 8 of 2023, defendant preferred an appeal being APOT-68 of 2024. The said Appeal was disposed by the Hon’ble Division Bench with the observation that the question raised in the application before the Trial Court in GA-8/2023 should be tried as a preliminary issue in the suit on the basis of the application and the affidavits extended thereto before the suit proceeds any further. As such the Division Bench opined that this Hon’ble Court may direct documents disclosed relating to that issue only invite evidence to be adduced in Court or by Commission whichever the Trial Court deems fit and proper and decide the question as soon as possible.
11. Upon considering the order passed by the Hon’ble Division Bench Learned Single Judge by Order dated April 24, 2024 observed that the preliminary issue of jurisdiction must be decided first because it relates to the authority of this Court as was observed by the Hon’ble Division Bench.
12. The plaintiffs being aggrieved by the order of Hon’ble Division Bench preferred a Special Leave Petition before the Hon’ble Supreme Court. The Hon’ble Supreme Court by an order dated 17-12-2024 neither set aside the order dated 10- 04-2024, nor granted the relief prayed in IA No. 21044/2024 inspite of the fact that extensive arguments were made on behalf of the plaintiffs to obtain the relief for payment of occupational charges.
13. Thereafter the matter appeared before the Learned Single Judge and the Learned Judge after hearing the parties was pleased to pass an order in 18/02/2025 observing that the preliminary issue of jurisdiction should be decided first.
14. The plaintiffs are now trying to modify the order passed on 18/02/2025 without preferring an appeal.
The defendant have also denied allegations made in paragraph 6 to 10 of the petition as false and have contended that Rs. 2,22,000/- was lying with the plaintiff at the time of alleged termination of lease. The defendant further denied that the defendant could not comply with the directions passed in the order dated April 16, 1997. The defendant also denied that the plaintiffs have paid service tax to the concerned authority of Rs. 50,77,600/- The defendant has contended that the termination notice dated 31-01-2022 was responded by the defendant through its reply dated February 24, 2022 wherein the defendant had specifically stated that Akriti Sales Private Limited had not paid the defendant rent from October 2019, citing Covid-19 crises. The defendant has denied that there is any sort of admission The defendant has further contended that in terms of the order passed by the Hon’ble Supreme Court this application for occupational charge is not maintainable prior to the decision of preliminary issue.
It is also contended that prayers in GA-9 of 2025 are identical to the prayers made in said petition GA-6 of 2022 which is kept pending as directed by Order dated 18-02-2025 hence this application is not maintainable.
The plaintiff has filed Affidavit in Reply repeating and reiterating the allegations made in the petition.
It is contended by the plaintiff/petitioner that it is an admitted position that respondent lessee could not complete the construction within the agreed timeline despite specific assurances made by it before this Hon’ble Court. The plaintiff contended that it is incorrect to allege that the defendant/respondent lessee was allowed to engage any third party to complete the construction or during the pendency of the suit the plaintiffs agreed to receive rent or enhanced rent or the tenure of tenancy is subsisting or is still due to expire on 31-03-2029. The plaintiffs agreed to receive occupational charges and that too under the orders passed by this Hon’ble Court only from the defendant/respondent/lessee and from none else. It is contended that the alleged induction of the said Akriti was never informed to the plaintiffs, and plaintiff’s consent had never been obtained in this regard. The plaintiffs were never made a party to such alleged transaction. It is further denied that the defendant is neither using nor occupying the demised premises as the defendant has not made any profit out of the rent paid for the demised premises. From the alleged agreement of 2007 it would appear that the defendant/respondent lessee had received payment of Rs. 2.07 crores from the said Akriti besides regular monthly sub lease rentals. It is contended that the orders of this Hon’ble Court and the Hon’ble Apex Court are absolutely clear. Since the Hon’ble Supreme Court was not inclined to go into the merits of the application liberty was given to the parties to file appropriate applications before this Hon’ble Court. It would further appear from the order of the Hon’ble Supreme Court that since the entire issue was left for the Hon’ble Single Bench to decide, the Hon’ble Apex Court did not enter into the issue of payment of occupational charges in the interregnum. IA no. 210441 of 2024 was simply disposed without any decision or observation thereon. It is further contended that as on 18-02-2025 no fresh application was filed by either of the parties despite the Hon’ble Supreme Court had granted leave to both the parties in this regard. It is also contended that it is the settled position of the law of our land that the issue of payment of occupational charges in a pending suit for eviction cannot be kept in abeyance.
Heard Learned Advocate for the plaintiff/petitioner, and Learned Advocate for the Defendant/Respondent. Perused the petition filed and materials on record.
Learned Advocate for the plaintiff/petitioner submits that it would appear from the order dated 17-12-2024 passed by the Hon’ble Supreme Court that while the Hon’ble Trial Judge was given liberty to proceed with the entire suit simultaneously liberty was given to the parties to file appropriate proceedings in the suit. It was also made categorically clear that in the event such proceedings are filed the same are to be adjudicated in accordance with law without being influenced, by the observations of the Hon’ble Division Bench. Learned Advocate further submits that on 18-02-2025 when the subject suit was taken up for hearing no application was there by either of the parties post 17-12-2024, availing, the liberty given by the Hon’ble Supreme Court, that the Hon’ble Single Bench should proceed with the suit itself in accordance with law having regard to the developments which had taken place pending the suit. As such the suit in its entirety should be adjudicated. The instant application being GA. 9 of 2025 filed after 17-12-2024 is to be adjudicated without being influenced by the observations of the Hon’ble Division Bench.
Learned Advocate submits that the issue of payment of occupational charges be decided during pendency of the suit and the same is given primacy over the merits of the issues raised in the suit. There cannot be any doubt that a lessee should not be permitted to occupy the demised premises without making any payment of occupational charges lesser than the market rate, even during pendency of the suit. It is the bounden obligation of a person occupying the demised premises to make payment of the occupational charges while defending the action of eviction. Learned Advocate relies upon the following Judicial decision.
Bijay Kumar Manish Kumar HUF Vs Ashwin Bhanulal Desai Reported in 2024 (8) SCC-668.
Learned Advocate submits that in GA-6 of 2022 no issue which are subject matter of this application has been decided. Moreover both GA-6 of 2022 and GA. 9 of 2025 are interim applications, thus the applications are not barred by the principles of Res-judicata. Learned Advocate further submits that it is by now a settled principle of Law that the Court is the Guardian of the Deity. The monthly lease rental arising out of this demised premises of the Deity is the main source of income of the Deity. Since December 2019 till February 2025 (in fact till date) the Deity is being deprived of from its legitimate dues which has now reached a staggering figure of around. Rs. 4 crores over and above the Deity is further bleeding by making payment of GST element on the rent to the concerned Authorities month by month and every month as it is statutorily bound even without receipt of the same from the Lessee/Defendant and though the onus of making payment of GST element squarely rests on the Lessee/Defendant as per law.
Learned Advocate submits that GA 8 of 2022, has already been dismissed, and not restored and on dismissal of the application, this Hon’ble Court has become functus officio to the issues raised therein.
Learned Advocate for the Defendant submits that the plaintiffs have been accepting rent without any objection and in terms of the supplemental deed of lease dated 05-08-2010. Therefore they have waived their right to forfeit the Lease through the letter dated 26-07- 1985. Learned Advocate relies upon Section 112, and 113 of the Transfer of property Act 1882 and the decision of Tayabali Jaffarbhai Tankiwala VS M/S. Asha and Co. and Anr. Reported in (1970) 1 SCC. P-46.
Learned Advocate further submits that suit No-574 of 1985 is based out of the letter dated 26-07-1985. Other than the fact that the building has been constructed, the plaintiff has kept on accepting rent during pendency of this suit. Therefore Suit No.574 of 1985 has become infructuous and the Court has no jurisdiction to pass any interlocutory order in an infructuous suit. Learned Advocate relies upon the decision of shipping Corporation of India Limited VS Machads Brothers and ors. reported in (2004) 11 SCC P-168.
Learned Advocate also submits that the Division Bench had directed the Trial Court to decide this lack of jurisdiction of the Court in deciding the suit as infructious through a preliminary issue. The Hon’ble Supreme Court has not interfered with the observation of the Division Bench. A coordinate Bench of this Court has already decided that the preliminary issue should be heard first.
It is submitted that issues relating to jurisdiction has to be heard and decided first. The plaintiff has not been able to make out or demonstrate any extraordinary situation. There is no pleading of such extraordinary situation where it could take time to decide the point of maintainability of the suit. Learned Advocate relies upon the decision of Asma Lateef and Anr VS Shabbir Ahmad and ors. reported in (2024) 4 SCC P-696.
It is further submitted that by orders dated May 22, 2003 and the order dated May 21, 2009 that this Hon’ble Court had revalidated the continuation of the deed of lease dated February 4, 1983 to continue for its entire term of 49 years expiring on March 31, 2029.
It is also submitted that the notice dated January 31, 2022 issued u/s-106 of the said Act of 1882 by the plaintiffs shows that they are treating the defendant as a monthly tenant. According to the plaintiffs there is now a new cause of action which has arisen in 2022. The plaintiffs have not revoked or withdrawn this notice. In this situation where the plaintiffs are pursuing an infructuous suit and have shown a new cause of action in their letter dated 31-01-2022 they are not entitled to obtain any interlocutory orders in suit No. 574 of 1985, through GA-9 of 2025.
Before proceeding to decide the material in issue it would be proper to consider the order dated 22-05-2003 and order dated 21-05- 2009, passed by this Hon’ble Court, in the instant suit.
Upon perusal of the order dated 22-05-2003 it will appear that direction was issued upon the defendant to pay monthly occupation charges of Rs. 100,000/- (Rupees one lakh) per English calendar month, the arrear occupation charges from month of April 2002 to 31st March 2003. @ Rs. 100,000/- less the amount already paid within eight weeks from date. It was further directed that with effect from 1st April 2008 the defendant company will pay Rs. 3,00,000/- and there will be increment of 10% of the said monthly rent every 6 years until the expiry of the lease. The extent of the increment in occupation charge, rent as ordered, clause-I, sub-clause VI of the Lease Deed dated 4th February 1983, was modified accordingly. There was also direction to pay Municipal Taxes.
The consequence of breach of the condition was provided as follows:
‘It is further directed that if the defendant/applicant fails to start the construction on the demised premises within two years from date of this order then after 49 years ie. initial period of lease there shall be no option by the lessee for renewal for a further period of 19 years as contemplated in the original lease Deed and in this respect the operative part of the said lease deed and in this respect the operative part of the said lease deed containing the option clause stand modified.
It is further directed that if the defendant/applicant fails to comply with any part of orders hereinbefore made the defence of the defendant company shall be struck out and the suit which stands adjourned for five years from the date hereof will be transferred to the list of undefended suits for obtaining as ex-parte decree.
If the defendant applicant complies with the aforesaid orders it will be deemed sufficient compliance with the relevant clauses of the indenture Lease dated 4th February 1983 and in that event the plaintiffs on the expiry of 5 years shall get the suit struck out subject to payment of all costs incurred by the joint Receiver in connection with the above suit.
It is further directed that a supplementary lease Deed incorporating therein the modifications as made by this order shall be executed and registered by the Lessor and the Lessee. The draft of such supplementary Deed to be prepared by the lessee and shall be approved by the lessor. All costs of and incidental to the preparation of such Deed, the stamp duty and registration fees shall be paid and borne by the defendant company.
Thus from the Order dated 22-05-2003 it is clear that the parties by entering into terms by supplementary Deed did not intend that the suit be treated as disposed and settled. Moreover the consequence of non-compliance of the condition was mentioned. It was further mentioned that in the event defendant complies the order on the expiry of 5 years suit will get struck out.
As the defendant/respondent failed to comply the condition and failed to demolish the building it took out an application being GA. No,. 1778 of 2008 seeking inter alia extension of time to comply order dated 22nd May 2003. In the said application parties filed a Terms of settlement agreeing to re-schedule the time line to complete the project and the defendant agreed to discharge its various obligations.
By order dated 21st May 2009, Learned Co-ordinate Bench was pleased to dispose GA. 1778 of 2008 in accordance with the terms of settlement by observing as follows:
‘By the agreed terms filed in Court GA. No. 1778 of 2008 is disposed of. The said order passed is for the benefit of the debuttar estate.
All parties concerned are to act on a signed copy of the minutes of this order on the usual undertakings.’
Thus upon perusal of the order dated 21st May 2009 it will appear that the said order is passed for the benefit of the debuttar estate, thus any violation of the terms and conditions of settlement agreement without sufficient cause should be viewed seriously. As court is the Guardian of the Deity it is the duty of the Court to look to the benefit of the Deities in any proceedings before it relating to the Estate of the Deities in accordance with law. When rents and occupation charges due to the Debuttar Estate are not paid for years it is prejudicial to the interest of the Deities for whom the Debuttar Estate is created.
By Order dated 21st May 2009 the application GA-1778 filed by the defendant was disposed of but the suit was kept pending. Moreover the terms agreed by the parties was that suit No-574 of 1985 filed by the Lessors against the lessee shall stand adjourned for 5 (five) years from 21st May 2009 ie. the date of the Order and if the Lessee makes default in compliance with the order dated 21st May 2009 then the defence taken by the Lessee in the said suit No. 574 of 1985 shall be struck off and the suit shall be transferred to the List of undefended suit for an exparte decree. It was also provided that if the Lessee completes the construction of a new building on the demised premises within 5(five) years from the date of the Order of the Hon’ble Court dated 21st May 2009 made in GA. No. 1778 of 2009 CS. No. 574 of 1985 and complies with the directions given by the Hon’ble Court in the said Order then Lessors shall get the said suit No-574 of 1985 struck out on expiry of 5 years from the said Order subject to payment of all costs incurred by the Joint Receivers in connection with the said suit.
The act of the defendant in not-paying the occupational charges of the Debuttar Estate for a long period and cause prejudice to the Deities goes to show lack of bona-fide, of the defendant being a Government Undertaking and State within Article 12 of the Constitution of India.
However as the issue of the suit becoming infructious and nonmaintainable being raised by the defendant the same has to be decided in accordance with law. But the point of consideration is whether the defendant can be directed to pay occupational charges before the issue of maintainability of the suit is decided.
In this regard it is necessary to consider some judicial decisions relied upon by the parties.
In the case of Bijay Kumar Manish Kumar HUF VS Ashwin Bhanulal Desai Reported in (2024)8 SCC P-668 the Hon’ble Supreme Court observed as follows:
“15. On account of non-payment of rent, the lease was forfeited/determined. However, the respondent has neither delivered the possession of the property nor paid the rent. The petitioner has submitted a report of an independent valuer dated 12th March 2020. The assessment of the rentals, made by the valuer, it is submitted, is fair and reasonable @ INR 41/- per Sq.ft.
15. It is submitted on behalf of the respondent that since no court has declared the end of the landlord-tenant relationship, the petitioner-applicant asking the respondent to pay occupational charges as opposed to contractual rent would amount to the re-writing of the tenancy Agreement. Further, it is argued that occupation charges are only payable after the lease is validly determined or after the decree of eviction.Since both these eventualities are yet to occur, no question of such payment arises. It is also urged that the petitioner-applicant accepted rent from the respondent till August 2002 but thereafter refused to do so. According to the respondenttenant, a total amount of Rs,2,06,400/- is payable on their part to the petitioner-applicant in the following terms:-
Particulars
| Arrears of rent from September 2002 to February 2024 | Interest Calculated @ 10% till February 2024 | Total | |
| Tenancy 1 (Car Parking) | Rs. 50x258 months=Rs. 12,900 | Rs. 14,625 | Rs. 27,525 |
| Tenancy 2 (Godown 1) | Rs. 150x258 months=Rs. 38,700 | Rs. 43,875 | Rs. 82,575 |
| Tenancy 3 (Godown 2) | Rs. 250x258 months=Rs. 64,500 | Rs. 73,125 | Rs. 1,37,625 |
| Tenancy 4 (Office Space) | Rs. 350x258 months=Rs. 90,300 | Rs. 1,02,375 | Rs. 1,92,675 |
| Total 2,06,400 + 2,34,400= | Rs. 4,40,400 |
"The tenancy is impliedly determined by the landlord when he does any act on the premises which is inconsistent with the continuance of tenancy; for example, when he re-enters to take possession (b), or puts in a new tenant (c), or cuts down trees or carries away stone (d), the trees and stone not being excepted from the demise (e), and also when he does an act off the premises which is inconsistence with the tenancy, as when he conveys the reversion (f), or grants a lease of the premises to commence forthwith (g). An act done off the premises, however, does not determine the tenancy until the tenant has notice of it (h)."
19. According to the petitioner, as already taken note of above, the lease was 'forfeited' due to non-payment of rent. Forfeiture, as defined by Corpus Juris Secundum is "the right of the lessor to terminate a lease because of lessee's breach of covenant or other wrongful act". Further, it mentions as under:
"The word as used in a lease does not, strictly speaking, refer to any right given to the lessee to terminate the lease. Accordingly, it has been held that provisions for forfeiture, cancelation or termination of a lease are usually inserted for the benefit of the lessor and because of some default on the part of the lessee. A forfeiture is in the nature of a penalty of doing of failing to do a particular thing, and results from failure to keep an obligation."
28. A perusal of the judgments extracted above as also other cases where Atma Ram Properties one common factor can be observed i.e. the decree of eviction stands passed and the same having been stayed, gives rise to the question of payment of mesne profits. As observed above, the respondent contends that since, in the present case no decree of eviction is passed, and there is no stay awarded, the question of such payment does not arise.
31. Having considered the submissions made across the Bar, we note that the disputed nature of the lease deed, in other words, its continuation or forfeiture on account of non-payment is heavily contested and stemming there from, so is the nature of payment to be made. We also note that the location of demised premises is in the heart of Kolkata and if the submissions of the petitioner are to be believed, they have been deprived of rent for a considerable period of time. Taking a lock stock and barrel view of the present dispute, the averments and the documents placed before us, we may record a prima facie view, that the respondent tenant has for the reasons yet undemonstrated, been delaying the payment of rent and/or other dues, payable to the petitioner applicant landlord. This denial of monetary benefits accruing from the property, when viewed in terms of the unchallenged market report forming part of the record is undoubtedly substantial and as such, subject to just exceptions, we pass this order for deposit of the amount claimed by the petitioner applicant, to ensure complete justice inter se the parties.”
In the case of Tayabali Jaffarbhai Tankiwala VS M/S. Asha and co and Anr. (1970) 1 SCC P. 46 the Hon’ble Court observed as follows:
4. “It seems to us that on the facts which have been established the landlord was bound to fail. It is abundantly clear that he had, in the second notice dated October 18, 1957, treated the tenancy as subsisting and not only the respondent was described as a monthly tenant but also in the plaint, even after the amendment had been allowed, rent was claimed upto November 1957; thereafter the amount due was described as compensation for use and Occupation. The plaintiff was thus fully alive to the distinction between rent and damages for use and occupation and it cannot be said that he had abandoned the second notice and asked for the same to be treated as non-est or that he had relied solely on the first;notice dated June 1'3, 19'56. Under s. 113 of the Transfer of Property Acts notice given under s. 111, clause (h) is waived with the express or implied consent of the person to whom it is given by any act on the part of the person giving it showing an intention to treat the lease as Subsisting. Illustration (b) is in the following terms.
"(b) A, the lessor, gives B, the lessee, notice to quit the property leased. The notice expires, and B remains in possession. A gives to B as lessee a second notice to quit. The first notice is waived".
If only the language of the illustration were to be considered, as soon as the second notice was given the first, notice- would stand waived. Counsel for the appellant has relied on the observation of Denning, J., (as he then was) in Lowenthal v. Vanhoute(1) that where a tenancy is determined by a notice to quit it is not revived by anything short of a new tenancy and in order to create a new tenancy there must be an express or implied agreement to that effect and further that a subsequent notice to quit is of no effect unless, with other circumstances, it is the basis for inferring an intention to create a new tenancy after the expiration of the first. The Privy Council in Harihar Banerji & Ors. v. Ramsashi Roy & Ors had said that the principles governing a notice to quit under s. 106 of the Transfer of Property Act were the same in England as well as in India. For the purpose of the present case it is wholly unnecessary to decide whether for bringing about a waiver under s. 113 of the Transfer of Property Act a new tenancy by an express or implied agreement must come into existence. All that need be observed is that section 113 in terms does not appear to indicate any such requirement and all that has to be seen is whether any act has been proved on the part of the present appellant which shows an intention to treat the lease as subsisting provided there is an express or implied consent of the person to whom the notice is given.
5. In the present case there can 'be no doubt that the serving of the second notice and what was stated therein together with the claim as laid and amplified in the plaint showed that the landlord waived the first notice by showing an intention to treat the tenancy as subsisting and ,that this was with the express or implied consent of the tenant to whom the first notice had been given because he had even made payment of the rent which had been demanded though it was after the expiration of the period of one month given in the notice.”
In the case of Asma Lateef and Anr VS Shabbir Ahmad and Ors. reported in (2024) 4 SCC P-696, the Hon’ble Supreme Court observed as follows:
“26. We have no hesitation to hold that Rule 10 is permissive in nature, enabling the trial court to exercise, in a given case, either of the two alternatives open to it. Notwithstanding the alternative of proceeding to pronounce judgement the court still has an option not to pronounce judgment and to make such order in relation to the suit it considers fit. The verb "shall" in Rule 10 (although substituted for the verb "may" by the Amendment Act, 1976) does not elevate the first alternative to the status of a mandatory provision, so much so that in every case where a party from whom a written statement is invited fails to file it, the court must pronounce the judgment against him. If that were the purport, the second alternative to which “shall” equally applies would be rendered otiose.”
Upon perusing the decision relied upon by the Learned Advocate for the plaintiff it is clear that while a lease has expired and suit for eviction is pending the lessee after expiry of lease becomes liable to pay mesne profits.
With regard to the decisions relied upon by Learned Advocate for the defendants it is clear when by subsequent event suit becomes infructuous the said suit shall be disposed.
It is also to be remembered that Courts have inherent power to do justice and to prevent abuse of the process of court under Section 151 of the Code of Civil Procedure. Thus prior to passing order for disposal of suit and before relegating the parties to another suit Courts have power to grant necessary protection and relief to the parties in the interest of justice. In this regard it is necessary to refer to some judicial decisions although not relied upon by the parties.
In the case of Guilherme D’Souza VS Jose Radrigues reported in AIR 1976 GOA, DAMAN DEU P-22. The Hon’ble Court while issuing injunction to the respondents from continuing in any manner the construction till such time as the appeal was filed in the Supreme Court, to enable the petitioner to obtain an order of injunction from the Supreme Court against the respondents observed as follows:
“4. As against 'this decision Shri Shinkre has relied on 'S.P. Jain v. M/s. Kalinga Tubes Ltd., AIR 1964 Ori 72. That was a decision given by a Division Bench. The application for stay order was in that case resisted on the ground that there was no application for leave to file an appeal to the Supreme Court pending before the Orissa High Court and reliance was placed on a Bench decision given in 'Purna Chand v. Chamra Bariha', AIR 1954 Ori 114. The learned; Judges however, relying on the decision in 'Ramendra Narayan v. Bibhabati Debi', AIR 1942 Cal 488, rejected the objection and held that even after the dismissal of an appeal the High Court has inherent powers under Section 151, C.P.C, to make an interim order, in aid of the order which may eventually be passed by the Court dealing with the application for leave to appeal apart from the provisions of 0.45, Rule 13, C.P.C. In the opinion of the learned Judges who delivered that judgment the decision given in the case of 'Manohar Lal v. Seth Hiralal', AIR 1962 SC 527, concludes the matter. They drew support from the following passage of the decision in Manohar Lal's case:-
"Section 151 itself says that nothing in the Code shall be deemed to limit or otherwise affect the inherent power of the Court to make orders necessary for the ends of justice. In the face of such a clear statement, it is not possible to hold that the provisions of the Code control the inherent power by limiting it or otherwise affecting it. The inherent power has not been conferred upon the Court; it is a power inherent in the Court by virtue of its duty to do justice between the parties, before it. Further, when the Code itself recognizes the existence of the inherent power of the Court, there is no question of implying any powers outside the limits of the Code."
and held that the High Court had jurisdiction to pass necessary interim orders even though no application for leave to appeal to the Supreme Court was pending.”
In the case of Mir Bazlay Ali VS Jagirdar Nirkhy Miz Mahammad Ali reported in AIR 2006 A.P. 131 the Hon’ble Court while upholding the decision of Trial Court under Section 151 of Code of Civil Procedure in restoring possession which is taken in violation of the order injunction was pleased to observe as follows:
“15. From the above, it is clear that the lower appellate Court found that the 1st respondent-original plaintiff is in possession of the suit schedule property as on the date of filing of the suit. Therefore, the lower appellate Court directed the appellant to hand over the suit schedule site to the respondents and also directed to restore the status quo ante and granted permanent injunction. There is no creditworthy evidence adduced by the appellant-defendant and the evidence of D. Ws 2 to 4 cannot be believed. D. W. 2 is a neighbour of the defendant, D. W. 3 is defendant's son's father-in-law and D. W. 4 is the tenant of the defendant. Even the trial Court recorded a finding that the defendant is in possession and enjoyment of the property in some extent only. The lower appellate Court after reappreciation of the entire evidence on record held that Exs. A1 to A63 prove that the plaintiff is the owner and is in possession of the plaint schedule property as on the date of filing of the suit and the thatched hut and electricity supply from the defendant's house to the said hut are new one and that the plaintiff was dispossessed during the pendency of the suit. The said finding of fact is based on the evidence on record and there are no grounds to interfere with the said finding of fact in the Second Appeal under Section 100 of C. P. C.
15A. I am in complete agreement with the submissions made by the learned counsel for the respondents that the judgements relied upon by the learned counsel for the appellant have no relevance to the facts of this case and they are the cases wherein it was found that the plaintiff was not in possession of the property as on the date of filing of the suit and as such, in those cases, it was held that the plaintiff is not entitled for injunction and the proper remedy available to him was to file a suit for recovery of possession or amend the plaint accordingly. Whereas, in this case, there is a categorical finding that the original plaintiff is in possession of the suit schedule property as on the date of filing of the suit and a thatched hut was constructed and electricity supply was given to it from the defendant's house and they are all new one i. e. after filing of the suit. On reappraisal of the entire evidence on record, this Court is of the view that the lower appellate Court has not committed any error in coming to the conclusion that the appellantdefendant violated the interim injunction and forcibly entered into the possession of the suit schedule property during the subsistence of the ad interim injunction. Therefore, as held by the Apex Court, which was followed by various High Courts in the judgements relied upon by the learned counsel for the respondents, which are referred to above, that since the plaintiff was dispossessed from the suit schedule property during the subsistence of the interim injunction granted by the trial Court, the Court can order for restoration of possession though not under S. 144, but under S. 151 of C. P. C. Therefore, the lower appellate Court rightly held that the respondent-plaintiffs are entitled for restoration of the status quo ante and also for permanent injunction.
16. In view of the above, there was no necessity for the respondent-plaintiffs to amend the plaint seeking restitution or restoration or recovery of possession of the suit schedule property. Thus, the substantial question of law raised by the learned counsel for the appellant pales into insignificance. The Second Appeal is, therefore, devoid of merit and liable to be dismissed.”
As this case relates to Debuttar property and Court being Guardian of the Deity is empowered to see that any steps taken by the sebaits of the Deities or the trustees is for benefit of the Deities and the said Debuttar property in the suit. Thus while granting any permission to any Sebait or trustees in any application in the suit the Court is to consider the benefit of the Deities.
Thus when Order dated 21st of May, 2009 passed by this Hon’ble Court is still subsisting and it was observed in the said order that it is passed for the benefit of the Debuttar Estate and the suit is not disposed Court is empowered to enforce the order dated 31st of May,2009 for the benefit of the Deities. Any letter or notice issued by any Sebait or Trustees in connection with the Debuttar property without leave of the Court during pendency of suit may not be binding upon the Court, being Guardian of Deities or upon the Deities.
However as the issue of maintainability of the suit is raised and there is direction by the Hon’ble Division Bench to decide the issue of maintainability of the suit first which is not varied by the Hon’ble Supreme Court but only liberty granted to the plaintiff to take out necessary application the issue of maintainability has to be decided. Now as the plaintiff in terms of the liberty granted by the Hon’ble Supreme Court has filed this instant application and the issue of maintainability may require certain time to be decided and which may also be taken before the higher forum on the decision the defendant although cannot be directed at this stage to pay the entire occupation charge due but considering the fact that the day today administration of the Debuttar Estate is suffering due to dearth of fund and huge taxes are due and payble and it is alleged that about Rs. 4 Crore is due and payable by Defendant, it would be just and reasonable that for the benefit of the Debuttar Estate Rs. 1,50,00,000/- (Rupees One Crore fifty lac) be directed to be paid by the Defendant to the plaintiff. This payment however will be without prejudice to the rights of the parties. As similar application being GA-6/2022 is pending for occupational charges it would be proper to dispose this application with liberty to the parties to incorporate subsequent facts if any by supplementary affidavit in the application GA-6/2022 pursuant to the decision in the issue of maintainability of the suit.
However considering the issues raised in this application regarding occupants of the suit property it would be just and proper to appoint special officer to conduct an enquiry at the suit property. Thus Ms Dipanwita Ghosh Learned Advocate, Ph- 9831548854, 9432597571, and Mr Rajaram Banerjee Advocate Ph 9830189403, 9903300703 are appointed as Joint Special Officers. Learned Special officers shall upon notice to the parties and their Learned Advocates visit the suit property take photographs of the building which is constructed or under construction as the case may be and ascertain the number of persons occupying the property, under what capacity they are occupying and the occupation charge paid by them, and to whom. The Learned Special Officers thereafter shall submit report on or before 15/01/2026.
Thus this application GA. 9 of 2025 stands allowed in part. The defendant is directed to pay ad-hoc amount of Rs. 1,50,00,000/- (Rupees one crore fifty lakh) to the plaintiff on account of occupation charges which is without prejudice to the rights of the parties. Such payments shall be made within 5 weeks from date.
As this application stands disposed parties are granted liberty to bring subsequent events regarding occupation charges in GA. 6/2022 by supplementary affidavit pursuant to the decision with regard to maintainability.
The Learned Special Officers as observed above shall file report on or before 15/01/2026 before Learned Regular Bench having determination as per. Learned Special Officers are entitled to a remuneration of 1000 G.M. each to be paid by the plaintiff.
Let the matter be placed before the Learned Regular Bench on 15/01/2026, for report of the Special Officers and payment compliance by Defendant.