- (1.) This Court has heard the learned Advocates for the respective parties in respect of the application for stay being CAN 3384 of 2010. The present second appeal arises out of a suit for eviction. The plaintiffs/respondents have obtained a decree for eviction against the defendant/appellant/petitioner. The present second appeal has been filed by the defendant/appellant challenging a decree for eviction and the second appeal has been admitted for hearing. With regard to the application for stay there is an interim order that till the disposal of the application the respondents have been restrained from executing the decree impugned in this appeal. The application for stay came up for final hearing and the parties have filed their respective affidavits.
(2.) It appears from the certified copy of the decree that the "schedule of the suit tenancy" is the entire ground floor flat exclusive of Eastern garage and inclusive of mezzanine room on the garage, a servant's quarter and a lawn on backside all in the ground floor of premises No. 4/1, Orient Row, P.S. Beniapukur, Calcutta-17. In view of the pendency of the present appeal the appellant/petitioner has prayed for stay of execution case No. 2 of 2001 pending before the learned Civil Judge (Senior Division) Sealdah. The plaintiffs/opposite parties have filed an affidavit-in-opposition wherein they have stated that the property is situated in a prime location in Kolkata and the total area under occupation of the defendant/appellant is about 2200 square-feet the current rate of rent which would not be less than Rs. 30/- per square feet and the suit flat is capable of fetching Rs. 66,000/- per month at the present market rate and the plaintiffs/respondents are entitled to such occupation charges. The plaintiffs/respondents by way of supplementary affidavit has brought on record a valuation report in respect of the suit premises prepared by M/s. Talbot & Company. From the said valuation report it appears that the accommodation on the ground floor is three bed rooms, three toilets, living room, dining room, kitchen and verandah and the carpet area of such accommodation is 1900 square feet more or less. The area of the other portions, as indicated in the said report, are Garage-174 square feet, Mezzanine room 338 square feet, Servant's room 77 square feet and Lawn 1800 square feet more or less. The report says that the building is in good state of repairs and the property is situated in a good residential area, over-looking Park Circus Maidan. It further appears that in the opinion of the said valuer the fair market rental value per month of the aforesaid property on the ground floor are as follows: as in November, 2000 Rs. 28,500/-, as in November, 2005 Rs. 40,500/- and as in June, 2010 Rs. 57,500/-. The appellant has in its affidavit-in-reply denied and disputed the report of the said M/s. Talbot & Company and has relied upon a letter dated 9th December, 2010 written by one Sri Grish Chopra wherefrom it appears that it has been stated that the rent for residential flats in and around Orient Row for approximately 2000 square feet would be maximum Rs. 25000/- per month and for commercial purposes it would be Rs. 30/- per square feet. It appears from the said letter the said Sri Chopra is not a valuer as such but he represents one M/s. Exclusive Real Estate Services. In the said letter Sri Chopra has also mentioned that a flat in 'Srijan Heritage' of 2000 square feet could fetch rent at the rate of Rs. 20000/- per month plus the amount required for maintenance. It appears that even though the appellant/petitioner has denied and disputed the Talbot & Company's valuation report it has not specifically denied the measurements contained in the said report and has also not placed on record the measurements in details of the suit property which according to the appellant/petitioner would be the correct measurements. Thus, the measurements of the ground floor in question as indicated by M/s. Talbot & Company can be taken into consideration.
(3.) The question that has arisen in the present application is what should be the condition to be imposed upon the appellant/petitioner for the purpose of extending the interim order of injunction till the disposal of the appeal. It appears that the contractual rent was Rs. 1300/- per month which was later enhanced to Rs. 1600/- per month.;