Ishan Chandra Das, J. - (1.) HEARD the learned Advocate for both the parties.
(2.) IN the instant revisional application, the petitioner being the appellant of the Ejectment Appeal No. 25/2013 has questioned the propriety of the Order No. 7 dated 29th November, 2013 passed by the learned Additional District Judge, 1st Court at Sealdah, while staying the operation of the Ejectment Execution Case No. 20 of 2013 pending before the learned Civil Judge (Junior Division), Additional Court, Sealdah. The learned Counsel for the petitioner submitted that his client was a tenant in respect of a part of the premises, being the subject matter of Ejectment Suit No. 234 of 2005, consisting of one room and adjacent varendah with common bath and privy and common courtyard in the ground floor, formerly southern portion of the building at Premises No. 153/3B of Karaya Road, P.S. Beniapukur measuring about less than 200 sq.ft. at a rental of Rs. 20/ - per month. Drawing my attention to the Commissioner's report at page 58 of the application, he pointed out that his client was ready to pay the occupational charges for occupying the premises in question but criticising the findings of the learned First Appellate court, he drew my attention to the order impugned and submitted that the learned court below while staying the execution process directed his client to pay a sum of Rs. 5,000/ -per month as occupational charges in respect of one room and adjacent varendah with common bath and privy and common courtyard measuring less that 200 sq.ft. though he was a tenant in respect of the said premises at a rental of Rs. 20/ - per month. He with all fairness admitted that the area where the demised premises is located is at the heart of the city of Calcutta but at the same time, financial condition of his client and the rate of rent paid by him immediately before the decree of eviction of his client takes place should be considered before arriving at a conclusion regarding direction of payment of the occupational charges in respect of an area which is less than 200 sq.ft. being the subject matter of Ejectment Appeal No. 25/2013.
(3.) HIS learned counterpart, on the other hand, submitted that the petitioner was inducted in respect of 592 sq.ft. and urged that the learned court below while passing the order impugned considered the pros and cons of the matter in question and came to the conclusion that the petitioner should be directed to pay a sum of Rs. 5,000/ - per month towards the occupational charges. Drawing my attention to the averments as contained in the body of the plaint of Ejectment Suit No. 234 of 2005, he submitted that his client tried to file the suit for eviction of the tenant on the ground of defaulter in payment of rent as well as reasonable requirement in respect of the tenanted premises located in such an area where the rate of rent is very high and the opposite party should not be asked to take a lenient view particularly when his client has been denied to enjoy the fruit of the decree for the time being. Clarifying the provision of Order XLI Rule 5 of the Code of Civil Procedure, he urged that mere preferring an appeal does not operate as a stay on the decree or order appealed against but he admitted with all fairness that the appellate court has discretion to grant an order of stay subject to the conditions as enumerated in Rule 5(3) of Order XLI of the Code.;