Calcutta High Court
Sri Sri Lakshmi Thakurani vs Promod Kumar Agarwal And Anr on 11 June, 2025
Author: Arijit Banerjee
Bench: Arijit Banerjee
OD-11
ORDER SHEET
APOT/64/2025
WITH
CS/36/2021
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
ORIGINAL SIDE
SRI SRI LAKSHMI THAKURANI
VS
PROMOD KUMAR AGARWAL AND ANR
BEFORE:
The Hon'ble JUSTICE ARIJIT BANERJEE
AND
The Hon'ble JUSTICE RAI CHATTOPADHYAY
Date : 11th June, 2025.
Appearance:
Mr. Meghnath Dutta, Adv.
Mr. Lalratan Mondal, Adv.
..for the appellant
Mr. Sudip Deb, Sr. Adv.
Ms. Ipsita Ghosh, Adv.
..for the respondents
Dictated by Arijit Banerjee, J.
The Court: This appeal is directed against a judgment and order
dated February 12, 2025, whereby the appellant’s application for summary
judgment under Chapter XIII-A of the Original Side Rules of this Court, was
dismissed by a Learned Judge of this Court.
It is not in dispute that the respondents were, and they claim that
they still are, tenants in respect of the suit premises. We have seen the
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concerned lease deed that was executed in the year 1995. The lease was for
a period of 25 years. That period expired on October 31, 2020.
The appellant filed CS/36/2021 claiming a decree for eviction of
the respondents from the suit premises and other reliefs. After the
respondents/defendants entered appearance in the suit, the
appellant/plaintiff took out a summons for summary judgment contending
that the defendants have absolutely no defence and the facts of the case
disclose no triable issue. According to the plaintiff, it is an open and shut
case and, therefore, a full-fledged trial is wholly unnecessary.
The Learned Judge recorded the respective contentions of the
parties. The Learned Judge noted that the defendants contended that even
after expiry of the lease by efflux of time, the plaintiff accepted rent from the
defendants. Therefore, the defendants have become monthly tenants or at
least tenants by holding over in respect of the suit premises. The Learned
Judge also noted that by an order dated December 13, 2021, a Learned
Judge of this Court kept the point of maintainability of the suit open. The
defendants contended that if the suit is decreed summarily, that order
would become infructuous.
The plaintiff, however, contended before the Learned Judge that no
rent was received by the plaintiff from the defendants after expiry of the
lease on October 31, 2020. The money that was transferred by the
defendants, in the sum of approximately Rs.11,000/- consisted of rent for
the month of July, 2020 and the differential amount of enhanced rent in
terms of the 10% enhancement clause in the lease deed. The defendants, of
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course, contended that the said sum of approximately Rs.11,000/- was
tendered on account of rent for the period July to December, 2020.
The Learned Judge referred to various authorities cited by the
parties including the decisions of the Hon’ble Supreme Court in State Bank
of Hyderabad vs. Rabo Bank reported in (2015) 10 SCC 521; R.N. Gosain vs.
Yashpal Dhir reported in (1992) 4 SCC 683; IDBI Trusteeship Services
Limited vs. Hubtown Limited reported in (2017) 1 SCC 568; Kadhir Masthan
Rowther vs. Segammal reported in XI L.W.J 197; Chairman, State Bank of
India and Another vs. M. J. James reported in (2022)2 SCC 301 and
Prabhakar vs. Joint Director, Sericulture Department and Another reported in
(2015) 15 SCC 1, which were relied upon by the defendants. Finally, the
Learned Judge came to the conclusion that the defence raised by the
defendants is a fair and reasonable one and, therefore, unconditional leave
should be granted to the defendants to defend the suit. Accordingly, the
Learned Judge dismissed the plaintiff’s application for summary judgment.
Hence this appeal at the instance of the plaintiff.
We have heard Mr. Dutta, learned counsel representing the
appellant at some length. We have not called upon Mr. Deb, learned Senior
Counsel representing the respondents.
We have noted above the respective contentions of the parties
advanced before the learned Single Judge. In our opinion, the issues raised
by the defendants need to go to trial. The defence raised by the respondents
cannot be said to be moonshine so as to disentitle the defendants to contest
the suit.
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Mr. Dutta says that some condition should be imposed on the
defendants and unconditional leave ought not to be granted. We cannot
agree with him. We would have imposed conditions if we had serious doubt
about the defendants’ good faith or genuineness of the triable issues. We
cannot say that the defence is wholly improbable. We cannot say that there
is no genuine triable issue. Hence, we are not inclined to impose any
condition on the defendants.
We cannot lose sight of the fact that this is an intra-court appeal.
The Appeal Court will not interfere even if the Learned Single Judge’s order
is merely erroneous in the opinion of the Appeal Court. It is only when the
order is wholly erroneous or perverse that interference is called for. That is
not the case here. The view taken by the Learned Single Judge is definitely
a plausible and probable one.
In view of the aforesaid, we see no reason for interfering with the
order under appeal, which accordingly stands dismissed.
There will be no order as to costs.
After this order is dictated, Mr. Dutta says that the defendants are
enjoying the suit property without paying anything for a long time. We
direct the defendants to deposit with the Registrar, Original Side, without
prejudice to the rights and contentions of the parties, the rent/occupational
charges at the rate last paid for the period for which the same remains
unpaid, within three weeks from date. In case the same is not done, the
appellant will be at liberty to mention the matter before us.
This matter shall be listed again three weeks hence only to record
compliance of this order by the respondents.
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The hearing of the suit is expedited. There will be an order for
cross-discovery within three weeks from date; inspection forthwith
thereafter. The parties will be at liberty to mention the matter for hearing
before the Learned Single Judge once the suit is ready for hearing.
(ARIJIT BANERJEE, J.)
(RAI CHATTOPADHYAY, J.)
bp.