http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 3  

CASE NO.: Special Leave Petition (civil)  16193 of 2007

PETITIONER: Purushottam Das Bangur & Ors

RESPONDENT: B.Majumdar Samajpati & Sons Hotel (P) Ltd

DATE OF JUDGMENT: 25/03/2008

BENCH: Tarun Chatterjee & Harjit Singh Bedi

JUDGMENT: JUDGMENT O R D E R REPORTABLE

SPECIAL LEAVE PETITION ) No.16193 of 2007

1.      This special leave petition is filed against the order  dated 24th of April, 2007 passed by the High Court at  Calcutta in APOT No.44 of 2007 whereby the High Court  had dismissed the appeal filed by the appellant challenging  an order passed by a learned Judge sitting in the original  side jurisdiction of the High Court. 2.      The petitioners are trustees of a trust named Gouri  Devi Trust, which at all times was and still is the absolute  owner of premises situated at 95A Chittaranjan Avenue,  Calcutta-700 073 (in short the disputed premises). The  disputed premises consists of a three storied building and  comprises an area of 1 Bigha 4 Cottahs of land and is  situated in the heart of the city. A portion of this building  comprising 11 rooms on the 1st floor and 11 rooms on the  2nd floor including 2 kitchen rooms was let out by the then  trustees of the said Trust to one M/s.B.Majumdar  Samajpati at a monthly rent of Rs.1610/-. In the year 1992,  at the request of the said B.Majumdar Samajpati, the  tenancy in respect of the tenanted portion was transferred  by the then trustees in favour of B.Majumdar Samajpati &  Sons Hotels Pvt. Ltd. which is now respondent before us in  this petition on the same terms and conditions contained in  a letter dated 18th of November, 1992 with effect from  December, 1992. On 5th of October, 2005, the petitioners  has filed the instant suit in the original side of the High  Court for a decree of Rs.12 lakhs and for mandatory and  perpetual injunction and for recovery of possession, and for  damages of mesne profit which have been described in the  prayer portion of the plaint and for other incidental reliefs.  3.      In this suit on an application filed before a learned  Judge, an Advocate Commissioner was appointed to make  inventory of the demised premises and also passed an order  of status quo. The advocate Commissioner after due notice  to the parties inspected the demised premises and made a  detailed inventory of the same in the presence of both the  parties and on 15th of November, 2005 submitted a detailed  report which is already on record. On a perusal of the said  report, it reveals that : (1)     The demised premises is used for running a  hotel in the name and style of "Hotel Avenue  Club".  (2)     In the third floor : (i)      a makeshift store room of the Western side

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 3  

of the Terrace (made up to Bamboos and  Canvas) are being used as a makeshift store  room in which fridge and freezers and other  utensils dumped on the north western  corner of the said makeshift of the store  room. From the said report, it also appears  that a makeshift mezzanine made of  plywood having canvases and other utensils  dumped on top of it. (ii) On the eastern side of the terrace, there is a  room which is also used as a store room  having a number of racks inside it with books,  papers and soft drink bottles. ( 10’ x 6’) iii) The rear wall of the room on the eastern  side is a common wall of another room  adjacent to the front room.  The rear room is also used as a store room and  it is filled with utensils for buffet. (8’ x 5’) iv) 2 Rooms adjacent to the front room (both  14’ x 10’ ) v) There is a small passage of terrace on the  eastern side of the terrace, which leads to the  southern wall of the premises. vi) There is one small room for ironing clothes  and two small toilets. From there if one turns  to the northern side and walks towards the  stair case, one will find a kitchen with is  approximately 30’ x 15’. (2 rooms made into  one by demolishing the partition wall inside.  vii) A huge satellite TV Antenna having a  diameter of 14 Feet mounted on top of the  room, which is in front of the stair case on the  eastern side.

4.      A perusal of the report of the Advocate Commissioner,  as noted herein above, would show  that he found only one  room in front of the staircase on the eastern side and two  rooms on the southern side. He also noted that almost the  entire terrace was converted by the respondent for the  purpose of the hotel business and the character of the  terrace had been changed considerably.   5.      From the aforesaid report of the Advocate  Commissioner, it would also be apparent that the  respondent has unauthorisedly occupied terrace of the  demised premises and has been using by making makeshift  arrangement for the purpose of running the hotel. In that  view of the matter, an application was filed by the  petitioners before the learned Single Judge of the High  Court to direct the respondent to deposit additional amount  as the respondent has wrongfully and illegally trespassed  the property of the petitioners and not paying any amount  with regard thereto. The trial court as well as the appellate  court on a prima facie finding did not come to a conclusion  in favour of the petitioners and the application has been  rejected by the learned Single Judge as well as by the  Division Bench of the High Court. This special leave petition  has been filed by the petitioners against the aforesaid  orders of rejection which has been heard in the presence of  the learned counsel for the parties after issuing notice.  

6.      In our view, the only order that can be passed in the  special leave petition is to direct the respondent to deposit a  sum of Rs.25,000/- every month in court without going into  the merits as to whether the respondents are entitled to use

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 3  

the terrace and also the makeshift arrangement made by  him on the same for the purpose of running the hotel in  addition to their tenancy. It is no doubt true that the court  will decide at the final stage whether the construction or the  makeshift arrangement made in the terrace and other  portions of the demised premises by the respondents were  unauthorized or not and whether the terrace and other  places where makeshift arrangement has been made by the  respondent for the purpose of running the hotel would be  considered at the time of final decision of the suit.  Therefore, after hearing the learned counsel appearing for  the parties and after going through the allegations made in  the application and the objections filed therein and the  report of the Advocate Commissioner, in our view, it would  be fit and proper that by an interim measure a direction  must be given to the respondent to deposit Rs.25,000/-  every month in court within 15th of each succeeding month,  the first of such deposit shall be made by 15th of April, 2008  and in default of any of the two deposits, it would be open  to the petitioners to recover the amount from the  respondent in accordance with law.  

7.      We make it clear that we have not gone into the merits  as to whether the tenancy consists of terrace and the  makeshift arrangement of rooms in the terrace would be  included in the tenancy agreement of the respondent which  shall be decided at the final hearing of the suit. We also  make it clear that direction to deposit the rent of  Rs.25,000/- per month to use the terrace rooms and other  makeshift arrangement would not mean that the  respondent are not the tenants of the said rooms which are  now being used by them for running the hotel business and  we keep it open for the parties to lead evidence on that  question which shall be decided after taking evidence at the  final hearing of the suit.

8.      Before parting with this order, it would be necessary  for us to refer to a decision of this Court in the case of  Metro Marins & Anr. Vs. Bonus Watch Co.(P) Ltd. & Ors.  [(2004) 7 SCC 478] which was strongly relied by Mr. Jaideep  Gupta, learned senior counsel appearing for the  respondents. Since, we are not granting any order of  injunction against the respondent excepting that a direction  has been made on the respondent to deposit Rs.25,000/-  per month, we are not in a position to rely on this judgment  for the purpose of deciding this special leave petition.   

9.      With the above direction, the special leave petition is  disposed of and the order of the High Court is modified to  the extent indicated above.